LETTER TO WILLIAM J. CASEY FROM MARY CALHOUN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M00539R001501860019-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 98
• Document Creation Date: December 22, 2016
• Document Release Date: October 9, 2009
• Sequence Number: 19
• Publication Date: June 20, 1985
• Content Type: LETTER

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THE NATHAN HALE INSTITUTE
SUITE 208
422 FIRST STREET, S.E.
WASHINGTON, D.C. 20003
[phone]
June 20, 1985
The Honorable William J. Casey
Director
Central Intelligence Agency
Washington, D.C. 20505
Executive Registry
'2533
Dear Mr. Casey:
The Nathan Hale Institute is pleased to provide
you with this copy of U.S. Counterintelligence Today
by Francis J. McNamara. Mr. McNamara is a recognized
expert in the fields of intelligence and counterintell-
igence having served as Staff Director of the House Com-
mittee on Internal Security, as Executive Secretary of
the Subversive Activities Control Board and as a combat
intelligence officer during World War II. Mr. McNamara
has written, using only unclassified sources, this timely
treatise on the subject of foreign intelligence directed
against the United States.
In this book you are quoted on pages 61-62, 72, and 23.
Your comments on your mention and on the book itself
are most welcome.
We look forward to receiving your response and we
thank you for your participation.
Mary CClhoun
Director
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"I only regret that I have but one life to
lose for my country. " - Nathan Hale
THE NATHAN HALE INSTITUTE
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THE NATHAN HALE INSTRI TE
SUITE 208
422 FIRST STREET, S.E.
WASHINGTON, D.C. 20003
[phone]
Washington, D.C. 20505
Central Intelligence Acency
Dep. Director
The Honorable John McMahon
The Nathan Hale Institute is pleased to provide
you with this copy of U.S. Counterintelligence Today
by Francis J. McNamara. Mr. McNamara is a recognized
expert in the fields of intelligence and counterintell-
igence having served as Staff Director of the House Com-
mittee on Internal Security, as Executive Secretary of
the Subversive Activities Control Board and as a combat
intelligence officer during World War II. Mr. McNamara
has written, using only unclassified sources, this timely
treatise on the subject of foreign intelligence directed
against the United States.
In this book you are quoted on pages 34 and 35.
Your comments on your mention and on the book itself
are most welcome.
Dear Capt. McMahon:
thank you for your participation.
We look forward to receiving your response and we
cerely,
~0i')) L
low
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U.S. Counterintelligence Today
By Francis J. McNamara
"I only regret that I have but one life to
lose for my country. " - Nathan Hale
THE NATHAN HALE INSTITUTE
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"I wish to be useful, and every kind
of service necessary to the public
good becomes honorable by being
necessary. If the exigencies of
my country demand a peculiar
service, its claims to perform that
service are imperious. "
-Capt. Nathan Hale
1755-1776
The Nathan Hale Institute is an independent organization devoted to nonpartisan research in the
area of domestic and foreign intelligence with particular emphasis on the role of intelligence opera-
tions in a free society. The Institute's principal purpose is to increase public awareness and
stimulate debate and scholarly pursuit of important intelligence-related issues.
Classified by the Internal Revenue Service as a publicly-supported Section 501(c)(3) educa-
tional and research organization, the Institute welcomes grants and contributions from individuals,
foundations and corporations. All contributions to the Institute are tax-deductible under the Internal
Revenue Code and the Institute will provide documentation to substantiate tax-deductibility of a con-
tribution or grant.
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U.S. Counterintelligence Today
By Francis J. McNamara
"I only regret that I have but one life to
lose for my country. " - Nathan Hale
THE NATHAN HALE INSTITUTE
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Francis J. McNamara
A combat intelligence officer in Burma during World War II, Mr. McNamara has since
devoted his activities overwhelmingly to the field of national security, holding key
positions in the private, organizational and governmental sectors while doing so. In
addition to other posts, he has served as Director of Research and as Staff Director of the
House Committee on Internal Security, as Executive Secretary of the Subversive Activities
Control Board and Executive Director of The Hale Foundation. He has lectured and
written extensively on Communism, intelligence and related security matters.
Copyright ?1985
THE NATHAN HALE INSTITUTE
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U.S. Counterintelligence Today
Contents
Page
The Nature of Counterintelligence ........................................... 2
Domestic "Political" Intelligence Essential ................................... 6
The "Most Important" Counterintelligence Mission ........................... 14
The "Counter" in Counterintelligence ....................................... 18
The Criminal Standard. and Counterintelligence ............................... 20
The Experts Look at U.S. Counterintelligence ................................. 23
Definitional Confusion ..................................................... 24
Criminal Standard Imposed on Counterintelligence (the Levi domestic security
guidelines) ......................................................... 30
The Need for Analysis ..................................................... 33
Control By Amateurs ...................................................... 35
Little or No "Counter" in U.S. Counterintelligence ............................ 39
Manpower Shortage ....................................................... 43
Loss of Institutional Memory ... ......................................... 46
Lack of Common Data Base ................................................ 48
Excessive Number of Directives ............................................. 49
Crippling Restrictions in Directives .......................................... 52
The Foreign Intelligence Surveillance Act (FISA) .............................. 59
FISA's Criminal Standard ............................................... 63
What Need for FISA? .................................................. 64
Tremendous Informant Loss ................................................ 68
Recent Developments ................................................... 70
Huge Domestic Intelligence Loss ............................................ 73
Presidential and Other Assassination Attempts ............................. 74
Federal Personnel Security ............................................... 75
Conclusion and Recommendations ........................................... 76
Footnotes ................................................................ 80
Index .................................................................... 85
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U.S. Counterintelligence Today
Intelligence and its inevitable offspring, counterintelligence, have both received a
flood of unfavorable publicity in the United States during the past decade. As a result, the
real need and value of counterintelligence as a national resource is little understood by the
public and even by many government officials (including some actually involved in
national security-intelligence matters). As a further consequence, this special kind of intel-
ligence activity is all too often simply neglected, though it is an indispensable instrument in
the protection of U.S. national interests.
This is because the last ten years of damaging exposure and virulent criticism of all
aspects of U.S. intelligence activities-virtually always proclaimed to be based on noble
national interests-have led to few serious attempts to analyze American counterintel-
ligence in any balanced, comprehensive way. Its challenges, capabilities and shortcomings,
successes and failures have not been scrutinized in terms of effecting functional improve-
ments or greater public acceptance.
A thorough, overall analysis of this type is much beyond the limits of this study, which
merely aims at pinpointing a few of the basic problems and weaknesses in the U.S. counter-
intelligence effort and attempts to suggest the steps necessary to correct them.
As a general rule, of course, matters of counterintelligence are closely held-as they
should be-making it often impossible to demonstrate the quality of certain performances
with detailed facts about particular case incidents. Despite this, enough is known publicly
about certain factors powerfully affecting American counterintelligence to demonstrate
that, unfortunately, it cannot be what it should be, that it is not being allowed to support
national security in a way the American people have a right to expect, and that corrective
action is crucial.
A clearer understanding of why and how these factors work against the best interests
of the nation and its people may result from a general consideration of the concept of
counterintelligence, and of its mission and support needs.
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The Nature of Counterintelligence
There was a time when counterintelligence meant only what the word itself generally
connotes-an effort to counter, to defeat, frustrate or offset the operations of foreign
intelligence agencies. In those days it was thought of as counterespionage and nothing
more, because the stock-in-trade of all intelligence services was to steal other nations'
secrets. Intelligence agencies rarely engaged in other, non-information-gathering activities
of the type now generally referred to as "covert action."
That old, simple concept is now outmoded-primarily because the Soviet intelligence
services, the KGB, the GRU and their variously designated predecessors, have engaged in
much more than espionage during the past 65 years. As operational arms of an aggressive
revolutionary power, they have been involved not only in open as well as clandestine intel-
ligence collection, but also in assassination, terrorism, disinformation, forgery, agent-of-
influence operations and other varied forms of subversion and disruption.
More than 30 years ago, the chairman of the Senate Foreign Relations Committee,
Senator Alexander Wiley, explained some of the changes that had already taken place. In
his introduction to a report by the committee's special subcommittee on security affairs, he
observed,
The USSR has, in effect, revolutionized the entire intelligence and related fields in
international relations. It has placed espionage on an assembly-line basis, graduating
hundreds and thousands of agents, expertly trained as cadres in the interrelated skills of
agitation, insurrection, espionage, sabotage, and subversion in countries throughout the
world.'
The non-collection "intelligence" operations described by Senator Wiley are elements
in a wide range of undertakings the Soviets call "active measures" (aktivnye meropri-
yatiya), actions taken by their agents and their collaborators to further Moscow's long-
range goal of world domination and its immediate foreign policy manipulations towards
that end. Some active measures are clandestine-so shrouded in secrecy that no one except
.the KGB officers and Communist party Politburo members involved know they exist.
Some measures are covert, open developments in which only the Soviet hand is concealed
so that they appear to be the independent actions of others. Finally some are completely
open and visible (i.e., Radio Moscow broadcasts).
As a general rule, those active measures requiring the greatest secrecy are carried out
by the KGB, while those that are more or less open are assigned to other Soviet government
or party agencies. Moscow's control of a global network of non-ruling Communist parties,
for example, is an active measure - one of the major forms of subversion in which it
engages. It is, in fact, the most obvious form of subversion in the world today and has been
for many years. Yet control of these parties is not, strangely enough, vested in the KGB.
Why not? Because these various national parties are "political" instruments openly
engaged in serving the USSR's ultimate aim and immediate policy goals. As such they are
the primary province of the one Soviet body that has the power to determine these
goals-namely, the Politburo of the Central Committee of the Communist Party of the
Soviet Union (CPSU). Because controlling these national parties and coordinating their
activities so they serve Soviet interests is so monumental a task (there are over 70 pro-Soviet
parties around the- world today), the Central Committee long ago established a special
arm-its International Department-to carry out this type of active measure and others
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similar to it (i.e., directing major international Communist fronts such as the World Peace
Council). 2
The Kremlin's active measures are actually a form of warfare-for the most part inter-
nal-waged unremittingly against targeted nations by its unconventional Communist
armies. The tremendous importance the Kremlin attaches to active measures in its global
plans is indicated by the fact that it spends billions on them annually., Given the realities of
its perennially tight economy and its calculated ruthlessness, it follows that the Soviet
Union must be convinced beyond all doubt that such measures are highly effective instru-
ments for manipulating and undermining the nations it hopes to bring within its orbit.
The U.S., like all the other nations which are the targets of Soviet espionage and active
measures, must take steps to unmask and defeat them. This country's response, like the
Kremlin's offensive, has been open, covert and clandestine. The Voice of America (VOA)
and the United States Information Agency (USIA) operate openly to counter Radio
Moscow and other public Soviet propaganda operations. The Central Intelligence Agency
(CIA) operates covertly, undertaking "special activities" (formerly "covert action")
primarily to support U.S. national interests abroad, but also to counter Soviet active
measures undertaken in foreign countries. The Federal Bureau of Investigation (FBI) and
other agencies with counterintelligence functions (including the CIA) operate clandestinely
both here and abroad to frustrate foreign espionage and intelligence-gathering activities in
general and on the home front, to defeat Moscow's active measures which are carried on
within the U.S.
Counterintelligence can thus no longer be conceived as limited to countering Soviet or
other foreign espionage. Its duties have had to be greatly expanded. Basically, its function
today is to protect this country from all those unconventional (non-military and non-
diplomatic) threats to its security which are carried out, no matter by whom, in a covert or
secret manner. U.S. counterintelligence, in other words, must now be concerned not only
with specific KGB espionage and other information-collecting operations, but also with
the activities of many other Soviet agencies and institutions which target this country for
subversion. The same U.S. concern must apply, of course, to penetration by all other Com-
munist bloc nations and by any other country that routinely or occasionally undertakes to
undermine U.S. society.
There are two key concerns. Intelligence agencies wield enormous influence over
world affairs because they provide the information upon which national leaders base their
most vital decisions-those concerning their countries' military capabilities, the conduct of
their foreign relations, and their internal security. Given the core role which intelligence
thus plays in world events, it follows that as soon as a nation establishes a viable intel-
ligence agency, opposing powers will try to penetrate it. Such penetration is extremely
dangerous to any nation. It provides access not only to the country's most tightly held and
sensitive secrets, but also to the specific plans that will determine its actions in the world
arena. Detection of such intelligence agency penetration by foreign powers is therefore one
of the most important of all counterintelligence functions.
Depending on the level at which it is achieved, penetration can lead to the following:
acceptance of false or misleading information planted by the opposition; disclosure to the
enemy of the identities of clandestine intelligence personnel and of intelligence plans,
programs, techniques and targets; deliberately incorrect analysis of acquired intelligence;
and, finally, to blocked or inadequate dissemination of vital intelligence to policymakers
who should receive it. Any of these can have seriously adverse effects on a nation's defense
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preparedness, on the successful conduct of its foreign affairs and the safeguarding of its
internal security.
It is obvious then that without highly effective counterintelligence to protect it from
penetration, any intelligence agency can become largely a waste of a nation's re-
sources-time, money and effort-a danger rather than an asset, because penetration will
be certain and the agency will end up serving others rather than the nation it is supposed to
protect.
It follows from this that penetration of a counterintelligence agency is even more
dangerous. It can block revelation of any penetration of the nation's vital intelligence
arms, inform the enemy of security weaknesses or loopholes it can exploit, and, in addi-
tion, alert the enemy to dangers to its own activities and agents stemming from the pene-
trated agency's acquired knowledge, techniques and operations.
Counterintelligence is important to an effective intelligence program for still another
reason. A nation's intelligence collectors and analysts-on whom its security de-
pends-cannot do their best work unless they know they are backed up by a highly profes-
sional counterintelligence corps in which they have confidence. Without such confidence,
they will always be plagued with doubts about the accuracy of the information they are
collecting and interpreting. If they fear that what they are doing may do more harm than
good, that they lack a vital safeguard, they will obviously be unable to deliver peak per-
formance.
The U.S. counterintelligence problem is necessarily a global one because this nation
has many installations abroad which collect and/or receive sensitive information and
influence defense and foreign policy. The United States mainland, however, must be the
major concern of its counterintelligence services because it is the main depository of the
sensitive information hostile nations want to acquire, the place where all key security
decisions are made and the control center of its intelligence services. While many
government agencies in the U.S. are natural targets of hostile foreign intelligence agencies,
the most important ones are obviously the White House, the State and Defense depart-
ments and our major intelligence services-the CIA, FBI, National Security Agency
(NSA), and the Defense Intelligence Agency (DIA). Recent developments have also made
institutions such as the Congress and the Department of Justice the focus of major interest
by hostile agents.
Soviet penetration of U.S. intelligence/security services is the task of Directorate K,
also known in the field as "Line KR," of the KGB's First Chief Directorate. Some years
ago, the KGB instructed its Line KR officers in Western Europe:
In accordance with the decision of the Collegium, it is imperative that you take imme-
diate steps to utilize all available possibilities for acquiring or injecting our agents in the
intelligence and counterintelligence services of the USA, U.K., German Federal Republic,
and France. You and the Residency must clearly understand that without the presence of
agents in the specified organizations ... we will not be able to conduct operations success-
fully under difficult circumstances; and we are not in a position to guarantee the security of
the work of Soviet intelligence services abroad and the safety of Soviet nationals [illegal
agents] in the countries of your assignments.4
Such instructions would apply with special force to Line KR officers assigned to the
U.S., which the Soviet Union has repeatedly described over a period of many years as its
"main" and "number one" enemy. Unfortunately, there is evidence dating back many
years, that the KGB has had some success in carrying out its penetration mission here.
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General Walter B. "Beetle" Smith, former ambassador to Moscow and then CIA
director, testified before the Committee on Un-American Activities on October 13, 1952.
During the hearing he remarked, "I believe there are Communists in my own organiza-
tion." 3 Smith also told the committee that "we have turned up abroad people within our
own organization.... We have from time to time discovered them." 6
At another point in his testimony he was asked if he knew who the Communists were
in the CIA. He replied:
I do not. I wish I did. I do everything I can to detect them, but I am morally certain,
since you are asking the question, that there are. I believe that they are so adroit and adept
that they have infiltrated practically every security organization of Government in one way
or another. And it is our function to detect them where possible.'
Later in the hearing he added:
My assumption would be that somewhere in some level there probably is an agent....
I would certainly, Mr. Chairman, be foolishly complacent if I acted on any other assump-
tion than that some were there.'
Two employees of the supersecret National Security Agency (NSA), both of whom
had access to top secret cryptologic information, defected to the Soviet Union in 1960. A
13-month investigation of their backgrounds and related matters by the Committee on Un-
American Activities revealed that one of them, William H. Martin, was a sexual masochist
who had practiced bestiality and had associated with Communist Party members at the
University of Illinois, when sent to study there as an NSA employee in 1959, the year before
he defected. It also revealed that the other employee, his close friend, Bernon F. Mitchell,
was a homosexual who had secretly travelled to Cuba with Martin in December 1959 in
violation of NSA regulations, and that both men were known to their co-workers at NSA
as being highly critical of the U.S. and complimentary toward the Soviet Union.
Last year, for the first time in FBI history, one of its special agents was formally
accused of spying for the Soviet Union. On October 12, 1984 a federal grand jury in Los
Angeles returned a 13-count espionage, bribery and conspiracy indictment against Richard
W. Miller, a 47-year-old, 20-year veteran of the Bureau, and Svetlana Ogorodnikova, a
34-year-old self-described KGB major, and her former husband, Nikolai, from whom she
had been legally separated since September 1982. A Soviet vice consul in San Francisco,
Aleksandr Grishin, was also named in the document but not indicted because he enjoyed
diplomatic immunity.
Miller, assigned to the Los Angeles office of the FBI, had been working in foreign
counterintelligence since 1982. He admitted a "personal" relationship with Svetlana and
his agreement to turn classified FBI documents over to her in return for $65,000 in gold and
cash. The Ogorodnikovas, born in the Soviet Union, had emigrated to the U.S. in 1973 and
had permanent resident alien status. She was on welfare at the time of her arrest; he was
earning about $24,000 per year as a meatpacker. Some of his salary went for her support
and that of their son.
An FBI affidavit stated that one document classified "secret" which Miller had given
Svetlana "would give the KGB a detailed picture of FBI and U.S. intelligence activities,
techniques and requirements."
A number of earlier incidents had also caused concern about possible KGB penetra-
tion of the FBI. The late William C. Sullivan, a 30-year Bureau veteran who retired in 1971,
had headed its Domestic Intelligence Division during the years 1961-70 and was writing
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(with the help of a reporter) a book about his Bureau career when he was killed in a 1977
hunting accident. As published two years later in his and the reporter's name, the book and
a magazine article based on it contained distorted accounts of two of the incidents. In one,
a Soviet defector during the '60s had allegedly informed the FBI that an agent in its Wash-
ington field office had sold the Soviet Embassy three top secret documents on U.S. naval
operations; that the defector did not know the agent's name and the Bureau never discov-
ered who he was. Sullivan reportedly commented, "For the first time my worst fears
seemed to have come true; the Russians had bought one of our men." '
The other case involved a claim that someone in the counterespionage unit of the N.Y.
FBI office had been working as a Soviet agent and had Sullivan asserting that "At the time
I left the FBI in 1971, the Russians still had a man in our New York office and none of us
knew who he was." 10
Actually, the Washington office case was not a KGB penetration and the special agent
involved was known to the FBI. The New York case concerned a possible penetration that
was taken very seriously, with extensive effort made to resolve the question. No conclusive
evidence was developed, however, and the possible penetration was neither proved nor dis-
proved.
In light of the above facts, it is hardly surprising that former CIA director Richard
Helms, one of this country's most experienced intelligence professionals, would state in
1978,
Counterintelligence is terribly important, because without an effective counterintel-
ligence program-both in the CIA and the FBI-the problem of double agents and infil-
trators is insurmountable."
Domestic "Political" Intelligence Essential
An Interagency Intelligence Study of Soviet active measures submitted to the House
Intelligence Committee by the CIA in 1982 stated:
The primary target of Soviet active measures is the United States, which the Soviet
Union has long regarded as its main opponent and the principal obstacle to carrying out its
policies."
It has also been recognized for years, of course, that the U.S. is also the prime target of
Soviet espionage efforts.
How does Moscow achieve its espionage and active measures goals in the U.S.?
Through Americans.
Like all non-Communist nations of any importance, the U.S. has had many secrets
stolen by the KGB and other Communist bloc intelligence services and, as indicated, its
intelligence services have been penetrated. So far as is known, however, no one who was
actually a national of any Communist power, serving as an agent of its intelligence service,
has ever acquired direct lawful access to classified information through employment in any
U.S. government agency.
There is always the American link, the U.S. citizen who performs the act of theft for
the foreign espionage agent, the government employee or contractor who has access to the
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information desired and purloins or copies it for the foreign spy.
The same is true in regard to Soviet active measures. Soviet and other Communist bloc
nationals on the payroll of the International Department, intelligence services or other
agencies do not openly sit on any ruling bodies of the U.S. Communist Party, its fronts, or
of any U.S. affiliates of Moscow's international fronts. Neither do they publicly control
other agitation and propaganda operations in this country which are obviously directed by
the Soviets and which serve Soviet ends. In all cases, again, there is the American
hand-the Communist, the collaborator, fellow traveler, dupe or "useful idiot" who
carries out such work for them.
Surveilling Americans and collecting domestic intelligence are, therefore, obviously
essential to any effective counterintelligence. They are the key actors in the Kremlin's
undermining projects of all types carried out in this country.
It would appear from this that all Americans with access to sensitive information
would.be the key concern of U.S. counterintelligence agencies in their efforts to combat
hostile foreign espionage. In one sense, of course, they are. It must be recalled, however,
that all such people have (at least in theory) undergone thorough pre-access security
checks, renewed periodically if they have access to the most sensitive classified informa-
tion, and that for decades the overwhelming majority of them have demonstrated their
complete loyalty.
To subject all of those who have been cleared to continuing suspicious surveillance
merely on the basis of their access would therefore be unjust. It would also be counter-
productive, adversely affecting morale. Moreover, it is estimated that more than 2.5
million federal employes, exclusive of those in the CIA and NSA, have access to infor-
mation classified secret or higher, and that the same is true of some 1.5 million contractor
employees. Anything like ongoing surveillance of over 4 million people would be a physical
impossibility, far beyond the capability of all U.S. intelligence units combined, even if it
were desirable.
Surveillance of those with access must therefore be limited and selective, based on
information developed by counterintelligence units about hostile agency plans and targets,
the actions of known foreign agents, or actions on the part of individual employes which
arouse suspicion.
Identified foreign agents should, of course, be presumed guilty and subjected to the
most thoroughgoing surveillance possible. In their need to continue developing and
managing spies, they must have contact-through "cutouts," "dead drops" and other
means-with their U.S. collaborators. Such surveillance will usually, sooner or later,
reveal the links in the communication chain and the identity of their American spies. Sus-
pected hostile agents, of course, must also be surveilled until their role is definitely
determined.
The most effective (and difficult) course is "turning" a hostile country's known
agents, converting them into double agents. Probably one of the greatest counterintel-
ligence coups of all time was achieved by British counterintelligence through this technique
during World War II. Sir John Masterman, historian, author, and Vice Chancellor of
Oxford University who worked during the war with the section of MI-5 (Britain's "FBI")
which handled double agents, has since written of what he admits is "a staggering claim,"
namely, that from the fall of France in June 1940 until British armies returned to France in
1944, "we actively ran and controlled the German espionage system in this country
[England]" (his emphasis)."
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The results of successful operations in this field are obvious. As Masterman sum-
marized it: "They [the Germans] gained no good whatever from their agents, and they did
take from them a very great deal of harm." "
He concluded that, in trying to cope with hostile espionage,
it is of paramount importance to keep a firm hold on the enemy's own system of agents and
informers.... In peace as well as in war a carefully cultivated double agent system is the
safest and surest weapon of counterespionage."
The KGB itself has provided a clue to the types of people in whom it is particularly
interested. It uses an English word to remind its officers of the appeals they should use in
their recruiting efforts. The acronym is "MICE"-for Money, Ideology, Compromise and
Ego.
Money has become an increasingly important factor in U.S. espionage cases during
the last quarter century. In virtually all recent spy incidents, Soviet agents have paid
substantial sums to the Americans who purloined information for them. More than any-
thing else, they have been business deals with, in some instances, the American making the
original approach to the Soviets. Greed and need have been the motivators. Nowadays
officers and agents of the KGB and GRU (Soviet military intelligence) look for the govern-
ment or contractor employee with access who is a compulsive gambler or has other serious
money management problems. The contractor whose firm is having financial problems
also interests them. They can be very generous if the information potentially available is
"hot" enough.
Ideology has always been a powerful human motivator, although it has declined
drastically as a factor in current espionage cases (but not because it has lost its influence).
A person obviously acts as he believes. A left wing ideologue is always a potential
recruit for any type of Soviet operation. The USSR has capitalized on this fact in both the
espionage and active measures fields since its earliest days. It is still the principal weapon in
recruiting leaders and supporters in active measures, but it is used only sparingly for
spying. A recruit need not be a Communist Party member or active "fronter." The indi-
vidualistic true believer who eschews such open activity for any one of a number of reasons
is also a promising candidate and, not having a public or documented record of pro-Soviet
activity, is generally a safer bet.
The committed Communist is dedicated to the party, but even more dedicated to his
ideological homeland, the Soviet Union (or perhaps Red China or Cuba). Serving it
directly is more appealing and satisfying than mere party work. It fulfills the ego as well as
the ideological desire.
For these reasons the U.S. Communist Party was for years a major recruiting ground
for Soviet spies. The same was also true of other parties.
Moscow called a halt to this general practice in 1952, however, according to the late
Wladyslaw Tykocinski, head of the Polish Military Mission in Berlin when he defected to
the U.S. in 1965. A veteran of almost 20 years service in the Polish Ministry of Foreign
Affairs, he had also served for six years, 1946-1952, as an intelligence officer of Z-2,
Communist Poland's military intelligence service, with diplomatic titles as cover for his
espionage. Tykocinski explained why the practice of recruiting from Communist parties
had been stopped, pointing out that
after some mishaps, namely, when some of them were caught and it compromised the
Communist parties, there was an order sent from Moscow through the different services
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which cooperated with the Soviet services not to use the Communist parties, only to use the
party when it was safe or necessary. For instance, I had to use the party when I was in Italy
because I had a special problem.'
His testimony pinpoints the great importance Moscow attaches to local Communist
parties (as instruments of active measures) and its desire not to have their "good name"
compromised. At the same time it indicates that the Communist bloc has not called a
complete halt to the practice of using party members for special espionage, though it is now
doing so only on a much-reduced scale.
Communist parties in all countries have the mission of being active in national
political affairs, not only to influence domestic developments to the best of their ability
but, more importantly, to have an impact on national defense and foreign policy.
Communist fronts have the same mission, their primary function being to serve both as
advance and backup agencies for the party in the active measures operations it carries out
for Moscow. The 1982 Interagency Intelligence Study of Soviet active measures reported,
"Political influence operations are the most important, ambiguous, but least visible of
Soviet active measures." (emphasis added)"
Given this fact and the fundamental duty of Communist parties and their fronts to be
politically active, appropriate surveillance of them (and their hidden agents) inevitably
involves counterintelligence agencies in the collection of domestic "political" intelligence.
Counterintelligence surveillance, however, must extend beyond the party and its
fronts to other ideologically sympathetic groups. This need is based in part on the fact that
Moscow has for years pushed "united front" tactics to implement active measures more
effectively. This means that Communist parties, acting for and by direction of the Soviet
Union and in its interests, do everything in their power to influence other organizations to
join in their activities, thus converting them into instruments of Soviet policy though they
are not technically controlled by the party. This may be accomplished by heavy infiltration
of the target group by party members or by direct appeals to its leaders by open Commu-
nists (the united front "from below" and "from above"). No realistic assessment of a
nation's security status can be made without knowledge of the extent to which this tactic is
being successfully implemented at any given time and on what issues.
Additionally, ideologically sympathetic groups, no matter the extent of Communist
united front efforts at any given time, will often naturally desire to cooperate with and
assist in the achievement of basic Soviet aims. The Socialist Workers Party (SWP), for
example, the largest Trotskyist communist group in the U.S., is a "dissident" party, highly
critical of the Communist Party, USA (CPUSA) and of Moscow on many issues. Yet, for
the past 20 years, it has been vigorously promoting CPUSA and Soviet objectives on many
issues in both a cooperative and competitive fashion. To illustrate: The Fair Play for Cuba
Committee was a highly effective Communist propaganda instrument in the U.S. during
and after the period when Castro seized control of Cuba. It was created by the CPUSA, but
so "supported" by the SWP that the Trotskyists eventually managed to gain control of
some of its chapters and managed them basically as Moscow desired, i.e., to help
strengthen and solidify Castro's hold on Cuba. The CPUSA was not happy that it had lost
control of these chapters to the "Trots", but it was obviously something it could tolerate
without great difficulty-because the Trotskyists shared its and Moscow's concern for
Castro's good fortune and did all they could to promote it.
Similarly, the Student Mobilization Committee, the largest and most effective campus
protest group during the Vietnam War, was originally set up by the CPUSA. Within three
years, however, the SWP's youth arm, the Young Socialist Alliance, had taken it over.
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Despite this "loss" by the CPUSA, the Student Mobilization Committee continued to
serve fundamental Soviet (and North Vietnamese and, of course, Vietcong) interests
throughout the war-simply because the SWP and its youth arm are also Communist
organizations and therefore worked for the defeat of the U.S. when it was trying to prevent
the takeover of Vietnam by Communist forces.
Espionage and sabotage as well as active measures, are involved in this issue of fringe
organizations. The Venceremos Brigade (VB) was created in 1969 by the terrorist
Weatherman faction of Students For a Democratic Society (SDS) for the ostensible
purpose of helping Castro harvest his sugar cane crop. Thousands of young Americans
went to Cuba under its auspices in the years that followed. There they were indoctrinated in
Marxism and deluged with pro-Castro propaganda. Selected members of each contingent
were also trained by Cubans and North Vietnamese in guerrilla warfare and terrorism and
in the use of weapons and explosives.
Castro's intelligence service, the Directorate General of Intelligence (DGI) - which,
western intelligence agencies agree, is controlled by the KGB - showed great interest in the
young American brigaders. A 1981 federal court exhibit based on highly classified FBI
files, with the Carter administration Justice Department attesting to its accuracy,
contained the following statement:
The DGI interest in the VB is an extension of its overall policy relating to the collection
of intelligence on the U.S., its primary target. The DGI considers recruitment of VB mem-
bers... as one of the primary means through which intelligence can be collected on the U.S.
The DGI believes that it is to their advantage to establish and maintain contact with
organizations, groups and individuals who are sympathetic to the Cuban Revolution and
who are disenchanted with the present conditions in the U.S. [there are many such,
including some not enchanted with Moscow - author], and sees the VB as such a group.
The ultimate objective... is the recruitment of individuals who are politically oriented
and who someday may obtain a position, elected or appointed, somewhere in the U.S.
government, which would provide the Cuban government with access to political,
economic, or military intelligence.... The DGI also seeks individuals among the VB who
can fulfill operational support roles; that is, who wittingly or unwittingly would serve as an
accommodation address or serve in some other intelligence support capacity. (Emphasis
added)'
DGI (KGB) interest in the VB and similar groups has been indicated, the exhibit
revealed, by contacts with them within the U.S. as well as in Cuba.
A considerable number of former leaders and members of the radical Marxist youth
groups of the sixties, never directly associated with the Communist Party, have since gone
into politics and obtained government positions on the federal, state and local level. The
electoral route is particularly effective because it complicates both surveillance and
counteraction (some present members of Congress, for example, could never obtain
clearance for sensitive executive branch posts, yet are elected repeatedly to positions giving
them access to extremely sensitive information). One survey of the sixties radicals stated
that more of them had gone into two fields, law and teaching, than any other occupations.
The opportunities for influence in teaching are obvious, and law experience is often an
entree to the higher levels of government service.
Not only the SDS-Weatherman faction and the VB but other groups such as the Black
Panthers have received training abroad in the use of weapons, explosives and guerrilla
warfare. The need is apparent for continuous intelligence about such groups and their
members in any efforts to frustrate terrorism and sabotage. As so many incidents abroad
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have demonstrated during the past decade, it is also essential to any realistic effort to cope
with assassination attempts. The terrorist acts and assassinations that have plagued the
non-Communist world since the late 60s have been overwhelmingly the work of left
ideologues, with ultrarightists of the same type (who should, of course, also be surveilled)
playing a decidedly secondary role.
It is almost impossible. to list or describe precisely just which domestic groups and
individuals should be subjected to counterintelligence surveillance based on ideology.
There is no rigid formula that can practically be incorporated into any law, guideline or
regulation specifiying who can or should, or cannot be, investigated at any given time. As a
general rule, any individual or group is suspect which, by word and action, indicates
adherence to political philosophies or to foreign powers whose form of government is alien
to that called for by the U.S. Constitution. Public information will often indicate whether
ongoing surveillance of such a group is called for; when it does not, low-level investigation
will frequently answer the question of whether it is dangerous or significant enough to
merit continuing attention.
Realistically, such determinations should be made by experienced counterintelligence
professionals. They are the people best qualified to judge such matters, not only on the
basis of their overall knowledge of subversion in general but on intelligence of the moment
from public and clandestine sources about developments and changes in various move-
ments and their adherents and the activities of hostile foreign powers and agents in
different fields.
To illustrate: The Weather Underground Organization, the major U.S. terrorist group
of the early 1970s which grew out of SDS, was under intense FBI investigation at that time,
as it should have been. It had claimed responsibility for a series of bombings and more than
a score of its leaders were fugitives from justice, wanted for various crimes of violence. Yet
SDS had emerged in 1959 as a revitalization of a largely dormant, almost defunct old-line
Socialist youth organization, the Student League for Industrial Democracy, which traced
its origins to the Intercollegiate Socialist Society (ISS), founded in 1905. After the ISS
changed its name to League for Industrial Democracy in 1921, its campus affiliate was
called the Student League for Industrial Democracy (SLID). Openly socialist and non-
violent, SLID was never considered subversive. It operated under that name until Tom
Hayden and a number of other radical campus activists took it over in 1959 and renamed it
the Students for a Democratic Society (SDS). Originally anti-Soviet as well as anti-U.S.,
SDS barred Communists from membership. Naive as well as radical, it was easily
infiltrated by Communists anyway (CPUSA, SWP and PLP, the latter the Maoist Progres-
sive Labor Party). The Communists soon gained such influence in the SDS that in 1965
they succeeded in having its resolution barring their type from membership reversed. The
gates were wide open. By 1968, the PLP faction was strong enough to make a bid to take
control of the group, but failed (the rival Communist factions defeated it). At the 1969
national convention, the Weatherman Communists took over the organization.
Should SDS have been under FBI investigation when it emerged under that name in
1959? No. At what point should the FBI have begun surveilling the group? Because it had
the CP, SWP and PLP under investigation and was aware of what they were doing, it was
obviously in the best position to make that judgment. No one else had as much information
as the Bureau had about the operations of the three organizations that took over the SDS
and destroyed it.
In considering the question of who and when, it is worth remembering that John
Doar, Assistant Attorney General in charge of the Civil Rights Division of the Department
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of Justice in the Johnson administration, severely criticized FBI director Hoover for taking
too narrow and limited a view of the types of targets that should be subjects of counter-
intelligence concern. In a September 14, 1967, memo to Attorney General Ramsey Clark,
written at a time when SDS, the Black Panthers, and various other Marxist and violence-
prone groups were afflicting the country with racial and political rioting, Doar hit the FBI
Director for not having taken "a broad spectrum approach" to domestic intelligence
collection, instead of having "focused narrowly" on "traditional subversive groups" and
those suspected of having committed specific crimes. 19
Subversion which is completely domestic in nature, having no connection whatsoever
with any foreign power, is always a possibility. Quite common in foreign countries, it has
been rare in this country. For decades the great majority of "domestic" undermining
operations in the U.S. have had a foreign connection. In the '30s, the connections were
with Nazi Germany, Fascist Italy, Imperial Japan and the Soviet Union. President
Franklin D. Roosevelt was so concerned about the growth of these movements that he
secretly directed the FBI to begin collecting intelligence on them in 1936; and in 1939 he
made this FBI mission public, at the same time asking all law enforcement agencies in the
U.S. to cooperate in the effort by turning over to the FBI all information they had on
subversive activities.
Since the end of World War II, the first three of the above sources of foreign-con-
nected subversion have disappeared from the scene, to be replaced by Castro's Cuba,
Peking, and a string of so-called "Third World" Marxist states which, in varying degrees,
have thrown their lot in with the Soviet Union. Moscow continues its undermining inter-
vention in U.S. internal affairs and, by reason of its power and experience in such matters,
dominates the scene.
The foreign ties that have for so many years charcterized "dissident" movements in
the U.S. were illustrated in a letter written by Richard Helms, Director of Central Intel-
ligence, to FBI Director Hoover on March 20, 1970, on the subject of "New Left" (SDS,
anti-war and other '60s radical groups) and "Racial Matters" (violent racist groups such as
the Black Panthers). Helms' letter read in part:
The increasingly close connection between these forces in the United States and hostile
elements abroad has been well established by both our agencies. I feel it would be in our
mutual interest to determine how we can best employ wisely our limited manpower,
knowing that this problem, which embraces bombings, hijackings, assassination, and the
demeaning of law enforcement officers, is international in scope."
The Supreme Court also recognized the typical foreign connection in its 1972 Keith
decision, in which it held that a warrant was required before a completely domestic group
could be wiretapped for national security (intelligence) reasons, i.e., in a case in which
there is, to use the Court's words, "no evidence of any involvement, directly or indirectly,
of a foreign power."
The Court defined a domestic organization narrowly, as one "composed of citizens of
the United States ... which has no significant connection with a foreign power, its agents or
agencies." Apparently aware of the nature of most of the "activist" groups under surveil-
lance at the time for valid reasons, it continued:
No doubt there are cases where it will be difficult to distinguish between `domestic'
and `foreign' unlawful activities directed against the Government... where there is
collaboration in varying degrees between domestic groups or organizations and agents or
agencies of foreign powers.'
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The implication was clear. When an organization of U.S. citizens develops a
"significant" connection with a foreign power, collaborating with it or its agents or
agencies in a meaningful way, it changes its nature to the extent that it becomes a proper
subject of counterintelligence monitoring under standards applying to foreign nations,
with no warrant required for the use of intrusive surveillance techniques such as wire-
tapping.
To put it bluntly, the Court held that such groups were no longer completely
"American" and therefore lost some of the Constitutional protections normally enjoyed
by U.S. citizens and groups (specifically, the protections of the Fourth Amendment). It
should be noted, too, that statutory definitions of a "foreign power" include not only the
formal ruling government entity of a foreign nation, but also any agency or sub-unit of it,
and also foreign political parties or factions, terrorist groups, and organizations controlled
by foreign powers.
By not declaring just what it considers a "significant" connection and by referring to
the difficulty in sometimes distinguishing between domestic and foreign anti-government
activity, the Court created something of a legalistic gray area which will presumably be
clarified only in future decisions in which it deals with challenged warrantless surveillances.
While the ideological appeal works powerfully for the KGB and all hostile foreign
powers, it also works powerfully, in one sense, for the U.S. government and its counter-
intelligence agencies because foreign intrusion into U.S. internal affairs is not tolerated by
the Constitution. In a 1961 decision upholding the right of the government to compel the
registration (self disclosure) of any group substantially directed, dominated or controlled
by a foreign power, the Supreme Court reiterated a holding it had handed down in 1889:
To preserve its independence, and give security against foreign aggression and en-
croachment, is the highest duty of every nation, and to attain these ends nearly all other
considerations are to be subordinated. It matters not in what form such aggression and en-
croachment come.22
The 1961 case involved the Communist Party, basically acting as an instrument of
Soviet active measures. The Court also ruled on the meaning of the words "substantially
directed, dominated, or controlled" in the statute at issue. It said:
If the Soviet Union [or any other foreign nation] directs a line of policy and an organi-
zation voluntarily follows the direction, the terms of this statutory definition would be
met .21
In the light of this definition of actual domination and control, the lesser "significant
connection" standard can be rather easily met for counterintelligence purposes.
Justice William Douglas, the most liberal member of the Court at the time, dissented
in part but joined the majority in rejecting the claim that the statute violated First Amend-
ment "political" rights:
When an organization is used by a foreign power to make advances here, questions of
security are raised beyond the keri of disputation and debate between the people resident
here. Espionage, business activities, formation of cells for subversion, as well as the
exercise of First Amendment rights, are then used to pry open our society and make
intrusion of a foreign power easy. These machinations of a foreign power add additional
elements to free speech just as marching up and down adds something to picketing that
goes beyond free speech."
For these reasons, Douglas said, the statute's compelled disclosure requirement "is in
line with the most exacting adjudications touching First Amendment activities." 25
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If, as this and other decisions indicate, the U.S. government is empowered to act
against groups with foreign ties, it follows that it has the power-and even the duty-to
collect information about them. Doing so does not violate fundamental constitutional
rights and liberties. Domestic "political" intelligence collection therefore is proper.
Compromise, as a KGB "appeal" to potential recruits, is simply another word for
blackmail, which it has routinely used for espionage purposes since its earliest days. It
explains why, particularly behind the Iron Curtain, so many prostitutes (male as well as
female) are on the payroll of the KGB. It is a practical application of the age-old truth that
anyone who engages in conduct deemed reprehensible by the society in which he lives is
vulnerable and will do almost anything to avoid exposure.
This fact also explains why Executive Order 10450 of President Eisenhower of
April 27, 1953, which still governs the security screening of federal employes, includes,
among the factors to be considered in employment determinations, "Any criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxi-
cants to excess, drug addiction, or sexual perversion." It also includes "Any facts which
furnish reason to believe that the individual may be subject to coercion, influence, or
pressure which may cause him to act contrary to the best interests of the national security."
(Sec. 8 (1) (ii) and (v).
Particularly in relation to jobs involving access to sensitive information, the govern-
ment tries to exclude those vulnerable to compromise. Pre-screening, of course, is not
always perfect and people can change. All of this explains why counterintelligence must
sometimes collect information about people's "private" lives.
Ego is so broad a subject-and so apparent-there is no need to comment on it at
length. After money, ideology and compromise, it is one of the most potent levers of
human action. The conceited, strongly self-centered person rarely has strong ethical
inhibitions or noble or idealistic commitments. Everything is self, except self-sacrifice.
Unless they achieve high position (and they often don't), egoists usually consider them-
selves unjustly treated, their superior talents not recognized or appropriately rewarded
and, along with their ambition to be recognized and important, frequently develop a desire
to strike back at the society or institution that has denied them what they believe they
deserve. Moscow can offer them opportunities to satisfy these desires.
The "Most Important"
Counterintelligence Mission
It would be difficult to postulate which of the three basic missions of counterintel-
ligence is the most important-uncovering and frustrating espionage efforts, blocking
penetration of intelligence/counterintelligence agencies, or countering Soviet active
measures.
Espionage can do tremendous damage, but its full, worst effects are usually felt only
in war time, and then from generally current spying. In other periods, the damage done can
usually be repaired over time (by development of new weapons and counterweapons, by
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weathering crises despite losses through espionage, etc.). In sentencing A-bomb spies
Julius and Ethel Rosenberg to death on April 5, 1951, Judge Irving Kaufman said:
I consider your crime worse than murder. Plain deliberate contemplated murder is
dwarfed in magnitude by comparison with the crime you have committed. In committing
the act of murder, the criminal kills only his victim.... [Y]our conduct in putting into the
hands of the Russians the A-bomb years before our best scientists predicted Russia would
perfect the bomb has already caused, in my opinion, the Communist aggression in Korea,
with the resultant [U.S.] casualties exceeding 50,000 and who knows but that millions more
of innocent people may pay the price of your treason. Indeed, by your betrayal you
undoubtedly have altered the course of history to the disadvantage of our country.36
Whether or not Judge Kaufman was correct in his assessment of the Rosenberg's
espionage as a key factor in the launching of the Korean War in 1950 (eventual total U.S.
casualties: over 157,000, with more than 54,000 deaths), the remainder of his statement
was factual: USSR possession of the atomic bomb years before it otherwise would have
had it undoubtedly influenced its actions vis-a-vis the U.S. and in the world arena
generally-to the considerable detriment of this country. More importantly, millions of
innocent people might have died because of the theft.
But they did not-and still have not. Moreover, at this time, the 40-year-old theft's
impact on casualties in a present-day nuclear war would be nil. Time and vast changes in
weaponry have wiped out the immediate, terrible potential threat their betrayal posed.
Thus, if one rejects Kaufman's (unproven) opinion about any causal relationship in regard
to the Korean War, not a single person has died as a direct result of Moscow's theft, via the
Rosenbergs, of the secret of the A-bomb.
Yet the damage that flowed from their act is still very real, though not precisely
calculable. The USSR's successful explosion of an A-bomb in 1949, rather than some years
later, unquestionably reduced the deterrent effect this country's sole possession of the
bomb would have had on Soviet actions for some indeterminable period of years after
1949, thus encouraging the USSR to undertake a variety of aggressive acts it would other-
wise not have taken. It is impossible to estimate the overall harm done or how many people
suffered-or even died-from these actions, but that such results followed cannot be
doubted.
There is another consideration that must be borne in mind in attempting to weigh the
dangers that flow from Soviet spying: a number of reputable studies indicate that much of
the Soviet Union's present military strength and its real economic might (even though its
economy is poor) is built on Western, particularly U.S., technological know-how. While
much of this knowledge has been handed to Moscow on a silver platter by the Western
powers, it is also true that a significant portion of it has been "acquired" by agents of the
KGB and other bloc spies-without whose contributions, the Soviet Union, as a much
weaker nation, would not be the world threat it is today, and would have been incapable of
various aggressive, life-destroying actions it has taken in many parts of the world in recent
decades.
Again, we are faced with the impossibility of anything resembling precise compu-
tation of the harmful impact of foreign espionage on literally millions of people, but this
fact should not deter us from facing up to the reality of the danger it has posed-and still
poses-to free people everywhere.
Just how much harm has been done by hostile penetration of and influence within
U.S. intelligence and counterintelligence agencies-as distinguished from direct theft of
secrets? We do not know and have no way of judging. Because KGB penetration of high
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levels of NATO headquarters in Europe has been documented, along with penetration of
the intelligence/counterintelligence services of virtually every nation of Western Europe, it
would (as Gen. "Beetle" Smith said) be foolishly complacent to believe it has not had some
success here. Certainly, some employes of U.S. agencies have been dismissed over the years
for security reasons. Who and why is not a matter of public record-for understandable
reasons. Speculation about a Soviet "mole" in the CIA (or other agency), as irresponsible
and ridiculous as some of it has been, is founded on genuine possibility or likelihood. The
fact that none has been uncovered so far could be an indication of inefficiency in U.S.
counterintelligence, rather than in the skill of the KGB.
Once more we are faced with an imponderable, but the great damage that could be
done by undetected moles can be readily understood.
Many people discount the importance of active measures. Espionage is a much
"sexier" subject. It always makes good newspaper copy and is the theme of many novels,
films and TV series, most of which grossly distort its reality. Conversely, active measures
are rarely given much attention, either fanciful or realistic.
Yet an objective look at world events since the end of World War II compels the con-
clusion that these measures may have had far worse impact on human affairs than espio-
nage has ever had or will likely have in the future. Thousands of examples to illustrate this
could be cited, but summary treatment of one fairly recent active measures operation will
suffice to make the point.
Most military authorities would agree that if the Vietnam War had been a traditional,
completely military engagement from beginning to end, the combined U.S.-South
Vietnamese forces would have defeated the Vietcong-North Vietnamese forces, despite the
massive aid the latter received from Moscow and Peking. To a major degree, active
measures in South Vietnam, the United States and Europe made the difference, giving
victory to the Communist forces by attacking their opponents from the rear.
This country's full-scale military commitment to Vietnam was originally supported by
a large majority of Americans, according to polls of the period (which also revealed high
ratings for President Lyndon Johnson's conduct of foreign affairs). The commitment was
followed shortly by the emergence of a so-called "anti-war" movement in this country
(whose leaders were not at all opposed to Communist wars of aggression). Simultaneously,
related operations surfaced-anti-draft, anti-ROTC, and even disruption within the mili-
tary ranks-all of them with Communists and Marxists playing key roles. All these forces
combined in a concerted campaign of opposition to the U.S. effort to block the takeover of
another country by Communist forces.
The domestic opposition to the U.S. war effort was supplemented by Communist in-
filtration of the South Vietnamese government and other undermining active measures
there, and also by the development of complementary "peace" movements in Canada,
Japan and virtually every nation in Western Europe.
Considering the youth, inexperience and naivete of those who comprised the bulk of
these movements, the scope, coordination and effectiveness of the operation was truly
remarkable. In terms of its complex organization, that operation bore the stamp of
communist professionalism in every aspect of control. Event after event was staged here
and in other nations-teach-ins, demonstrations, marches, the circulation of petitions
(supplemented by bombings, sabotage, "trashing," rioting and other acts of violence).
Massive amounts of propaganda were produced and distributed-flyers, posters,
pamphlets, newsletters, and films. On the same day, huge rallies opposing the U.S. role in
Vietnam would take place in Paris, Rome, London, Berlin, Tokyo and other major
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capitals. In 1969, the domestic operation staged in Washington was the largest protest
demonstration ever held in this country.
The U.S. was the target of everything, everywhere. Day after day, the news was
flooded with accounts of apparent "grassroots" opposition in all parts of the influential
world to U.S. policy in Vietnam.
The all-pervasive Communist nature of the campaign was clearly revealed in numer-
ous statements by its leaders; in congressional and court proceedings; in key activists' open
meetings with, and statements of support for, the Vietcong and North Vietnamese leaders;
and by the activists' past records. And what power on earth, other than the Kremlin, has an
apparatus at its disposal that could so competently initiate and coordinate such events on a
global scale?
Within a few years every poll taken in the U.S., without exception, revealed a
complete reversal of the American public's attitude toward the war, with a large majority
now opposing it and criticizing the President's management of foreign policy. That change
in public opinion, basically, decided the outcome of the war.
Did these active measures alone bring about this reversal of opinion with the results
that followed?
Of course not. Other factors influenced the eventual U.S. withdrawal, helping to
make the outcome virtually certain: the length of the conflict, with its ever-growing
casualty lists; political decisions interfering with the military conduct of the war; and
finally the disparate attitudes, thought-processes of key decision makers, and so forth.
But there is also no question that this massive Soviet active measures operation had
important, perhaps decisive, impact. Had it not been undertaken none of the thousands of
developments it initiated would have taken place and the war would likely have had a
completely different ending.
General Vo Nguyen Giap, the North Vietnamese military commander, made no
mistake when he thanked the U.S. "peace" movement for the help it was giving him during
the war. Gen. William Westmoreland was not in error when he pointed out that the move-
ment was hurting the U.S. effort. The U.S. Communist Party was later fully justified in
boasting of its contribution to the Communist victory in far off Southeast Asia-and
Moscow no doubt quietly gloated that its active measures had again proved their worth.
The precise effects of such agitation and propaganda and other active measures are as
difficult to measure as those of espionage. But there is every reason to believe that the
Soviet anti-Vietnam War operation significantly affected, for example: the outcome of a
U.S. national election by influencing an incumbent President not to run again; the
Communist victory in Vietnam that created a national security problem in Southeast Asia
that will plague the U.S. for years to come; a good portion of the war's 210,000 U.S.
casualties, including more than 58,000 deaths; hundreds of thousands of war and post-war
casualties among the Vietnamese; many of the more than two million slaughtered in the
"gentle land" of Cambodia, following the fall of South Vietnam.
This massive Soviet active measure also helped significantly in the development of the
so-called "Vietnam syndrome," a national morale problem that for years crippled
formulation of a vigorous, effective U.S. foreign policy. There is no telling just when its
adverse impact will end and how much damage will have been done by that time.
Who did the greater damage to the United States and the people of other free lands:
the Rosenbergs who died in the electric chair for the criminal act of espionage, or the
"law-abiding" Communist "peace" active-measure agents and their collaborators, dupes
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and "useful idiots" who merely exercised their First Amendment rights to protest a U.S.
policy they opposed?
Such active measures, like espionage, are staple Soviet instruments. Like espionage,
they have been carried out in all parts of the world for 60 years. Like espionage, their
impact is incalculable-but great.
When one contemplates all of these highly successful means of Soviet disruption
throughout the world, the only reasonable conclusion to arrive at is that all of the missions
of U.S. counterintelligence are of crucial importance. None whatsoever may be neglected,
and all must be pursued with the utmost vigor and dedication.
The "Counter" in Counterintelligence
No analysis of the nature of counterintelligence would be complete without consider-
ation of the way in which it differs from ordinary intelligence activities. Basically, it is intel-
ligence of a special kind, plus something else. What is that something else?
The 1976 Executive Order No. 11905 (2/18/76) of President Gerald Ford, the first one
to bind U.S. intelligence agencies and their operations, stated that counterintelligence is
"activities conducted to protect... from" espionage, sabotage, subversion, assassination
and terrorism. It directed the FBI, the nation's chief counterintelligence agency, to "detect
and prevent" those dangers.27
Succeeding orders of Presidents Carter and Reagan defined counterintelligence as
"activities conducted to protect against" basically the same dangers.28 The resolutions of
the House and Senate creating their respective intelligence committees used the words
"activities taken to counter" certain threats from abroad." The Church Committee said it
was "activity dedicated to undermining the effectiveness of hostile intelligence
services." 30
A glossary of intelligence terms published by the House Intelligence Committee
defined it as "activity... intended to detect, counteract, and/or prevent" espionage and
other security threats. Four alternate definitions it quoted from earlier glossaries used the
words "protect against", "protection... from", and (two of them) "destroying the effec-
tiveness of" foreign intelligence activities and "protection of" their targets. 31
There is unanimous agreement, in other words, that the distinctive characteristic of
counterintelligence is that it does more than collect information. Intelligence merely
collects, stores, analyzes and disseminates to policymakers security-related information
about foreign countries; counterintelligence collects, stores, analyzes and disseminates (to
a much more limited degree) information about certain foreign threats to U.S. security and
then ACTS to destroy or neutralize them. Its end purpose is not the mere collection and
analysis of information, but ACTION, and SUCCESSFUL ACTION, against those who
threaten the security of the United States.
In the past, the U.S. has subscribed wholeheartedly to this fundamental truth about
counterintelligence. The "Domestic Intelligence" section of the FBI's 1961 annual report,
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for example, under the subtitle "Protecting Democracy," opened with these words:
Keeping appropriate Government officials constantly informed regarding the
activities and plans of the enemies of democracy within the United States so that effective
preventive measures and countermoves can be devised is the primary aim of the FBI in the
domestic intelligence field.
Precluding or circumventing espionage, sabotage or other subversive activities
provides far greater protection to the American people than the prosecution of individuals
who attempt such assaults on American freedoms (author's emphasis in this and following
quotations)."
The following year, the same section of the Bureau's report was entitled
"Counterintelligence Activities" and had the same subtitle (the FBI, not unreasonably,
then used "domestic intelligence" and "counterintelligence" interchangeably). Its second
introductory paragraph read in part:
The international communist conspiracy, an avowed enemy of the democratic system
of government, is constantly assaulting this Nation with its spies, its propaganda and its
domestic adherents. Identifying its operations and penetrating and disrupting them are the
main counterintelligence objectives of the FBI."
FBI testimony was equally straightforward on the issue. At one point in his appropri-
ations testimony, on March 6, 1961, Director J. Edgar Hoover told the House subcom-
mittee members, "I would like to review generally some of our counterintelligence pro-
grams to curb the threat of communism and subversion." "'
Four paragraphs of general treatment of Communist front operations by Hoover were
followed by this transcript notation: "(Discussion off the record)." Hoover next discussed
"Espionage and Counterintelligence," "Soviet-Bloc Official Personnel in the United
States," "Soviet-Bloc Espionage Targets" and "Collection of Unclassified Strategic Intel-
ligence" (as the subcommittee titled various sections of his published testimony).
The same notation, "discussion off the record", appeared at the end of each of these
sections after brief generalized commentaries by Hoover. It also appeared twice in the
course of his preceding testimony on the U.S. Communist Party."
The official transcript of his testimony before the subcommittee the following year
read in part, "The FBI has met the ever-increasing threat of Communist-bloc espionage
with aggressive programs designed to disrupt and prevent their effectiveness in our
country." 76
It is apparent that Hoover, in his off-the-record testimony, was informing the
subcommittee members about certain FBI counterintelligence actions which, because of
their very nature, could not be made public. It is also apparent from his public record testi-
mony and the Bureau's annual reports (distributed by the thousands to the media,
Congress, Executive branch personnel and interested citizens and organizations) that the
FBI, with the general approval of the government and American people, was then
operating on the "counter" principle of counterintelligence, that it was clearly an
ACTION agency, aggressively seeking to penetrate and disrupt Soviet assaults of all types
on the security of the United States-which is what a U.S. counterintelligence service is
supposed to do.
It now also seems probable that Hoover's classified testimony, at least in part,
concerned the seven COINTELPRO (COunterINTELligence PROgram) operations
exposed in 1973 through a Freedom of Information Act lawsuit filed by Carl Stern, an
NBC reporter. Five of these neutralization and disruption programs had domestic targets
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(CPUSA, SWP, White Hate Groups, Black Extremists and New Left); the remaining two
were directed against Communist bloc intelligence/espionage activities, such as those of
the KGB. The first listed (targeting CPUSA) had been instituted in 1956, the last in 1968.
All were terminated in 1971, the year before Hoover died.
CounterACTION authority is essential to all counterintelligence agencies. Their
mission to frustrate, block, undermine and prevent the successful execution of espionage,
,assassination, terrorism and subversion plots and operations by foreign powers cannot be,
fulfilled without power to take positive action against those involved in such activities.
The Criminal Standard and
Counterintelligence
There should be no need to consider the application of the criminal standard to coun-
terintelligence, because law enforcement and intelligence are two entirely different matters.
For more than a decade, however, some elements in this country have waged a vigorous
campaign to have the criminal standard, which is appropriate to police work, applied to the
domestic intelligence field (an essential element of counterintelligence) and even to some
other aspects of foreign counterintelligence. Their primary goal is to have the criminal
standard incorporated in a restricting charter for the FBI. They have been sufficiently
successful to have such provisions written into proposed charter bills (fortunately not
enacted) and to confuse many people on the issue. Hence, this analysis.
The duty of the police is to enforce the laws, which are the foundation of ordered
society. They must try to apprehend the guilty after crimes are committed and, whenever
possible, prevent crimes from being committed. To fulfill their mission they must develop
evidence that is admissible in a court of law-that is, evidence which has been gathered
without violation of laws or of the suspect's constitutional rights.
Beyond the enforcement of specific statutes and ordinances, police also have a general
obligation to preserve the peace and order of their communities. For these reasons, the
courts (including the Supreme Court) have consistently upheld their right to collect both
crime and disorder-related intelligence, because without such information they can neither
prevent many crimes nor preserve the peace-functions which the courts say are more
important than punishing lawbreakers after the fact.
Under the Bill of Rights, law enforcement officers should never as a general rule be
investigating or collecting information about any citizen unless they have reason to believe
the citizen is involved in a crime or is somehow associated with activities that threaten
community peace and order, whether or not those activities are technical crimes or mis-
demeanors. There is no other justification for police investigation. That, basically, is the
criminal standard.
Additionally, the Fourth Amendment normally requires all law enforcement officers
to obtain a warrant for any investigation or surveillance (search) of a suspect that would
invade his right of privacy. They must present to an independent magistrate evidence
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indicating the citizen has committed, or is about to commit, a crime. If the evidence
convinces the magistrate that there is probable cause to believe the suspect guilty of an
offense, he will issue an order or warrant approving use of the type of intrusive investi-
gation requested (wiretap, bug, physical search, etc.). The warrant is the device through
which the criminal standard and Fourth Amendment protect the rights of Americans from
invasion by law enforcement officers.
Counterintelligence agencies, however, are not law enforcement agencies and
principles governing law enforcement therefore do not apply to them. They do not try to
convict people of offenses for which they can be imprisoned, fined, or both. The basic duty
of all intelligence agencies is to collect security-related information for a nation's policy
makers. They pursue knowledge, not criminals (against whom they are powerless to act,
having no law enforcement authority). Their concern is not law-breakers, but threats and
dangers to the security of the nation, whether or not they are violations of law. Their
mission extends far beyond crime as defined in statutes.
The criminal standard and other rules and principles keyed to law enforcement, as
distinguished from all other professions, are no more applicable to counterintelligence
than the rules of the courts, which have one function in our scheme of government, are
applicable to the proceedings of Congress, which has an entirely different function in the
scheme.
The general principle that the rules governing any organization or agency must be
determined by its function, duty or goal is supported by thousands of examples in everyday
life. Lawyers could not efficiently carry out their role in society if the principles and code of
ethics of the medical profession were applied to them-or vice versa. What doctor could
cure a patient by studying Blackstone or applying the techniques and rules of courtroom
argumentation? What kind of Supreme Court would the nation have if its proceedings
were directed by the Actors Studio?
Beyond the practical rule that mission must determine methods, there is a far more
compelling reason why the criminal standard should never apply to counterintelligence. It
is this:
It would be contrary to the basic intent and purposes of the Constitution.
The fundamental purposes of the Constitution are clearly stated in the Preamble,
"We, the people of the United States, in order to... do ordain and establish this Constitu-
tion for the United States of America." Two of the six specified purposes-"domestic
tranquility" and "common defense"- clearly require intelligence collection and, in a
broad sense, all of them do. They cannot be achieved or maintained without it.
Moreover, the intelligence required must encompass all threats to the Constitutionally
proclaimed purposes of the U.S. government and to its security. Without such knowledge,
the government cannot preserve itself to "insure domestic tranquility, provide for the
common defense" and carry out its other missions as stated in the Preamble. It is for this
reason that the Supreme Court, reiterating earlier decisions, ruled in Agee:
"It is `obvious and unarguable' that no governmental interest is more compelling than
the security of the Nation." "
Were the criminal standard applied to counterintelligence (or intelligence), U.S. coun-
terintelligence services would be strictly limited to collecting information about crimes
already committed or those known to be imminent.
The key question, therefore, is this: Are all threats and dangers to the national security
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crimes, i.e., would they be subject to intelligence surveillance under the highly restrictive
criminal standard? By no means.
Examples to illustrate this abound:
-In 1953 the Senate Foreign Relations Committee published a report, "Adequacy Of
United States Laws With Respect To Offenses Against National Security." Prepared by
the American Law Division of the Library of Congress for the committee, the report dealt
with such matters as treason, espionage, sabotage, sedition and electronic surveillance and
found flaws and weaknesses in the laws relating to all of them. One of its conclusions was
that, because of these gaps, when individuals enagaged in hostile actions against the U.S.
"in many instances such conduct may escape punishment entirely." 31
The committee chairman, Senator Alexander Wiley, noted in his introduction that the
study revealed "some wide-open loopholes through which enemy agents can escape and
have already effectively escaped punishment." "
Virtually all the loopholes mentioned in the 1953 report still exist today.
-The Supreme Court found in 1981 that the activities of Philip Agee (and his cronies
who published CounterSpy and Covert Action Information Bulletin) in exposing the
identities of CIA personnel in all parts of the world, presented "a serious danger to
American officials abroad and serious danger to the national security."
Yet, in March, 1977, the Department of Justice had notified Agee that he could return
to the United States without fear of prosecution for those activities (he was then in
England, from which he was shortly expelled for consorting with KGB agents). He had
committed no crime. But if the criminal standard had applied to counterintelligence at that
time, U.S. agencies could not have even surveilled his activities abroad-as they did for
obviously compelling national security reasons.
-A foreign-directed conspiracy to overthrow the U.S. government by force and
violence is an obvious security threat that should be the target of counterintelligence
surveillance. Yet the Smith Act (which criminalizes all such conspiracies, whether or not
foreign-directed) was not enacted until 1940. Under the criminal standard, neither the FBI
nor any other intelligence agency could have investigated the Communist Party (or any
other such conspiracy) prior to that year. Moreover, if the Smith Act should be
repealed-a goal some members of Congress are pursuing in current criminal code revision
deliberations-it would become unlawful for the FBI to continue surveilling operations of
the CPUSA or any similar conspiracy in this country if it was bound by the criminal
standard.
-Communists working in defense plants are an obvious security threat, given their
commitment to and record of sabotage in time of crisis. But as of now it is not a crime for
them to work in such plants. Should the FBI be able to investigate to determine the extent
of this threat so that, in the event of war, steps could be taken to prevent sabotage of
essential defense production? It could not do so if the criminal standard controlled
counterintelligence.
-Terrorism, as such, is not a crime in the United States. In addition, many terrorist-
support and related activities, as such, are not crimes. Should counterintelligence agencies
therefore be barred from gathering information about such activities of terrorist groups
and their supporters? They would be barred if the criminal standard were incorporated in
their agency charters, or otherwise imposed on them.
-Given the fact that there are gaps in U.S. espionage laws, in the Foreign Agents
Registration Act and similar statutes, how could the U.S. government adequately protect
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the national security if its counterintelligence agencies were forbidden to surveil certain of
the activities of known espionage and other agents dispatched to these shores by hostile
foreign powers simply because criminal laws did not cover every aspect of their under-
mining operations?
-Many elements of Soviet active measures or subversion are not criminal. The art of
subversion, in fact, is to a large extent the art of using technically legal means to progres-
sively undermine a government until it has become so weak that successful resort to clearly
illegal violent overthrow is possible. Radical attorney William Kunstler expressed it well
when he said, "I want to bring down the system through the system." 10
To a great degree, Communist parties and their fronts operate on this same principle.
History records their repeated successful use of this strategy. Yet for the most part, their
activities in setting the stage for revolutions-organizing, agitation and propaganda-are
not only not criminal, but in this country are protected by the First Amendment. Should a
government be forced to blind itself to such danger because largely "legal" means are
being used for its intended destruction?
There are many other practical examples that could be cited which make it evident
that, because laws in themselves are not perfect, application of the criminal standard to
counterintelligence would necessarily and inevitably ensure-indeed, guarantee beyond all
doubt-that gravely inadequate security would be the inevitable result. The nation would
be blinding itself to numerous threats to its very existence. The government would
therefore be unable to protect what the Supreme Court holds to be its most compelling
interest, "the security of the Nation," and would thus be incapable of fulfilling the
purposes which the Constitution says are the very reason for its existence.
The Experts Look at U.S. Counterintelligence
Recent statements by a number of authorities on intelligence matters indicate that the
overall condition of American counterintelligence today should not be a matter of comfort
to the American people. o
During the 1981 hearings of the Senate Intelligence Committee on the confirmation of
William J. Casey as Director of Central Intelligence, a member noted that the committee
was concerned about American counterintelligence and asked Casey if he had any thoughts
on how to improve it.
Casey replied that he was "very concerned" about it, referred to the "enormous cost
and enormous risk" involved in the possibility that our enemies might be deceiving and
misleading us, and added:
I have understood that it [counterintelligence] had been severely diminished; loss of
experienced people and that sort of thing. And it is certainly, Senator, one of the first
things we have to rebuild."
The same issue was brought up the following month during the committee's hearing
on the confirmation of Admiral Bobby Inman as Deputy Director of Central Intelligence.
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Inman, former Director of Naval Intelligence and of NSA, who had also held other
important intelligence positions in his 30-year naval career, replied:
I have a perception that it is both undermanned and probably the one area that really
may be handicapped by restrictions and procedures."
During a later hearing on the confirmation of Inman's successor (upon the Admiral's
retirement after a year's service), Senator Malcolm Wallop, who has served on the Intel-
ligence Committee since its formation in 1977, declared, "We do not have a counterintel-
ligence system, just a lot of disjointed activity in the field." ?'
In 1978, at the same time he had emphasized the great importance of counterintel-
ligence, Richard Helms, the former Director of Central Intelligence whose operational
experience in the field dates back to World War II, made the following comment about
U.S. counterintelligence:
And sad to say, the evidence of late suggests that both the CIA and the FBI are doing a
lot less, just as the Russians are doing a lot more...." ..
Such views are not rare. The House Intelligence Committee, in its first annual report
(1978), expressed concern that this country's "defenses against penetration by foreign
intelligence services may have been lowered well beyond an acceptable level."
The Senate Intelligence Committee found in its 1979 report that "an extraordinary
counterintelligence effort" 45 was required to meet the threats and dangers posed by hostile
intelligence services-an effort which, if the above authoritative statements are accurate,
was impossible of achievement. Two years later, the Senate committee found a continuing
need for improvement (including funding) and was concerned that the country might lack
adequate technical counterintelligence as well as manpower.
Why is U.S. competence in counterintelligence not better than it is? What are the
causes of the intelligence community's weaknesses and problems in this area? There are a
number that can be documented.
Definitional Confusion
For many years American intelligence (and counterintelligence) has operated largely
on the basis of a general understanding of intelligence terms, the "words of art" of the
craft, rather than on official, legally binding definitions of what was or was not embraced
by a particular word or term.
The matter of definition has not, until recently, been a significant or important
problem. Intelligence is not law enforcement and cases are not made or broken, as in prose-
cutions, on the basis of a court's interpretation of the exact meaning of a given word in a
criminal statute. General understanding of the intent of perhaps loosely defined, mission-
describing terms has been adequate for effective operations. In fact, a certain imprecision
has sometimes been more of a help than a hindrance, permitting the latitude necessary for
the adequate protecion of U.S. interests.
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Today the situation is changed. The activities of all intelligence agencies are now
guided (and restricted) for the first time by Presidential Executive Orders and related
guidelines and regulations brimming with intelligence terms and specifying what they can
and cannot do, and when and how they can, or cannot, do it. Executive Orders have the
force of law. They bind intelligence personnel as firmly as a statute enacted by Congress.
Violation of any of their provisions, or of guidelines issued pursuant to their authority, can
mean serious trouble-prosecution, prison or fines or both, dismissal or other damaging
punishments. Only a rash person will not be very cautious to see that he abides by them to
the letter, taking no chances of risking his future.
Additionally, U.S. counterintelligence particularly-because it must deal to a
considerable extent with domestic groups and individuals-has become increasingly
subject to challenge in the courts. This means that lack of precision in definitions,
questions about their exact meaning, may be settled by the judiciary rather than by
executive or intelligence officials, with serious, far-reaching results. An urgently necessary
or highly desirable action could be ruled unauthorized and thus banned until corrective
action could be taken; another, undertaken with higher intelligence and executive
approval, might eventually be ruled unlawful and its participants subject to punishment.
Not only effectiveness, but morale, can be adversely affected by the possible results of this
development.
Concern over definition is not fanciful quibbling, as was demonstrated in the Aldo
Moro case. Moro, leader of Italy's Christian Democratic Party, was one of the drafters of
the 1948 constitution that established the Italian Republic. He had served as Italy's
minister of education, of justice and foreign affairs-and five times as prime minister. It
was expected that he would be chosen president in the upcoming elections, when he was
kidnapped in Rome on March 16, 1978, by twelve men who killed his five police body-
guards.
The Red Brigades, Italy's largest, most notorious and feared terrorist group (it has
killed and crippled scores) announced the day of the kidnapping that it was holding Moro
prisoner and that he would be tried by a "people's court" based on "proletarian justice."
It later revealed that he had been tried, convicted and sentenced to death, but might be
released if all Communist prisoners in Italy (including over 150 Red Brigades terrorists)
were released. All political parties in the Italian government agreed with its decision not to
capitulate to this demand.
The most massive manhunt in modern day Italy was undertaken in an effort to save
Moro. CESIS, the Italian intelligence unit comparable to a high-level NSC committee in
this country, asked the CIA for help.
The CIA turned down its request-because of the definition of the term
"international terrorist activities" in the Executive Order governing U.S. intelligence
agency activities issued by President Carter. Moro's body, riddled with eleven bullets, was
found in the trunk of a car left on a Rome street on May 9.
Perhaps CIA help would not have changed the outcome of the Moro case. But its
refusal to respond to the Italian appeal did not help U.S. prestige (or the CIA's) in
Europe-inasmuch as other nations did give intelligence assistance.
Obviously, a mere definition can have far-ranging impact.
The scope of the problem is considerable. Testimony of intelligence officials in the
1975-76 hearings of the Church, Pike and other congressional committees included many
intelligence terms not understood by members of Congress. As a result, the resolutions
creating their respective House and Senate intelligence committees directed each to develop
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a uniform set of definitions of intelligence terms for governmental use. Given the lack of
experience and knowledge that characterized the staffs of both new committees, this was a
mission beyond their capability. In September 1977, the National Foreign Intelligence
Board, established by the Carter order and composed of senior intelligence officials,
formed a working group of representatives of all agencies in the Intelligence Community to
produce a glossary of terms commonly used in the Community." The working group spent
nine months on the task. Its glossary was published in the 1978 annual report of the House
Intelligence Committee."
The glossary contained more than 300 terms-, some of them highly technical. An
appendix contained different definitions that could be found in previously published
glossaries and government documents for over 75 of the terms defined in the new glossary
(another appendix listed about 90 previously published glossaries).
The new glossary, of course, contained a definition of counterintelligence. But it was
different from the one then binding on the Community by the Executive Order of President
Carter. His EO definition was one of four other definitions of counterintelligence included
in the appendix which differed from the glossary definition and from one another.
Today, the Community is bound by a definition in the Reagan Executive Order which
differs somewhat from all preceding definitions-those in the Ford and Carter orders, the
"official" glossary definition, and the four in the glossary appendix (one of which was
Carter's).
There are further complications.
President Ford's Intelligence Community Executive Order (No. 11905, 2/18/76)
dictated that the FBI, the nation's chief counterintelligence agency, would carry out its
foreign counterintelligence functions pursuant to guidelines issued by the Attorney
General. Per the President's order, Attorney General Edward Levi promulgated guidelines
three months later. When these were declassified in part two years later, it was revealed that
their definition of counterintelligence differed materially from that in the Ford order
(which they were meant to support).
The Levi foreign counterintelligence guidelines remained in effect (with some
alterations) during most of the Carter administration, even though the Carter order
contained a different definition of counterintelligence.
New foreign counterintelligence guidelines promulgated by Attorney General
Benjamin R. Civiletti became effective May 1, 1980. Their definition of counterintel-
ligence differed from those in the Ford order, the Carter order and the Levi guidelines.
Moreover, when the Reagan Executive Order was issued 19 months later, its definition
differed from those in the Civiletti guidelines and in all the others, even though the Civiletti
guidelines were-and are-still in effect.
During the past eight years the FBI and other agencies with counterintelligence
functions have been confronted with a sequence of simultaneously differing, yet official
and binding, definitions of counterintelligence and have thus been confounded in terms of
the exact scope of their duties and authority.
It is possible to define counterintelligence in different ways but in such manner in each
case that its meaning and scope are the same. On the other hand, different words or
virtually the same words differently arranged, can clearly alter meaning and scope to a
large or small degree, or raise doubt, questions and debate about the exact compass of any
definition. The latter presents the greatest problem. Administration officials can resolve
questions or debate about a definition's scope by fiat, interpreting specific words narrowly
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or loosely, as they choose. If a debatable definition becomes an issue in a court case
involving explicit authorization for a particular action, however, there is no telling how a
judge will rule on the matter-with potentially serious consequences.
The varying definitions of counterintelligence that have been in effect during the past
eight years have been both clearly different in the authority they conferred and also
confusing and debatable on the issue.
The Ford order had the virtues of clear, simple, direct and generally broad language.
It defined foreign counterintelligence as
activities conducted to protect the United States and United States citizens from foreign
espionage, sabotage, subversion, assassination or terrorism.4'
For years before the order was issued the FBI had been surveilling and reporting on
Soviet open collection of intelligence in the U.S., observing not only KGB but other Soviet
personnel picking up useful, highly technical literature at industrial exhibitions, confer-
ences and similar affairs. Technically, such collection is not espionage and surveillance of it
was therefore no longer authorized by the Ford order. Yet such observation is important to
a counterintelligence agency because, among other things, coverage of the extent of the
effort to obtain certain types of open, unclassified information provides clues to likely
targets of clandestine collection.
The Carter Executive Order (No. 12036, 1/24/78) contained the following definition
of counterintelligence:
information gathered and activities conducted. to protect against espionage and other
clandestine intelligence activities, sabotage, international terrorist activities or assassina-
tions conducted for or on behalf of foreign powers, organizations or persons. ...t9
By limiting agencies to espionage and other "clandestine" intelligence activities, the
Carter order technically continued to bar surveillance of open hostile intelligence
collection. This was an obvious flaw, similar to that in the Ford order.
It was further defective because, by eliminating Ford's "subversion" and restricting
authority to surveillance of other "clandestine intelligence" operations, it technically
barred coverage of various forms of Soviet active measures.
Control of non-ruling Communist parties and their fronts as well as of international
communist fronts, continue to be highly important Soviet active measures, according to
the FBI and the CIA. Yet as already observed, this control is not effected through the KGB
or any other Soviet intelligence agency, but by the International Department of the
Politburo. Both the CIA and the FBI, in testimony and studies submitted to Congress,
have emphasized this point. A CIA expert on Soviet active measures made the following
statement before the House Intelligence Committee:
The KGB is not supposed to use a Communist Party mechanism [for active measures]
without approval.... [A] residency cannot go out and recruit a local communist or
someone involved... [in a front] without high level Moscow approval,... [T]hey cannot
use party as such.50
The International Department is so powerful in the active measures field, according to
the CIA, that it reviews and coordinates foreign policy suggestions by the Ministry of
Foreign Affairs, the KGB and other high level Soviet agencies and even uses the KGB as an
errand boy when its active measures, or an element of them, requires secrecy (i.e.,
delivering cash sums to the CPUSA, which is financed by the International Department).
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Soviet control of the CPUSA is hardly clandestine. It has been a matter of
Congressional, court and executive findings for at least 35 years. In much earlier years, it
was proclaimed by American Communists themselves. CP leaders now travel openly, not
secretly, to Moscow and to major international conferences of the world's pro-Soviet
Communist parties, and Soviet officials openly meet with CPUSA leaders in this country.
Soviet control is also exercised in part through internationally circulated magazines such as
the World Marxist Review and International Affairs.
For all these reasons, it is ridiculous on its face to assert that Soviet control of the
CPUSA, its fronts and American branches of international Soviet fronts is a "clandestine
intelligence" activity. The Carter order, therefore, technically did not authorize counter-
intelligence surveillance of these most important Soviet active measures-though, oddly
enough, it did authorize FBI surveillance of the KGB's secret transmission of money to the
CPUSA on behalf of the International Department. (In this an intelligence agency was
indeed operating clandestinely.)
The Ford order, it should be noted, shot itself in the foot on this issue. Its definitional
word "subversion" was probably broad enough to cover any active Soviet measure. But
the section of the order specifying the FBI's counterintelligence duties gave authorization
to "detect and prevent espionage, sabotage, subversion, and other unlawful activities by or
on behalf of foreign powers.... " (Emphasis added.)
The clear implication of the words "and other unlawful" was that all subversion is
criminal-which is far from the truth. The order thus clearly authorized counterintel-
ligence surveillance only of such foreign-instigated "subversion as was in violation of federal
statutes-i.e., very little. In doing so, it nullified most of the value of the broad term
"subversion" in its definition and specifically barred FBI surveillance of open Soviet
intelligence collection.
The current Reagan Intelligence Community Executive Order (No. 12333, 12/4/81)
changed the definition of counterintelligence in the Carter Executive order only slightly,
describing the term as
information gathered and activities conducted to protect against espionage, other intel-
ligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers,
organizations or persons, or international terrorist activities....
By dropping the word "clandestine" which appeared in the Carter order between the
terms "other" and "intelligence activities," the Reagan document for the first time
explicitly authorized the collection of intelligence about Soviet and other open (lawful)
collection of intelligence here or anywhere in the world.
For the same reason it also authorized collection of information about active measures
carried out by all foreign intelligence services and action to counter them, it being generally
accepted today that intelligence services routinely undertake such operations in addition to
collection activities.
The Reagan definition is still defective, however, because like the Ford and Carter
orders, it technically does not authorize coverage of active measures carried out by the
Soviet International Department or any other non-intelligence agency of any nation in the
world. International Department operations, among the most dangerous of Soviet active
measures, simply cannot be accurately classified as "intelligence activities." Per the
Reagan order, the FBI should not today be surveilling the Communist Party, its fronts, the
U.S. Peace Council (an open affiliate of Moscow's World Peace Council), the U.S.
affiliates of any other international fronts, or any other operations of the Politburo's
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International Department in this country. The same restriction is true, it should be noted,
of U.S. counterintelligence services operating abroad.
There is, however, an ironic aspect involved in the fact that Executive Orders have the
force of law and that, throughout the past eight years, the House and Senate Intelligence
Committees, the Intelligence Oversight Board, the Office of Intelligence Policy and
Review in the Department of Justice and other watchdog agencies have supposedly been
breathing down the necks of the FBI and all other intelligence community agencies to see
that they adhere strictly to the rules in all their operations.
It is that the FBI has been conducting basically the same types of counterintelligence
activities during these eight years, despite the gaps and real differences in the authority
conferred on it by the varying definitions of counterintelligence in the executive orders of
the last three presidents. It has for example, been surveilling the CPUSA, its various
fronts, and such groups as the U.S. Peace Council in this country. The Interagency Intel-
ligence Study of Soviet Active Measures, which dealt only with such activities abroad,
reveals that agencies with overseas counterintelligence authority have been doing the same
thing.
One is forced to conclude that, since intelligence community executive orders became
"the law," every administration has been interpreting some of the intelligence terms in
these orders pretty much as they please, with no apparent concern for the real world or for
the plain meaning of words.
This does not mean that the extent of collection has been the same in each administra-
tion, or that in the same or similar circumstances, the same techniques have been as freely
or widely used in one administration as in another. Beyond the technical meanings of the
varying definitions of counterintelligence in the Executive Orders, the extent of collection,
the techniques used in varying circumstances, etc., have also been determined in part by
other factors- changes in guidelines, new interpretations of the meaning of laws perceived
as affecting information collection (e.g., the Privacy Act) and, perhaps most importantly,
the differing attitudes of successsive administrations toward intelligence, security and
related matters.
What is meant is that, in a broad sense, the general areas of FBI coverage have been
the same, though they should not have been because of the technical differences in the
binding definitions of "counterintelligence" in the three Executive Orders. During the
Ford and Carter administrations, for example, the FBI surveilled Soviet open collection of
intelligence in the U.S. although the Presidential definitions of counterintelligence then in
effect technically authorized surveillance only of espionage and other clandestine intel-
ligence activities.
These administrations have gotten away with it, apparently because of careless or
deliberately loose oversight. But everyone involved has taken risks. Court tests of some
counterintelligence agency activities, based on perceptive critical challenges to their
executive order authority, could well have resulted in decisions finding certain actions
critical to national security to be unauthorized and could have directed their cessation. The
fact, of course, that executive orders can be changed overnight could preclude lasting
damage in this area. A current order could be amended quickly to close any loopholes
found by a court.
But there might well be other, more lasting damage. The reputation of the FBI or
other counterintelligence agencies involved in court challenges would no doubt be further
sullied and their "lawlessness" decried by elements in the media, Congress, or in the
"constitutional rights" field (where active measures and agents of influence would prob-
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ably be involved). Indeed, such an effect would rub off on all intelligence agencies.
Counterintelligence morale-and thus efficiency-would obviously suffer. Personnel
in the intelligence community still recall vividly that over 120 FBI agents were hauled
before grand juries in the Carter administration and several top officials prosecuted. They
are aware that others have had large money judgments assessed against them in civil suits
for alleged constitutional rights violations. This in itself has already adversely affected
morale.
Additionally, the gaps and contradictions in recent executive order and guideline
definitions outlined here have been only too apparent to officials and personnel who have
analyzed them. Some personnel are also aware that there have been disputes within and be-
tween agencies, the Justice Department and Congressional intelligence committees about
the precise scope of the definitions. Add a few adverse court decisions to these factors
which have already hampered vigorous execution of duty, and the potential for national
security damage is great.
At the very least the U.S. owes its counterintelligence personnel a clear, precise defini-
tion of the scope of their authority-a definition that encompasses everything their experi-
ence tells them should be included and which frees them of doubt and fear of any criminal
or civil liability.
Criminal Standard Imposed on
Counterintelligence
The FBI, as the nation's principal counterintelligence agency, had been operating on a
national security or intelligence standard, rather than a criminal standard, for 40 years
when the Levi domestic security investigations guidelines were promulgated in 1976. To
understand the impact these guidelines had on Bureau counterintelligence capabilities,
some background facts are essential.
The FBI was created as the Bureau of Investigation in 1908 to serve as the investigative
arm of the Department of Justice. At that time, it had no intelligence, counterintelligence
or national security functions. It was a law enforcement agency charged with investigating
violations of federal statutes not specifically assigned to other agencies. In time it became
politicized and corrupt, exceeding and abusing its authority in a variety of ways. In 1924,
President Calvin Coolidge gave his Attorney General, Harlan F. Stone, the job of
reforming the Bureau. Stone selected J. Edgar Hoover, a young career official in the
Bureau recognized as competent and honest, as the new Bureau director and instructed him
that "the activities of the Bureau are to be limited strictly to investigations of violations of
law...."
The Bureau, renamed the Federal Bureau of Investigation in 1935, was placed on a
strict criminal standard. Hoover rebuilt and reformed the Bureau from top to bottom.
Eventually, it became internationally famous, recognized as the finest investigative agency
in the world.
In 1936 President Franklin D. Roosevelt made a basic change in the nature of the FBI.
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He was concerned about the growth in this country of totalitarian movements which had
ties with aggressive foreign dictatorships. He instructed Hoover that the FBI was to collect
intelligence systematically about "subversive activities in the United States, particularly
Fascism and Communism." FDR wanted "a broad picture of the general movement and
its activities as [they] may affect the economic and political life of the country as a whole."
He directed Hoover. to keep the assignment secret.
By presidential directive, the FBI was then off the criminal standard. It was still a law
enforcement agency with that standard applying to its strictly criminal investigations, but it
had a new intelligence (really counterintelligence) duty keyed to the country's security
needs. They, rather than any criminal laws, would dictate the FBI's activities in this area.
In 1939, when war broke out in Europe, FDR made the FBI's counterintelligence
assignment public. He called on all law enforcement agencies in the country to assist the
FBI by turning over to it all information they obtained "relating to espionage, counter-
espionage, sabotage, subversive activities and violations of the neutrality laws."
FDR's 1939 public directive was reaffirmed in a 1943 wartime directive and in
subsequent directives by Presidents Truman (1950), Eisenhower (1953) and Kennedy
(1962). The Kennedy directive was still operative in 1976 when the Levi guidelines became
effective.
Additionally, the constitutionality, propriety-and even the necessity-of the FBI's
functioning on a national security or intelligence standard had been repeatedly affirmed by
Congress and the courts on all levels. In a 1972 decision, for example, the Supreme Court
had stated:
One of the functions of...the Federal Bureau of Investigation, is to compile
information [i.e., gather intelligence] on law violators, agitators of violence, and possible
subversives."
The Levi guidelines dictated, however, that all future FBI "domestic security" investi-
gations-which were pivotal in terms of the Bureau's counterintelligence
capabilities-would be limited strictly to the activities of groups or individuals "which
involve or will involve the use of force or violence and which involve or will involve the
violation of federal law...." "
The new guidelines thus completely reversed the domestic security
(counterintelligence) directives of every President since FDR. They returned the FBI to the
narrow criminal standard, stripping it of all intelligence authority in the internal security
field.
The Levi document went even further, denying the FBI the right to gather information
about violations of all federal laws relating to domestic security. As the above quotation
indicates, the guidelines protected from FBI investigation any violence that did not actually
break federal laws (legal experts point out that many acts of violence do not, being
"criminalized" only by state laws); and even where federal laws were violated, investi-
gations were allowed only when force and violence were involved.
That was not all. The Levi provisions emphasized that the FBI could not even
investigate every form of violence which was an infraction of federal laws. Violent
breaches of federal law were actually protected from Bureau investigation unless they had
one or more of the following intentions or purposes: overthrow of the U.S. or a state
government; substantially interfering in the activities of foreign governments or their
representatives in the the U.S.; influencing U.S. policy or decisions by "substantially"
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impairing federal or State government functioning, or interstate commerce; or depriving
persons of their civil rights."`
All other offenses were immune to FBI investigation as domestic security matters. Just
why the Levi rules were ever labeled "domestic security" guidelines is not clear. They were
simply a set of rules under which the Bureau would be allowed to collect criminal evidence
about certain types of violations of a limited number of federal statutes.
The Levi guidelines finished the FBI as a domestic intelligence agency, depriving it of
the right to collect the kind of information that would permit it to execute effectively any of
its counterintelligence functions.
The superseding "domestic security/terrorism" investigations guidelines promul-
gated by Attorney General William French Smith, which became effective in March, 1983,
retain the crippling criminal standard. As both Smith and FBI Director Webster stated
when they were made public, they have "a criminal nexus." They authorize FBI investiga-
tion only of "enterprises" to further political or social goals "wholly or in part through
activities that involve force or violence and a violation of the criminal laws of the United
States." "
The Smith guidelines are keyed to the RICO (Racketeer Influenced and Corrupt
Organizations) section of the Organized Crime Control Act of 1970. The purpose of
Bureau investigations under their provisions is to obtain certain information about
criminal enterprises (as defined in that law), "with a view to the longer range objectives
of ... prosecution of the criminal activities of the enterprise." 16
In 1978, when the Levi guidelines were operative, FBI Director Webster told the
House Assassinations Committee that "every agent who is involved in any work is
conducting a criminal investigation. That is, he is looking for evidence of a crime believed
to have taken place or in the process of taking place." "'
Per the Smith guidelines, that statement is still true today. Compare that statement
with testimony Webster gave the House Intelligence Committee in 1980:
[T]he threshold of counterintelligence inquiry has traditionally, and I think properly,
started at a much lower level [than the criminal standard]. We are trying to gather infor-
mation which might be useful and not because someone has violated the law but because we
believe that he is in possession of information that we need to know-and legitimately need
to know....
In counterintelligence we do not have evidence before us of a specific crime. We want
to be able, just as in counterterrorism, to identify at the earliest stages an incipient prob-
lem. No crime may yet have occurred.... I don't believe it [the criminal standard] has
application here in terms of the function of counterintelligence."
The Smith guidelines are somewhat better than the Levi guidelines because they relax
slightly the tightness of the criminal nexus. However, they are still dangerous and objec-
tionable because they continue to deny the FBI the domestic intelligence authority it must
have to perform its important counterintelligence functions effectively. Numerous under-
mining or subversive activities undertaken in this country as elements of Soviet active
measures are not embraced by the RICO statute and are thus immune to Bureau investi-
gation or intelligence collection.
No other nation on earth thus limits the authority of its key counterintelligence agency
in the protection of its national security.
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The Need for Analysis
The 1978 Intelligence Glossary defines analysis as
A process in the production step of the intelligence cycle in which intelligence
information is subjected to systematic examination in order to identify significant facts and
derive conclusions therefrom.39
U.S. counterintelligence agencies can amass tremendous amounts of counterintel-
ligence information, but will be ineffective unless that information is regularly reviewed,
studied and analyzed to discover its implications concerning hostile intentions, efforts,
concentration points and strengths, and U.S. capabilities in relation to them.
Just what do those who are hostile to the U.S. want to get? What is the range of their
priorities? What variety of methods are they using to obtain what they want? What do they
perceive to be our most valuable secrets? Considering hostile strengths, how vulnerable are
our classified projects and how can we provide better security for them? etc., etc.
What are our greatest weaknesses in combatting Soviet active measures? How and in
what areas have the Soviets been most effective in the past? What was wrong with U.S.
counterefforts? How can they be improved? What can be done now-and later-to
prevent their being effective? These are some of the questions which must be answered in
developing effective counterintelligence. Establishment of priorities in these matters is
obviously a basic need which analysis alone can provide.
Top performance can never be expected in any field, no matter what it is, without
continuing analysis. Intelligent, effective effort is completely dependent on it. Without
skilled scrutiny of compiled information, there is nothing but disjointed activity which
cannot produce desired results. A football coach, for example, amateur or professional,
who failed to review films of games his team had played and of games his upcoming oppo-
nents had played, in order to analyze his and his opponents' relative strengths and weak-
nesses, would obviously be a consistent loser-and soon out of work.
The need for intelligence/counterintelligence analysis has long been recognized, yet
the U.S., amazingly, has only very recently made provision for anything resembling a
comprehensive, overall analysis of its counterintelligence requirements.
On October 22, 1945, at the end of World War II, J. Edgar Hoover submitted to
President Truman "A Plan for U.S. Secret Worldwide Intelligence Coverage" to carry on
the vast intelligence effort undertaken during the war. (The FBI had been given wartime
foreign intelligence collection duties and covered the Western hemisphere). Hoover's plan
read in part:
A unit for evaluation and analysis would be established... to which the three
operating agencies would furnish intelligence data and appropriate review, analysis, and
utilization in international matters.60
Yet the FBI, which he directed for 42 years and which has been our principal counter-
intelligence agency for almost 40 years, has never had authorization to analyze its infor-
mation. It is empowered only to collect and to disseminate counterintelligence information
to certain restricted recipients.
The problem this creates was driven home to both the Johnson and Nixon administra-
tions in the Sixties when racial riots were endemic and violent anti-Vietnam War demon-
strations a regular occurence. Both administrations received extensive information on this
violence from the FBI, but it was mere data. There was no analysis. Additionally, although
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both administrations were concerned about the question of foreign involvement in the
violence, the FBI lacked the authority to collect abroad the information that would make
such a determination possible.
Attorney General Ramsey Clark set up a group in the Department of Justice-the
Interdivision Information Unit (IDIU)-to computerize all the information related to the
disturbances received from the FBI and a number of other domestic agencies. Another
group, the Intelligence Evaluation Committee (IEC), was supposed to evaluate this
information. The CIA was requested, and agreed, to supply information on the foreign
travel of the organizers of violent activities and on related matters.
Justice Department lawyers on the IEC, however, lacked training and competence in
analysis. They turned to the CIA for help. Richard Helms, DCI, very wisely, as later devel-
opments proved, refused to let the CIA liaison officer sit as a member of the IEC. In view
of the Agency's lack of internal security jurisdiction, he did not want it "too deeply
involved in domestic matters." The result was that, with no help received from trained
professional CIA analysts, there was never any useful analysis of all the data collected. The
Department and its investigative arm, the FBI, were incapable of the final, most important
step in the intelligence/counterintelligence process, analysis-the key to the utility of intel-
ligence information.
After reviewing this unsuccessful effort at analysis, the Rockefeller Commission
recommended in its 1975 report as follows:
A capability should be developed within the FBI, or elsewhere in the Department of
Justice, to evaluate, analyze, and coordinate intelligence and counterintelligence collected
by the FBI concerning espionage, terrorism, and other related matters of internal
security."
The Ford Executive Order issued about eight months later, however, conferred no
analytical authority on the FBI. The same was true of the 1978 Carter Order which, in
another direction, attempted to establish an overall analytic unit. It created a Special
Coordinating Committee (SCC) in the National Security Council, one of whose duties was
to "develop policy with respect to the conduct of counterintelligence activities" and
provide the President with "an overall annual assessment of the relative threat" to U.S.
interests from foreign intelligence and security services along with "an assessment of the
effectiveness of" U.S. counterintelligence."
The plan did not work-perhaps because the designated members of the SCC were of
such high rank and were given a considerable number of other important duties.
Action in this matter has finally been taken under President Reagan. His order
authorizes the NSC to establish "such committees as may be necessary" to carry out its
functions and responsibilities. In 1982, a "Senior Interagency Group-Intelligence" was
established to replace the SCC along with two working groups; one for counterintelligence
and the other for countermeasures. Director Webster heads the counterintelligence group
and Secretary of Defense Caspar Weinberger the one for countermeasures.
In regard to this project, John McMahon, Deputy Director of the CIA, testified
during his 1982 confirmation hearing that
the National Security Council has directed us to review the counterintelligence programs of
the Untied States, to look at the threat that exists here, to try and assess what ought to be
done in the sense of goals to address that threat, what capabilities we have to bring to bear
on the threat, and the difference will be the gaps where we need resources and adjust-
ments.... [R]ight now we are just doing a plan study, trying to account, get the facts."
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Asked about when the review would be completed, McMahon testified that the first
phase of it, "which will give us a feel for the threat and the capabilities," would be
completed in July 1982.
Clearly, the FBI and all other agencies with counterintelligence responsibilities should
be given analytic authority. On-going, virtual day-to-day-review of problems and response
is crucial to each one's best performance. At the same time, national security interests
urgently demand that permanent responsibility for at least an annual overall analysis
should be imposed on some competent body which has broad Intelligence Community
authority.
It is not known publicly whether the first comprehensive analysis of U.S. counterintel-
ligence has finally been completed. If it has and an adequate review has been made it
should hopefully lead to the elimination of some of the obstacles to effective counterintel-
ligence noted above (and in other studies) and, independently of that result, provide for a
much improved U.S. product. For the first time, U.S. counterintelligence will be centrally
and intelligently directed.
What is known is that this kind of comprehensive analysis has been much too long in
coming and that, having lacked it for so many years, this country's counterintelligence
operations cannot have been up to the standard its citizens have a right to expect.
Control By Amateurs
The three presidential executive orders which have governed U.S. intelligence since
1976 have given attorneys general unprecedented power over all aspects of intelligence, and
more over counterintelligence than any other element. No attorney general ever wielded
such power over intelligence in this country prior to 1976.
The U.S. attorney general, the nation's chief law enforcement officer, is typically a
lawyer of some prominence who happens to be a strong friend and/or political supporter
of the president or the party in power. As a general rule, he knows little or nothing about
intelligence or counterintelligence. Given responsibilities in the field, he turns to Justice
Department lawyers for help. If he relied on career professionals who might have
prosecuted a number of espionage or related cases, there would be at least a chance that he
would get some good advice. The tendency, however, is to turn to "his" people, the new
political appointees occupying fairly important positions in the Department.
Attorney General Edward Levi was directed by President Ford's Executive Order to
promulgate guidelines governing FBI domestic security (largely Soviet active measures)
investigations, as well as a number of others. A legal academic most of his life with no intel-
ligence background, Levi appointed a six-man departmental committee to prepare the
guidelines, comprised as follows:
Chairman: The Deputy Assistant Attorney General in charge of the Justice Department's
Office of Legal Counsel.
Members: A Special Assistant to the Attorney General;
a lawyer in the Criminal Division;
a lawyer from the Civil Division;
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a lawyer from the Office of Policy and Planning; and
a lawyer-inspector in the FBI Counsel's Office.
What was their intelligence experience? They had none. Even the FBI inspector had
never worked in the security, intelligence or counterintelligence fields. As he testified in
1977, "Not having worked in this area, I don't know to what extent being Marxist suggests
a necessary inclination toward violence." 64
Levi's own basic approach to counterintelligence was revealed in his December 1975
testimony before the Church Committee. Noting that it had been suggested that U.S.
foreign counterintelligence responsibilities might be assigned to a separate intelligence
agency, he commented,
My hope is that the fact that the FBI has criminal investigative responsibilities, which
must be conducted within the confines of constitutional protections strictly enforced by the
courts, gives the organization an awareness of the interests of individual liberties that might
be missing in an agency solely devoted to intelligence work.63
He was law-enforcement, not intelligence, oriented.
Levi's six-man committee, lacking in experience and knowledge, labored for eight
months and through 25 drafts before producing FBI domestic security investigations
guidelines satisfactory to him. Their product, the so-called "Levi guidelines," as they soon
became known, proved to be a disaster for Bureau domestic intelligence collection and thus
for U.S. counterintelligence. Levi's testimony revealed that the same committee was
working on FBI guidelines for handling White House inquiries, unsolicited mail, judicial
and congressional staff appointment investigations, informants, counterespionage, the
federal employee loyalty-security program, and criminal and criminal intelligence investi-
gations, among others.
Two of the areas listed were obviously of great importance to counterintelligence and
the national security-those concerning informants and "counterespionage."
The committee's foreign counterintelligence guidelines were so faulty they had to be
revised even during the Ford administration because of the manner in which they were
hindering Bureau investigation of Soviet espionage.
When the informant guidelines were released in January 1977, this writer stated they
would result in "the virtual destruction of the FBI informant system." That is just what
happened. While the Freedom of Information Act and other factors also influenced this
outcome, the fact of the matter is that the Levi guideline provisions alone would eventually
have brought about the same result.
W. Mark Felt, former Associate Director of the FBI, testified in 1982 that he and
other top Bureau officials had supported the concept of guidelines for FBI domestic
security operations as early as 1972, but that the 1976 Levi guidelines had little resemblance
to their proposals and "were drawn up by persons who obviously had no knowledge of the
problems involved." 67
In the Carter administration, Griffin Bell succeeded Levi as, in effect, the "czar" of
U.S. counterintelligence (the Carter Executive Order gave him even greater power over all
intelligence operations). In a March 1977 press conference, he told reporters,
Some of the most important work I do is in the field of intelligence. It takes an
inordinate amount of my time. I really didn't know it was part of the duties of the Attorney
General when I came up here .61
What was Bell's intelligence/counterintelligence background? None.
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Flatly contradicting a series of Court rulings and well known facts, he stated in a 1978
speech devoted to intelligence,
The words `national security' should no longer be used, as they were for so long, to
apply to domestic terrorism investigations.... The myth of `national security' should not
be permitted to blur the distinction between foreign intelligence and counterintelligence on
the one hand and... domestic security investigations on the other hand.69
But years earlier the Supreme Court had held that a statutory definition of "national
security" embraced "those activities of the government that are directly concerned with
the protection of the nation from internal subversion or foreign aggression." 70
The Helms-Hoover letter, previously quoted, and the federal court exhibit concerning
the Venceremos Brigade are only two of literally thousands of documents Bell could have
studied which demonstrate that domestic security investigations are indeed an element of
national security and that, because of their extensive foreign ties, U.S. terrorist groups
such as the Weather Underground are unquestionably serious "national security"
concerns.
Counterintelligence and intelligence became so deeply (and inappropriately) involved
in legal issues in the Carter administration that Bell created an Office of Intelligence Policy
and Review in the Department of Justice. Whom did he pick to head what the media
termed this "supersensitive" office as Counsel for Intelligence Policy? A young lawyer,
Kenneth C. Bass III. What were his qualifications to formulate U.S. intelligence (and
counterintelligence) policy? He had graduated from Duke, studied law at Yale, clerked for
Justice Hugo Black and worked on Capitol Hill for a time before joining the Department
of Justice in 1977, where he worked in the Office of Legal Counsel.* Another amateur
occupied a key post in the management of U.S. counterintelligence!
As director of U.S. intelligence/counterintelligence policy, Bass was capable of
asserting publicy in 1980 that the intelligence community had not been "the only rogue
elephant running around," but that the Department of Justice and the Internal Revenue
Service had been doing "exactly the same thing." He further remarked,
The intelligence process is not a process of spying on Americans, finding out what
Americans are doing or maintaining an internal security program."
He continued in his public statement that the unresolved intelligence question was
whether and under what circumstances the need to get information about foreign threats
will be seen to override the rights of Americans to be let alone and not to be intruded
upon.72
His view was that it was only on "rare occasions" that national intelligence needs
overrode such individual rights.
Understandable, coming from a former law clerk for Justice Black, but hardly
believable as a pronouncement of the U.S. Counsel for Intelligence Policy.
There has been some, but not enough, improvement in this area during the Reagan
administration. Executive Order 12333 reduced the power of the attorney general, giving
top intelligence officials the final say in a number of important areas by completely elimi-
* An analysis prepared for the Senate Internal Security Subcommittee inthe early 1970's reviewed 107
Supreme Court decisions relating to subversion (including espionage and violent overthrow) handed down during
the years 1943-1961. It revealed that Justice Black had participated in 102 of them, had written five, and had voted
against the U.S. government position in all the 102 rulings, always siding with the opposition. The analysis is
unpublished. A copy is in the author's files.
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nating the attorney general's role, or reducing it to an advisory or consultative status.
Attorney General William French Smith, however, like his predecessors, had no back-
ground in intelligence matters. For this reason, the authority remaining in the office per the
Reagan order was still excessive, inevitably introducing elements of amateurism into those
areas in which he retained authority. Because the odds are great that all future attorneys
general will be similarly unqualified, they should never be given more than a consultative
role in a limited number of matters.
Who was given the sensitive position of Counsel for Intelligence Policy in the Reagan
administration?
Another capable, bright young lawyer, Richard K. Willard. After graduating from
Emory University, Willard served as an intelligence officer in Vietnam with the Army
Security Agency. He then attended the Harvard Law School and clerked for a U.S. appeals
court judge and for Justice Harry A. Blackman before entering private practice.
Willard's intelligence experience in Vietnam was a plus. But it can hardly be argued
that brief experience in a limited intelligence area qualifies a person to serve in a top intel-
ligence policy post for a major world power. If genuinely professional results are
desired-and they are essential to this country-much more knowledge and experience is
required.
Willard headed the Office of Intelligence Policy and Review for only about a year
before being promoted to Deputy Assistant Attorney General. A successor had to be
found. Perhaps someone really knowledgeable and experienced would be selected. Whom
did the administration pick?
The same former Justice Department lawyer who had chaired the disastrous Levi
guidelines committee, Mary C. Lawton. A graduate of the Georgetown University Law
Center, Ms. Lawton had joined the Department of Justice in 1960 and headed its Office of
Legal Counsel in 1975, when she was chosen for the Levi committee post. She left the
Department during the Carter administration to become general counsel of the Corpor-
ation for Public Broadcasting, a job far removed from intelligence. With the advent of the
Reagan administration, she became White House Administrative Law Officer, another
position that had no relation to intelligence.
Once more a person who, despite her guidelines committee experience, must be
considered an intelligence amateur, held a key intelligence policy position in the U.S.
government.
Amateurs obviously cannot compete on an equal footing with professionals in any
field. Most of the world's intellignce services are headed by seasoned, shrewd profes-
sionals, and their policy and practices are guided by them-not by lawyers, old or young,
whose major interest in life is U.S. civil and criminal law and justice for those accused or
aggrieved under those laws. For close to a decade now the U.S. has turned much of the
crucial governance of its counterintelligence and intelligence-both so vital to its
security-over to amateurs who have been trying to compete with the most experienced and
ruthless professionals in the world. On its face, the practice is ridiculous.
It is unreasonable to expect that, under these circumstances, the U.S. could have
adequate counterintelligence capabilities. It is reasonable, on the other hand, to expect that
both the House and Senate Intelligence committees and former top intelligence offi-
cials-the most experienced the nation has-would be concerned, as they all are, about the
deteriorated condition of American counterintelligence.
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Little or No "Counter" in
U.S. Counterintelligence
A counterintelligence service, as already noted, is not simply passive or largely
reactive. It does not identify a spy, say, and then merely watch him operate until it has
collected enough evidence for his prosecution under espionage statutes, although effective
counterintelligence will quite often lead to that end result. Ideally, it uncovers a spy before
he has had the opportunity to carry out his mission and then moves aggressively against
him to see that he never succeeds in obtaining the type of information he is after.
Similarly, in the case of Soviet active measures, it does not seek merely to identify and
observe them with the idea of obtaining prosecutive evidence should they involve a vio-
lation of some criminal law. Rather, no matter what their nature or who is working to
effect these measures, counterintelligence takes positive action to prevent the achievement
of their purpose or at least to limit their effects.
When the Levi domestic security investigations guidelines for the FBI were being
developed in 1975 and the early part of 1976, all early drafts included a section titled
"Preventive Action." However inadequately, this section recognized the traditional
"counter" element in counterintelligence even as it applied to the domestic scene. It did so,
however, in a very narrow and limited way.
It authorized the FBI, dependent upon specific approval of the Attorney General, to
undertake "non-violent emergency measures" to obstruct or prevent a planned violation
of federal law, but only if the violation involved the use of force and violence or posed a
threat to life or property destruction that would impair "essential" government functions
and Bureau action was "necessary" to minimize the damage to life or property.
According to the Levi draft provisions, the Bureau was to stand by and do nothing
while many other violations of federal law engineered by hostile foreign powers took place.
It would do the same if the force and violence planned did not threaten human life, or if the
property damage planned (no matter how extensive) would permit continuation of
essential government activity. (Many terrorist bombings of earlier years would have been
immune to FBI counteraction under these provisions.)
Yet even this "Preventive Action" section, as weak as it was, was stricken from the
FBI guidelines when they were promulgated in the spring of 1976. Attorney General Levi
announced that "the guidelines do not authorize the FBI to intervene to prevent such
threats [as specified in the drafts] to life or property." He conceded only that in situations
of "great human peril" if the FBI asked him for permission to take preventive action, he
"might" grant it."
In the domestic security field, FBI was thus no longer a counterintelligence agency. It
had been demoted to a mere criminal investigative agency that was not even permitted to
take action to prevent many heinous crimes, let alone generally protect the national
security.
How far, if at all, this ban extended into the foreign counterintelligence field is an
unknown because the Levi guidelines for FBI operations in that area were largely
classified. Those parts of them declassified in May 1978, however, contained two related
provisions with disturbing implications. One provided that when the FBI, while using
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"extraordinary techniques" for counterintelligence purposes, developed information
about criminal activity within the jurisdiction of other agencies, it could disseminate to the
agency concerned information about "uncompleted" crimes "threatening endangerment
to human life." The other provided:
Nothing in these guidelines shall limit the authority of the FBI to inform any
individual(s) whose safety or property is directly threatened by planned force or violence,
so that they may take appropriate protective safeguards."
One cannot be certain because most of the foreign guidelines remained classified, but
both of those provisions surely read as though the FBI itself could take no action, even in
the foreign counterintelligence area, except to notify a person whose life or property was
threatened so that he or she (not the FBI) could do something to prevent the threatened
violence.
Bolstering this view is the fact that when the guidelines were declassified in part, a top
Justice Department official stated in a covering letter that "all of the excisions [still clas-
sified parts] address sources and methods of investigation and their applicability to certain
categories of subjects." Such matters, it would seem, would not embrace FBI counter-
action authority."
Also revealed in his letter was the fact that the section having to do with the dissemi-
nation of information acquired by extraordinary techniques "was recently issued" [as of
May 23, 1978]. This indicates that for over two years the restrictions on Bureau dissemi-
nation of such information had been so extreme that it could not even counteract to the
extent of notifying other agencies about pending, life-threatening crimes within their juris-
diction.
The foreign counterintelligence guidelines of Attorney General Benjamin R. Civiletti,
which superseded the Levi guidelines on May 1, 1980 and are still in effect, have also been
declassified, of course, only in part. They authorize the FBI to detect and prevent
espionage, sabotage, and other clandestine intelligence activities "through such lawful
counterintelligence activities" as are necessary and to detect and prevent international
terrorism "through such operations" as are necessary.7,
If the difference in the above-quoted and italicized words was intended rather than
being an editorial slip, the current (Civiletti) foreign counterintelligence guidelines confer
unlimited preventive action or "counter" authority on the FBI when it is dealing with
international terrorism, but limit it to "lawful" counterintelligence activities in its efforts
to counter espionage, sabotage and various other hostile operations.*
Just what are "lawful counterintelligence activities"? It is not known. The term is
apparently not defined in the guidelines. Their partially declassified text reveals that 21
terms used in them, alphabetically arranged, are defined in the "Definitions" section, with
the text of five of the definitions deleted (classified). One of these five deletions is so
located in the alphabetical sequence that it could be a term beginning with the letter "1" (or
any other letter from "i" to "p"). Because such general, non-sensitive terms are usually
not classified, however, and because the term was definitely not defined in the Levi guide-
lines though used in them, it is highly unlikely that this classified deletion is a definition of
"lawful counterintelligence activities."
What the FBI is allowed to do today in trying to counter espionage and certain other
* The Levi foreign counterintelligence guidelines had the same basic provisions, requiring "lawful" opera-
tions in the first instance but imposing no such limitation in the second.
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hostile foreign activities is thus not specified. Presumably, the Attorney General and/or his
Counsel for Intelligence Policy decides what is lawful and unlawful in these areas of
counterintelligence activity.
The clear distinction between the two types of counter authority authorized by the
above words in the guidelines, however, indicates that there are now definite limitations on
actions the FBI can take to try to prevent such serious threats as espionage, sabotage and
"other clandestine intelligence activities" carried out in this country "by or pursuant to the
direction of foreign powers."
The "General Prohibitions" section of the Civiletti guidelines is completely classified
(presumably so that foreign intelligence agencies will not know what they can get away
with), with the exception of one subparagraph which is not relevant to the subject of
counteraction. Whether, and to what extent, the section may bar effective counteraction is
therefore not known.
The only clue to the Bureau's counteraction power in the Civiletti provisions is in one
declassified paragraph concerning its general authority to collect foreign intelligence and
foreign counterintelligence information. In such collection
the FBI shall not use drugs, physical force except in accord with the law, or any technique
contrary to law or fundamental standards of due process under the Constitution and laws
of the United States. (Emphasis added.) "
The exact extent of the limitations included in the italicized portions of that quotation
could be argued endlessly, but they are clearly great and probably a good indicator of the
restrictions on its counter action authority.
The domestic security investigations guidelines issued by Attorney General William
French Smith which became effective on March 21, 1983, contain no provisions relating to
preventive action. They do refer to the Bureau's duty to prevent violations of federal laws,
but only in the context of the general duty of all law enforcement agencies to prevent the
commission of crimes within their jurisdiction. The words "national security" appear
nowhere in the guidelines, nor do they contain any mention of a Bureau duty or power to
counter dangers or threats to the internal or domestic aspects of national security which do
not violate federal laws, whether they are domestic in origin or foreign-instigated.
From the counter-action viewpoint, they made no change in the situation that existed
under the Levi guidelines. That situation has been described authoritatively. In 1978,
Deputy Attorney General Civiletti testified that "the COINTELPRO types of activ-
ities ... are now absolutely prohibited." '8
And during the same hearing FBI Director Webster testified, "The COINTELPRO
program is just wiped off the books; there isn't anything comparable to it in the Bureau,
nor can there be." "
Interrogated earlier in 1978 about FBI "preventive action," FBI Associate Director
James Adams responded, "We are not talking about neutralization, disruption, and that
sort of activity which took place during the COINTELPRO actions of years past." 8?
Did the FBI undertake any efforts to neutralize the activities of domestic security
groups? Adams: "No; not in the sense that it was used under the COINTELPRO
actions." 8'
Adams gave some examples of Bureau "preventive action." An FBI special agent had
penetrated a terrorist group in an undercover role and learned of an assassination plot and
a plan to bomb the office of a state senator. The terrorists were indicted and arrested, the
plot foiled. A hate group involved in civil rights violence acquired a cache of grenades. The
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Bureau obtained a search warrant and confiscated the grenades, thus preventing their use.
Adams summarized FBI preventive action by saying that
we try to pursue the matter until we can develop a prosecutable violation.... By taking
these individuals off the street, we insure that they will not commit the act on a subsequent
date as long as they are incarcerated."
That is good criminal law enforcement. In his testimony Adams admitted problems,
however:
This becomes a very delicate question at times as to whether we have sufficient control
over this situation.... In some instances, if you are unable to develop a prosecutable case,
then it is necessary to just go out and interview the known participants in order to let them
know that you are aware of their anticipated plans and hope that you discourage the activ-
.,
qty....
This is, again, good law enforcement, but not action that eliminates or weakens
threats in the non-criminal security area.
Director Webster expressed the FBI's preventive action responsibility as follows:
[O]ur responsibilities in foreign counterintelligence go beyond those of domestic
security investigations in that we have a responsibility there to neutralize the impact of
foreign efforts to gather intelligence in this country, whereas we have no such responsibility
to neutralize activities in domestic security....
In foreign counterintelligence, we do engage in legitimate efforts to confuse foreign
activities, and to make them consume substantial amounts of their available time wonder-
ing about the effectiveness of their operations. (Emphasis added.) "
In view of what is known about the Levi-Civiletti foreign counterintelligence guide-
lines (see also section on "Overly Restrictive Guidelines"), one wonders about the nature
of the "legitimate" efforts Webster was referring to.
The Senate Intelligence Committee discussed some of the major counterintelligence
problems it perceived (including a number treated in this study) in its annual report for the
years 1979-80. One concerned hostile interference in our "economic and political system
through the use of witting clandestine agents and accessories" (including those from
nations not technically within the Communist bloc) by "covert action." Commenting on
the difficulty of identifying such agents, the Committee stated, "In the past, these kinds of
activities came under the heading of counter-subversion which, along with counter-
espionage, is important to our national security." 85
The problem, the Committee said, deserved further attention although this country is
limited by its political system in the extent to which it may act to cope with the problem.
The panel has since said nothing further on the subject. In the meantime, there is, tragi-
cally, no "counter-subversion" by the FBI or any other counterintelligence agency in the
United States. As far as the U.S. government is concerned, the Soviet Union-and all other
nations-have a completely free hand in undertaking active measures to undermine the
U.S. To a very limited degree, the FBI can collect intelligence about such activities but it
can take no positive action to defeat them.
This lack of a counter-subversion capability is one of the major weaknesses in the
nation's "counterintelligence" posture. Because of it, the national security of the U.S. is
endangered to a degree its citizens are largely unaware of.
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Manpower Shortage
For security reasons, neither the total number of U.S. intelligence personnel nor the
division between those assigned to "positive" collection and counterintelligence is
supposed to be revealed. Despite this, sufficient information has been made public to
demonstrate that U.S. intelligence/counterintelligence manpower and funding is
inadequate.
In January 1976, then Senate Majority leader Mike Mansfield stated that since 1969
"the total number of intelligence agency employees has dropped from 142,000 to 80,000 at
present-a reduction of 43%." To Mansfield this was "a trend in the right direction." He
opined "I would think we need to pare it still more." A few weeks later, he stated that the
43% figure applied to "all the intelligence agencies, with a few exceptions." 86
A 1976 Church Committee report stated that "the number of intelligence workers has
declined sharply over the past several years" and, in support of its claim, cited figures that
fairly closely resembled those of Mansfield 87
Year Total Manpower
1968 153,800 (all-time high)
1975 101,500
1976 89,900 (planned)
The Committee also said the real value of intelligence appropriations had declined
steadily since reaching a high in 1966 and that the 1976 budget would be "about equal in
buying power to the budget of the late 1950s." 88
What has happened since 1976?
More cuts in appropriations, and therefore manpower, followed for several years.
The 1978 authorization report of the Senate Intelligence Committee for the Community's
1979 budget noted, for example, that while "demands for better and more timely intel-
ligence have continued to increase" since 1970 (despite Senator Mansfield's implications to
the contrary), "manpower has been reduced by about half," and that during the past
decade the cost of intelligence "has shown a steady decline." During the House debate on
the 1979 budget, Rep. Bill Burlison of the House Intelligence Committee stated, "We made
very substantial cuts in the recommendations of the President." 19
It was not until 1980 that the intelligence committees-for a change-recommended
an increased intelligence appropriation and Congress voted for it. Recent modest
increases, however, have not closed the dollar-personnel gap that widened over so many
years. In the 1983 Senate debate on the intelligence appropriation for 1984, when the
Administration again received less than it had requested, Senator Malcolm Wallop,
managing the authorization bill for the Intelligence Committee, warned that "we have a
long way to go" and that "Congress will have to authorize more money" in future years.90
The committee authorization report stated that past "resource constraints" had
"seriously" limited and degraded the Community's ability to meet the nation's intelligence
needs.91
Precise figures on FBI personnel are public, though numbers of those assigned to
counterintelligence are not. The Bureau reached its special agent peak in the years 1972-73
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when 8,631 were on the payroll. A steady decline followed until 1980, when it reached a low
of 7,804. Director Webster had told the House Appropriations Committee in 1978 that it
was "very difficult" to accept the then proposed agent cuts and that there was "a very
serious question" about the Bureau's ability to do its job because "we are, very frankly, at
rock bottom." In 1980, he said "We continue to be at rock bottom.... We have lost 800
agents from 1976 to 1980." He pointed out that, at the same time Congress had thus
reduced its special agent force, "you enormously expanded our responsibilities." 92
The 10 percent cut in FBI agent personnel presumably meant that, given its added
responsibilities, there would be a cut of at least the same percent in the number of agents it
could assign to counterintelligence.
As President Reagan noted in his remarks at the FBI's 75th Anniversary celebration in
July 1983, the Bureau had been given money for more agents in 1982 "for the first time in
many years." " In 1983, the Bureau's budget totaled more than $1 billion for the first time
in its history. The figure included a large, unrevealed increase for foreign counterintelli-
gence. As of the end of March 1983, however, the FBI still had only 7,990 special
agents-more than 600 less than it had had 10 years earlier.
As long ago as 1974, FBI Director Clarence Kelley told a group of reporters that he
was thinking of asking for 250 additional agents because he did not have enough to keep
track of the foreign spies in the U.S. His budget would not permit the one-to-one ratio he
believed desirable. Instead of getting more agents, however, he began to get fewer.
Attorney General Willian F. Smith, described the problem further to the Los Angeles
World Affairs Council in December 1981:
At one time the FBI could match suspected hostile intelligence agents in the United
States on a one-to-one basis. Now, the number of hostile agents has grown so much that
our FBI counterintelligence agents are greatly outnumbered."
In less than a 20-year period, there had been a major change in the foreign spy-vs-FBI
counterintelligence special agent ratio, according to W. Raymond Wannall, former intel-
ligence chief of the FBI. The Bureau had one counterintelligence special agent for each
known or suspected Communist bloc spy in the early 1960s, but by the time Wannall retired
in 1976 there was only one Bureau agent for every four-to-five Communist bloc spies."
The one-to-one ratio mentioned by Smith and Kelley is far from adequate. Even two-
man surveillance teams are not enough. At least six-man teams are necessary, both day and
night, to keep track of one known spy. In addition, others are needed for electronic surveil-
lance, for investigating his contacts (which may later require more full surveillance teams),
etc. Full 24-hour surveillance actually requires 15 to 20 men per day. When an important
action is expected, area coverage could well require the presence of scores of FBI counter-
intelligence agents.
Numbers alone do not tell the full story of CIA, FBI and other counterintelligence
agency personnel losses. Quality is also involved.
James Angleton was chief of counterintelligence at the CIA from the late '40s until the
end of 1974, when CIA Director William Colby forced his resignation. A 31-year veteran
of the Agency, Angleton had built up a highly competent staff to assist in the Director's
statutorily imposed mission "to protect intelligence sources and methods from unauthor-
ized disclosure." Colby's action forced three of Angleton's top counterintelligence aides to
resign in protest at the same time, thus eliminating the entire top command of CIA counter-
intelligence. Colby then broke up the counterintelligence division, scattering its respon-
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sibilities throughout the CIA with the result that they were frequently handled by inexperi-
enced personnel.
Beyond the major damage to morale which the engineered resignation of the agency's
four top counterintelligence officials had on the other counterintelligence employees,
Colby's clear antipathy toward the four (and other factors) brought on the resignation or
early resignation of many of the most experienced counterintelligence practitioners in the
nation's principal foreign intelligence agency.
A somewhat similar situation developed in the FBI. Differences between FBI Director
Clarence Kelley, along with other top FBI officials, and President Ford's Attorney
General, Edward Levi, were apparent in 1976. After he became President in 1977, Jimmy
Carter forced Kelley's retirement, replaced him with a judge who had no intelligence/
counterintelligence knowledge or experience, and made it clear that there was going to be a
"new order" in the FBI.
Optional (early) retirements of FBI special agents had begun to escalate during the
Ford Administration. Early in 1977, Washington press accounts noted that "hundreds of
agents are retiring" and that because of retirements, "much of the top echelon of the FBI is
going to change within the next few months."
In the spring of 1978 Director Webster revealed in Congressional testimony that by
January of that year the Bureau had lost about 600 agents through retirement in that fiscal
year and that another 400 were expected in fiscal 1979. He also revealed that 516 special
agents had retired in the two-month period, December 1977-January 1978.96 Some were
due to a law requiring retirement from the FBI at the relatively early age of 55, but many
were due to the "new order." A large number of the most experienced counterintelligence
agents were among the retirees.
Reporting on the state of U.S. counterintelligence in 1981, the Senate Intelligence
Committee pointed out that one of the things it had been examining was "the effects of
personnel cuts and early retirements, which have reduced significantly the number of
counterintelligence experts with over 20 years of specialized experience." 91
An FBI official, testifying before the House Intelligence Committee in 1979, gave an
indication of what was causing so many retirements. He quoted a recent retiree as saying
shortly before he left the FBI:
Gentlemen, where else is the federal government paying me not to investigate? If I do
investigate, I can't keep a record. If I could keep a record, I can't disseminate it. And if I
disseminate it, I have got to excise it and purge it. So it is, in a way, for a veteran of almost
30 years in the FBI, [thatl,I feel as though I am not earning my money."
In 1974, when Kelley wanted 250 more FBI agents to track Soviet spies, there were
1,647 Soviet-bloc official personnel in the U.S., an estimated 40 percent of whom (over
650) were actual or potential spies. In 1981, when Smith said the FBI counterintelligence
agents were "greatly outnumbered," the total was 1,790, representing about 790 hostile
agents-an increase of 323 or almost 20 percent. By 1982 it had jumped to 2,131, adding
161 more individual worries to the Bureau's ever-growing list of potential Soviet bloc spies.
Additionally, there are the personnel of the Chinese delegation to the U.N. and in its
Washington Embassy to worry about (both have grown at a great rate), plus the Cuban
U.N. Mission and its Interests Section in Washington. Beyond these there are the
"illegals"-the deep-cover spies who do not have diplomatic immunity: some 20,000
Soviet seamen who visit about 40 different U.S. ports each year; tens of thousands of Com-
munist bloc visitors, plus trade, cultural and other exchange delegations; a few thousand
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Soviet immigrants per annum; and thousands of Communist bloc exchange and other
students (an estimated 12,000 Chinese in 1984). (The Church Committee reported that the
FBI identified over 100 intelligence officers among the 400 Soviet students who studied
here in the years 1966-76).
Referring to the many thousands of Soviet seamen who called at U.S. ports during his
last year in the FBI, Wannall testified that "there was no way of trying to find out what
they were doing." 99
The FBI's counterintelligence problems reach "astronomical proportions," former
director Kelley pointed out some years ago in noting that 55,000 Communist bloc visitors
were in this country in 1975. John Barron, authority on the KGB, wrote in 1978, "So many
Russians freely roam the United States that at any given time no government agency knows
precisely how many are here, where they are or what they are doing." 100
The Bureau's counterintelligence concerns extend far beyond the Communist bloc, as
numerous as its agents are. In the Middle East and former colonial areas of the world-the
"Third World"-there are many nations with no love for the U.S. A considerable number
of them have openly or neo-Marxist governments and are little more than Soviet client
states. Most have U.N. delegations in New York and embassies or other offices in Wash-
ington, all of which place added demands on the FBI.
Counterintelligence, of course, is not the only responsibility of the FBI with its present
force of about 8,000 special agents. Along with it, two other programs have top prior-
ity-organized crime and white collar crime-and its anti-terrorism program is now also
being given higher priority. In addition, there are a dozen or so other special programs
related in one way or another to its general law-enforcement mission-each with its man-
power demands. The Bureau now has added responsibilities in the narcotics field. Thus
only a minority of its special agents are assigned to counterintelligence.
Personnel numbers alone are never an indicator of quality performance. But when-
ever a force is greatly outnumbered by its opponents in a situation in which numbers are
essential, success in achievement of mission is virtually impossible.
Loss of Institutional Memory
The United States probably stores more information on every conceivable subject
than any other nation in the world. It does so because it recognizes the value of knowledge
in all fields. Moreover, it is obvious that no one can learn all that everyone else in his field
has known and that few indeed have the gift of total recall, enabling them to remember all
that they themselves have learned. The nation's vast file and index system helps overcome
these knowledge problems. Through it, forgotten information-and information the
seeker never knew existed-can be retrieved for current use.
Extensive counterintelligence files containing information accumulated over the years
on foreign intelligence/counterintelligence services, their agents and associated groups and
individuals in all parts of the world are obviously essential-indeed crucial-to effective
current counterintelligence.
But they are not a complete answer to the knowledge problem. In counterintelligence,
as in all other fields, all information collected is not filed. It is simply not possible. Bits and
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pieces of information, important and seemingly unimportant (which could later be very
important), reside only in the memories of individual officers.
This is why a careful gradual, controlled turnover of career personnel in all insti-
tutions is highly desirable. It provides a continuing pool of experienced "old timers"
whose institutional memory-their combined recollections of past unfiled events-con-
tributes greatly to current effectiveness by filling the knowledge gaps in the filing system.
Unfortunately for the effectiveness of current counterintelligence needs, both the CIA
and FBI have certainly not enjoyed such gradual, controlled personnel changes. Both have
suffered from an unusually rapid loss of their most experienced personnel.
In 1973, CIA Director James R. Schlesinger fired about seven percent of the personnel
in the CIA's Clandestines Service. Just how many were dismissed is not known, but his
successor, William Colby-who agreed with and assisted in the action-has written that it
was "thousands." 101
As already noted, Colby in 1974 did what he had unsuccessfully urged Schlesinger to
do the year before. He forced the retirement of James Angleton, CIA chief of counterintel-
ligence, and the entire top echelon of his staff. This was followed by Director Stansfield
Turner's "Halloween Massacre" of October 1977, in which he fired over 800 officers in the
Clandestine Service. For the most part, as in the Schlesinger action, they were the older,
most experienced officers.
Not all of those dismissed by Schlesinger and Turner were counterintelligence officers;
most were not. But all Clandestine Service officers receive counterintelligence training and,
even if all their work has been in collection and/or covert action, their institutional
memory can still be highly useful to counterintelligence.
There were 400 reported CIA retirements in 1977, 650 in 1978 and almost 200 more in
just the first month of 1979.102 As noted, a 1978 Senate report stated that, since 1970, U.S.
intelligence manpower "has been reduced by about half." Admiral Inman summarized the
situation during his 1981 confirmation hearing, reporting that
we have a generation gap here. We have in fact lost, across the community, a lot of people
who came in the 1940's, who enjoyed the business and who stayed for a career. A variety of
reasons.. . have caused large numbers to retire.' 01
The FBI lost about 1,000 agents during the years 1972-1978 because of budget cuts, as
previously indicated. Like the CIA it has also suffered from an unusually high retirement
rate in recent years, principally of its most experienced agents. W. Raymond Wannall,
retired assistant director for intelligence, has stated that in the few years before he retired in
1976 "over 3,000 agents left the FBI.... And many of those agents had spent their careers
in intelligence [i.e., counterintelligence]." 104
A compulsory retirement-at-age-55 law affecting FBI personnel went into effect in
1978, but many left earlier for, as Inman said, "a variety of reasons" which need not be
explored at this point.
An early 1977 news account of FBI Director Kelley's retirement reported that the new
compulsory retirement law (applicable only to law enforcement, fire-fighting and similar
physically-demanding federal positions)
will require between 555 and 650 senior agents to go too. That means that more than half
the bureau's force of approximately 8,000 agents will be younger than 35.103
There is not a lot of institutional memory in those under 35, who were to comprise the
majority of FBI agents. Add to the above figures those described in the last section in
regard to firings and early (unrequired) resignations in the CIA, as well as the overall
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Community manpower losses, and it becomes clear that, among other factors affecting
performance, the 1970s exodus of large numbers of older, experienced personnel has
struck a heavy blow at the institutional memory of U.S. counterintelligence-no doubt to
the considerable delight of hostile foreign intelligence services.
Lack of A Common Data Base
A U.S. counterintelligence officer or agent routinely operates with four informational
assets: his agency's files; his own cumulative knowledge; his co-agents' institutional
memory; and such information as "friendlies" may provide him.
He should have a vital fifth asset, but normally doesn't. It is all the information in the
files of other U.S. counterintelligence agencies.
The CIA has its counterintelligence files. The FBI has separate files, as do the DIA,
the counterintelligence units of the armed services, and those of other agencies with
counterintelligence authority. Under this system, a counterintelligence officer/agent
working a case normally starts out without all the information he could or should have. At
best, this gap will make his task unnecessarily more difficult; in some cases, it can mean full
or partial failure.
Of course, there is liaison and exchange of information between the FBI and CIA in
the counterintelligence field. Its quality has varied. For some time now, CIA and FBI
officials have been saying it is excellent, better than ever before, etc. It may well be so-but
that does not solve the basic problem of the agents continuing, sometimes urgent, need for
the ready availability of all relevant information as he initiates and works a case.
In practice, FBI-CIA cooperation is good when a case is seen as major or important.
In routine, day-to-day work, however, it is perceived as bothersome, an added compli-
cation and delay. The tendency is to skip it. It is too much trouble.
Ten years ago, the Institute for the Study of Conflict (London) prepared a report,
"New Dimensions of Security in Europe," part of which dealt with problems of terrorism
and the response to it. That part of the response section which covered national "Internal
Action" noted that most nations of Europe had several intelligence services-foreign,
internal, police and armed services-and recommended that the intelligence gathered by
these separate organizations "should be pooled and centrally assessed." 106
The logic of this proposal is unassailable, presuming the nation concerned wanted to
develop the best possible response to terrorism. The ultimate quality of the response is
inevitably based on the quantity and quality of the intelligence available to the counter-
terrorism agency. It would be ridiculous to deny it any intelligence at hand.
And the same is true of U.S. counterintelligence. Adequate, effective response to
foreign threats which are the province of counterintelligence - espionage, sabotage,
terrorism, assassination and subversion - demands the utilization of all available intel-
ligence, no matter who its holder may be.
The 1978 Carter Executive Order created a Special Coordinating Committee in the
NSC whose duties included "Developing and monitoring guidelines ... for the
maintenance of central records of counterintelligence information." 107 Nothing came of
the directive, probably for reasons noted in the section on analysis and because it also ran
into agency opposition to the idea.
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The report of the Senate Intelligence Committee covering its work during the years
1979 and 1980 said the committee has studied the question of "centralized counterintel-
ligence files and an organization with authority to co-ordinate a complete counterintel-
ligence program." 108 It reported no conclusions, however, and has had nothing further to
say on the subject.
The 1981 Reagan order directs that
all [intelligence] agencies and departments should seek to ensure full and free exchange of
information in order to derive maximum benefit from the United States intelligence
effort. 109
Good. But not enough. If the directive were being followed, there would be an on-
going, daily, massive exchange between all counterintelligence agencies of information in
their respective files. But this is not taking place. And the idea that there would be only rare
occasions when CIA information would be useful to the FBI, or vice versa, is not tenable.
Moreover, if the desirable level of exchange were actually taking place, it would be highly
wasteful of time, talent and money, an extraordinary volume of unnecessary paperwork
that could be eliminated by centralization of files.
There is inherent opposition to sharing information in the intelligence community.
Each agency has a proprietary jealousy in regard to its own files, and is resistant to the idea
of losing complete control of them. Centralization, admittedly, would be a major task,
involving some complicated problems.
But the controlling factor here should not be the difficulty involved or the various
agencies' excessive concern about part of their turf; it should be the best interests of
national security, which would clearly be better served by file centralization.
Excessive Number of Directives
Most U.S. counterintelligence units-those in the CIA, DIA, military intelligence
services, etc.-have a relatively simple mision: "straight... counterintelligence." The
principal agency, the FBI, has a more complicated problem. As the investigative arm of the
Department of Justice, it is the chief federal law enforcement agency, responsible for
developing prosecutive evidence for violations of some 200 federal statutes in its juris-
diction. In this area it must abide by the criminal standard and other limitations and proce-
dures that apply to law enforcement. At the same time, however, it is also the nation's chief
foreign counterintelligence agency and principal domestic intelligence gatherer. In these
areas, its mission is not evidence for prosecution, but the accumulation of knowledge that
will make possible effective national security counteraction.
For many years, all FBI special agents had two basic reference works to assist them in
the performance of their varied duties. They were:
? First, the Manual of Instructions (now the Manual of Investigative Operations and
Guidelines). Currently, this is a three-volume compilation totalling several hundred pages
of information about each of the statutes over which the Bureau has jurisdiction, with
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details about the elements of each statute, step-by-step procedures for investigating
violations, and related matters.
? Second, the Manual of Rules and Regulations (currently the Manual ofAdministra-
tive Operations and Regulations), now a volume of more than 100 pages of information
concerning personal conduct, working conditions, leave and similar administrative and
personnel matters.
Both manuals were and are of the loose-leaf type so that new or revised material can be
added and outdated matter removed. These two basic volumes were supplemented by
routine communications of various types-"SAC Letters" with instructions special agents
in charge of field offices were to pass on to subordinates; "Airtels" with information on
the handling of different programs or operations; and memoranda and teletypes on case
files and other current business.
The information FBI agents had to absorb and live by was quite voluminous, but not
beyond their capabilities. Ten years ago, these two basic guides were much shorter, simpler
volumes than they are today. The system worked well.
During the past eight years, however, agents have been swamped with a whole new
series of lengthy, confusing directives covering their counterintelligence duties, directives
they must abide by at the risk of disciplinary action. It is not claimed that the following is a
complete list of all such orders and regulations, but it is sufficient to make a point about
performance:
President Ford's Intelligence Community Executive Order of February 18, 1976 (36
pp.).
Domestic Security Investigations Guidelines, Attorney General Edward Levi, March
1976 (20 pp.).
Foreign Counterintelligence Investigation Guidelines, Attorney General Edward Levi,
May 18, 1976 (19 pp.).
Informant Use Guidelines, Attorney General Levi, January 1977 (5 pp.).
Guidelines on the Handling and Dissemination of Unsolicited Information, Attorney
General Levi, 1976.
President Carter's Intelligence Community Executive Order, January 24, 1978 (26
pp.).
Guidelines on Dissemination of Information for Foreign Counterintelligence
Purposes, promulgated by Attorney General Griffin Bell, February 1978 (applied only to
information acquired by "extraordinary techniques").
Criminal Investigation Guidelines, Attorney General Benjamin Civiletti, December
1980 (12 pp.).
Informant and Confidential Source Guidelines, Attorney General Civiletti, December
1980 (13 pp.).
Undercover Operations Guidelines, Attorney General Civiletti, January 1981 (18 pp.).
Foreign Counterintelligence Guidelines of Attorney General Civiletti, May 1980 (47
pp.).
President Reagan's Intelligence Community Executive Order of December 4, 1981(17
pp.).
Guidelines on Domestic Security/Terrorism Investigations, Attorney General William
French Smith, March 7, 1983 (19 pp.).
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Standards and Procedures for the Transmittal of Personal Information to Hostile
Foreign Intelligence Services through Double Agents.
Each one of these directives (and there were others) set new conditions agents had to
live by. Each one was superseded in relatively short order by another which changed the
rules. Not all were clearly worded. Addressing an American Bar Association meeting in
1980, at a time when less than half the above-listed directives had been issued, FBI Director
William H. Webster said, "Regularly, our agents return to Washington to discuss... revi-
sions in policy or guidelines that affect foreign counterintelligence work."10
Not surprising. But is this the way to conduct an "extraordinary" counterintelligence
effort?
In 1983, answering a series of questions for Sen. Jeremiah Denton, chairman of the
Senate Subcommittee on Security and Terrorism, Webster noted among other FBI
concerns,
the growing complexity for field agents of distinct sets of guidelines that have been adopted
over the years providing different standards, different reporting periods, and different
approval levels for the investigations that are closely related."'
When the new, more concise, allegedly superior domestic security/terrorism guide-
lines of Attorney General Smith were unveiled at a March 7, 1983, press conference,
Webster said,
We just can't-we train and retrain, and we can't expect our agents to carry around all
the nuances and subtleties of different sets of guidelines.... Agents don't have to be
shifting gears in their minds or going back to their supervisors for this [under the new Smith
guidelines]."=
The new Smith guidelines themselves, of course, required more training. With
questionable implication about their superiority, and thus of their permanency, Webster
added:
We can train them [about these]. In fact, we're already planning a series of seminars
around the country to make sure that these are implemented promptly and correctly.' 13
Joseph A. Sizoo, president of the Society of Former Special Agents of the FBI,
supported the concept of FBI guidelines in testimony before the Senate Subcommittee on
Security and Terrorism in 1982. But he virtually pleaded for guidelines "which will not be
subject to change by every new administration." I"
The FBI has not been the only agency affected. Others may not have the law enforce-
ment-statutory complication, but executive orders have also required the promulgation of
various guidelines for their operations, which in some cases have been supplemented by
agency regulations of various types-with the result that they also must now operate from
changing manuals of considerable length.
Admiral Inman made a very brief but telling comment on this obstacle to effective
counterintelligence performance in a 1983 speech, when he said "Think of the poor
operative in the field trying to observe a manual 130 pages long of `thou-shalt-nots'." 13
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Crippling Restrictions in Directives
A lengthy book would be required to analyze all the executive orders, guidelines and
supplementary internal regulations promulgated during the past eight years and the
manner in which they have unduly restricted the collection of counterintelligence and intel-
ligence on which the national security so heavily depends. Only a few examples related to
the subject of counterintelligence can be cited here.
Addressing a group of leaders of the Veterans of Foreign Wars in 1976, William
Nelson, retiring deputy director of operations for the CIA, stated that the Agency was then
barred from interviewing American travelers from abroad who had been in contact with
Soviet agents-because of prohibitions in the Ford executive order of February 1976.16.
A 1979 staff report of the House Foreign Affairs Committee stated that because the
Ford and Carter orders "prohibit intelligence gathering on U.S. citizens, the CIA was
legally proscribed from engaging in any activities vis-a-vis the People's Temple" in Jones-
town, Guyana, where over 900 Americans were murdered by the Communist Rev. Jim
Jones and his followers in November, 1978."'
FBI Director Webster has said that the Levi domestic security guidelines had no
bearing on the outcome of the events in Jonestown. The Foreign Affairs Committee
report, however, stated that the FBI received complaints about Jones' U.S. activities and
conducted some interviews but terminated its investigation "because no violation of the
Federal kidnapping statute had occurred." 1e
That, in essence, was the criminal standard in the Levi guidelines in operation. Had
the FBI been operating perceptively on an intelligence standard, the outcome obviously
might have been vastly different, despite the limitations on what the CIA could do abroad
because of the Executive orders. Jones, it will be remembered, had extensive contacts with
the Soviet Embassy in Georgetown, discussed moving his colony to the USSR, and willed
that his estate of millions of dollars be given to the U.S. Communist Party if his widow or
children did not survive his death by six months.
Senator Birch Bayh, then chairman of the Senate Intelligence Committee, stated in
1980 that "Current restrictions on physical search under the [Carter] Executive Order
procedures are very stringent." ' ' In that same year, a Senate Intelligence Committee
report shed more light on the subject, stating,
Classified procedures approved by the Attorney General pursuant to the Executive
order place further limitations on unconsented physical searches conducted without a
judicial warrant. (emphasis added). 110
Clearly, in some cases, the publicly revealed "very stringent" limitations on U.S.
counterintelligence have been only the tip of the iceberg. There have been additional
restrictions that, because of classification, will never be known.
FBI Director Webster, in 1981 appropriations testimony, said he thought FBI-CIA
coordination, particularly in the area of terrorism, could be improved. Asked to explain
this statement in '82 hearings, he replied in part:
There has existed, we believe, some confusion on the part of other agencies in the U.S.
intelligence community arising from the language of Executive Order 12036 [Carter] as to
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the authority for the dissemination of information pertaining to U.S. persons. This mis-
conception has hindered their willingness to completely collect and share counterintel-
ligence information [due to] an overly strict interpretation of the dissemination procedures
as they pertain to U.S. persons.''
Like the FBI, all intelligence agencies have offices of legal counsel to advise them on
the meaning of all orders and regulations governing their activities, as well as on other legal
matters. When these legal experts could not agree on the precise meaning of various prohi-
bitions in controlling directives, the directives were obviously defective. More important,
however, is the fact that their generally restrictive tone fostered an overly limiting inter-
pretation of specific provisions with the result that important counterintelligence
information was, as Webster admitted, "lost."
And who is to say whether, in this case, the FBI's lawyers or those in the other agencies
were actually correct in their interpretation of the provision at issue?
The following account of how the Carter Executive Order unreasonably restricted
CIA collection of counterintelligence information abroad is excerpted from an article the
author wrote a few years ago:
Imagine that you are a CIA officer stationed in some distant country in Asia, Africa or
South America. Having been there for some years, you know who the local Communist
leaders are and, to your satisfaction, have identified two foreigners resident there as KGB.
Suddenly a new man arrives on the scene. You learn that he is a resident alien from the
U.S. who emigrated to the States from an East European nation five years ago and is
allegedly vacationing. You observe him meeting with a prominent local Communist and
also with one of the KGB agents in public places. You also learn that these same two people
are visiting him for lengthy periods in his hotel room.
You know you should find out what is going on between him and his two contacts. The
idea of bugging his room occurs to you as an obvious solution to this problem.
But you cannot do that under the Carter order. Why? Because it classifies a resident
alien as a `United States person' and says no intelligence agency can tap, bug, or use any
other intrusive intelligence technique against a U.S. person without the explicit, personal
approval of the attorney general. Moreover, the attorney general cannot grant approval
unless, from thousands of miles away, he determines there is `probable cause' to believe the
person in question is the agent of a foreign power.
You want quick action because you are not sure how long the man will be around.
Being in a friendly country and having contacts with its intelligence service, you naturally
think of having one of its agents do the bugging for you.
But you cannot do that either-because the Carter order forbids your asking or
encouraging `directly or indirectly, any person, organization or government agency,'
anywhere, to do what you cannot do.
There is only one thing you can do-follow the `lawful' route prescribed in the Carter
order. So you send an urgent cable to CIA headquarters asking that it obtain the attorney
general's permission for you to plant a bug ('Thank God,' you say to yourself, `Ramsey
Clark is not attorney general now.'). The CIA agrees you have a good case and forwards
your request.
But the attorney general is off addressing a convention of the American Bar Associ-
ation in Hawaii, London, or some other distant spot. When he gets back, he agrees with the
CIA's assessment.
Then there's another delay. Griffin Bell boasted that throughout his tenure as attorney
general only one U.S. person (citizen Ronald Humphrey, convicted of espionage with
David Truong in 1978) was subjected to an intrusive investigative technique and then only
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after he (Bell) had consulted the President about the case. Further, Bell had promised, he
would never consent to a bug, tap, etc., on any U.S. person without first getting the
personal approval of the President.
Jimmy Carter is on vacation in Plains, Ga., and Bell does not want to bother him
about so minor a matter as bugging someone who is merely meeting a couple of Com-
munists in some far-off place; the President, he recalls, has proclaimed the silliness of
`inordinate' fear of communism (this is why the Bell subordinate designated to act on
important matters during his absence would never have pestered the vacationing President
with your request).
Jimmy returns to Washington and, mirabile dictu, gives his OK. CIA is notified and
cables your long-sought approval.
You tear it up when it arrives-because it is too late. Your man left town three days
ago. For a long time you wonder what he was up to.
This is an optimistic picture. Suppose the attorney general or President doubted that
your evidence constituted `probable cause' to believe your target was 'an agent of a foreign
power'? Then the FBI (operating under the same restrictions, plus some others) would have
to investigate the alien's U.S. activities for additional evidence of his foreign ties before the
approval could be granted. And if the Bureau's investigation proved to be fruitless, the
help of the CIA would have to be requested to see if it could develop corroborating
evidence abroad. How long would all this take and, meanwhile, how much evidence would
be lost? And how often, if ever, is lost intelligence recovered? 12
Consider an intelligence or investigative technique as basic as physical surveillance.
Local police here and in all countries use this technique daily in the course of their law-en-
forcement duties. It consists merely of following someone to observe his activities,
contacts, etc., and sometimes involves the use of binoculars or photography to aid the sur-
veillance. It is not considered intrusive; a warrant is not required for its use. Any policeman
can use this method anytime, any place, even on the spur of the moment if he sees some-
thing suspicious.
But not U.S. counterintelligence/intelligence agencies operating abroad if the sus-
picious person is a "U.S. person," defined in the Ford, Carter and Reagan executive
orders as a U.S. citizen, an alien admitted to this country for permanent residence, or a
corporation incorporated or organization organized in the U.S.
Under the Ford and Carter orders they could physically surveil such people (or groups)
only if they "reasonably believed" he or, she was acting in behalf of a foreign power,
engaged in terrorist or narcotics activity and also, in the case of the Ford order, activities
threatening the national security. In the great majority of cases, these requirements would
demand pre-knowledge of the individual. Spur-of-the-occasion surveillance, which can be
highly productive, was virtually ruled out of their intelligence arsenal under the Ford and
Carter restrictions.
Moreover, how would a U.S. counterintelligence officer know, in many cases,
whether someone (seen with a KGB officer, for example) was a U.S. citizen, or an alien
admitted to the U.S. for permanent residence? This requirement, too, would normally
require pre-knowledge of the person. Not having it, the officer's inclination would be to let
highly suspicious activity go unsurveilled for fear of being accused of violating a presi-
dential directive. Result: important intelligence lost.
The Reagan order loosened somewhat the prior restrictions. It bars only physical
surveillance of U.S. persons abroad "to collect foreign intelligence, except to obtain
significant information that cannot reasonably be acquired by other means." 123
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Surveillance to collect counterintelligence is not banned, as it was in the preceding orders.
No doubt the change was made because of the realization that much important
counterintelligence information had been lost in the previous six years because of the
Ford-Carter restrictions.
The Levi foreign counterintelligence guidelines controlled all activities of the Bureau's
Intelligence Division, as well as those of other FBI elements investigating espionage and
international terrorism. As declassified, they reveal no special section devoted to prohi-
bitions or restrictions as such, but various limitations are found in scattered declassified
paragraphs relating to other matters. More importantly, the covering letter explaining the
nature of the still classified portions reveals that they established the following:
a. Various levels of investigation.
b. Standards of evidence required for the initiation of each level.
c. Limitations on the types of techniques that could be used in each investigative level.
d. Time restrictions for the various levels of investigation.
e. Varied classifications of targets (spies, intelligence officers and agencies, foreign
terrorists, foreign visitors to the U.S., etc.), with the above levels and restrictions
depending on the country they served and the status of their entry to the U.S.
f. Special restrictions to ensure that domestic groups targeted by foreign powers "are
not subjected to overly intrusive investigative techniques," with the Attorney General's
personal approval required for the use of any technique "that may be regarded as partic-
ularly intrusive.' 2'
The 1980 Civiletti foreign counterintelligence guidelines, as declassified, were also
revealing. In their largely declassified table of contents, section "V." (5) is titled
"ADDITIONAL RESTRICTIONS" (emphasis added). Inasmuch as the declassified
preceding section titles ("I." through "IV.") do not indicate prohibitions, those referred
to by "ADDITIONAL" must be included in either or both of two blacked-out subsections
under the preceding "COLLECTION" section.
In addition to those restrictions on collection-whatever they are and however
restrictive they are-the ADDITIONAL RESTRICTIONS section contains various
limitations in the following areas, some of which are classified and some of which are not:
undisclosed participation, organizations, operations outside the United States,
contracting, mail covers, TV cameras and other monitoring, consensual monitoring.12S
The FBI is obviously anything but normally free (for a counterintelligence service) in
its efforts to identify and track spies, terrorists and saboteurs.
"Undisclosed participation," for example, refers to the placement of an informant in
a group to obtain information about it. Under the ADDITIONAL RESTRICTIONS
section, the FBI can place in an organization an informant who could influence its
activities in some way (i.e., be more than a rank-and-file, never-voting member) only under
two conditions-one of which is this: the Director or Acting Director has determined that
"extraordinary circumstances exist" and there is "probable cause" to believe the group
"is engaged in" espionage, sabotage, clandestine intelligence activity or international
terrorism "pursuant to the direction of a foreign power."
"Reason to believe" is not enough to justify informant placement; neither is
"reasonable suspicion" or any other criterion that normally applies to counterintelligence
operations. The FBI must meet the criminal standard of probable cause. It must, in effect,
already have so much evidence about criminal activity in certain areas on the part of the
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group that it is almost ready to go before a grand jury to request indictments. On top of
that, it must meet the excessive, unreasonable "direction of a foreign power" standard (see
below).
On this point, it is worth remembering that FBI Director Webster stated at an
American Bar Association meeting in 1980 that "initially, many foreign intelligence
activities may not involve violations of law." (Emphasis added.) 126
Also worth recalling is a remark made in 1980 at an Association of Former Intelligence
Officers (AFIO) panel discussion of an Intelligence Community charter bill pending in
Congress. One of the panel members was William A. Branigan, who had spent most of his
35 years in the FBI in the espionage section of its Intelligence Division and had headed that
section for a considerable period prior to his 1976 retirement. The bill under discussion set
a "reasonable belief" standard for counterintelligence.
Branigan criticized this, saying that "reasonable belief" equals "probable cause,"
and probable cause "just doesn't work in counterintelligence." 127
But the fact that a top espionage authority says probable cause "just doesn't work in
counterintelligence" apparently means nothing to those dictating the rules for U.S.
counterintelligence activities today. The FBI must have it before it can undertake as basic a
counterintelligence step as utilizing an informant.
The foreign counterintelligence guidelines of Attorney General Levi provide an
interesting example of how he and his guidelines committee imposed a restriction on U.S.
counterintelligence that, according to the Supreme Court, was completely uncalled for.
The first counterintelligence duty imposed on the FBI under the Ford Executive Order
was to "detect and prevent espionage, sabotage, subversion... by or on behalf of foreign
powers..." (author's emphasis). The "on behalf of" was a relatively easy standard to
meet. But the Levi guidelines under which the FBI was to carry out this Executive Order
mission changed those words to "pursuant to the direction of foreign powers." On its face,
"direction" is obviously a narrower, more demanding standard, requiring greater evidence
before counterintelligence activity could be undertaken.'28
But what legally comprises the term "direction"? As already noted, the Supreme
Court had answered this question in a 1961 decision upholding. the constitutionality of a
law, a key element of which was the meaning of the words "substantially directed,
dominated, or controlled." Agreeing with a U.S. Court of Appeals, the Supreme Court
held that a person or organization met the directed, dominated and controlled standard by
mere "voluntary compliance" with a "line of policy" of a foreign power.129 This is a
relatively low evidence requirement, though actual "direction" is a more demanding
standard than "on behalf of."
The Levi committee, however, rejected this Supreme Court holding and substituted a
much more demanding requirement for the FBI to meet before it could investigate
espionage, sabotage, etc. The guidelines defined "pursuant to the direction of a foreign
power" as including the following:
1. control, leadership or policy direction by a foreign power;
2. financial or material support by a foreign power;
3. participation in leadership, assignments, or discipline by a foreign power. 10
How much time would it normally take the FBI to develop evidence of such scope
before it could begin to collect information about a suspected espionage agent or saboteur?
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In how many cases has it been unduly delayed, or prevented from acting at all because of
these excessive limitations on its authority?
Even the Church Committee found that
the type of activity which is most easy to detect and which may indicate possible espionage
does not always satisfy the normal standard of `reasonable suspicion'.. .. [E]spionage
investigations must be initiated on the basis of fragments of information, especially where
there may be only an indication of a suspicious contact with a foreign agent and limited
data as to the specific purpose of the contact. (emphasis added)."'
The Civiletti foreign counterintelligence guidelines which supplanted the Levi guide-
lines in May, 1980-and are still in effect-retained both the "pursuant to the direction of
foreign powers" wording and the definition of its meaning contained in the Levi guide-
lines. The only difference was the addition of the word "or" at the end of item "2.",
making "3." an alternative rather than a conjunctive condition."'
Since 1976, in other words, the FBI has not been able to use "reasonable suspicion" or
"fragments of information" to initiate espionage and other counterintelligence
investigations. It must first produce an excess of complicated evidence.
It should be noted that the FBI's continuing investigation of the CPUSA is conducted
under the foreign counterintelligence guidelines. Evidence to justify this
"subversion... pursuant to the direction of foreign powers" (the Ford order) has been
available for years. But suppose the Soviet Union should set up another subversion organi-
zation here, or some other foreign power should undertake a similar operation? How long
would it take the FBI and CIA (whose assistance would probably be required) to develop
the kind of information demanded before such groups could be brought under sur-
veillance?
When President Ford's Executive order was promulgated in 1976, the FBI had been
investigating the Communist Party and its fronts (per the FDR and subsequent Presidential
directives) for 40 years under its "domestic" or "internal" security functions. As its
annual reports and testimony indicated, it also investigated Soviet espionage per its respon-
sibilities in the same area. The terms "domestic intelligence" and "counterintelligence"
were used interchangeably to cover both activities. The foreign direction of the CP and of
spies was recognized and proclaimed during those years but, because the CPUSA, the spies
and the FBI all operated within the U.S., the Bureau's intelligence gathering and counter
operations were designated as domestic. The word "foreign" never, or rarely, appeared in
association with FBI "counterintelligence." The latter term was clearly understood,
however, to embrace hostile foreign activity because it dealt with the internal manifes-
tations of it.
It was therefore expected that when the Levi domestic security guidelines were promu-
lgated per the Ford order, they would-at the very least-continue to provide authority for
the Bureau to investigate the CPUSA, its fronts and other domestic activities that would be
embraced by the term "subversion" in the Ford order. Perhaps they were actually meant
to. But they did not. They were so unreasonably restrictive that this writer predicted at the
time that they would bar investigation of the party and its fronts: "All will be immune to
FBI investigation." This turned out to be true. Six months later it was revealed that, under
their provisions, the Bureau could not investigate the CPUSA (though the Supreme Court _
had found it an agency of Moscow). Meanwhile, Levi's foreign counterintelligence
guidelines had been issued. To avoid the embarrassment of FBI inability to investigate even
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blatant instruments of Kremlin intrusion into the internal affairs of the U.S. as a
"domestic" security matter, Levi directed that the party be investigated under the foreign
counterintelligence guidelines.
The Levi domestic security investigations guidelines were actually bars to anything
resembling domestic security. In addition to establishing an ultra-strict criminal standard,
permitting only investigation of certain types of violations of a limited number of federal
statutes, they set three levels of investigation-preliminary, limited and full-which
normally had to be followed in sequence, with each one requiring a prescribed level of
evidence.
Next, though they were clearly directed at and limited to, groups engaged in dangerous
criminal conduct-groups that by their very nature would be conspiratorial, and covert or
clandestine in their operations-they proceeded to bar the use of the most productive intel-
ligence techniques, informants and electronic surveillance (and even mail covers), in the
first two levels of intelligence collection. This meant that the Brueau could rarely obtain in
these investigations the level of evidence necessary to permit a full investigation, even when
such evidence was relatively abundant (though concealed from discovery by the ineffective
techniques permitted).
On top of this, they imposed completely unrealistic time limits. A limited investigation
had to be terminated within 90 days unless headquarters permission was obtained for a
similar extension, based on a written justification. The impracticality of this limitation is
indicated by the fact that, if the use of informants had been permitted at this level, it would
probably take more than 90 days for the informant to get into the group after the Bureau
had found an appropriate person for the mission. Moreover, given the fear such groups
have of FBI penetration and their consequent caution about new members, once the infor-
mant had infiltrated the organization it would probably take many more than 90 days
before he would be sufficiently trusted to be given access to the type of information he was
there to obtain.
Denied the use of informants (and electronic surveillance) at this level, and thereby
forced to use much less productive techniques, the FBI could obtain the intelligence
necessary to justify a full investigation only on the rarest of occasions.
Appallingly enough, this same 90-day limitation applied even in full investigations
which permitted the use of informants, but restricted the types of information they were
allowed to gather.
The Levi guidelines compelled the FBI to halt not only its investigation of the CPUSA
as a domestic security matter, but also various other groups that were openly Communist
and/or revolutionary in nature. One was the Progressive Labor Party (PLP), the Maoist
CP offshoot that had publicly announced its goal of violent overthrow and penetration of
the armed forces as a means of assisting the achievement of its objectives.
Former FBI Director Clarence Kelley, testifying in 1976 in the $40 million lawsuit of
the Socialist Workers Party (SWP) against the FBI, CIA and other intelligence services for
surveilling its activities here and abroad for many years, said that, pursuant to the Levi
guidelines, FBI agents had been instructed that if they were offered information about the
SWP "they must refuse to accept it." "' The SWP is affiliated with the Fourth Interna-
tional in Brussels, the control agency of the world's Trotskyist Communist parties, some of
which have engaged in terrorism. It has a minority faction which has advocated SWP
terrorism in this country. Though part of a "dissident" Communist movement, it is
committed to defense of the Soviet Union. Under the Levi guidelines, however, it was
immune to FBI investigation.
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Under such guidelines, the FBI was even compelled to drop investigations of well-
known U.S. terrorist groups-whenever, in a period of a year, the groups did not openly
proclaim responsibility for a bombing or other criminal act or the Bureau was not able to
attribute certain crimes to them.
Per the guidelines and supplementary restrictions the Bureau imposed on itself
because of their highly restrictive tone, it stopped collecting intelligence on all ordinary
members of the few groups it had under investigation, limiting its efforts to group leaders
and policy makers (how nice for the rank-and-file bomb-maker, but how unfortunate for
his victims); and stopped reading all revolutionary literature for clues to the size, aims,
capabilities, etc., of such organizations, unless they were under formal investigation.
Considering the limitations in the executive orders, guidelines and regulations that
have governed the activities of the CIA, FBI and all other agencies in the Intelligence
Community during the past eight years, it is clear that vast amounts of intelligence that
should have been collected during this period were not collected and that, in one way or
another, all that lost intelligence will adversely affect the national security for years to
come. The field of counterintelligence is one of those crucial areas in which the loss will be
felt most keenly.
The Foreign Intelligence Surveillance Act (FISA)
Electronic surveillance, which includes wiretapping, bugging and a number of other
surveillance techniques, is one of the most widely used and effective counterintelligence
(and intelligence) weapons. While the Supreme Court has not yet ruled directly on the
issue, at least four different Federal circuit courts of appeal, in reviewing about half a
dozen espionage convictions, have upheld a power claimed by every President since
FDR-namely, that the Constitution itself confers on the President the power to order
electronic surveillance for foreign intelligence (as distinguished from criminal investi-
gative) purposes. He need not obtain a court Order (warrant), though this is considered an
intrusive investigative technique. In at least two of these cases, the Supreme Court has
refused to consider appeals from the circuit court holdings. In these decisions, the term
"foreign intelligence" has included counterintelligence.
Despite this fact, an unsettling development took place in 1976. President Ford
decided to surrender to the legislative and judicial branches this Constitutionally conferred
power of the Executive to protect the national security as he saw fit. He sent to Congress a
bill, the Foreign Intelligence Surveillance Act (FISA) which would prescribe (limit) when
and under what circumstances presidents would be able to exercise this power to counter
hostile foreign agents operating on American soil. After Congress had worked its will on
those conditions, a special federal court (FISC-the Foreign Intelligence Surveillance
Court) would sit in judgment on whether, in specific cases, a president had met the
standards set by Congress. If it found in the affirmative, it would issue a warrant
permitting him to wiretap the known or suspected spy.
The bill easily passed the House, but was blocked in the Senate. A handful of ultra-
liberals there objected that the President's proposal did not go far enough in restricting
Presidential authority in the area and therefore killed the bill.
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In 1977, President Carter submitted a new FISA to Congress which, to please the
critics, went farther in restricting the power of presidents to use electronic surveillance, one
of the most effective of all counterintelligence instruments, as they saw fit.
The Carter FISA easily passed both Houses and became law in October 1978, though,
for a number of technical reasons, it did not become fully operative until August 16, 1979.
The U.S. is the only nation in the world that so restricts the use of a basic national
security instrument. Though even some conservative "hard-liners" have praised the law, it
is extremely ill-advised and has already damaged this country's counterintelligence capabil-
ities.
To illustrate: Though a FISA warrant can permit electronic surveillance of certain
types of foreign powers for up to a year before the President must go hat-in-hand back to
the FISA court to request an extension (supplying a complete new justification for it), a
warrant for the surveillance of other foreign powers or their agents and any U.S. person is
limited to 90 days. 10
Its meaning, particularly in reference to the previously noted "American
connection," was spelled out in 1977 in an analysis by the Society of Former Special Agents
of the FBI of a legislative proposal which contained an even stricter surveillance time
limitation. The Society said:
These limitations were drafted with no practical understanding of the enemy we
face.... One of the weakest links in an espionage apparatus is the personal face to face
meeting. Given this, hostile intelligence services schedule such meetings several years apart.
The filling and clearing of dead drops-placing the fruits and tools of an espionage agent
expertly concealed in a secret and unobtrusive location-are scheduled months apart. Even
radio schedules-the directions for an enemy agent to listen, the times and frequen-
cies-are arranged over periods extending well beyond a year. How then is the FBI going to
catch spies in thirty [or 90 (author)] days? .... The FBI could never hope to discover the
. .
most elusive and dangerous of all enemy agents commonly referred to as `the illegal.'.
(Emphasis added.) "S
Publicly known facts about numerous espionage cases attest to the accuracy of the
Society statement, which was based on the knowledge of members who had spent many
years in counterintelligence. Telephone and other contacts subject to electronic inter-
ception, of course, are equally time-distanced.
The Association of Former Intelligence Officers (AFIO), whose members represent
literally thousands of years' experience in all U.S. intelligence services, opposed the
warrant and other provisions in the bill. It would be a "disservice to the country," AFIO
said, to restrict the President's power to collect "one of the most sensitive" types of
intelligence.""
Such voices went unheeded, but before long some of those who had spoken and voted
for the FISA-and even the administration which pushed it through Congress-found
problems with their handiwork.
Five members of the House Intelligence Committee who dissented from its report on
the proposed (and defeated) Intelligence Oversight Act of 1980 cited that bill's failure to
correct deficiencies in the FISA as one reason for their refusal to support it, saying:
The Administration... has now found the [FISA] law too restrictive. In other words,
needed intelligence is being lost. The Administration has asked for changes so that this
intelligence can be collected. Yet, on this pressing matter the Committee bill is silent.",
The five committee members were referring to the fact that earlier in 1980, when the
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FISA had been in operation for less than a year, the Carter administration had asked both
the House and Senate intelligence committees to introduce bills to correct the following
deficiencies in the law:
-It barred surveillance of dual nationals, specifically of American citizens who held
senior positions in foreign governments or military forces. Changes were therefore needed
"to ensure that necessary and lawful surveillance would not be frustrated."
-It did not authorize physical entry of foreign government premises to install, repair,
or remove electronic surveillance equipment which, in a "very limited number of cases"
and for limited purposes, could be used without a FISA court warrant.
-It required that when a warrantless surveillance was initiated in an emergency situ-
ation, a FISA court judge had to be notified and petitioned for a warrant within 24 hours.
The paperwork required for a warrant was so extensive and complicated that the require-
ment often could not be met (Federal law governing emergency tapping in criminal cases
permits surveillance for 72 hours before a warrant must be obtained).
The FISA requires that for each of the first five years the law is in effect, the two intel-
ligence committees, based on information provided them by the Attorney General, publish
annual reports on its implementation. The 1980 reports of the committees, in addition to
noting the administration's request for amendments of the law, revealed another inter-
esting fact: going beyond the authority of the law, the Carter administration had asked the
FISA court to issue warrants for unconsented physical searches ("black bag jobs"), and
the court had complied with its request in several cases, based on a legal memorandum by
Kenneth C. Bass, the Counsel for Intelligence Policy and Review.",
Both committees expressed concern about this. The same five House committee
members accused the court of exceeding its authority, noting that its own legal officer,
opposing Bass, had written an opinion stating that it could not legitimately issue such
warrants. They revealed that
we were informed soon after FISA took effect that most of the activities which were
intended to be exempted from judicial review in fact were being reviewed by the Foreign
Intelligence Surveillance Court. Again, unexpected results came from an Act which had
been so `carefully considered.' "'
They and the court legal officer were vindicated on June 11, 1981, when Senior U.S.
District Court Judge George L. Hart, Jr., presiding judge of the FISC during its first three
years who had issued one of the black bag warrants, wrote an opinion (in response to a
Reagan administration request) in which he stated, "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." 10
Later, in June 1983, Judge Hart told a House committee that he had issued the
warrant in "an emergency situation" that gave him very little time for thought and that
later "I decided I was completely wrong." '4'
CIA Director William J. Casey, in April 1981, urged enactment of the same three
FISA amendments the Carter administration had requested, stating that the dual
nationality amendment "is necessary to avoid the repetition of situations which have
resulted in the loss of significant foreign intelligence information." (Emphasis added.) 142
Casey also asked for an additional amendment to close another gap in the law, an
amendment that would permit the retention and dissemination of information indicating
"a threat of death or serious bodily harm" when such information was unintentionally
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acquired by an intelligence agency in the testing or training use of electronic surveillance
equipment. (FISA "generously" permits such use of equipment, but flatly forbids the
retention or dissemination of any information of any kind acquired in such exercises, even
if it should concern a vital security matter.)
"FISA should not be a legal impediment to the use of that information," Casey said,
noting that under its provisions "the technician or trainee would have to violate Federal
law if he were to use this information in an attempt to save a life." He added that
it is unconscionable for the government to continue to make a crime of such a life-saving
use of information, and it would be more unconscionable if the government were to ignore
the opportunity to prevent a crime of violence because the threat was contained in a [FISAI
protected communication."'
To this day, however, neither committee has made a move to implement the above or
any other requested amendment, despite the fact that the five previously mentioned House
Intelligence Committee members, in their "additional views" incorporated in the
committee's 1980 report on FISA's implementation, pointed out that
it took less than nine months after the warrant procedure took effect for the Administra-
tion to find its hands tied by this new law. Crucial-and legitimate-foreign intelligence
information could not be collected because of overly-restrictive targeting standards.
Indeed, one example was a senior official of an unfriendly foreign power who could not be
targeted.1'
The 1981 reports of both intelligence committees noted that the physical entry amend-
ment might not be needed because Richard K. Willard, Counsel for Intelligence Policy in
the Reagan administration, in a partly classified memorandum reversing the earlier
position of Kenneth C. Bass, had found that FISA implicitly authorized such entry.
Despite the above facts about FISA's deficiencies, the 1980 reports of both
committees noted that both NSA Director Admiral B. R. Inman and FBI Director William
Webster supported the law. Inman said it had given NSA "some benefits" and "works
well." Webster, repeating Inman's "works well," had added "we are operating under it, in
all candor, better than we were operating without it... [it] has not had a deleterious effect
on our counterintelligence effort" and "has been valuable" to the FBI in espionage,
foreign counterintelligence and international terrorism investigations.",
Moreover, the House Intelligence Committee took the position that FISA "has bene-
fited our nation's intelligence collection activities." 106
In 1982, however, the Attorney General and FBI told the Senate Intelligence
Committee that there was a "possible need" (the committee's words) for administrative
relief from the 90-day limit in FISA warrants for the surveillance of officers of hostile
foreign intelligence services.
The very idea of a great power counterintelligence service having to run back to a court
every three months to get permission to continue electronic surveillance of hostile foreign
agents is ridiculous on its face, even if extensive, largely useless paperwork were not
involved in each extension. "Administrative relief"? What is needed is total relief.
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FISA's Criminal Standard
It is surprising that the U.S. government, even through easily alterable guidelines,
would hobble its principal counterintelligence agency's ability to cope with Soviet active
measures in this country by imposing a criminal standard on its intelligence-gathering
activity. It is almost unbelievable-but all too true-that it has gone much farther by also
placing the same crippling limitation not only on the FBI's counterespionage efforts but
additionally on the operations of NSA and all other agencies which must utilize electronic
surveillance within the U.S.. to carry out their intelligence-security duties. The govern-
ment's action is particularly difficult to understand because it has been effected by means
of a federal statute, which, at best, is usually difficult to amend.
Yet a recent overlord of U.S. counterintelligence, Griffin H. Bell-on the very day the
Senate voted its approval of FISA-emphasized that that is just what the government was
about to do. Testifying before one of its committees, he said,
In the Surveillance Act, we are now encompassed in a criminal standard, that is, there
are shades or variations in the standard, but it is still a criminal standard. I guess in that
sense we are getting ready to say that everything is going to be on a criminal standard.
What in FISA prompted Bell to make this statement?
FISH stipulates that no FISC judge may issue a warrant for electronic surveillance
unless, among other conditions, facts submitted by the Attorney General give him
"probable cause" to believe the target is a foreign power or the agent of a foreign power, as
those terms are defined in the act. The former is relatively easy to do; the latter is not,
particularly when the agent is a "U.S. person." In such cases, the facts must show that the
person is "knowingly" engaged in clandestine intelligence that does or may involve a
criminal act on behalf of a foreign power, or that he is "knowingly" engaged in such
activity "pursuant to the direction of" a foreign intelligence service or network.""
Webster's dictionary defines "probable cause," in law, as "reasonable grounds for
presuming guilt in someone charged with a crime" (emphasis added).
That is a tremendous amount of evidence to demand of a counterintelligence agency
before it can even begin to consider tapping or bugging a spy. Evidence sufficient to form a
basis for presuming guilt is little different from that sufficient to convict. FISA creates a
Catch-22 situation for the FBI, defeating the basic purpose of electronic surveillance as a
counterintelligence weapon-which among other things is to obtain the information that
will establish probable cause. That is the way it is used by other nations and was used by the
U.S. prior to 1978. Now the cart comes before the horse.
FISA goes even farther in subverting the effectiveness of electronic surveillance. It
provides that no "U.S. person" can be considered a foreign agent "solely upon the basis of
activities protected by the first amendment to the Constitution." 109
The first amendment protects speech, writing and association, among other things.
Thus, no matter what any U.S. person, citizen or not, says or writes lawfully and no matter
with whom he or she associates, such activity alone cannot serve as a basis for electronic
surveillance. A person could be an open, blatant propagandist for the USSR or some other
hostile foreign power and routinely associate with known espionage agents of that power,
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but until the FBI has collected evidence of criminality in those activities, that person cannot
be considered a foreign agent. (David Truong, now serving a long prison term for
espionage, operated originally as an "agent of influence" for North Vietnam and the
Vietcong, avidly promoting their cause in Vietnam War protest groups and among the
staffs of members of the House and Senate before-so far as is now
known-"graduating" to actual spying for them. If he were still free and operating today,
FISA would bar electronic surveillance of his activities until clear evidence of crime was
found in them.)
Another senseless barrier: Foreign powers must be surveilled continuously for long
periods of time if the full extent of their anti-American (espionage or active measures)
operations is to be uncovered, so that countermeasures can be taken. FISA in its definition
of foreign powers includes not only embassies, chanceries, consulates and all other diplo-
matic or commercial entities openly controlled by a foreign government, but also those
(business firms, etc.) secretly controlled and used as covers for espionage, and interna-
tional terrorist organizations. Yet, while permitting one-year extensions for surveillances
of most of the openly controlled entities, FISA forbids extensions of such length for those
secretly controlled and also for the terrorist groups unless the FISC judge has probable
cause to believe that "no communication of any individual United States person will be
acquired" during the extension period.' 'I
All terrorist groups need a local support apparatus, composed of a considerable
number of people performing a variety of functions-and there must, of course, be com-
munication between them. The possibility that either a foreign-based international
terrorist group operating in the U.S., or a U.S.-based one functioning here, would not
receive any communication at all from any U. S. person in the course of a full year's surveil-
lance is therefore exceedingly slim, virtually non-existent. What chance does the FBI or
NSA, the two principal users of FISC, have to convince any intelligent, honest judge that
the opposite is true? FISA therefore bars anything resembling an adequate single extension
of surveillances of those who pose a serious danger to the lives and property of American
citizens.
One of the major reasons for a business or other cover for espionage is to permit
foreign spies to "escape" from their embassies and consulates which are known as spy
centers and therefore normally under continuing electronic and other surveillance. It
provides them with a safer haven for their operations-but does not free them of the need
to communicate with those above and those below them. The very fact that these entities
are concealed makes them more dangerous and the need to uncover them greater. In its
extension provisions, however, FISA makes it more difficult to collect intelligence on such
establishments than on the others.
Does this make sense?
What Need For FISA?
During the '50s, '60s and early '70s, opponents of effective U.S. security in Congress
and the media played a clamorous numbers game in regard to the issue of warrantless
security wiretaps. They demanded to know just how many had been used each year and
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made extreme claims about overuse that threatened the Constitutional rights of
Americans. Administrations gradually acceded to their demands, making precise figures
public. Statistics published by the Church Committee reveal the following figures on the
past use of wiretaps for both security and criminal purposes:
1945- -the all-time high year ..........................................519
1945-1950-5 immediate post-World War II years (average per year)........... 428
1950-1954-average per year .............................................. 292
1955-1959-average per year .............................................. 167
1964-1968-average per year .............................................. 172
1969-1974-the 5 years immediately preceding the first FISA proposal
(intelligence only) ............................................. 108 151
Later, Attorney General Edward Levi repeatedly boasted that from July 1975 till the
end of his term in office (pre-FISA) not a single U.S. citzen had been subjected to
warrantless electronic surveillance.
What happened in that period? Did Moscow call off all its espionage operations
involving U.S. citzens? Or did the administration simply decide that it would cease using
one of its best means of gathering intelligence about such operations?
Levi's successor, Griffin Bell, stated with equally silly pride in 1978 that throughout
his term as attorney general only one citizen in the entire United States had been the target
of electronic surveillance and that that case had been undertaken on the direct order of
President Carter. Again, the same questions must be asked.
What has happened under the highly restrictive FISA? Through the year 1982, FISC
had approved 1,422 applications for foreign intelligence use of electronic surveillance, an
average of 406 per year for the three and a half years it had been operative. Moreover, it
had not turned down a single request for such surveillance. 152 The 406 is about the same as
the FBI used in 1948 (416) for both criminal and intelligence (both domestic security and
foreign espionage) purposes and an average far greater than that of any year since 1949.
Under FISA, in other words, the U.S. is tapping and bugging for security reasons at a
rate five times greater than it was, for example, in the year 1968 when the FBI-if you
believe the media and some Congressional committees-was engaging in gross violations
of citizen privacy by utilizing 82 bugs and taps.
One meaning of these now publicly available figures was spelled out in 1975 by Associ-
ate FBI Director James Adams in testimony explaining why, in the face of Congressional
demands for such information, the FBI had been reluctant to reveal exact figures on its use
of various techniques:
We are actually compromising our effectiveness by disclosing all of this.... [W]e have
had some real bull sessions over it, like on releasing the number of wiretaps [which had
been done in all recent appropriation hearings-author] - that we have been beat to death
with the false allegation that we have thousands of wiretaps, and so we sat there wondering,
do we do more damage to the United States by revealing the few we have - which was, I
think, about 80 at the time - and letting hostile intelligence services know how inadequate
our operations are against them? Or are they going to believe us, anyway, when we release
it? And maybe the American public will believe us. And maybe hostile foreign services will
think this is just a disinformation program like they engage in.
So we finally considered that the beating we were taking over all these false statements
about the extent of wiretapping, was such that we had to go ahead and go public, because
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there isn't a country in the free world, or on the other side of the curtain, that has this little
electronic activity against foreign operations in their country.I" II
What it all boiled down to, Adams continued, is the question of "whether the United
States can afford, in the areas of foreign intelligence, to be so `Simon-pure' that we are
willing to let foreign espionage agents operate almost at will in the United States ... and be
granted almost the same type of sanctity that an American citizen should have." ,"
Another meaning of the above statistics is that former FBI Director Hoover, rather
than being overzealous in this area-as the media and some in Congress painted him-for
years did not do as much as he should have done in the electronic surveillance field, at least
when reasonable attorneys general were in office.
(It is known, for example, that Attorney General Ramsey Clark rejected a number of
Hoover foreign intelligence-counterintelligence wiretap requests, despite the great caution
with which they were obviously being utilized.)
"Silly" was the word a top Justice Department official used at a meeting of the
Federal Bar Association in 1976 to describe the complicated procedure, based solely on
administration regulations, the FBI had to go through to obtain approval for warrantless
national security wiretaps at that time. An incident that occurred two years later
(pre-FISA) demonstrated what he meant.
Two terrorists invaded the Chilean consulate in San Juan, Puerto Rico, on the eve of
July 4, 1978. They seized two hostages, the Chilean consul and a Puerto Rican in the
consulate on business. They demanded cancellation of the July 4 parade in San Juan and
freedom for the four radical Puerto Rican nationalists imprisoned in this country since
their separate convictions for attempting to assassinate President Truman in 1950 and
wounding five members of the Congress when they shot up the House of Representatives in
1954.
After a 17-hour siege, officials in San Juan-including two FBI agents specifically
trained in hostage negotiations and two lawyers requested by the terrorists-finally talked
them into releasing the hostages unharmed and surrendering.
During the siege, the FBI agents wanted to tap the consulate telephone in the hope of
learning whether the terrorists had outside accomplices or were acting alone, and to obtain
any other information that would help them resolve the crisis without loss of life or serious
injury to the hostages or anyone else.
It took the FBI only 15 minutes to get approval for the tap from the Chilean
government-but seven hours and 45 pages of legal paper work to clear it through the U.S.
government.
The two hostages could easily have been killed in that time and, in some other incident
with a larger number of hostages, many more than two might have been killed or injured.
Given that the great need alleged for the enactment of FISA was the supposed
irresponsible and excessive wiretapping by the FBI, what does this incident say about the
necessity for this 15'h-page law packed with limitations and restrictions on the Bureau's
ability to utilize electronic surveillance for foreign counterintelligence purposes?
But doesn't the increased use of electronic surveillance under FISA mean that, despite
its demonstrated shortcomings, the law is beneficial?
No, for several reasons, in addition to those already enumerated (criminal standard,
etc.):
-FISA compels publication of the very statistical danger that worried experienced
FBI counterintelligence agents years ago. It forces the Attorney General to report annually
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to Congress and to the Administrative Office of the U.S. Courts the total number of appli-
cations made for FISC warrants and extension of warrants, and also the exact numbers of
orders and extensions granted, modified or denied by the FISC. This is public information.
-Additionally, its provisions give hostile foreign powers detailed information about
what uses can and cannot be made of electronic surveillance, types of people and establish-
ments that can be targeted, time and other limitations on various targets,
etc.-information useful to them in countering U.S. counterintelligence efforts.
-It requires that applications for FISC orders contain greatly detailed and highly
sensitive counterintelligence information: identity of targets and information needed; what
other techniques have been used without success to obtain the needed information; the
evidence that the target is a foreign agent; the means by which the surveillance will be
effected; why it is believed the desired information can be obtained by this technique; how
long it will take, etc.
Possession of such information makes the FISC a major target of hostile foreign
powers. Because no courtroom secure enough to protect such information could be found
in all of the United States, the FISC meets in a specially protected room in the Department
of Justice, where all its information is also kept under special security. This, along with the
Attorney General's new role in intelligence and the fact that the Counsel for Intelligence
Policy and Review and his staff are housed in the Department, has made it, as well as the
FISC, a special target of KGB and similar penetration efforts.
-The law is probably unconstitutional-and therefore objectionable in its very
essence. No law can-or should try to-override the Constitution, the supreme law of this
country. FISA does just that because it usurps a power conferred on the president (and no
one else) by the Constitution and turns it over to a unit of the Judicial branch to exercise it
as the Legislative branch has decided it should be utilized. Actually, any president who
wants to can defy the FISA at will. Should anyone be so rash as to institute legal proceed-
ings against him for doing so, he can simply take the case to the Supreme Court. The odds
are overwhelming that it will uphold his action, finding the law unconstitutional.
Even President Carter, while using the FISA he himself had promoted to avoid
personal responsibility for the exercise of national security power, insisted that he had a
constitutional right to direct the use not only of electronic surveillance but of other highly
intrusive techniques to collect foreign intelligence without a warrant and outside the pro-
visions of FISA.
The very existence of the FISA is an indication of the extent to which U.S. national
security has been politicized and cheapened. It should be constitutionalized once more.
Past presidents had the courage to take the heat for properly exercising their Constitutional
duties.
All that is necessary to end the dangers the FISA poses to effective U.S. counterintel-
ligence is a president with the courage to defy a law that is basically a sham.
Senator Malcolm Wallop, in the Senate Intelligence Committee's 1982 report on the
implementation of the FISA, revealed that the committee had never even met to consider
how FISA was working and its impact on U.S. counterintelligence. In his view, its net
effect has been to "confuse intelligence gathering with criminal law" and to enmesh it in
proceedings "wholly inappropriate to it."
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Tremendous Informant Loss
Every attorney general and FBI director who has ever testified on the subject of
informants has stressed the vital role they play in both law enforcement and security
matters. Numerous intelligence experts have similarly emphasized their tremendous impor-
tance to both intelligence and counterintelligence. A 1977 report of the General Account-
ing Office (GAO) on the FBI's use of informants stated the obvious when it said they were
"important" in criminal investigations but "essential" to intelligence operations.",
The unique, very special value of informants is keyed to the fact that the greater the
assault on society (whether security or criminal) a group undertakes, the more it becomes
secretive and conspiratorial. Intelligence about conspiracies or evidence to convict 'on-
spirators can normally be obtained only from someone on the inside who is privy to thv
group's clandestine objectives, techniques, members and plans-i.e., a conspirator who
breaks with the conspiracy, or a person who, at the request of intelligence or law enforce-
ment authorities, penetrates the group by pretending to be a sympathizer. One of the most
respected American jurists, the late Judge Learned Hand of the Court of Appeals for the
Second circuit, wrote in upholding the constitutionality of the conspiracy clause of the
-Smith Act,
Courts have countenanced the use of informers from time immemorial; in cases of
conspiracy, or in other cases when the crime consists of preparing for another crime, it is
usually necessary to rely upon informers or accomplices because the criminals will almost
certainly proceed covertly. 116
Rejecting the more recent claim of a group of radicals that use of informers by the
New York City police department intelligence unit violated their constitutional rights,
federal judge Edward Weinfield found the practice "legitimate and proper," as well as
"justified in the public interest," and added that,
indeed, without the use of such agents, many crimes would go unpunished and wrongdoers
escape prosecution. It is a technique that has frequently been used to prevent serious crimes
of a cataclysmic nature. The use of informers and infiltrators ... does not give rise to any
claim of violation of constitutional rights."'
Informants have repeatedly demonstrated their value. Much if not most of American
knowledge of the KGB, of the CPUSA or its fronts and their operations have come from
them. They have provided much of the knowledge on which this country has based its
security measures and counterintelligence operations.
"The House on 92nd Street," a popular film of some 25 years ago, told the story of
how an informant rendered ineffective one of the largest Nazi espionage rings dispatched
to the U.S. during World War II. A young member of the ring broke with it and went to the
FBI with information that led to the sentencing of 33 Nazi espionage agents to a total of
more than 300 years in prison.
The late Hollywood musical director, Boris Morros, served as an FBI counterspy from
1947 to 1957. The 68 trips he made to Moscow and other European cities in that period,
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plus his work in this country, broke a Soviet spy ring here and also identified for the FBI a
number of Soviet espionage officials in the U.S. and abroad.
Penetrating the Black Liberation Front as an informant for the New York City police,
Sgt. Raymond Wood foiled the group's plot in 1965 to blow up the Statue of Liberty, the
Liberty Bell and the Washington Monument.
Information about Soviet missiles that Col. Oleg Penkovsky gave the CIA helped
President Kennedy resolve the 1962 Cuban missile crisis without war.
The convictions of many Communist Party leaders under the Smith Act were based
overwhelmingly on the testimony of FBI informants. The same was true of the findings of
the Subversive Activities Control Board (SACB) and the hearings and reports of Congres-
sional investigating committees over a period of many years. Many of these concerned
espionage, as well as Soviet and other Communist subversion.
Protecting the identity of informants is essential.
Alex Rackley, a Black Panther, was tortured and murdered because he was suspected
of being a government informant. Other Black Panthers were killed for the same reason. In
August 1977, Marge E. Compton and her six-year-old twin daughters were murdered after
Hell's Angels placed a $10,000 bounty on her head because she had informed by testifying
in a trial which ended in the conviction of several of its members on vice charges.
Nikolai F. Artamanov, a Soviet Navy Captain, surfaced as a Soviet defector at a 1960
hearing of the House Committee on UnAmerican Activities and later began work as a
consultant to the Defense Intelligence Agency. In 1965, he became a U.S. citizen and
changed his name to Nicholas G. Shadrin. Approached by the KGB to doublecross his
adopted country the following year, he went to the FBI and agreed to serve as a double
agent ("informer"). He was last seen by his wife on December 20, 1975, in Vienna, where
he had gone on a counterintelligence mission, just before he left to meet two KGB agents.
He is presumed dead-at the hands of the KGB.
Secretary of State John Foster Dulles dropped ("lost") a passport denial case rather
than risk the life of Boris Morros who was on his last mission to Europe at the time. Had
Dulles acceded to a court's demand that he produce evidence justifying denial of a passport
to Jane Foster Zlatovski (a member of the Morros ring, suing for return of her previously
denied passport), Morros would probably never have left Europe alive. (Zlatovski got her
passport, escaped to France and is still a fugitive from an espionage indictment.)
FBI Director William Webster has refused to give the GAO access to the FBI's
informant files. He has taken the same position with the Department of Justice, although
the Bureau is technically subservient to the Department.
Attorney General Griffin Bell in 1978 flatly refused the demand of a federal court
judge in New York that he turn over FBI files on almost a score of Bureau informants who
had served in the SWP. Result: He became the first Attorney General in the history of the
United States to be cited for contempt of court (a higher court subsequently resolved the
issue in Bell's favor).
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Recent Developments
Attorney General Edward Levi's guidelines on the FBI's use of informants in
domestic security, crime and organized crime investigations, effective December 15, 1976,
were made public on January 5, 1977. They were fundamentally anti-counterintelligence,
pro-subversion (Soviet active measures) and pro-crime. Leaders and attorneys of the
CPUSA and lawyers for organized crime syndicates must have been overjoyed as they read
them.
A basic rule of informant use is that informants must live and act as do the members of
the group they have penetrated. The 1970 report of the President's Commission on
Campus Unrest emphasized that
the continued effectiveness of an informer or undercover agent may well depend on his
willingness to participate in unlawful activity."'
But the Levi guidelines rejected this universally recognized truth. They ruled that
Bureau informants "shall not... participate in acts of violence" [which are normally
unlawful] under any circumstances and, further, that they could not "participate in
criminal activities" [of any kind, violent or non-violent] unless the FBI was first contacted
on the matter and made a determination that their participation in the crime was
19
"necessary" to obtain information for federal prosecution.
The guidelines thus set up every one of the FBI's informants for exposure. Knowing
the rules the informants had to obey, subversive and criminal elements could easily plan
suddenly-staged criminal or violent acts in which every informant would be compelled to
reveal his role by refusing to participate.
To ensure that this result would follow, the guidelines directed that every time an FBI
agent learned of an intended violent crime, he had to instruct the informant "to discourage
the violence" - one more noose around an informant's neck.111?
They even went farther, providing penalties for any informant who broke these rules.
"Under no circumstances," they continued, would the FBI ever take any action to conceal
from law enforcement authorities an informant's participation in a crime. Normal FBI
procedure would be to immediately report the informant to police. In some "exceptional
cases" it would instead report the crime to the Department of Justice. After considering
the FBI's recommendation in the matter, the Department would decide when police would
be notified and whether the informant should be retained.
At the time the guidelines were published, this writer predicted that organized crime
and Communist, terrorist and revolutionary groups, using them as a guide, would begin
testing for informants within their ranks and that "it is only a question of time" before the
"virtual destruction" of the Bureau's informant system would take place."'
About a year later, FBI Director Webster testified that the FBI was using its own
special agents for undercover work in organized crime. He commented,
It's tough and difficult. There is constant testing going on within organized crime of
members, their loyalty, testing people by means of requiring them to engage in illegal
activity."'
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One FBI agent had been killed. Webster said nothing about the security field, but
statistics soon revealed what was happening in that sphere.
Importantly, the guidelines did not contain the words "counterintelligence" or
"intelligence." From the security/counterintelligence viewpoint, therefore, the Bureau's
ability to use informants was determined by the earlier published domestic security investi-
gations guidelines which, as already noted, were based on a criminal standard. FBI
"straight" intelligence/counterintelligence use of informants was thus barred, except
insofar as the foreign counterintelligence guidelines permitted their use.
What effect did the guidelines have on the FBI's counterintelligence capability? The
Church Committee reported that the FBI had 1,731 regular informants in the domestic
security field in 1971, and in June 1975, 1,040, plus 554 in a probationary status, pending
determination of their reliability-a total of more than 1,500.163
In the spring of 1978, after the Levi guidelines had been in effect a little over a year,
Associate FBI Director James Adams testified, "I have difficulty with the small number of
informants we presently have in domestic security. It is less than 100 in a nation of 200
million people." 164
There had been a decline of more than 1,400 informants in a few years.
A short while later, in May, Director Webster made the startling revelation that the
FBI had only 42 informants in the entire nation in the field of domestic security.", The
following year, he was so embarrassed by the facts that when asked for exact figures by a
member of the House Appropriations Committee he said, "If I may, I am going to avoid
the ones that have dropped so low that I don't want to talk about them"-and escaped
giving the number.166
In his 1980 testimony he admitted the total was "a very small number," and said the
FBI was making "every effort" to increase it, but finally admitted it "is less than 25 .... It
is too small." 167
A short while later, in another hearing, an FBI assistant director revealed that the
actual number was only 17, a "tremendous diminution," as he said, of what it had been
years before. He made another revelation. "In concert with our guidelines," he added, the
FBI had taken "self-imposed restrictions to ensure the quality" of its informants."',
No intelligent person questions the fact that quality informants are essential to the FBI
and other investigative agencies. But why would the Bureau, faced with devastating
informant losses, take additional steps that would increase its problems in recruiting and
retaining informants? Given the fact that the FBI's past record on informant quality has
been excellent, one must conclude that- unless there is something basically wrong in the
FBI-the Levi informant guidelines compelled it to do so.
Why? I believe only a madman, or an extremely rash, reckless and irresponsible
person (i.e., an undesirable) would serve as an informant under the conditions specified in
the guidelines. Added constraints were therefore necessary if the Bureau was to hope for
any reliability in its informant system.
Another important factor in the informant decline is the Freedom of Information Act
(FOIA).
Officials of both the CIA and FBI have been testifying for years about the difficulties
the FOIA poses to the recruitment of sources of all types in the intelligence field-not only
informants as such, but police, government officials here and abroad, intelligence
agencies, businessmen, academics, etc. In all areas, those who have cooperated with U.S.
intelligence agencies in the past have either reduced cooperation or stopped it entirely
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because they fear exposure of their roles through the FOIA.
CIA Director William Casey testified in 1981 that 15 friendly foreign intelligence
services had by then refused full cooperation with the CIA because of the FOIA, believing
it threatens the security of their information and sources. The same is true, he said, of indi-
vidual agents abroad. The CIA's agent network, he said, is "in jeopardy" and offered to
give "many examples" to demonstrate his contention in a secret session of the Senate Intel-
ligence Committee.
In 1982 testimony, FBI Director Webster cited instance after instance in which the
Bureau had lost security or criminal informants for the same reason. One was a U.S. citizen
who had a chance to penetrate a hostile foreign intelligence establishment and was gener-
ally willing to do so-but eventually declined because of the FOIA.
When friendly foreign services and individuals won't cooperate with the CIA in
providing positive intelligence, what chance does it have of recruiting double agents in
hostile agencies when the risk in such work is so much greater? The same applies to the FBI
when it is known that its domestic program is a shambles.
Attorney General Benjamin Civiletti promulgated new informant guidelines for the
FBI in December 1980. They were not quite as bad as their predecessors.
The flat ban on their participation in all criminal activity under any circumstances was
rescinded. Before participation in such activity was permissible, however, an FBI official
had to make a written finding that it was "pertinent" (rather than "necessary") to the
Bureau's responsibilities. The evil inherent in the fact that the informant had to have
advance knowledge of any planned criminal act and get permission to take part in it-or
risk being readily exposed -thus remained. (In domestic security cases, an FBI Head-
quarters official had to-make the written finding.)
Moreover, the ban on all violent activity was retained. All informants were to be
instructed that they "shall under no circumstances participate in any act of violence." "I
An informant's obligation to try to discourage violence was eased by addition of the words
"to the extent practicable."
In no significant way, however, did the new guidelines alter the Levi rules that had
wrecked the FBI's mid-'70s informant system which had been built up by years of careful,
difficult effort. Again, they made no reference to the use of informants for straight intel-
ligence or counterintelligence purposes and thus went far toward protecting Soviet active
measures from surveillance by the U.S. government.
The Civiletti guidelines are still in effect in the Reagan Administration. U.S. counter-
intelligence is still hobbled in this vital field by unwarranted demands that endanger lives as
well as the national security - and which deny it anything like effective utilization of the
most effective of.all intelligence weapons.
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Huge Domestic Intelligence Loss
Because of the normal "American connection" in Soviet active measures and other
foreign-directed or influenced subversion carried out in this country, the amount of
domestic intelligence collected obviously has high impact on the effectiveness of U.S.
counterintelligence. The FBI has been the principal governmental domestic intelligence
collector.
The Bureau was highly proficient in this area years ago. In the 1940s, its coverage of
the Communist Party, as an example, was so thorough that it annually released the exact
number of party members in the country, breaking the total down on a state-by-state basis.
Though this practice was dropped in the early 1950s, comprehensive coverage was
continued, as the Smith Act prosecutions of that decade revealed. Bureau testimony and
reports also indicated that it was continued through the '60s and into the '70s when, as a
result of the Pike and Church committee hearings and the 1976 Levi guidelines, it began to
fall off precipitously. In fact, it stopped altogether.
FBI Director Clarence Kelley in 1977 told a congressional committee: "We do not
conduct investigations purely for the need of gathering intelligence," adding that the
Bureau had stopped doing so about a year before."'
Attorney General Griffin Bell wrote to a Congressman in 1978: "The FBI. . . does not
engage in intelligence activities." "'
That same year, Director Webster said in a speech: "We're practically out of the
domestic security field." In a press conference the following year, he referred to the
Bureau's past domestic intelligence collection and stated, "That program has been
scrapped." 12
Statistics on FBI domestic security investigative activity bear out the above state-
ments. In mid-1973, the Bureau had 21,414 domestic security matters pending before it.
Since that time, according to the testimony of Webster and other FBI officials, the number
has declined as follows:
Year Cases
1975 ....................................................9,814
1976 ....................................................4,868
1977(June) ...............................................642
1977 (December) ........................................... 119
1978 (February) ............................................ 102
1978 (December) ............................................ 52
1979(January) ..............................................75
1979 (February) ............................................. 53
1979 (July) .................................................47
1980 ...................................................... 54
1981 ...................................................... 57
1982 ......................................................43
1983 ...................................................... 51
The impact of the criminal standard set in the Levi guidelines in 1976 is obvious in the
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figures for the years after 1976. In the years following their promulgation, the breakdown
of group and individual cases has been somewhat as follows:
Organizations
Individuals
1976
78
548
1977 (April)
25
170
1977 (October)
17
130
1978 (March)
18
84
1978 (August)
12
39
1979
21
32
1980
22
32
1981
10
47
1982
23
20
1983
20
31
The above figures actually exaggerate the amount of Bureau investigation. In most
cases, particularly in earlier years, the FBI was not asked whether its figures represented
preliminary inquiries, limited, or full investigations as classified in the Levi guidelines.
When breakdowns of this type were requested, they revealed, for example, that of the 23
group investigations in 1982 only three were full investigations, and of the 20 such investi-
gations recorded for 1983, only nine were full investigations. Inasmuch as the limitations
the guidelines prescribed for preliminary inquiries made them virtually useless and the
limited investigations of little more worth, the only ones of any real value were the full
investigations-and their totals have been far below the figures in the above tables.
Considering that the U. S. has a population of about 230 million people and is, accord-
ing to the FBI and CIA, the primary world target of both Soviet espionage and Soviet
active measures operations, the above figures are truly alarming-even when allowance is
made for the fact that Americans involved in espionage and the Communist Party are
investigated under the foreign counterintelligence guidelines.
A 1977 GAO report noted the FBI's "limited success" in developing advance knowl-
edge of "planned violent activities." It was merely stating the obvious when it found a
"massive decline" in the Bureau's domestic intelligence effort."'
And in a 1983 report of the Senate Subcommittee on Security and Terrorism the FBI's
domestic intelligence gathering capacity was described as in a "deplorable condition." 1?
The Bureau's efforts, in fact, have become a joke in knowledgeable domestic intel-
ligence circles. At a recent seminar of the International Association of Chiefs of Police,
attendees laughed at its so-called "intelligence" collection. An official of the Department
of Energy, which has major responsibilities concerning U.S. nuclear weapons, complained
that when one of its security men approached the FBI for information, he was advised to
use the New York Times Data Bank in an effort to obtain what he wanted.
Under such conditions, it is irrational to consider the FBI a "national security" or
`intelligence" agency. Consider the implications of the Bureau's lack of domestic intel-
ligence on some of its major security responsibilities.
Presidential and other assassination attempts
The Executive orders of Presidents Ford, Carter and Reagan all specified that the
FBI's counterintelligence duties include the prevention of assassinations.
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The Secret Service, which is under the Treasury Department, however, has the
principal and immediate responsibility in this field. It is its duty to protect the President
and Vice President and their families, as well as candidates for President, former
presidents, and all visiting foreign dignitaries (of which there are many each year).
The FBI's major contribution has always been that of providing relevant intelligence
to the Secret Service, which is not itself an intelligence gathering agency.
In 1977, H. Stuart Knight, then director of the Secret Service, testified that the FBI
was providing the Secret Service with only about 40 percent of the intelligence it had
previously supplied and that there had also been a marked decline in the quality of the
information provided. The overall resultant loss of useful intelligence, he said, was roughly
75 percent. "s lit later congressional appearances, Knight repeated his complaint that the
decline in FBI-supplied intelligence threatened the ability of the Secret Service to carry out
its mission. Asked in a 1981 hearing what he would do if given twice his normal appropria-
tion, he replied that he would "try to enhance our intelligence capability." 176
The assassinations of President John F. Kennedy, of Presidential candidate Robert F.
Kennedy, the crippling of George Wallace, another candidate, the attempts on the life of
President Ford and the serious wounding of President Reagan, all emphasize the very real
and increased danger of assassinations of high public officials-and also stress heavily the
great importance of effective FBI domestic intelligence collection and the danger presented
by its intelligence collection failures.
The official Treasury Department report on the attempted assassination of President
Reagan stated,
The Secret Services protective capabilities have been impaired by the decline in the
quantity and quality of intelligence collected by the FBI, which is the primary source of the
Service's domestic intelligence. "'
Federal Personnel Security
Background security checks of all applicants for federal employment are the respon-
sibility of the Office of Personnel Management (OPM, formerly the Civil Service Com-
mission). The FBI's domestic intelligence collection, however, has great impact on the
effectiveness of the checks made by OPM because, of all the records searched in these
checks, the FBI's files have always been the main depository of information about any
person's involvement in subversive activities. To the degree that the Bureau's files are
inadequate, incomplete, etc., the check loses value in protecting the government from infil-
tration by subversives and security risks.
Additionally, the FBI itself is responsible for background checks and investigations of
its own employees and those of the Justice Department, White House appointees and
employees, federal judges, FISA judges, personnel of the Nuclear Regulatory Commission
and Department of Energy. It also conducts background investigations for a number of
particularly sensitive congressional committees, such as those having to do with armed
services and intelligence. The effectiveness of these investigations, too, is clearly dependent
to a considerable degree on the thoroughness of FBI domestic intelligence collection.
Bureau intelligence collection also has great impact on military personnel security,
including those with access to the nation's most sensitive defense secrets. In a 1979 hearing
of the House Intelligence Committee, the security chief of the Department of Defense,
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which does its own personnel security checks-including those for the DIA and NSA-was
asked if the Department maintained files of its own for personnel security check purposes.
He replied that it did not. Asked where the Department would go for information about
someone's possible association with groups advocating violent overthrow of the govern-
ment, or subversive penetration of the armed forces, he replied:
We would go to the Federal Bureau of Investigation and inquire as to their knowledge
of the organization.... Our primary source of information of this type is the Federal
Bureau of Investigation.' "
In the same hearing, an FBI official testified that the Bureau had closed the vast
majority of its domestic organization cases and was not permitted even to read and file the
public literature of openly revolutionary organizations. In a hearing the year before, the
head of the Bureau's Terrorism ("domestic security") Section was asked if that section
handled groups related to the federal personnel security program. When he replied that it
did not, he was asked who in the FBI did. His reply: "There isn't anyone at the moment."
(Emphasis added.) "'
Not only the lives of Presidents and other high officials and numerous visiting foreign
dignitaries, but the integrity of the federal civil and military services-the protection of the
government from disloyal and foreign agent penetration-is without question seriously
compromised by the FBI's inadequate domestic intelligence/counterintelligence
collection.
It is not necessary to go into detail about the extent to which the Bureau's ignorance of
basic security information must vitiate its ability to counter terrorism, sabotage and active
measures-which not only the Communist bloc, but other hostile powers, are capable of
launching in this country with the help of American collaborators.
From the domestic security-intelligence viewpoint, the FBI has become the Federal
Bureau of Ignorance. The U.S. today has no domestic intelligence agency. And because
this is so, there is a huge hole in its national security and its counterintelligence capabilities.
As important as it is to national security, any attempt at an overall counterintelligence
analysis (such as has been previously discussed) is bound to be defective in part because
neither the FBI nor any other agency can provide the analysts with the kind of information
they need about the "home front" aspect of the problem they are trying to deal with. They
simply cannot analyze what they don't have; so they cannot make anything approaching a
thorough analysis, try as they may.
Conclusion and Recommendations
The foreging is by no means a consideration of all the problems now confronting and,
in varying degrees, frustrating effective U.S. counterintelligence. It is only a brief treat-
ment of some of them.
There is, for example, the problem of morale. A few years ago, there was general
agreement that morale was very bad throughout the Intelligence Community. Sweeping,
unfair and unfounded attacks by the media, by congressional committees and many
individual members of Congress were the major cause of this. Subjects mentioned in this
report also contributed to it: the continuing cuts in budgets and manpower, the overly
restrictive executive orders and guidelines, amateur control, etc. In addition, Congress has
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been slow, or has failed completely, to deal with real dangers to this country's intelli-
gence/counterintelligence agencies and their personnel.
Philip Agee and his crew had been publishing their CounterSpy and its successor, the
Covert Action Information Bulletin, with their depradations against the CIA for about
nine years before Congress finally took steps to end the threat they posed to the lives of
Agency personnel and their families, as well as to the national security. Congress still has
not ended the threats the Freedom of Information Act poses to the national security and
the ability of all intelligence personnel to do their jobs. Both the quantity and quality of
American intelligence will continue on the downgrade until Congress appropriately
amends that law.
There has been some change in the political climate and the morale situation has
improved, largely because of the attitude of the Reagan administration. It has been
supportive, rather than hypercritical, of intelligence. The Reagan Executive Order
removed a considerable number of the excessive, frustrating restrictions imposed on the
Community by its predecessor and gives intelligence professionals more say about policy
and procedures, depriving the Attorney General and Justice Department attorneys of
powers they inappropriately exercised in the field. All this has helped.
But all is still not well in the morale field. FBI Director Webster testified in 1982,
My problem today is not unleashing the FBI, my problem is convincing those in the
FBI that they can work up to the level of our authority. Too many people have been sued,
too many people have been harassed and their families and life savings tied up in litigation
and the threat of prosecution. So that we and others like us run the risk that we will not do
our full duty in order to protect our individual selves. (Emphasis added.) 180
Webster repeated all but the last sentence of the above statement in another congres-
sional appearance four months later-apparently in an effort to emphasize an important
'
morale problem and the urgent need for Congress to do something about it."'
What is that problem? Since 1971, all government investigative-intelligence personnel
have been liable to lawsuits, based on alleged constitutional violations, simply because of
thorough and efficient performance of their duties. As a result of a concerted Communist-
leftwing campaign, scores of such suits have been filed against intelligence personnel,
particularly FBI agents.* Some pending suits are for millions of dollars and could
bankrupt the defendants for life. Some awards of close to $100,000 have already been
made (and are on appeal). During the past 10 years, every administration in power has
asked Congress to correct the situation by amending the Federal Tort Claims Act so that
government personnel will have the same immunity from constitutional tort claims that
they have had from physical tort claims for decades. Congress, however, has failed to act.
Is it at all reasonable to believe that morale is what it should be when such conditions
prevail; when the chief of the country's major counterintelligence agency states openly that
he has a problem getting his personnel to perform up to the full extent of their legitimate,
completely proper powers; and when the nation faces the risk that they and others like
them are not doing their full duty?
In view of all the foregoing material, one recoils from the thought of new or additional
executive orders or guidelines. Yet some changes are essential. At the very least, an
adequate, comprehensive definition of counterintelligence should be developed and then
* About 10,000 have been filed against government employees in general, thus threatening the efficiency of
the entire federal service.
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incorporated into every executive order, guideline or regulation controlling U.S. counter-
intelligence activity.
The definition in the Reagan Executive Order, as noted, is superior to that in the
preceding orders. Its only failure appears to be the fact that it does not allow for the reality
that foreign powers may use other than intelligence personnel or agencies to carry out
undermining operations ("active measures") in this country.
The solution to this and related problems would not be difficult. The NSC should
enlist the assistance of half a dozen counterintelligence experts, preferably retired, each of
whom has had at least 20 years experience here or abroad in major counterintelligence
assignments, and put them to work reviewing all definitions used in official documents in
the recent past against what they know to be the needs of thoroughgoing counterintel-
ligence authority. They would have the answer in a few days, particularly when you
consider that the addition of terms such as "subversion" or "subversive activities" might
be all that is needed to correct the deficiency, because such terms would embrace all active
measures.
The claim of some that the term "subversion" is too vague is rebutted by the fact that
it was obviously not too vague for either the secret or open directives of FDR, for the public
orders of several of his successors, for the Ford Executive Order, and has not been too
vague for the Supreme Court.
The same group of experts should review the current foreign counterintelligence
guidelines in their entirety for any provisions which they know might generally, or under
certain circumstances, inhibit effective counterintelligence in some way. Once their work
was completed, the guidelines could be readily amended to eliminate these barriers to effec-
tiveness. Because the current guidelines are overwhelmingly secret, there would be no
major political problem in changing them-as was demonstrated when the 1976 Levi
guidelines were quietly changed several times before the new Civiletti guidelines were
issued in 1980.
Importantly, the Department of Justice should be kept out of this project. Its aim is
national security, not the administration of criminal or other laws. It is a job for intel-
ligence specialists, not law enforcement attorneys. The Attorney General could be given
the privilege of reviewing the finished project and submitting an opinion on it, just in case
it might include some Constitutional or statutory violation (which is most unlikely), but his
word should be only advisory; the final decision should rest with the NSC. Fortunately, in
addition to being incorporated into some of its specific provisions, this is already the basic
thrust of the Reagan order.
Regrettably, new domestic security "investigation":guidelines must be promulgated.
They should be keyed to the fact, recognized by the Supreme Court in Keith and other
decisions, that domestic subversion is a national security matter and that the objective of
its investigation is not criminal prosecution, but the acquisition of knowledge that will
make possible the adoption of effective countermeasures when they are deemed necessary.
They should also recognize the unpleasant fact that mass, organized disloyalty is a reality,
a reality often difficult to distinguish from honest, vigorous (sometimes violent) dissent,
but that the ability to make this distinction is one of the most important (as well as most
difficult) in the domestic intelligence field. This fact alone makes the criminal standard
completely inappropriate.
These guidelines, again, should be the work of specialists and experts working under
NSC direction, not the work of Justice Department lawyers-because the object of such
guidelines, like those of foreign counterintelligence, is national security. Because they will
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affect Americans much more extensively than the foreign counterintelligence guidelines
will, the attorney general should have a larger voice in their final form. The attorney
general, however, is merely this nation's chief law enforcement officer. Its chief security
authority-with the exception of the President-is the NSC. It should have the final word
on the matter.
Basically, the elimination of the counterintelligence problems outlined herein, as well
as others, rests with two institutions-Congress and the White House. To date, the White
House has shown the greater disposition toward correcting the evils that have crept into the
practice of counterintelligence to such a degree that they have now become real impedi-
ments to genuine national security. More citizen pressure on the White House exerted by
both individuals and organizations, can do much to encourage it to take additional steps
along the positive path it has already chosen.
Congress, with its 535 members, is a much larger problem, particularly since some of
its members have for years demonstrated their opposition to effective intelligence/counter-
intelligence policies and practices. The people, however, control those who sit in Congress
and what they do just as much as they control the occupant of the White House and his
actions. Greater and more effective pressure must be brought to bear on all representatives
and senators.
Intelligence may rule the world, but in a democratic nation the people rule intelligence.
The American people have allowed American counterintelligence to fall into its present
weakened condition. It is up to them to see that it is restored to a condition worthy of this
nation-and capable of adequately protecting their security.
No one has taken from them the two weapons they need to do this- education of
themselves and their fellow citizens, and action based on that education.
The only real need is effective use of these two weapons.
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Footnotes
Abbreviations
Church Committee - Select Committee to Study Governmental Operations with Respect to Intelligence
Activities, United States Senate.
C.R. - Congressional Record
HAC Subcommittee - Subcommittee on the Departments of State, Justice, and Commerce, the Judiciary, and
Related Agencies, Committee on Appropriations, House of Representatives. (NOTE -
All relevant hearings held by this subcommittee have been titled Departments of State,
Justice, and Commerce, the Judiciary, and Related Agencies Appropriations for...
[appropriate year]. Both this title and the name of the subcommittee have been abbre-
viated by the designation "Hearings, HAC Subcommittee.")
HCUA - Committee on Un-American Activities, House of Representatives.
HIC - Permanent Select Committee on Intelligence, House of Representatives.
HJC - Committee on the Judiciary, House of Representatives.
SIC - Select Committee on Intelligence, United States Senate.
SISS - Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal
Security Laws, Committee on the Judiciary, United States Senate.
SJC - Committee on the Judiciary, United States Senate.
SSST - Subcommittee on Security and Terrorism, Committee on the Judiciary, United States Senate.
References
1. Adequacy of United States Laws with Respect to Offenses Against National Security, Special Subcom-
mittee on Security Affairs, Senate Committee on Foreign Relations, 83rd Cong., 1st Sess., April 17, 1953, Com-
mittee Print, p. 1.
2. See Herbert Romerstein, The World Peace Council and Soviet Active Measures (Washington, D.C.:
The Hale Foundation, 1983).
3. The CIA estimates that the Soviet Union spends $3.363 billion annually for propaganda and active
measures operations.
4. John Barron, KGB: The Secret Work of Soviet Secret Agents (New York: The Reader's Digest Press,
Bantam Books Edition, 1974), p. 109.
5. Testimony of Gen. Walter Bedell Smith, Hearing, HCUA, 82nd Cong., 2nd Sess., October 13, 1952,
pp. 4285-4294.
6. Ibid., p. 4292.
7. Ibid., p. 4290.
8. Ibid., p. 4294.
9. William C. Sullivan with Bill Brown, "Life with a Tyrant," The Washington Post Magazine, Septem-
ber 23, 1979, p. 17.
10. Ibid., p. 20.
11. "CIA Roundtable," The Washington Quarterly, Vol. 1, No. 4, Autumn 1978, p. 33. (Transcript of
panel discussion, March 24, 1978, at the Georgetown University Center for Strategic and International Studies.)
12. Soviet Active Measures, Hearings, HIC, 97th Cong., 2nd Sess., July 1982, p. 31.
13. J. C. Masterman, The Double-Cross System, Yale University Press, 1972, p. XII.
14. Ibid., p. 186.
15. Ibid., pp. 34, 35.
16. Testimony of Wladyslaw Tykocinski, Hearing, HCUA, 98th Cong., 2nd Sess., April 6, 1966, p. 873.
17. Op. cit., p. 31.
18. Foreign Influence- Weather Underground Organization (WUO), Federal Bureau of Investigation,
August 20, 1976, p. 125.
19. Intelligence Activities and the Rights of Americans, Book II, Final Report, Church Committee, 94th
Cong., 2nd Sess., April 26, 1976 (Sen. Rept. No. 94-755), p. 84.
20. Intelligence Activities, Senate Resolution 21, Hearings, Church Committee, 94th Cong., 1st Sess.,
Vol. 4, October 1975, p. 221.
21. U.S. v. District Court, 407 U.S. 297.
22. CP v. SACB, 367 U.S. 1, 96.
23. Ibid., at 42.
24. Ibid., Douglas dissenting, pp. 6, 7 (slip opinion).
25. Ibid.
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26. Quoted in Louis Nizer, The Implosion Conspiracy, Doubleday and Co., Inc., 1973, Fawcett Crest
edition, p. 400.
27. Executive Order 11905, February 18, 1976, text as released by White House, Sec. 2(a)(2) and Sec.
4(g)(1).
28. E. O. 12036, January 24, 1978, Sec. 4-202, and E. O. 12333, December 4, 1981, Part 3.4(a), White
House release texts.
29. Congressional Record, July 14, 1977, p. H7105, House Rule XLVI II, 10(a)(2) and Annual Report to the
Senate, SIC, 95th Cong., Ist Sess., (Sen. Rpt. No. 95-217), May 18, 1977, p. 2.
30. Foreign and Military Intelligence, Church Committee, Final Report, Book I, 94th Cong., 2nd Sess.,
April 26, 1976 (Sen. Rept. No. 94-755), p. 163.
31. Annual Report, HIC, 95th Cong., 2nd Sess., October 14, 1978 (House Rept. No. 95-1795), pp. 37, 60,
32. Annual Report, Fiscal Year 1961, Report of John Edgar Hoover, Director, Federal Bureau of Inves-
tigation, U.S. Department of Justice, p. 23.
33. FBI Annual Report, Fiscal Year 1962, Report of John Edgar Hoover, Director, Federal Bureau of
Investigation, U.S. Department of Justice, p. 25.
34. FBI 1962 Appropriation, testimony of Hoover before House Appropriations Subcommittee, March 6,
1961, as reprinted and released by FBI, June 5, 1961, p. 49.
35. Ibid., pp. 48-51.
36. 1963 FBI Appropriation, testimony of Hoover before House Appropriation Subcommittee, Janu-
ary 24, 1962, as reprinted and released by FBI July 12, 1962, p. 55.
37. Haig v. Agee, June 29, 1981, slip opinion, p. 26.
38. Op. cit., pp. 4, 28.
39. Op cit., p. 24.
40. New York Times, August 2, 1971, p. 13.
41. Nomination of William J. Casey, Hearing, SIC, 97th Cong., 1st Sess., January 13, 1981, p. 40.
42. Nomination of Admiral B. R. Inman, Hearing, SIC, 97th Cong., 1st Sess., February 3, 1981, p. 9.
43. Nomination of John N. McMahon, Hearing, SIC, 97th Cong., 2nd Sess., May 26, 27, 1982, p. 43.
44. Op..cit., footnote 11, p. 33.
45. Report to the Senate, SIC, 96th Cong., 1st Sess., May 14, 1979, p. 40 (Sen. Rept. No. 96-141).
46. The working group included the CIA, DIA and NSA, as well as DoD's National Reconnaissance Office,
the Bureau of Intelligence and Research of the Department of State; intelligence elements of the Army, Navy, Air
Force, Marine Corps, FBI, and Treasury and Energy Departments; plus staff elements of the Director of the CIA.
47. See footnote 31.
48. Op. cit., Sec. 2(a)(2).
49. Op cit., Sec. 4-202.
50. Ref. footnote 12, pp. 26, 28.
51. Op. cit., Sec. 3.4(a).
52. Laird v. Tatum, 408 U.S. 1.
53. Domestic Security Investigations, Sec. I. A., official text as released by Department of Justice,
March 10, 1976.
54. Ibid., I. A. (1)-(4).
55. The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Domestic Secur-
ity/Terrorism Investigations, Sec. III, B. 1. a., official text as released by Department of Justice, March 7, 1983.
56. Ibid., Sec. III. B. 2.
57. Legislative and Administrative Reform, Hearings, House Select Committee on Assassinations, 95th
Cong., 2nd Sess., December 1978, Vol. 1, p. 44.
58. H.R. 6588, The National Intelligence Act of 1980, Hearings, HIC, Subcommittee on Legislation, 96th
Cong., 2nd Sess., March & April, 1980, pp. 58, 78, 79.
59. Op cit., p. 28.
60. Quoted in William R. Corson, The Armies of Ignorance, The Dial Press/James Wade, 1977, p. 269.
61. Report to the President by the Commission on CIA Activities Within the United States, June 1975,
Manor Books edition, p. 129.
62. Op. cit., 1-304 & subsection (d).
63. Op. cit., p. 46.
64. FBI Oversight, Hearings, HJC, Subcommittee on Civil and Constitutional Rights, 95th Cong., 1st
Sess., June & November, 1977, Part 1, p. 25.
65. Intelligence Activities, Senate Resolution 21, Hearings, Church Committee, 94th Cong., 1st Sess.,
November & December, 1975, Vol. 6, pp. 314, 315.
66. "Edward Levi's Parting Blow at the FBI," Human Events, February 26, 1977, p. 5.
67. Domestic Security (Levi) Guidelines, Hearings, SSST, 97th Cong., 2nd Sess., June & August 1982,
p. 76.
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68. Official conference text, Department of Justice release, March 18, 1977, p. 29.
69. Official text, The Yale Law Journal Banquet, April 20, 1978, as released by Department of Justice,
p. 4.
70. Cole v. Young, 351 U.S. 536.
71. Conference on Intelligence Legislation, Standing Committee on Law and National Security, American
Bar Association, University of Chicago Law School, June 26-28, 1980, p. 39.
72. Ibid., pp. 40, 41, 44.
73. Ibid., pp. 44, 45.
74. Text as declassified, Sec. IX, B. 2. a., & B. 7.
75. Letter of John M. Harmon, Assistant Attorney General, Office of Legal Counsel, May 23, 1978.
76. Text as declassified and released, July 29, 1982, Sec. III. A. & G.
77. Ibid., Sec. IV. A. 2.
78. Ref. footnote 57, p. 122.
79. Ibid., p. 44.
80. FBI Statutory Charter, Hearings, SJC, 95th Cong., 2nd Sess., April 1978, Part 1, p. 63.
81. Ibid.
82. Ibid.
83. Ibid.
84. Ibid., pp. 38, 39.
85. Report to the Senate, SIC, September 23, 1981 (Sen. Rpt. No. 97-193), p. 17.
86. Quoted in the Associated Press, January 13, 1976, and C.R. January 27, 1976, p. S. 550.
87. Ref. footnote 30, p. 340.
88. Ibid., p. 337.
89. Report [To accompany S. 29391 Authorizing Appropriations for Fiscal Year 1979 for Intelligence
Activities..., 95th Cong., 2nd Sess., April 19, 1978 (Rept. No. 95-744), p. 3, and C.R. June 6, 1978, p. H. 5019.
90. C.R., November 3, 1983, p. 515279, 15280.
91. Ibid., p. S15280.
92. Hearings, HAC Subcommittee, 96th Cong., 1st Sess., Part 6, Department of Justice, March 1978, pp.
672, 673, and 96th Cong., 2nd Sess. Part 7, Federal Bureau of Investigation, April 1980, pp. 153, 171, 172.
93. Text of Remarks, White House release, July 16, 1983.
94. Text of Remarks, Department of Justice release, December 18, 1981, p. 7.
95. National Committee to Restore Internal Security, Hearings, Vol. III, February 15, 1980 statement,
p. 77.
96. Hearings, HAC Subcommittee, 95th Cong., 2nd Sess., Part 6, Department of Justice, March 1978,
p. 686 and Department of Justice Authorization, Hearings, HJC, March 1978, 95th Cong., 2nd Sess., pp. 612,
613.
97. Ref. footnote 85, p. 17.
98. Pre-Employment Security Procedures of the Intelligence Agencies, Hearings, HIC Subcommittee on
Oversight, 96th Cong., 1st Sess., May and June 1979, p. 212.
99. Ref. footnote 95, p. 76.
100. "Espionage: The Dark Side of Detente," Reader's Digest, January 1978, p. 78.
101. William Colby, Honorable Men, Simon and Shuster, 1978, pp. 333, 390.
102. Reported in U.S. News & World Report, May 7, 1979, p. 27.
103. Ref. footnote 42, p. 19.
104. Ref. footnote 95.
105. Washington Post, March 27, 1977, p. A3.
106. Terroristic Activity: International Terrorism, Hearings, SISS, 94th Cong., 1st Sess., Part 4, May 1975,
p. 205.
107. Op. cit., Sec. 1-304(c).
108. Ref. footnote 85, p. 17.
109. Op cit., Sec. 1.1(d).
110. Ref. footnote 71, p. 75.
111. FBI Oversight and Authorization, Hearings, SSST, 98th Cong., 1st Sess., February 1983, pp. 87, 88.
112. Attorney General's Guidelines for Domestic Security Investigations (Smith Guidelines), Hearing,
SSST, 98th Cong., 1st Sess., March 25, 1983, p. 71.
113. Ibid.
114. Ref. footnote 67, p. 89.
115. Naples (Fla.) Daily News, February 28, 1983 (reporting his remarks at a symposium sponsored by the
local chapter of AFIO).
116. Quoted in VFW Magazine, May 1976, p. 30.
117. The Assassination of Representative Leo J. Ryan and the Jonestown, Guyana Tragedy. Report of a
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Staff Investigative Group to the Committee on Foreign Affairs, U.S. House of Representatives, May 15, 1979,
p. 21.
118. Ibid.
119. C.R. February 2, 1980, p. S.1335.
120. Implementation of the Foreign Intelligence Surveillance Act of 1978; 1979-1980, SIC report, Octo-
ber 30, 1980, p. 10.
121. Hearings, HAC Subcommittee, 97th Cong., 1st Sess., Part 6, Department of Justice, April 2, 1981,
p. 983.
122. "Urgently Needed: New Reagan Intelligence Directive," Human Events, March 21, 1981, p. 8.
123. Op. cit., Sec. 2.4(d).
124. Op. cit.
125. Op cit., Sec. V. A. 2. b.
126. Ref. footnote 71.
127. Notes taken at meeting by author.
128. Ref. footnote 27, Sec. 4(g) and Sec. IIA of guidelines as declassified, May 1978.
129. CP v. SACB, 367 U.S. 1, 96.
130. Op. cit., Sec. I. B.
131. Ref. footnote 30, p. 174.
132. Op. cit., Sec. II, (q).
133. First Principles, January 1977, pp. 4, 5.
134. Public Law 95-511, October 25, 1978, Sec. 102 (a)(1)(A) & (B); Sec. 105 (d)(1) & (2).
135. Analysis of Church Committee Report, by Society of Former Special Agents of the FBI, Inc., 1977, pp.
4, 5.
136. Foreign Intelligence Electronic Surveillance, Hearings, HIC Subcommittee on Legislation, 95th Cong.,
2nd Sess., January and February, 1978, p. 124.
137. The Intelligence Oversight Act of 1980, Report to accompany H.R. 7668, HIC, July 2, 1980 (House
Rpt. 96-1153, Part 1), p. 29.
138. Implementation of the Foreign Intelligence Surveillance Act, Report, HIC, 96th Cong., 2nd Sess.,
November 17, 1980 (House Report No. 96-1466), pp 4,5, adn SIC report on same subject, October 30, 1980
(Senate Rpt. No. 96-1017), pp. 6-9.
139. Ibid., House report, p. 25.
140. Same titled reports, 97th Cong., 1st Sess., HIC, November 12, 1981, (House Rpt. No. 97-318), p. 8 and
SIC, November 24, 1981 (Sen. Rpt. No. 97-280), p. 16.
141. Washington Post, June 10, 1983.
142. Ref. footnote 140 Senate report, p.5.
143. Ibid., pp. 5,6.
144. Ref. footnote 139.
145. Ref. footnote 138: both reports, pp. 5.6.
146. Ref. footnote 138, House report, p. 5.
147. Ref. footnote 80, p. 38.
148. Op. cit., Sec. 101 (b)(2)(A) & (B).
149. Ibid., Sec. 105 (a)(3)(A).
150. Ibid., Sec. 105 (d)(2).
151. Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans. Final
Report, Church Committee 94th Cong., 2nd Sess., April 23, 1976, Book III (Sen. Rpt. No. 94-755), p. 301.
152. Washington Post, June 10, 1983.
153. Postal Inspection Service's Monitoring and Control of Mail Surveillance and Mail Cover Programs,
Hearings, Committee on Post Office and Civil Service, Subcommittee on Postal Facilities, Mail, and Labor
Management, 94th Cong., 1st Sess., May, July, October, November, 1975, p. 172.
154. Ibid., p. 173.
155. FBI Domestic Intelligence Operations: An Uncertain Future, Report of the Comptroller General of the
United States, November 9, 1977, p. 14.
156. Dennis v. U.S., 183 F.2d 201.
157. Handschu v. Special Services, 349 F. Supp. 766, 769.
158. The Report of the President's Commission on Campus Unrest, September 1970, p. 5/41.
159. Use of Informants in Domestic Security, Organized Crime, and Other Criminal Investigations,
memorandum, Edward H. Levi, Attorney General to Clarence M. Kelley, Director, Federal Bureau of
Investigation, December 15, 1976, Sec. B., 1. & 4.
160. Ibid., Sec. B.
161. Ref. footnote 66.
162. Ref. footnote 57, p. 45.
163. Ref. footnote 151, p. 260.
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164. Ref. footnote 80, p. 64.
165. Official text, American Newspaper Publishers Association, Atlanta, May 3, 1978, p. 15.
166. Hearings,HAC Subcommittee 96th Cong., 1st Sess., Part 5, Department of Justice, Federal Bureau of
Investigation, March 20, 1979 testimony, p. 943.
167. Hearings, HAC Subcommittee, 96th Congress, 2nd Sess., Part 7, Department of Justice, Federal
Bureau of Investigation, April 20, 1980 testimony, p. 170.
168. FBI Oversight, Hearings, HJC Subcommittee on Civil and Constitutional Rights, 96th Cong., March
1979 and March 1980, p. 6.
169. Attorney General's Guidelines on FBI Use of Informants and Confidential Sources, Office of the
Attorney General, December 2, 1980, Sec. E. (1).
170. Justice Department Internal Investigation Policies, Hearings, Subcommittee of House Committee on
Government Operations, 95th Cong., 1st Sess., June and July, 1977, p. 157.
171. Ref. footnote 64, p. 222.
172. Ref. footnote 165, p. 7, and Washington Post, March 23, 1979.
173. Ref. footnote 155 pp. 16, 24 and 45.
174. Report of the Subcommittee on Security and Terrorism to the Committee on the Judiciary on the
Activities Undertaken During the 97th Congress and the Program for the First Session of the 98th Congress,
undated SSST release distributed in January 1983, p.2.
175. The Erosion of Law Enforcement Intelligence-Capabilities-Public Security, Hearings, SJC
Subcommittee on Criminal Laws and Procedures, 95th Cong., 1st Sess., Part 1, July and September 1977, pp.
30-32.
176. Washington Post, April 12, 1981.
177. Management Review on the Performance of the U.S. Department of the Treasury in connection with
the March 30, 1981 Assassination Attempt on President Ronald Reagan, Department of the Treasury, Office of
General Counsel, August 1981, p. 37.
178. Ref. footnote 98, pp. 194, 195.
179. A hearing on terrorism, transcript not published, HIC, 95th Cong., 2nd Sess., July 31, 1978.
180. FBI Oversight Hearing Hearing, SSST, 97th Cong., 2nd Sess., February 4, 1982, p. 19.
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A
Adams, James, 41-42, 65-66, 71
Agee, Philip, 22, 77
Agee decision, 21
Analytic authority, 33-35
Angleton, James, 44, 47
Artamanov, Nikolai F., 69
Assassination prevention, 74-75
Association of Former Intelligence Officers, 60
Atomic bomb, 15
Attorney General, 35-38, 78, 79
Barron, John, 46
Bass, Kenneth C. III, 37, 61, 62
Bayh, Birch, 52
Bell, Griffin H., 36-37, 53-54, 63, 65, 69, 73
Bell guidelines, 50
Black Liberation Front, 69
Black Panthers, 10, 69
Branigan, William A., 56
British counterintelligence, 7-8
Burlison, Bill, 43
C
Carter, Jimmy, 45, 60, 61, 65, 67. (See also
Executive Order 12036)
Casey, William J., 23, 61-62, 72
Central Intelligence Agency (CIA)
Communists in, 5
FBI cooperation, 48
Informant use restrictions, 71, 72
Intelligence activity restrictions, 52-55
Manpower problems, 44-45, 47
Mention, 3, 6, 25, 27, 34, 77
China (Peking), 12, 45
Civiletti, Benjamin R., 41
Civiletti guidelines, 26, 40-41, 50, 55, 57, 72, 78
Clandestine intelligence activities, 3
Clark, Ramsey, 34, 66
COINTELPRO, 19-20, 41
Colby, William, 44, 47
Communist parties, 8-9, 27
Index
Communist Party, USA (CPUSA), 9, 11, 13, 17,
22, 27-29, 57, 58
Compromise factor, 8, 14
Compton, Marge E., 69
Constitutional issues
Disclosure of foreign-controlled domestic
organizations, 13
Electronic surveillance, 59, 63, 65, 67
Intelligence as vital to national security, 21, 23
Smith Act, 68
Warrant requirements, 12-13, 20-21
Coolidge, Calvin, 30
Counsel for Intelligence Policy, 37, 38
Counterintelligence (See also Federal Bureau of
Investigation)
Attorney General's role, 35-38
Criminal standard as not applicable to, 20-23
Current status, 1, 23-24
Data analysis function, 33-35
Definitional restrictions, 24-30
Distinguished from intelligence, 18-20
Nature and roles of, 2-4, 14-18
Recommendations, 77-79
Covert intelligence activities, 3
Criminal standard
Domestic security investigations, 30-32, 35-36,
39, 41, 52, 57-59, 78-79
FISA application, 63-64
Foreign counterintelligence investigations, 39-41,
53-57, 78
Not applicable to counterintelligence, 20-23
Cuba, 9, 10, 12, 45
Cuban missile crisis, 69
D
Defense Department, 75-76
Defense Intelligence Agency (DIA), 48, 76
Defense plants, 22
Denton, Jeremiah, 51
Directorate General of Intelligence, 10
Directorate K, 4
Doar, John, 11-12
Domestic organizations, 12-13
Domestic security investigation guidelines
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Information loss, 73-76
Levi, 30-32, 35-36, 39, 52, 57-59
Mention, 50
Smith, 32, 41, 51
Domestic subversion, 6-14
Douglas, William 0., 13
Dulles, John Foster, 69
Ego factor, 8, 14
Eisenhower, Dwight D., 14, 31
Electronic surveillance, 59-67
Espionage, 14-15
Executive Order 10450 (Eisenhower), 14
Executive Order 11905 (Ford), 18, 26-28, 34, 35,
50, 52, 54, 56, 57, 74
Executive Order 12036 (Carter), 18, 25-27, 34, 36,
48, 50,3 2-54, 74
Executive rder 12333 (Reagan), 18, 26, 28, 34, 37,
49, 50, 54, 74, 77, 78
Executive orders, 18, 25-30, 35, 49
F
Fair Play for Cuba Committee, 9
Federal Bureau of Investigation (FBI)
Analytic authority, absence of, 33-35
CIA cooperation, 48
Domestic intelligence activity decline, 73-76
Domestic security investigation restrictions,
30-32, 35-36, 39, 41-42, 52-53, 57-59
Foreign counterintelligence activity restrictions,
26-30, 55-57
Historical background, 30
Intelligence standard, 12, 30-31
Informant use guidelines, 36, 70-72
Informants, 68-69
KGB penetration of, 5-6
Mandated duties of, 49
Manpower, 43-47
Manuals and directives, 49-51
Mention, 3, 18-20, 22, 77
Wiretap restrictions, 66
Federal Tort Claims Act, 77
Felt, W. Mark, 36
First Amendment, 13, 63
Ford, Gerald R., 59. (See also Executive Order
11905)
Foreign Affairs Committee, House, 52
Foreign counterintelligence investigation guidelines,
50
Civiletti, 26, 40-41, 55, 57, 78
Levi, 26, 39-40, 55, 56, 78
Foreign Intelligence Surveillance Act (FISA), 59-67
Foreign power, definition of, 13
Foreign Relations Committee, Senate, 22
Fourth Amendment, 13, 20-21
Freedom of Information Act, 36, 71-72, 77
G
General Accounting Office (GAO), 69, 74
Germany, 7-8, 12
Giap, Vo Nguyen, 17
Grishin, Aleksandr, 5
GRU (Soviet military intelligence), 2, 8
Hand, Learned, 68
Hart, George L., Jr., 61
Hayden, Tom, II
Helms, Richard, 6, 12, 24, 34
Hoover, J. Edgar, 12, 19, 30, 31, 33, 66
Humphrey, Ronald, 53
Ideology factor, 8-14
Immunity, 77
Informant use guidelines, 36, 50, 70-72
Informants, 68-69
Inman, B. R., 23-24, 47, 51, 62
Institute for the Study of Conflict, 48
Intelligence (See also Counterintelligence; Federal
Bureau of Investigation)
Counterintelligence distinguished from, 18-20
Intelligence agencies (See also specific agencies)
Counterintelligence importance to, 3-4
Executive orders and, 25
Interagency cooperation, 48-49
Manpower shortage, 43-48
Role of, 3, 21
Soviet penetration of, 4-6, 15-16
Intelligence Committee, House, 18, 24, 25, 38, 60,
62, 75
Intelligence Committee, Senate, 24, 25, 38, 42, 45,
49, 52, 62, 67
Intelligence Evaluation Committee, 34
Intelligence Oversight Act of 1980, 60
Intelligence Policy and Review, Office of, 37, 38
Interagency Intelligence Study of Soviet Active
Measures, 6, 9, 29
Intercollegiate Socialist Society, I I
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Interdivision Information Unit, 34
Internal Revenue Service, 37
International Association of Chiefs of Police, 74
International Department of the Politburo, 2, 27,
28
Italy, 12, 25
Japan, 12
Johnson, Lyndon B., 16
Jones, Jim, 52
Justice Department, 22, 34, 37, 69, 78
Kaufman, Irving, 15
Keith decision, 12, 78
Kelley, Clarence, 44-47, 58, 73
Kennedy, John F., 31, 59
KGB, 2, 4. (See also Soviet intelligence)
Knight, H. Stuart, 75
Korean War, 15
Kunstler, William, 23
Lawton, Mary C., 38
League for Industrial Democracy, II
Levi, Edward, 35-36, 45, 65
Levi guidelines, 50
On domestic security, 30-32, 35-36, 39, 52,
57-59
On foreign counterintelligence, 26, 39-40, 55, 56,
78
On use of informants, 36, 70-71
Line KR, 4
McMahon, John, 34-35
Manpower. See Personnel
Mansfield, Mike, 43
Manual of Administrative Operations and
Regulations, 50
Manual of Investigative Operations and Guidelines,
49-50
Martin, William H., 5
Masterman, John, 7-8
MICE strategy, 8-14
Military personnel security, 75-76
Miller, Richard W., 5
Mitchell, Bernon F., 5
Money factor, 8
Morale problem, 76-77
Moro, Aldo, 25
Morros, Boris, 68-69
N
National Foreign Intelligence Board, 26
National Security Agency (NSA), 5, 62, 63, 76
National Security Council (NSC), 34, 78, 79
Nelson, William, 52
"New Dimensions of Security in Europe," 48
New York City, 68
North Atlantic Treaty Organization (NATO), 16
0
Ogorodnikova, Nikolai, 5
Ogorodnikova, Svetlana, 5
Open intelligence activities, 3
Organized Crime Control Act of 1970, 32
Penkovsky, Oleg, 69
People's Temple, Jonestown, 52
Personnel
Agency shortages, 43-48
Immunity from lawsuits, 77
Morale problem, 76-77
Number having access to classified information,
7
Security checks, 75-76
Personnel Management, Office of, 75
Poland, 8
Politburo of the Central Committee of the
Communist Party of the Soviet Union, 2, 27
Presidential assassination, 74-76
President's Commission on Campus Unrest, 70
Progressive Labor Party, 11, 58
Rackley, Alex, 69
Reagan, Ronald W., 44, 75. (See also Executive
Order 12333)
Red Brigades, 25
Rockefeller Commission, 34
Roosevelt, Franklin D., 12, 30-31
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S
Schlesinger, James R., 47
Secret Service, 75
Security and Terrorism Subcommittee, Senate, 74
Security checks, 75-76
Senior Interagency Group - Intelligence, 34
Sizoo, Joseph A., 51
Smith, Walter B., 5, 16
Smith, William French, 32, 38, 44
Smith Act, 22, 68, 69
Smith guidelines, 32, 41, 50, 51
Socialist Workers Party (SWP), 9, 11, 58, 69
Society of Former Special Agents of the FBI, 60
Soviet intelligence
Infiltration/recruiting strategy, 6-14
Overview of, 2-3, 27-28
Penetration of U.S. agencies, 4-6, 15-16
U.S. responses to, 3
Vietnam War subversion, 16-18
Special Coordinating Committee, 34, 48-49
Stern, Carl, 19
Stone, Harlan F., 30
Student League for Industrial Democracy, II
Student Mobilization Committee, 9-10
Students for a Democratic Society (SDS), 10, 11
Subversive Activities Control Board, 69
Sullivan, William C., 5-6
T
Terrorism, 22
Terrorism investigation guidelines, 32, 50, 51
Treasury Department, 75
Truman, Harry S., 31
Truong, David, 53, 64
Turner, Stansfield, 47
Tykocinski, Wladyslaw, 8-9
U
U.S. Information Agency, 3
U.S. Peace Council, 28, 29
U.S. person, definition of, 54
Venceremos Brigade, 10
Vietnam War, 9-10, 16-17, 64
Voice of America, 3
W
Wallop, Malcolm, 24, 43, 67
Wannall, W. Raymond, 44, 46, 47
Warrant requirements, 12-13, 20-21
FISA applications, 59-67
Weather Underground Organization, SDS, 10, 11
Webster, William H., 32, 34, 41, 42, 44, 45, 51, 52,
56, 62, 69-73, 77
Weinberger, Caspar, 34
Weinfield, Edward, 68
Westmoreland, William, 17
Wiley, Alexander, 2, 22
Willard, Richard K., 38, 62
Wiretapping, 59-67
Wood, Raymond, 69
World Peace Council, 3, 28
World War 11, 7-8
X-Y-Z
Young Socialist Alliance, 9
Zlatovski, Jane Foster, 69
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THE NATHAN HALE INSTITUTE
422 First Street, S.E., Suite 208A
Washington, D.C. 20003
[phone]
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