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LEGISLATIVE AND ADMINISTRATIVE REf'ORM
HEARINGS
BEFORE THE
SELECT COMMITTEE ON ASSASSINATIONS
OF THE
HOUSE OF REPRESENTATIVES
NINETY-FIFTH CONGRESS
S O ~ D SESSIOX
DECEMBER 11, AND 12, W78
OLUME I
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LEGISLATIVE AND ADMINISTRATIVE REFORM
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UNITED STATES
---------- INTELLIGENCE ACTivITIES
ExecutiveOrder 12036
60
3674
presidential documents
[3195-011
Title3-The President
ExecutiveOrder12036
Unit.dStat.' Intelligence Activiti..
January 24, 1978
,.
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Byvirtue of the aut hority vested in rne by the Constitution and statutes of
the United Stat es of America including the National Security Act of 1947, as
amended.and as President ofthe United Stales of America.in order toprovide
fortheorganizationandcontrolofUnited Stales foreign intelligence activities,it
is her ebyorder ed as follows:
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fEDERALa IGlSJI"VOL U. NO. I l-ntUISOAV. J"NU.I' 26.1"1
61
THEPRESIDENT 3675
SECTION I
DI RECT10 N. Dt1T1ES AND R ESPONSI 8ILmS ' VITII RESPECT TO TIlE NATI ONAL
I NTELU CENCE ErrORT-
I - I. _' -ationa/ Su rit] Councl.
1- 101. Purpose. The National Security Counci l (NSC) was established by
the National Security Act of 1947 10 advise the President with respect to the
int egration of domestic, foreign, and milit ary policies relat ing to the national
secur ity.The NSC shall act as the highest Executive Branch ent ity that pro vides
review of, guidance for, and direction 10 the conduct of all national foreign
intelli gence and counterintelligence activities.
I- J02. Commills . The NSC PolicyReview Committ ee and Special C OOT
din ation Commine er in accordance with procedures established bythe Assistant
to the President for Nat ional Security Affairs, shaHassist in carrying out the
NSC' srespon sibilities in the foreign int elligence field.
1- 2. NSC Policy RevieuJ Commiuu .
1- 20 1. .IItmbmhip. The NSC PolicyReview Committee (PRC), when car-
ryingout respon sibilit iesassigned inthisOrder,shallbe bythe Direct or
ofCen1J"31 Int elligence and composed of the Vice Pres ident. the Secretary of
Stale. the Secretary of the Treasu ry, the Secretary of Defense, the Assistant to
the President for NationalSecu rity Affairs, and theChairman of theJoint Chiefs
of Staff. or their designees.and other senior officials.as appropriate.
1-202. Duties. The PRC shall:
(a) Est abli sh requirement s and pri oritie-s for national fore ign int elligence;
(b) Review the National For eign Intelligenc e Program and budget pr o-
posals and report to the Presi dent as to whe ther the reso urce allocations for
intell igence capa bilities are res po nsive to the intelligence requirements of the
members of[he NSC.
(c) Conduct periodic reviews of national foreign intelligence products.
evaluate the quality ofthe int elligence product. devel op policy guid ance to
ensure qualit y int elligence and 10 meetchangingint elligence requirements; and
(d) Sub mit an annual repo rt on its activities to the NSC.
1- 203 . ApptalJ. Recommendati ons of the PRe on inte lligencemattersmay
be app ealed to the Presidentor the NSC byanymemberof PRC.
1-3. NSC Special Coordination Co,. ..itll,.
1-301. Mtmbmhip. The NSC Special Coordination Committee (SCC) is
chaired by the Assistant to the President for National Security Affairs and iIJ
membership includes me statutory members of the NSC and other senior
officials,as appropriate.
1-302 . Spmal Activities. TheSCC shall comider and submit to thePresi-
dent a policy recommendation. incl uding all dissents. on each special activity.
When meeting for this purpose, the me mb ers of me sec sha ll include the
Secretary ofStale.the Secre tary of Defense, the AttorneyGeneral, the Director
of the Office of Management and Budget. the Assistant to the Pre sident for
Nation al Securit y Affairs. the Chainn an of the Joint Chiefs ofStaff, and the
Directo r of Central Intelli gence.
1-303. Stnriti", Fortign /nltl/igmct Coll/um Op<ratj oes, Under standards
established by the Pres ident . pro posalsfor sensitiveforeign int elligence collec-
tion operations shall be reported to the Chainnan by the Director of Central
Intelligence for approp riat e reviewand approval. When meeting for the pu rpose
of reviewing proposals for sens itive foreign intelligence collection operations
_ . c
CArui n technical terms ar e defined in Slion 4-2.
P1DftAL UGISlU. VOL a. MO. JANUAlY 26, 1971
62
3676 THEPRESIDENT
the members ofthe secshall include theSecretary of State. theSecretary of
Defense. the Auorney General, the Assistant to the Pres iden t for National
Security Affairs. the Director of Central i ntelligence .and such othermembers
designatedby theChairmanto ensure properconsideration oftheseoperations.
1-304 . Coun'ninltlligmc,. TheSCC shalldevelop policywith respect to the
conduct of counterintelligence act ivities. When meeting for this purpose' the
members of ' he SCC .hall include the Secre tary ofStare, the Secretary of
Defense. the Atto rney General, the Directo r of we Office of Manage ment and
Budget. the Assistant to me President for National SecurityAffairs. the Chair..
man of the J oint Chiefs of Staff, the Directo r of Central Intelligence, and the
Director of the FBI.Thesec'scounterintelligence functions shal linclude:
(a) Developing standardsand doctrine for thecounterintelligenceactivities
of the United States;
(b) Resolving interagency differences concerning implementation of cou n-
terintelligence policy;
(e) Developingand mo nitoringguidelinesconsistentwith this Orderfor the
main tenance of centralrecords of coun terintelligence information;
(d) Submitting to the President an overall ann ual assessment of the rela tive
threat to United States interests from intelligence and security services of
Coreign powers and from internationa l terrorist activities , including an assess -
mentofthe effectiveness of the United. ~ t s coun terintelligenceactivities;and
(e) Approving count erintelligence activities which, undersuch standards as
may be established by 'he President, requireSCC approval.
1- 305. Rtquirtd Mtmbmhip. The SCC shall discharge the responsibilities
assigned by sections 1-302 through 1-0504onl yafter considera tion in a meet ing
at which alldesignatedmembersare presentor. in unusualcircumstanceswhen
any such member is unava ilable. when a designated representative of the
memberattends.
1-306. AdditiJm41Dulin. TheSCC shallalso:
(a) Co nduct an annual review of ongoing specia l activities and sensi tive
nat iona l foreign intel ligence collect ion operat ions and report thereon to the
NSC;and
(b)Carry out such othercoordination and review activities as the Presi dent
maydirect.
1-307. App.a/J. Any member of the SCC may appeal any decision 10 the
Pres ident or the NSC.
1-4. Nalional FurtignInu//ignu:eBoard.
1-401. E'tahliJhmtnl and Diuia. There is established a National Foreign
Intelligence Board (NFIB) to advise the Director of Central Intelligence con -
cerning:
(a) Production. review. and coordination of national foreign intelligence:
(b)TheNational Foreign Intelligence Program budget;
(c) Interagency exchanges of foreign :ntell igence information:
(d) Arrangements with foreign gove rnments on intelligence matters:
(e)Theprotection ofintelligence sources and methods;
(I) Activities ofcommon concern; and .
(g) Othermat ters referred to it bythe Directorof Central Intelligence .
1-402. Mtmbmhip . TheNFIB shall be chaired by the Director of Cen tra l
Intelligenceand shallincludeotherappropriateofficers of the CIA, the Office of
the DirectorofCentralIntelligence,theDepartmentofState, the Department of
Defense, the Depa rtment of Justice, the Department of the Treasury. the
Department of Energy, the Defense Intelligence Agency. the offices withi n the
Department of Defense for reconnaissance programs, the National Security
AgenC)' and rhe FBI. A representative of the Assistan t to the President for
National SecurityAffairs may attend meetingsof the NFIB-as an observer.
fEDllALllCUSTII,. YOL a,NO. Il-tMUl.SDAY.JANU.U.Y26.,1971
63
THEPRESIDENT
3677
1-103. Restricted .lftmbmhip and Ob,trvm. When ' he NFIB meet>for 'h e
purpose ofsection 1-4 01 (a), it shall be composed solely of the senior int elli-
gen ce officers of thedesignated agencies. Th e senior i.nld ligence officers of the
Army. NavyandAir Force mayattendall meetings of theNFlB as observers.
1-5. Xational Intelligmce Tasking Cnl tn .
1-501. EstabliJhmnJt. There is established a Nat ional Intelligence Tasking
Center (i\"ITC) under the dire ction, cont rol and management of the Direct or of
Central Intelligence for coordinating and tasking national foreign intelligence
collecti on acti vities. The NITC shall be staffed j ointly by civilia n and military
personnel including designat ed representatives of the chiefs of e-ach ofthe
Depar tment of Defense int elligence organizations engaged in nati onal foreign
int elligence activities. Other agencies within the Intelli gence Commu nity may
also designate repres entativ es,
1-502 . Resporuibil,tin. The NITC shall be ' he central mechanism by which
(he Direct or of Cent ral Inte lligence:
(a) Translat es national foreign intelligenc e requirements and priorilies
developed by the PRe int o specifi c collection obj ectives and targets for the
Intelligence Community;
(b) Assignstargets and obj ectivesto nati onalforeign int dligence collection
organizat ionsand systems:
(c) Ensur es the timely dissemination and exploitati on of data for nati onal
fore ign intell igence purp oses gathered by national foreign intdligence collec-
tion means, and ensuresthe resulting int elligence flowis routed immed iately10
relevant compo nents and commands;
(d) Provid es advisory tasking conce rning collection of nat ional foreign
intelligence to departments and agen cies having infonnaLion coll ection capabil-
ities or int elligenceassets rha;are not a part of the National Forei gn Intelligence
Program. Part icular emph asis shaUbe placed on increasing the contribution of
depart ments or agen cies to the collection of information through overt means.
1- 503. Resolution of Corifli4ts. The NITC shall have the authori tyto resolve
conllicts of priori ty. Any PRe member may app eal such a re solution to the PRe;
pending the PRC's decision, the taskin g re mains in effect.
1-504. Transfer oj AU1}urril]_ Allresponsibilities and authori ties of the Direc-
tor ofCent ral Intelligence concerning the NITC shall be tra nsferr ed to the
Secr etary ofDefense upon the express direction of the President.Tomaintain
readiness for such transfer, the Secretary of Defense shall, with advance
agreement of(he Director of Cent ral Intelligence, assume temporarily during
regular practi ce exercises all respons ibilities and authorities ofthe Direct or of
Ccrural Intelligenreconcerning-the NITC.
I-G. Tilt Directorof Central In',lIig tn c.
1-601. Dulin. Th e Director of Cent ral Intelligence shall be responsible
directly to the NSC and, in addition to the duties specified elsewhere in this
Order.shall:
(3) Act as the prima ry adviser to the Pres ident and the NSC on natio nal
foreign int elligence and pr ovide the Preside nt and other officials in the Ex-
ecutive Branch with national foreign int elligence:
(b)Be the head of the CIAand ofsuch staff elementsasmayberequiredfor
di scharge of tile Direct or 's Int elligence Communityrespo nsibilities;
(c ) Act. in appropriate consultation with the departments and agenci es, as
the Intelligence Community' sprincipal spokesperson to the Congress. the news
media and the publi c. and facilitate (he use of national foreign intelligence
produ cts by the Congress in 3 secure man ner;
(d) Develop. consis tent with the requ irements and priorities esta blishedby-:
the PRe, such obj ectives and guidance for the Int elligence Community a's ".ill "
fB)lL\1IEGtSJI..VOL GoNO. Il-ntUISDAY.JANUAaY 1m
65
64
3678 THE'RESIDENT
enhance capabilities for responding to expected future needs fOT nat ional
foreign intel ligence;
(eo) Promote the development and main tena nce of services of common
concern by des ignated foreig n inte lligence organizations on behalf of the
Iruelligenre Com mun ity;
<0 Ensure implementation of special activities;
(g) Formulate policies concerning intelligence arrangements with forei gn
governments. and coo rdinate intel ligence relaucnships between agenc ies of the
Intelligence Community and the intelligence or internal securi ty services of
foreign governments;
(h) Conduct a program to protect agains t ove rclassfflcation of foreign
Imetligence info nnation;
(i) Ensure the establis hment by the- Intel ligence Eommuniry of common
security and access standards for managing and hand ling foreign intelligence
aystems, information and products:
0)Participate in the development of procedures requi red to be app roved by
the AHorne')' General governi ng the conduct of intelligence activities;
(k) Establis h un ifonn criteria for the determi nation of relative priorities for
the tra nsmission of critica l national foreign intelligence. and advise the Secretary
of Defense concerning the communications req uirements of the Intelligence
Communily for the transmission of such intelligence;
0) Provide appropriate intelligence to departments and agenc ies no t within
the Intelligence Communily; and
(m) Establish appropriate commiuees or other advisory groups to assist in
the execu tion of the foregoing responsibilities,
1- 602. National Ftrrtign Inl<llJgt71ct Pr0/JTa.. Budg<l. Th e Director of Central
Intelligence shall. to the extent consis tent with app licable law, have full and
exclusive authori ty for approval of the Nat ional Foreign Intelligence Program
budget submitted to the Pres ident. Pursuant to this authority:
(a) The Director of Central Intelligence shall provide guidance for program
and budget development to program manager s and heads of comp one nt
activities and to depart ment and agency heads;
(b) The heads of depart ments and agencies involved anthe Nationa l Foreign
Intelligence Program shall ensu re timely development and submission to the
Director of Central Intelligence of proposed nat ional programs and budgets in
'he fonn at designated by the Director of Central Intelligence, by the program
managers and heads of component activities. and shall also ensure that the
Director of Ce ntral Inte lligence is provided, in a timel y and responsive man ner.
all information necessary to perform the Director 's programand bu dget res po n-
sibilities;
(c) Th e Director of Central Intell igence shal l review and evaluate the
na tiona l program and budget sub missions and. with the advice of the NFIB and
the depart ments and agencies conce rned . develop the conso lidated National
Foreig n Intelligence Program budget and present it to the President through the
Office of Manage ment and Budge t;
(d) The Director of Cent ral Intelligence shall present and j u..ify ' he
National f oreign Intell igence Program budget to the Congress:
(e) The heads of the departments and agencies shall. in consultation with
the Directo r of Central Intelligence, establ ish rates of obligation for appro.
priated funds:
(0 Th e Director of Central Intelligence shall have full and excl usive
authority for reprogramming National foreign Intel ligence Program funds. in
accord with guidelines established by the Office of Management and Budget. hut
.hall do so on1y after consultation with the head of the department affected and
appropriate consultation with the Congress;
R I I L ~ VOL a. NO. 1a-lHUI SDAY, .lANU.UT26.1 971
THEPRESIDENT 3679
(g) Th e departments and agencies may app eal to the Pres ident decisions by
the Director of Ce ntral Int elligence on bud get or reprogramming matters of the
National Foreign Int elligence Program.
(h) Th e Direct or of Central Intelligence shall mon itor National foreign
Int elligence Program impl ementation and may conduct program and pe rfor-
mance audits and evaluations.
1-603 . Rt sponsibility For National Foreign Intrllignl ct . Th e Director of Cen tral
Intelligence shall have fuJI responaibiliry for pr oduction and disseminati on of
nati onal foreign intelligence and have authori ty to levy ana lytic tasks on
department al int elligence production organizations, in consu ltation with those
organizati ons. In doin g so, (he Director of Ce ntra l Intelligence shall ensure that
diverse poi nts of view are consider ed fully and (hat differences of j udgment
within the Int elligence Community arc brought to the attention of national
policymakers,
1-604 . Protection of SOUTCtJ , .\/tthods and Procedures. The Director of Central
Intelligence shall ensure that progra ms are developed which protect intelligence
sources, methods and analytical procedures. prov ided that this responsibi lity
shall be limited within the United States to:
(a) Using lawful means to prot ect against di sclosure hy present or fann er
employees of the CIA or the Office of the Director of Centra l Intelligence. or by
persons or.o rganizations present lyor formerl y under contract \\'ith such entities;
and
(h) Providi ng policy, guidance and technical assistance to depart ments and
agencies regardi ng protectio n of int elligence information. including informa tion
thai may reveal intelligence SOIlT C('S and meth ods,
1- 605, Rtsponsibi/ity of Executive Branch Agl1lcin. Th e heads of all Executive
Branch departme nt s and agen cies shall. in accordance with law and rel evant
Auo mey Gen eral pro cedures. give the Director ol Cen tral Intelligence access to
all informat ion relevan t to the national Int elligence needs of the" United States
and shall give due con sideration to requests from the Director of Cen tral
Intelligence for app rop riate supp ort for CIA activities.
1- 606. Arcus 10 CIA Intt Jligrnu , The Director of Central Intelligence. shall,
in accor dance with law and rel evant Att orney Genera l procedure'S, give the
heads of the depart ments and agencies access to all int elligence, developed by
the CIA or the staff eleme nts of the Office of the Director of Cen tra l Intell i-
gence. relevan t to the nation al intelligence needs of the departments and
agencies.
1-7, Senior Officials of 1M l ntt lligtnet Commu.nit" Th e senior officials of each of
the agencies within the Int elligence Community shall:
1- 701. Ensur e that all activities of their agen cies are carried out in
accordance with applicable law;
1- 702. Make use of the capabilities of other agencies within the Intelli-
gence Community in order to achieve efficiency ami mutual assistance;
1- 703. Contribute in their areas of respon sibility to the national foreign
intelligence pr oducts;
1-704. Establish intern al policies and guidelines governing employee'
conduct and ensure that such arc made known to each employee;
1- 705. Provide for st rong. Independent, internal means to ide nrify, in-
spect, and report on unl awful or impro per activity;
1- 706. Repo rt to the Attorney General evidence of pos sible violations of
federal criminal law by an employee of their department or age ncy. and report
to the Auo rney General evidence of possible violations by any ot her person of
those federal criminal laws speci fied in guideli nes ado pted by the Attorney
Genera l; .: c) ;:
fEDllAL IlGI5UI, VOL 43, NO. lI-THUISDAY. JAHUAIT 26. 197'
3681
66
3680 1111PIIE5IDENT
1-707. In any case serious orcon tinuing breaches of security,
recommend (0 the AnomeyCeneral that the case be referred 10 the FBI for
further investi gation;
1-708. Furnishthe DirectorofCentralIntelligence.thePRC and theSCC.
in accordance with applicable law and Attorney General procedure-s, the infor..
mation required for the performanceoftheir respective duties;
1- 709. Reportto the IntelligenceOversight Board.and keep the Director
of Central Intelligence appropriately informed, concerning ilny inte llige nce
activities oftheirorganizationswhich raise questionsoflegalityor propriety;
1-7 10. Protect inte lligence and intell igence sources and met hods consistent
with guidance from the DirectorofCentralIntelligenceand the NSC:
1-711.DisseminateIntelligenceto cooperatingforeign governmmtsunder
arrangementsestablished or agreed to by the DirectorofCe-ntralIntelligence;
1- 712. Execu te programs to protect against overc lassificaricn of foreign
intelligence:
1-713. Instruct their employees to cooperate fully with the Intelligence
Oversight Board;and
1-714. Ensure that the Inspectors Ge neral and General.Counsel oftheir
agencies have access to any information necessary to perform their duties
ass igned by thi, Order.
1-8. Th C.nlrallnl.lligtnc. Agtnry. Alldutiesand responsibilitiesofthe CIA shall
be related to the intelligence functions set ou t below. As authorized by the
National SecurityAct of 1947. as amended, the CIA Act of1949. as amended,
and other laws,regulations and directives, the CIA, unde r the direction of th e
NSC. shall:
1-801. Collect foreign intelligence, including information no t otherwise
obtainable, and develop. conduct, or provide support for technical and other
programs which collect national foreign intelligence.Thecollection ofinforma-
tion within the Uni ted States shall be coordinated with the 1"81 as req uired by
procedure's agreed upon by the Director of Central Intelligence and the
AttorneyGeneral;
1-802. Produce and disse minate fore ign intelligence relating to the national
security, including foreign political, economic. scientific. technical, military,
geographicand sociological intelligenceto meet the needsof the President. the
NSC, and otherelementsofthe United StatesGovernment;
Collect, produceand disseminate intelligenceon foreign aspects of
narcoticsproductionand trafficking;
1-804.Conductcounterintelligenceactivities outsidetheUnited Stalesand
coordinate coun terintelligence activities cond ucted outside the United States by
otheragencies within the Intelligence Community;
1-805. Without assuming or performing any interna l secu rity functions,
con duct counterintelligence activities within the United Stares. but on ly in
coordination with the FBI and subjectto the approv..1 ofthe Auorney General;
1-806. Produceand disseminatecounterintelligencestudies and reports;
1-807. Coordinate the collection outsidethe United States of intelligence
infonn.ation not otherwiseobtai nable;
1-808. Conduct special activities approved by the President and carry out
such ardvhiesconsistentwith applicablelaw;
1-809 . Conduct services ofcommon concern for the Inte lligence Cern-
munityas directed by the NSC;
1-810. Carry out or contractfor research, developmentand procurement
oftechnical I)'stems and devices relating to authorized functions;
1-811. Protect the security of its installat ions , activit ies, information and
personnel by appropriate means, including such investigations of applicants,
'EOIIAllEOKTR.YOL a,NO. ll-'lHUl'SDAY .IANUAl:T26, 197'
67
THEPRESIDENT
e mployees, contractors. and e ther pe rsons with similar associations with the CIA
asare nerr.. sll. ary;
1- 812. Conduct such administrative and technical support activities within
and outs.ide the United States as are neccssary to perform the functions
described in sect ions 1- 80 1 through 1-811 above, includ ing procurement and
essentialcove r and proprietaryarrangements.
1- 8 J3. Pro vide legal and legi slative serv ices and other ad ministra tive
support 10 the Offi ce of the Director of Ce ntra! Intel ligence.
1- 9. TIl. Department of S'ale. Th e Secretary of Stat e shall:
1- 90 1. O... erl ly collect foreign political , socio logical, eco no mic. scientific,
technical. political-military and associa ted bic gra pbic information :
1-902. Produce and dissemin ate foreign int elligence rel ating to United
States foreign policy as required for the exec ution of the Secretary'sresporuibll-
hi es;
1- 903. Dissemi nat e. as appropriate, reports received from United Slat es
dipl omaticand con sular posts abroad;
1-904. Coordinate with di e Director of Central Intelligence to ens ure that
national foreign intelligen ce activities are use-ful to and consisten t with United
States for eign policy;
1- 905. Transmi t report ing requirements of the Int elligence Commu nity
to the Chiefs of United St at es Missionsabr oad;and
1- 906. Suppo rt Chiefs of Mission in discharging their statutory responsi-
bilities for direction and coordi nation ofmission acuvh ies.
1- 10. Tit, Department of t!ll Treas ury. Th e Secr etary of the Treasury shall:
I- JOOI. Overtlycoll ect foreign financial and monetary infonnat ion;
1- 1002. Parti cipat e with the Department of State in the overt col lectionof
general forei gn economicinformation;
1-1 003 . Produce and dissemi nate for eign intelligence relating to Unit ed
States econo mic policy' as required for the executionofthe Secr etary's resp onsi..
biluies:and
1- 1004. Conduct, through the Unite d States Secre t Service, activities to
determine the existence and capability of surveillance eq uipment bein g used
againstthe-President of the UnitedStates,the ExecutiveOffice ofthe Preside nt,
and , as authorized by the Secre tary of the Treasury or the Presi dent, oth er
Secret Service prot ecrees and United Sua es officials. No information shall be
acquired imerulonall y through such activitie-s excC"pt to prot ect against such
surveillance. and those activities shall be conducted pursuan t to pr ocedures
agreed upon b)' the Secretary of the Treasury and the Ano mey Ge neral.
I - II . Tiu Drpartmmt of Dt/.ru. The Secretaryof Defense shall:
1- 110 1.Collect national foreign intdligence and be responsive'10 col lec-
tion tas king bythe NITC;
1- 1102. Col lect, prod uce and dissemi nate for eign military and military.
related intell igence information , including scientifi c, technical. political. geo-
graphic and economic information as required for exec ution ofthe Secr etary'.
rcsponsibilitit.s;
1- 1103. Con duc t pr ograms and missions necessary 10 ful fill nat ional and
tactical foreign intelligence requirements; .
1-1 104. Conduci counteri nt elligence activities in supp ort of Departmen t of
Defense componen ts outside the United Stales in coordination with the CIA,
an d within the United Stat es in coor di nation with the FBI pu rsuant to prore-
dures agree d upon by the Secretary or Defense and the Auomey Gen eral, and
prod uce an d disseminat e cc untcriruelligence studiesand report s: -r ,.: ::.
ffD11A1 IEGlma.VOL a. NO. lI-IHUISOAY. JANUAIY 26, 197'
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368% THE..ESIDENT
1- 1105. Direct, 0J>C'r",((" . cont rol and provide fiK31management for t he
National Security Age-or)'and for defense and military intelligence and national
reconnaissanceC' ntities;
1-1106.Conduct, as the-executive agent of the United Stares Covemmem.
lignals intelligence and communications securiryactivities. except as otherwise
directed bythe NSC;
1-1107. Provide for the timely t ransmission of critical intelligence. 35
defined by the Director of Central Imelligence. within the United States
Government:
1-1108. Review budget data and information on Department of Defense
programs within the National Foreign Intelligence Program and review budgets
submit ted by program managers to the Director of Central Intelligence to
ensure the appropriate relationship of t he National Forei gn Intell igence Pro-
gram el ements to t he other elements of the Defense program:
1-1109. Monitor,evaluate and conduct performance audits ofDepartment
of Defense intel ligence programs;
I- J110.Carry out or contract for research, devel opment and procurement
of technical systems and devices r elating 10 authorized intelligence functions;
1- )III. Together w ith t he Direct or of Central Intelligence, ensure that
there is no unnecenaf)'overlap between national foreign intelligence programs
and Depart ment of Defense int el ligence programs and pro..ride the Director of
Central Intelligence all information necessary for this purpose;
1- 1112. ProtL"C1 the securityof Departmentof Defense installations,actlvi-
li es. information and personnelbyappropriate means including such invesriga-
tions of applicants, employees. contract ors and other persons "'ilb similar
associations with the DepartmentofDefense as are necessary; and
1- 111:S. Conductsuch administrativeand technicalsupport activitieswith-
in and outside the United Stares as art:'necessary to perform the functions
described in sections 1- 1101through ) -1 ) 12 above.
1- 12. Inltll igffl" ComponmlsUl,l=dbyI'"SlUttaryof lXfmst.In carrying om the
responsibilities assigned in sections 1- 1101 through the Secretary of
Defense isauthorized to uti lize the following:
1- 1201. Dt/nut Inlrlligmct Agrnry. whose responsibilities shallinclude:
(a) Production or. through tasking and coordination. provision of mi litary
and military-related intelligence for the Secretary of Defense. theJoint Chiefs
ofStaIT.other Defense components. and. as appropriate, non-Defense agencies:
(b) Provision of mil ilaf)' intelligence for national foreign intC' lligC' ncC' prod-
ucts;
(c) Coordination of all Department of Dd C'nsC' inte1ligmcC' collC' ction
requiremenu for departmental needs;
(d) Management of the DefC' nsC' Attache system; and
(C' )Provision offort!'ign intelligencC'andcounterintelligmce staffsupport as
directed br theJoint ChilifsorStafT.
1- 1202. KalionalStOlril]Agffl"(NSA),whose responsibilitiessh,1Iioclude:
(a) Establishment and operation of an dTt"cti\'e unifiC'd organization for
signals intelligence activities, C'xcC"pt for the ddegation of operational cont rol
o\'C'r certain operations that arC' condUCled through other tlemmu of the
IntC'lI igence Community. No other or agency rna)'t!' ngagC' in 5ignals
int elligence acti"'it iC's except pursuant to a delegati on by t he Secretary of
DC' fC'nse:
(b) Cont rol of signals intclligence coll(" ction and processing activitiC's ,
including assignmentofr('sources to an appropriale agentfor 5uch periods and
lasl) 35 required for t he direct support of military commandC'rs;
(c ) Colltion of signals iOlC'11 igl'nce informati on for nat ional forei gn intl"lIi
genct' purposes in accordance with laskingbythe NITC;
ffDEIAL IIGlsn..VOL.a. NO. lI-THUISDAY, J,ANUAIY 26, t97.
,
I
,
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69
THE' RESIDENT
In) Iw n ' ssing of signa ls intelligence data for na tiona l for ei gn int d lige nc('
flllrpO!.lScc naistent with standards for timel iness established b)'the Director of
Central hucltigence;
(l') Dis'oC'minalion of signa ls intelligence info rmat ion for nat iona l fo rC' ign
imelligence purpo ses to authorized elements of IhC' Go ..'em ment , includ ing the
military services , in accorda nce wit h guidance fro m the NITC :
(0 Coll ection , pr ocessing. and d issemi na tiun of signa Js intell igen ce infor-
mali on for co unterinte llige nce purposes:
(g) Provision of sign als intelligen ce suppo r t for the con d uct of mil ilaf)'
operations in accorda nce with tasking, pri orities a nd sta nda rds oftimel iness
as vigned b)' the Secr et ar yof Defense.If provision of such support requires use
of national co llection systems. these systems \lo' ill be tasked within ex isling
guidan ce from the Direct or of Ce ntra l Intell igen ce;
(h) Executi ng the respo nsibili ti es ofthe Secretaryof Defen se as executi..-e
agent for the com munica tions sec uri ty of the Un ited Sta tes Covemment:
(i) Co nd uct of resear ch a nd d evelopment to meet nee ds of t he United Sta tes
for signal s intelligence and communica tions sec urity;
0) Prot ecti on of the security cfits installations, activities, information a nd
person nel by ap propriate means includi ng such inves tigations of applica nts .
employees. cont ractors and other persons with simila r ass ociations with the NSA
as art!' necessary:and
(k) Prescribing, with in its fieldof au thorized operations, securityregulat ions
coveringoperating practices. includ ing the t ransmission, hand ling ..nd distr'ibu-
tion of signa ls int elligence and co mmunica tions securit y ma terial within and
amon g the dements under control of the Director of the NSA. an d exe rcising
d ie necessary supe rviso ry contro lto ens ure co mpliance with the regu lations,
1- 1203. OffKufor Ill' co/kelton of specialiirdinuU.gt nu through m:orwQwa"ct
I"0grmru.whose responsibilities sha lJinclude:
(a) Carrying o ut consolida ted reconnaissance pr ograms for specialized
intelligence;
(lJ) Responding to tasking thr ough the-NITC; and
(c) l>dt'gating authority to the var ious de part rnerus and agencies for
re search, de ..elopmeru. procuremen t, and operation of designated means of
collection,
1-1204. Tilt foreign inltlllenJu and coUnltrinl'"igrnct ,kmtnls oj ,ht mililary
snvicrs, whose responsibilities shall include: .
(a) Co llection. producti on and d issemination of military and military -re lated
for eign inld ligC'nce. incl udi nginfonnalion on indications and warn ings . foreign
cap abilitif's, pl ans and- \lo'C'apons s)'Jtems , scif'n tific and tf'chnical dC' vd opmeC' nlS
and narcotics prod uction an d tralTlckingo \\'hC'n collC'ction is conducted in
respolIst"10 national foft"ign intellige nce rc-quirC'ments. it will be tasked by the
NITC. Collection ofnat ional foreign intd lige nce , not olhC' rwise obtainab le,
o Ulsidt"the United Sta tes shall be coordi na tt' d with the CIA. and such co llC' cl ion
"'ilhi n the United Stales shall be coo rd inated ""ith the FBI;
(b) Co nduct of co unt erintell igence activitics outsid e tht" United St ales in
coo rdinalion with t hC' CIA, a nd within thC' Uni tt'd Stat es incoordination with thC'
FBJ, a nd productio n and dissemination of C' ountl:ri'ntellige ncl: st udit' 5 or
rcpoT"tS;and ,
(c) Monitoring of the dl... eJoprnC' nt , procurC'ml:llI al"d milOagemenl of
lact k al intdli gl' ncc s)'stems and eq uipment and conducting rel ated resear ch.
dndopmll1l. test and t... aluiltion aC't i...ities.
1-1205, o/fl usllillj illI},r Drparlmtnlof Dtfrnsrappropriate for con d uct
ofltl l inld li1-wncc missions an d respons ibilitir s ass igned to th t" St"crc. "rary of
Dd ells('. Ifliuch othe r offices are usC'dfor inte lligencC'purp O"i:cs. the 0,0.-: .
of Sln iolls 2- 101th rough 2- 309of t his Ordn <tppl)'to ahose offices ,,:1IC'n
u'ocd fo r (hosL' purposf."s,
ffDflALIfGISTEI, VOL. 43, NO. 11-THUISDAY, JANUAIY 26. 197.
I
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70
THE,.nIDENT
36Bt
1- 13. Thr IRparlmml oj EntTK!' The Secretary or Energy shall;
1-1 301. Part icipate with the Depa rtment of State in cventy col lecting
political. economic and technical informat ion with respect to foreign energy
manen;
Prod uce and disseminate foreign intelligence necessa ry for the
Secretary's respons ibilitie s;
Participate in formulating intdligence collection and analysi s
requirements where the specia l expert capa bility of the Department can
contrib ute; and
1-( 304. Provide expe rt techni cal, analytical and research capability to othe r
agencies within the Intelligence Community.
1- 14. Thr Ftdnal BurtalJ oj Im.-ntigaticn. Under the supervision of the Attorney
General and purs uant to such regul ations as the Auomey Genera l may establish,
the Director or the FBI .h.lI:
1- 140 1. whhin the United States conduct cou nterintelligence and coo r-
dina te cou nteri ntelligence activities of other agencies within the Intelligence
Co mmunity. When a counterintdligence activity of the FBI involves military or
civilian per sonnel of the Department of Defense, the FBI shall coordinate with
the Department of Defense;
1-1 402. Conduct coun terintelligence activities outside the Unit ed States in
coordination with the CIA, subject to the approval of the Director of Central
Intelligence;
1-1 403. Conduct within the United States, when requested b )' officials of
the Intelligence Community designated by the Pres ident, lawful acti vities under-
taken 10 collect foreign intell igence or support foreign intelligence collection
requirements of other agencies within the Imelligence Communi ty;
I-101M. Prod uce and disseminate foreign intelligence, cou nterintelligence
and cou nter intellige nce studies and repo rts; and
1- 1405. CaITY out or contract for research, development and procu rement
of technical s)'stems and devices relaung to the functions authorized above.
I-I S. Tht DrugEnJ"""""" Adminulrorion. Under the supervision or the Atlomey
General and pursuant to such regulations as the Attorney Ceneral may establish.
the Adminis trator of DEA shall:
1-1501. Collect, produce and dissem inate inte lligence on the foreign and
domestic aspects of narcotics production and trafficking in coor dinat ion with
other age ncies with rrsponsibilities in these areas ;
1- 1502. Part icipate with the Depa rtmen t of Stale in the oven collect ion of
general foreign political. economic and agricultural infonnation rela ring to
narcotics product ion and trafficking; and
1-1503. Coordinate with the Director or Central Intelligence to ensure
thaI the foreign nar cotic' intelligence activities of DEA are consistent with other
foreign intelligence programs.
SECTION 2
RunlcnONS ON IN"J'I:UJCENCE Acnvmu
2-1. Adhrrmu /0 LAw,
2-10 1. Purpou. Information about the capabili ties, intentions and act ivines
of foreign powers. organizations, or persons and their agents is essential to
informed decisio n-making in the 3fe'31 of natio nal defense and foreign re lat ions.
The measures employed to acqu ire such information shou ld be responsive to
legitimate governmental needs and must be conducted in a manner that
presen-es and respects established concepts of privacy and civil liberties.
2-102. PritKipln oj lnlnprtlalion, Sections 2-201 through 2-309 set fort h
limitations which, in addition to other applicab le laws, are inten ded to achieve
'lDRAL uomn.VOL a. No.1I-lHUWSDAY, JAHU....Y2t,1971
71
THE ' .ES IDENT
the proper balance between protection of individual rights and acquisition of
essenli al information. T hose sections do not authorize any activity not
aUlhorized b)' sections 1- 101 through 1- 1503 and do not provide any exempe
tion from any ot her law.
2-2 . Restrictions on Cn tai" C()IItioTl Techniques.
2- 20 I. (;, nn'ol Provisions.
(a) The activities described in Sect ions 2- 202 through 2-208 shall be
undertaken onl y as permitted by thi s Order and by pro cedures est ablished by
the head of rhe agency concerne d and ap proved by the Attorney Gen eral. These
procedur es shall prot ect constit utional right s and privacy, ensure that informe-
tion is gathere d b)' the least intrusive means possible, and limit use of such
informat ion to Ia....fulgovernmental purposes.
(b) Acuvuies described in sect ions 2- 202 thro ugh 2- 205 for which a warra nt
would be required if und ertaken for law enforcement rath er than inte lligence
purposes shall nOI be undertaken against a United States pe rson witho ut a
judicial warrant, unless the President has authori zed the rrp e of activity involved
and the Attorney Genera l has both approved the particular act ivity and deter-
mined that there is pr obable cause to bel ieve thaI the United Slates pe rson is an
agent of a foreign power .
2- 202 . Electronic Th e CIA may not enga ge in any ele ctronic
surveillan ce within the United Stat es. No agency within the Intelligence Co me
munit y shall engage in any el ectronic surveillance directed against a United
States pers on abroa d or designed to intercept .a communicati on sent from, or
intended for receipt within, the United Stat es except as perm itted by the
pr ocedures establi shed pur suant to section 2-201. Training of personnel by
agen cies in the Intell igence Commnunity in the USe of electronic communica-
tions equ ipment . testing by such agencies of such equ ipment, and the use of
mea sures to determine the existence and capabilit y of electr onic surveillance
equipment being used unl awfully shall not be proh ibited and shall also be
govern ed by such pr ocedu res. Such activities shalJ be limited in scope and
durati on to those necessary to carry out the training , tesling or cou ntermeasures
No informati on de rived from communications intercepted in the
course of such training. resting or use of countermeasures may be- ret ained or
used for any othe r purpose.
2- 203. Camerasand O,hlT Afonitoring. No agency within the Iruelli -
gence Cornmu nu y shall use any electronic or mechanical device surreptitiously
and continuously to monit or any person within the United Slates, or any United
Stares person abroad, except as permitted by the procedures established
pursuanl to Section 2-20 I.
2-204 , Ph,siro! StarcMJ. No agency within the Intell igence Com muni ty
except the FBI may cond uct any unconsented physical searches within the
United Slat es. All such searches conducted by the FBI. as well as all such
searches conducted by any agency within the Intelli gence Community outside
the United States and dire cted agai nst United States pers ons , shall be under-
taken only as permitted by proced ures established pursuant to Section 2-2 0 I.
2- 205. .Mail SlIrwillarrct. No agency within the Intelligence Community
shall open mail or examine envelopes in United States post al channels. except in
accordance with applicable statut es and regul ations, No agency within the
Intelli gen ce Community shall open mail of a United States pers on abroad except
3J permitt ed by proced ures established pursuant to Sect ion 2- 201.
2- 206. PhJJual Survnllance. Th e FBI rna)' conduct physical surveil lance-
directed against Uni ted States persons 0 .- others only in the course of a lawful
invest igation . Oth er agencies within the Intell igence Communit y may not
unde rtake any physical surveillance directed again51 a United pe rsgn
unless: . 1(. "
'lDIL\L alGlm.. VOL a..NO. 11-1HUUDAY .IAIIAn'26,. 1971
72
73
3686 THE'RESIDENT
(;1) The: surveillance is conducted outside- th e Un ited St ates and the pe rs on
bein g surv eilled is reas on abl y bel ieved to be-acti ng on behalf of 3 foreign power,
eng aging in internati onal terrori st acti vities. or engaging in narcotics produclion
or traffi cking;
(b) The surveillance is conducted solely for the: purpose of identifying a
person who is in cont act with someone who is the subject of a foreign
intelligence or counterint elligence investig ation ; or
(e) That person is bein g survei lled for the purpose of prot ecting fore-ign
intelligence and coumerimelhgence sources and methods from unaurhori zed
disclosure or is the subject ofa lawful counterintelligence. personnel. physical or
communications security investigation.
(d) No surveillance under paragraph (c) of this section may be conducte-d
withi n the Unite-d State'S unless the person being surveilled is a present
employee. intelligence agency contractor or employee of such a contractor , or is
a military person employed by a non-intelligence element of a military servi ce.
Outside the United States .such surveillance may also be condu cted against a
former employee. inte-lligence agency contractor or emp loyee of a contractor or
a civilian person employed by a non -intelligence element of an agency within the
Intelligence Community. A person who is in contact with such a presen t or
former employee or contractor may also be surve illed. but only to the extent
necessary to identify that person.
2-207. UMiJ<loMd PartUipatiun i. Domestic Orga.iuliio",. No emplo yees may
join, or otherwise participate in. any organization within the United Stat es on
behalf of any agency within the Intelligence Community without disclosing their
inte lligence affiliation to appropriate officials of the organ ization, excep t as
perm iued by procedures esta blished purs uant to Section 2-20 I . Such pro ce..
dures shall provide for disclosure of such affiliatio n in all cases unless the agency
head or a designee- approved by the Anomey Gen eral finds that non-disclosure
is essential to achieving lawful purposes. and that finding is subj ect to review by
the Att orney General. Those proc edures shall further limit undisclosed partici-
patio n to cas es where :
(a) The participation is undertaken on beha lf of the FBI in the cour se of a
lawful
(b) The organization concerned is composed primarily of indivi duals who
are not United States pers ons and is reasonably believed to be acting on behalf
of a foreign power; or
(c) The panicipation is strictly limited in its nature. scope and duration to
that necessary for other lawful purposes relating to foreign int elligence and is a
type of partic ipation approved by the An omey General and set forth in a public
document . No such participation may be undertaken for the pu rpose of influenc..
ing the activity of the organization or its members.
2-208 . Cdltction of Nunpuhlicl] Availabt. IrifornuzliOJl. No .g.ncy within tbe
Intelligence Community may collect, dissem inate or store information concern-
ing the activities of Sta te'Spersons that is not available pub licly, unless it
don so with their consent or as permitted by procedure'Sestablis hed pursuant to
Section 2-20 I. Those procedures shall limit collect ion, storage or dissemination
to the following types of informa tion:
(a) Information concerning corporations or other commercial organizations
or activities that constitutes foreign intelligence or counterintell igence;
(b ) Information arising out of a lawful counterintelligence or personnel.
physical or communications security invest igat ion;
(c) Information concerning present or former employees, present or fonn er
intelligence agency contract ors or their pre sent or forme r employees, or appli-
canu for any such employmen t or contracting, which is needed (0 protect
foreign intelligence- or coun terintelligence sources or methods from unatnho-
rized disclosu re;
'"DllAI. uomn. VOL co. NO. Il-ntlIISDAY. MNUAaY.f, 1m
THEPRESIDENT
368'
(d) Informatio n need ed solely 10 idennf.. indi..-iduale in con tact with those
pt"U0I15 described in pa ragra ph (c) of this sect ion or with someo ne who is the
SUbJ l ' CI of a lawful foreign intellige nce or r ouruerintelhgenre
Ie) Information concerning person s who are reas o nably believed to be
potential sou rces or cont acts. but onl y for the purpose of de termining the
suitability or c redibility of such prou ons;
(0 I nformation constituting foreign iruetligence or counierintel ligenre
g3thered abr oad or from electronic surveilla nce-conducted in compliance with
Ser non 2-202 or from coo perating source-s in the United States;
(g) Information abo ut a person who is reasonably believed to be acting on
be-half of a foreign power, engaging in internat ional terr orist act ivities or
narcotics produ ction or trafficking. or end angering the safety of a person
protected by the United States Secret Service or the Department of State;
(h) Infor mation acquired by overhead reco nnaissan ce not directed at
spec ific Unite d Sta te'Spenons;
(i ) Information concerning United States persons abroad that is obtained in
response 10 requests from the Depa rtment of Slate for support of its con sular
resp onsibilities rela ting 10 the welfare of those persons;
(j) Informat ion collected. received. disseminated or stored by the FBI and
m:CC' 5)3T)' to ful fill its la"'ful invest igative' resp onaib iluies : or
(ll Information concerning pe-rsons or acri ..-ities that po se a clea r threat to
any facilit) or personnel of an agency within the Intelligence Communily. Such
information may be retained only by the a({C'ncy threatened and, if appropriate.
by the United Slates Sec ret Service an d the FBI.
2-3. Adduional Restrictions and Limnations.
2- 30 I. Tax t nformation. No agency within the Int elligence Community shall
examine tax returns or tax infonnation except as permitted by applicab le law.
2-302. Restrictions on Experimmtation. No agency within the Intelligence
Community shall sponsor. contract for, or conduct research on. human subjects
except i n accordance with gu idelines issued by the Department of Health,
Education and welfare. The subject's infonned con sent shall be documented as
req uir ed by those guid elines.
2-303. Rnlritt101U on ContrOlling. No agency within the Int elligence Com-
munu y shall enter into a contract or arra nge ment for the provi sion of goods or
services with private compan ies or institutions in the United States unless the
agC'ncy spons orsh ip is known to the appropriate officials of the company or
instituti on. In the case of any company or inst ituti on other than an academic
institution, intell igen ce agency sponsorship may be concealed where' it is
det ermined. pursuant to procedures approved by the Anomey General. that
such concealment is necessary to maintain essential cover or proprietary ar -
rangeme-nts for authorized int el ligence purposes.
Restrutions 0. Personnel A"'K"'d IJJ OIAn- Agm<its. An employee
detailed to anothe-r age ncy withi n the fede ral government shall be responsible to
the ho st age ncy and sha ll not report to the parent agency on the affairs of the
host agency unless so di rected by the host agency . The head of the host agency,
and any successor, shall be Informed of the emp loyee's relationship with the
parent agency .
2-305 . Prohibitum orr Auassination. No person employed by or acting on
behalf of the-United Sta tes Gove rnment ;'hatl engage in, or con spire to engage
in, aw asvinat ion.
2- 306. Restrictions 011 Sp'rial Atl;vitin . No component of the United States
Oovem meru excepl an age ncy within the Intell igence Community may conduct
any special act ivity. No suc h agency except the CIA (or the military services in
warnme) rna) conduct any special activity unless the .. etermines, with
"DUAL UGlsna. VOL a. NO. ,a-11fU&SD.AT. JAHUMT 26. 1m
74
THEPRESIDENT
the sec's advice. that another agency is more. likely (0 achieve a particular
objective.
2-307. Restrictions on lndirtft Participation in Prohibit,d Activities. Noagencyof
the Intell igence Community shall req uest or otherwiseencourage, directly or
indirectly,any person.organization,or government agency (0 undert ake artivi-
ties forbidden by this Order or by applicablelaw.
2-308. Restrutitms 0 11Assutanct to LAw Enfurctmnll AulAoritin. Agencieswith-
I .
in the IntelligenceCommuni ty othe-r than the FBI shall not, except as expressly
authorized by law:
(a) Provide services, equipment .personnel or facilities to the LawEnforce-
mmt Assistance Administration (or its agencies) or to state- or local
police organizations ofthe United Stales; or .
(b) Parti cipate in or fund any law enforcement act ivity within the United
States.
2-309. Pnmw iblt Assulanct10lAw En!orcmlt1l1AulhoritUs.. Therestrictionsin
Section 2-308shall no, preclude:
(3) Cooperationwith appropriatelawenforcementagencies for the purpose
of protecting the personneland facilities of any agency within the Intelligence'
Community;
(b) Partic ipation in lawenforcement activities. inaccordance with lawand
this Orde r. to investigate or prevent clandes tine intelligence activitiesby foreign
powers . international na rcotics production and trafficking. or international
terrorist act ivities;or
(c)Provisionofspecializedequipment.technical knowledge.or assistanceof
expert personnel for use by any department or agency or. when lives are
endangered. to support localJawenforcement agencies. Provision of assistance
by expert personnel shall be governed byprocedures approved by the Attorney
General.
2-310. PrrmiJJibk Dissemination a"d Swagt af r"frmnalibn. Nothing in
tiona 2-20 I through 2-309of this Order shall prohibit:
(a) Disseminat ion to appropriate lawenforceme nt agencies of information
which ind icates involvement in activities that may violate federal, state. local or
foreign laws;
(b) Storageof information required bylawto be retained;
(c) Dissendnaucn of information covered by Section 2-208 (a)-(j) ro
agencies within the Intelligence Community or entities of cooperating foreign
governments: or
(d) Lawfulstorageor disseminationof infonnationsolelyfor administrative
purposes not related to intelligenceor security.
SECTION3
OVERSIGHT or INTlLUGENCE ORGANI Z.\ ncxs
3-1. r"tt/ligmct Ovtrfighl BOOTd.
S-101. MtrIlbmhip. The President'. Intelligence Oversight Board (lOB)
shall funct ion within the White House. The ]08 shall have three- members who
.hall be appointed by the President and who shall be from outside 'he
government and be qualified on the basis of ability, knowledge. diversity of
backgroundand experience.No membershall have any personalinterestin any
contractual relationship with any agency within the Intelligence Community.
Onemembershallbe designated by the Presidentas chairman,
3- I 02. Duties. ThelOB shall:
(a) Review periodically the practices and procedures of the Inspectors
General and General Counsel with responsibilities for agencies within the
Intelligence Community for discovering and reporting to the lOB intelligence
"DUAL ltomn, VOL'"NOa-ntUISOAY.JANUAIlY ..m
75
THEPRESIDENT
activities thai raise questionsof legalityor propriety.and considerwritten and
or al repor ts referred underSect ion 3- 20 I;
(b) Revi.ew peri odically foradeq uacy the internal guidelines of each agency
within the Intell igence Communityconcerning the legalityorpropriet y of intelli-
geneeactivities;
(c) Report periodically,3 1 least quart erly, to the Preside nt on its findings;
and report in iii timely manner to the Preside nt any inlelligence activities that
raise serious questionsoflegalityor propri et y;
(d) Forwar d to the Auomey Ge neral, in iii timelymanner. reportsreceived
concerni ng intelligen ce activities inwhich a question of legality has beenraised
or which the l OB bel ieves to involve questionsof1egaJity;and
(e) Conduct such investigations of the intelligence acti vities of agencies
within the Intelligence Community as the Board deems necess ary to carryou tits
functions under thisOrder.
3-103. Rtstri</ign . " Staff. No person who serves on the staff of the lOS
shall have any contractualor employment relati onsh ip with any agency within
the Int elligence Community.
3- 2. Inspectors CtnmJI and Cmeral CoU"' tl. Inspectors General and General
Counsel with responsibility for age ncies within the Int elligence Co mmunity
shall:
3-2 01. T ransmit timely reports to the lOB concern ing an y intelli gence
activities that come to their attention and that raise ques tions oflegal ity or
pr opri ety;
3-202. Promptly report to the JOB actions taken concern ing the Board's
find ing s on int elligence activities that raise questions of legali ty or propri ety;
3-20:i . Prov ide to the l OB infonn at ion req uested concerning the legality
or pr opr iety of intelligen ceactivit ies within their respective agencies;
3- 204. Formulate practices and pr oced ures for discoverin g and report ing
10 the l OB intelligenceactivitiesthatraisequ estionsoflegalityor propriet y; and
3- 205. Report to the lOB anyoccasion on which the Inspec tors Gen eral
or General Counsel were directed not to report anyintelligence activity to the
l OB which they beli eved raised questionsof legalityor propriety.
3-3 . Allo""] General: Th e Attorney Gen eral shall:
3-301. Recei ve andconsiderreportsfromagencieswithinthe Intelligence
Communityforwarded bythe lOB;
3-302. Report to the Presi dent ina timelyfashion anyinte lligenceactivi-
ties which raise questionsoflegal ity.
3-303. Report '0' he l OB and '0 'he President in a timely fashion
deci sionsmadeoractionstakenin response toreport sfromagencieswithin the
Int elligence Community forwarded 10 'he Auorney General by the l OS;
3- 304. Inform the lOB of legal opinions affecting' the ope rations of the
Intelligence Cornmunity:and
3-305. Establish or approve procedures, a. req uired by this Order. for the
conductofintelligence activities.Such procedures shall ens ure compliance with
law, protect constitutional rights and pri.\'3eY, and en sure that any intelligence
act ivity within the United States or directed against any Unit ed St ate s person is
conduc ted by the least intrusive means poss ible. The procedures sha ll also
ensu re that any use. disseminat ion and storage of infonnation about United
State s persons acquired through inte lligence act ivities is limited to tha t neces..
sary to achieve lawfulgovernmental purposes.
3-4 . COllgTtsJional l nk l/igtn! t Committees. Undersuchprocedures asthePres ide- nt
may establish and con sistent with applicable authorities and duties, inc}udi.ng
those conferred by the Constiun ion upon the Executive and
RDIULIRIma.YOL a.NO. .lANU.U'J 2t. 1971
II
I
76
.J690 THE P115IDENT
Branche's and by law(0 protect sources and me thods. the Directorof Centra)
Intelligence and heads of departments and agencies of the United Stales
involved in intelligence activities shall:
5-40 I. Keep the' Pe rmanent Select Comrmnee on Intelligenceof the House
ofRepresentativesand the SelectCommittee- on Int elligence ofthe Senatefully
andcurrentlyinformed concerning intelligence activit ies, including any sig nifi.
cant an ticipated activities which are the responsibilityof. or engaged in, by such
department or agency: This req uirement does not cons titute a condition
precedent to t he implementation of such intelligence activ..ities;
.5-402. Provide any informat ion or document in the possession, custody. or
cont rol ofthe department or agency or person paid by such department or
agency. within the j urisdiction of the Permanent Selec t Committee on In telli-
gence of the Ho use of Representatives or the Select Committee on Inte lligence
ofthe Senate. upon the request ofsuch committee;and
5-403. Report in a timely fashion to the Permanent Select Comrninee on
Intelligence of the Ho use of .Represenratives and the Select Committee on
Intelligenceof the Senateinfonnation relating to intelligenceactivities that are
illega l or improper and correc tiveactions that are taken or planned.
SECTION 4
GI:Nr:RAL PROvJSIONS
4- 1. l .. pkmn!lalum.
4-101. Except as provided in section 4-105 ofthis section, thisOrder shall
supersede Executive Order 11905, "United States Foreign Intell igence Ac rivi-
ties ,' dated February 18, 1976; Execut ive Order 11985, same subjec t. dated
May 13, 1977; and Execu tive Or der 11994, same subject, dated j une I, 1977.
4-102. TheNSC, the Secretary of Defense, the Au orneyGenerel and the
Dire-ctor of Central Int elligence shall issue such app ropriate directives and
procedures as are necessary to implement this Order.
4-1 03. Heads of age ncies within the Intelligence Communit y shall issue
app ropriate supp lementary directives and proced ures con sistent with this
Order.
4-104. TheAttorneyGeneral shall have sole authority to issue and revise
procedures required by section 2-201for the activities of me FBI relating [0
for eign int elligence and cou nteri ntelligence.
\ VhC' rC' intelligence acti,.. ities under this Order are to be cond ucted
pursuant to proced ures approved or agreed to by the AllomeyGeneral, those
activities may be conducted under terms and conditions ofExecutive Order
11905and any procedures pr omulgated thereunder until such Att orne yGeneral
procedures are established. Such Anorney General procedures be estab-
lished as expeditiously as possi ble after the issuance of this Order .
4-106. In some instances. the documents that impl ement this Orderwill
be classified becaus e of the sensitivity of the informati on and its relation to
national security. All instructions contained in classi fied document s will be
consi stent with thi s Order .All proc ed ures promulga ted pursuant to th is Orde r
will be made available 10 the Co ngre ssional intelligence commiuees in accor-
dance with Section 3-402.
4-107. Unle.. otherwise speci fied, tho provisions orthi. Order sha llapply
to activities both within and outside the United States,and all refe rences to law
areto applicable laws of the United States, including the Constitution and th is
Order.Nothingin thi,Ordershall be construedtoapply to or interfere withany
authorized civil or criminal law enforcementresponsibilityof any departmentor
ag<ney.
4-2. /Nfl.ili."" For rbe purposesoflhi. Order, tho following termhall have
theseme-anings'
fl DIRA1l1G1ml,VOL 41, NO. lI-THUISDAY,.lAHUAIY 26, 197'
77
THE PaESIDENT 3691
4-20I. Communications s.rcun'tJ means protective measures taken to deny
unauthorized persons information derived from telecommunications of the
Uni ted Sla tes Government rela ted to na tiona l security and to ensure the
authenticity ofsuch telecommunications.
4-202 . CounlninblJigmlt means information gathered and activities con-
duc ted to protect agains t espionage and other clandestineintelligenceactivities.
sabotage, international terroristactivities or assassinations conductedfor oron
behalf of foreign powers,organiutionsor persons.but notincludingpersonnel,
physical. document, or communications securi typrograms.
4 -2 03. ElectronicSUTVtukmu meansacquisition ofa nonpubliccommunica-
tion b)' electronic means without the consentofa person who isa party to an
electronic communication or , in the case of a nonelectronic communication,
witho ut the consentofill personwho isvisiblypresentat the place ofcommuni-
cation. but not including the use of radiodirection find ing equipment solelyto
determine the location of ill transmi tter.
4-204. Emplo}tr meansapersonemployedby,assignedto, oracting for an
agency within the- Intell igence Community.
4-205. Forrign Inullignzlt me-ans information relating to the capabilities,
intentions and activities of foreign powers, organizations or persons, but not
including couruerimelligence except for information on international terrorist
activities.
4-206 . Intel/igma means foreign intelligenceand counterintelligence.
4- 207, l . 't llig", ,, CommuniIJ and Q/{"''J or Q/{tncin wi/hi. /ht InuUigtrltt
Commtl.llit, refer to the following organizations:.
(a) TheCentral ImelligenceAg<ney'(CIA);
(b) TheNat ionalSecurityAgency (NSA):
(c) The Defense Int elligence Ag<ncy;
(d) The Offices withi n the Depa rt ment of Defense for me col lection of
specializ ed national foreign intelligence through reconnaissanceprograms;
(c) TheBurea u of Intell igence and Research of the Depart me nt of Slate;
(0 Th eintelligence elements of the military services,the FederalBureau of
Investigation (FBI),the Department of the Treas ury, the Department of Energy,
and the Drug Enforcement Administration (DEA);and
(g) 'The starr elementsof the Office of the Director of Central Intelligence.
4-20tt. InttlJigmct produd means the es timates, memoranda and other
reports produced from the analys isofavailable info rmation.
4-209. InltrTJalionaJ trmmst activitin means any activity or activitieswhich:
(a) involves killing. causing seri ous bodily harm, kidnapping. or violent
destruction of propert y. or an attempt or credible threat to com mit such aCII;
a.d
(b) appears intended ( 0 endanger a protectee ofthe SecretService or the
Depar tment of Sta te or to furt her political, social or economic goals by
int imidat ing or coercing a civilian pop ulation or any segmen t thereof, influe nc-
ing the policyof a government or internationalorganization by intimidation or
coe rcion, or ob taining widesprea d publicity for a group or its cause; and
(c) transcends national boundaries in terms of the means by which it is
accomplished, the civilian pop ulat ion, government, or internationa l organiza-
tion it appears intended 10 coerce or inti midate. or the locale in which its
perpetrators operate or seek asyl um.
4-210, Tilt .\'DlUmaJ ForrilJ'l InltIlIK"''' ine1ude. the program. Iined
below. but its composition shall be subject 10 review by the Nat ional Sec uriw
Counciland modification by (he President.
(a) 111<program. ofthe CIA;
(b) The Consolidated Cryprologir Program, the General Defense Imelli-
gen re Program, and the programs of the offices within the .. ( of
H DRAlllOfSTH, VOL a.NO. ll-THUI$DAY, "AHUAlY 26. 1'"
II
78
3692 THE'RESIDENT
Defense for the collect ion of specia lized na tional foreign intelli gence th rough
reco nnaissance exceptsuch el ementsasthe-Direct orofCe ntra l Iruetl igence and
the Secretary of Defense agTf:'t' sho uld be exc lude d:
( c) Othe r progra ms of agencies within the Intelli gence Commu nity deaig-
nated j ointl y by the Dir ector of Ce ntra l Inte lligence an d the hea d of the
departmentorbythe Pr esident as nat iona lForeignintelligen ce or coumerint elli-
ge nce act ivities :
(d) Activities of the staffelements o f the Office of the [\jrt"cl orofCent ral
Intelligence.
( e) Activities to acquire the inte lligence required for the plan ning and
conduct of tact ical operations by the- United Stat es military for ces ar e no t
included in the Nationa l Foreign Int ellige nce'Progra m.
4-2 11. Physical surveillance means an unconsen u-d,systematic a nd deliber -
at e obser-vation of a person by any means on a continuing bas is, or un con semed
acqui sition of a nonpublic commun icati on by a pe rson not a pa rt y ther et o o r
..isibly pTe'sen t thereat th rough any means no t involving elect ronic survei llance.
This defi nition does not inclu de overhead reconnaissance no t dir ec ted at
spe cificUnit ed States perso ns.
4-21 2. SP(w! aetit,;t;, s means activities con ducted abroad in sup po rt of
na tional foreign policy obj ec tives whi ch are desi gne d to fur ther official United
Stares progra ms an d policies abroa d and which are planned and executed so
that the' ra te of the Uni ted States Oovem rnem is no t app arent or ackno wled ged
publi cly. and functions insup port of suchactivities,b UI not including diplo matic
ac tivity or the coll ect ion and production of int ell igence or re lated support
functions.
4- 213. Tni trd States. when used to describe 3 place, includesthe te rritories
of the Unit ed Slate s.
4- 214. l.'nittd States pen on mea ns a citizen ofthe Uni ted States, an alien
lawful lyadmined for permanent resi dence,an unincorporated association orga
nized in the United Slates or subs tantially composed of United St ares citizens or
aliens admit ted for perma nent res idence, or a corp ora tion incorpor ated in the
United St al es.
27
cZL
T HE \ VHIT E H OUSE,
J anuary 24, 1978.
(FR Doc. 78- 2-420 Filed 1- 2'5- 78;11: 12amI
flDlIA1IEGKn..VOL 43,NO. ll-THUISDAY,JANUARY26,1971
I
I
79
Chairman STOKES. The Chair re cognizes the gentleman from In-
d'a
na
Mr .Fithian.
IMr.'FITHIAN. I will give you one of my minutes t o pursue it if
ou want to.
YMr.FAUNTROY.I will getiton the nextround.
Mr.FITHIAN.Thankyou, Mr .Carlucci,for coming today.
Wehad some reason to believe thatthe cooperation between the
Agency and t he Warren Commission was not as complete as it
might have been in terms of the transmittal of information, and I
would like to pursue some of the questions that have been asked
here in a general sense, butI would like to pursue specifically the
uestion of what kind of guidelines, et cetera, do you have or
ihould we legislate-thatis a possibility-toinsure thetransmittal
ofall relevant information, eitherto the FBI, iftheyaredoing the
invest igat ion, or as in the case of the Warren Commission when
they were doing the complete review of the assassination of Presi-
dent Kennedy. What would you recommend if you were either
writing the guidelines for the Agency or if you were legi slating
actions?
Mr. CARLUCCI. The CIA, of course, functions pursuant to Presi-
dential direct ion andworks through the Nat ional SecurityCouncil.
Should t here be another assassination and the type of commission
set up similar to the Warren Commission we would obviously take
ourinst ruct ions from thePresidentand National Security Council.
Icannot conceive, once again, of circumstances in this day and age
where we would be less than totally forthcoming with information
tobe given to such a commission. We would, of course, indicate to
the commission,justas we haveindicatedto thiscommittee,where
sensitive sources and methods are involved and where the release
ofthe informat ion could cause us serious damage, butfrankly it is
beyond my capacit y to conceiveof us notcooperat ing.
Mr. FITHIAN. I am sure, ifhad there been some type of commit-
teemade up of memberslikeourselves priorto theassassination of
Kennedy and they had talked with someone from the
gency, and the question had been asked as I just asked it, the
answer woul d have been almost the same. That is, that "We will
Aoperate ,of course, fully,andwe workwith the National Security
,gency," or "We work underthedirection of thePresident." Yetit
IS in the case of theattemptson PremierCastro, information
: ich would have been relevant certainly to the Warren Commis-
t
10n
, was not transmitted. I am at somewhat of a"loss, like the
who never fixed his roof when itwas rainingbecause it was
h
0
dE!- good time to work on the roof, and when itwas dry weather
e id notneed t o repairtheroof.
arI am not comfortable-maybe other members of the committee
tre- t h.at .we have a system which insuresthe kind of remittingor
agansmlttmg of information to the appropriate investigative
CIA.
ncy,
Whether the Warren Commission or the FBI, of things in
ofthfiles which do relate very specifically to andshould be a part
Ite whole investigativeprocess.
lin Was t hatthatprompted my question aboutwhatspecificguide-
bires would you recommend, or , if you were writing them for the
or if. he .were on this side of the desk and you were
mg the legislation, I would be interested in what kind of legis-
80 81
lative mandate it woul d t ake to assure t hatthis was done and ifit
werenot donesomeone wouldbe punished.
Mr. CARLUCCI. If I may come at your question from a slightly
different direct ion, Congressman, I think there have been a
number of things that have been done which create t he ki nd of
climate where as I sai d it is inconceivable that the events of that
time could repeat themselves.In t he firs t placetheExecutive order
I i
has a very clear prohibition against plotting assassinat ions, but
thatis a bitbesidet he point.
Second, we have much clearer and much more direct Presiden_
tial and congressional oversight, and any kind of activit ies such as
took place with regard to Cuba in the 1960's would be known to
and signed out under a formal finding by the President. There
would be some seven committees of Congress briefed under the
Hughes-Ryan amendme nt.
There is a new Executive order which I mentioned. There are
orders out throughout the Agency t o report any wrongdoing or
impropriety both to t he Director, to t he General Counsel, or t he
InspectorGene ral.
The Presidenthasset up an Intelligence OversightBoard t otally
independent of t he Agency, report ing directly t o hi m, who can
receive anonymously ifrequired any complaints of imp ropri ety or
illegality. There are grievance and dissent mechanisms that exist
now t hat did notexi stbefore.
There is a whole series of managerial cont rols which I think are
very important, since what tends to happen in an intelligence
organization is t hat information is compartmented, andone part of
t he organizati on for security reasons does not always know what
another part is doing.
I think with all t hese changes it woul d be virtually impossible
for information or act ivity being conducted by one part of the
organization not t o come to t he attention of those responsibl e for
providing information to a commission like the Warren Commis-
sion, on the ot her hand.
Mr. FITHIAN. I ask unanimous consent to proceed for one addi-
tional kindofquestion, Mr. Chairman.
As one who does want a st rong intelligence-gat hering agency,
andas one who does believethat therearecertainthingsthathave
to be keptsecret-and I did some work in the military in this line
and I am fully aware of that-Iam still bothered by the fact t hat
despite all of the evolution of change that has taken place in t he
Agency since t he assassinat ion of Presi dent Kennedy and despite
what I think has been generallygood cooperation from theAgency
with our staff and with our committee-and I commend you
that-we still have examples- and I will j ust cite one-now this
was not t he area where we want to talk about policy, but I t hink
this is anexampleofpolicybreakdown.
When Mr. Hartcame overto test ify before the committee, all of
t he executive memoranda, agreements, discussions, and so on had
taken place, clearly. Some j ust looked at the file and said "The
I Assassinations Committee hadnegotiated with theCIA on all t hesj
matters," and no one questioned what Mr . Hart had t o say. It al
I looked good on paper. Except that your agency sent a person over
re who expressly would notdiscuss theonly issuewe were inter-
h
e
ted
in: Lee Harvey Oswald. And said so. Plainly and flat out.
eSI am t rying hard to squarewhatI understand is thebasic guide-
r es t hat you operateby, with anassurance that we can have this
of healt hy relationship between Congress and the CIA which
. so necessary and yet, sir, is so impaired by actions like Mr.
Hart' s test imony before this committee. And that is why I am
king for t he veryspecific questions on guidelines.
as
l
donot know whetheryou hadanythingto do wit h theselection
of sending Mr. Hartdown here. I would presume, accordingto your
recent test imony here, t hat since the Agency is now thus integrat-
ed as Deputy Director it certainly would not have passed you by.
Mr.CARLUCCI.Thatis correct.
Mr. FITHIAN. I guess what I am still groping for is, how do we
assure that the reality is as the perception, and that we are not
dealing wit h two different worlds. We have a real world with
certai n kind of action and a bureaucratic world which says "Do
thus and sowhenassassinationscome along. "
Mr. CARLUCCI. We must bear in mind, Mr . Hart testified in
public session. We have had extensive dialog with the committee
onclassified information.
I think our record in providing information not only to this
committee but to our authorizing committees, the two select com-
mittees,hasestablishedthe fact thatwe arenottryingto withhold
informat ion. To the contrary, we are very forthcoming, but we do
point out where the information is of such a sensitive nature that
it could jeopardize sources and methods, includinglives. In several
instances where that has occurred with this committee I have
talked to thechair man- -
Mr. FITHIAN. I understand all that. I was just citing the Hart
casevery briefly where this, in my judgment, clearly broke down.
AndI do not think it is adequate to reflect thatthis is somehow of
aclassified nature. I think someone comingdown here and talking
wLeelth us as to what theirbestassessment was as to whether or not
Harvey Oswald was thekind of persontheRussianKGB would
have interviewed had he been in Russia is. very much to the point.
Mr. CARLUCCI. That was not made dear to me. Perhaps we
should have provided anotherwitness for thataspectof thecase.It
whsmy understanding that Mr. Hart's testimony was to focus on
W atknowledge Mr. Nosenkomighthavehad. ... '
FITHIAN. You will remember there was a very'lengthy de-
memorandum from the committee that went over and Mr.
i art was going to respond very specifically to the
SSUes raised in t hat memorandum. We all came into the commit-
that day assuming that was going to be the scenario only to
we might as well have been talking to somebody from
thMr.CAR.LUCCI.I would be glad to sendsomebody up to talkabout
fa: Issues ifwe did not coverthe issues fully, and I apologize
tl
'Mr. FITHIAN, Thank you, Mr. Chairman. I have no other ques-
ons.
STOKES. The gentleman yields back the balance of his
e.
82 83
Thegen tlemanfrom Connecticut ,Mr .Dodd.
Mr. DODD. Thankyou,Mr .Chairman.
Mr .Carlucci, t hank you for beingup here.
I just have a couple of questions. I t hink all of us here recognize
we are talki ng about things t hat occurred in t he past . Except for
the fact t hat some of t he practices may be in operat ion t oday, We
are generally asking you t o share with us your thoughts on what
I:
mi ght be done to at least minimize t he possibility of certain short.
comings occurring again.
I would like to focus my attent ion, if I could, on the Nosenko
sit uat ion. It seems t o have generated a tremendous amount of
debateand discussionon how thatcase was handled.
I see t hree areas, but there may be more t hat you might be able
t oaddressyourremar ks to.
One had to do wit h the question of the handling of Nosenko
from thetimethathe defected through theperiod atwhich he
finally released,given a changeof identity,andso forth.
We have received testimony that was shocking to say t he very
least. I think that would be a mild wayto describe it. Others have
suggested it was not quite as bad as we were told it was . But,
whatever the degree of mishandling in the past, I would now like
to askyou about the present operatingprocedures. How would t he
agency now handle a defector of the Nosenko type, with regard to
interrogat ion,anddeterminingwhetherthedefector is bonafide or
dispatched? Is therea systemtodaythatwould handle the Nosenko
casedifferentlyin 1978 thanhow it was handled in 1974?
Mr. CARLUCCI. There is a directive out dated February 1967
which deals with the handling of defectors which lays out in some
considerable detail the procedures to be followed . Among t hose are
t imely status reports covering the defector's physical wellbeing,
psychological and adjustment problems and the like, which are
directed directly to the top management of the operation, t he Di-
rect orate, and to the Director and myself. And I can testify from
experience since I have been in the Agency that the repo rts that
come up on defectors are very frequent.
I can recall receiving reports certainly every other day on some
recent defect ors. And we, of course, are legally bound to take any
cor rect ive act ion should t he re be inappropri ate handling of the
defectors, to report any violati ons of law t o the intelligence over-
sight board and t otheauthorizing committees on theHill.
I ;
Also, the procedure for handling defect ors now is through a task
force operati on. There is an interagency committee that needs to
decide on the general policies for handling defectors, and t he
of thatcommittee reportsdirectlyto the Direct or ofCent ral Intelh-
.
Finally, the members of the different components of t he intelh-
gence community have their requirements, and all have access at
the appropriate moment t o the defector . So it woul d be virtuallY
impossible for the kind of sit uat ion thatexisted in the case of Mr.
Nosenko to be recreated. The Director in particular has been suffi-
cientl y concerned about this so t hat he gave instructions
afte r his arrival that our midcareer and senior employees in thefr
training courses should be made acquainted with whatoccurred In
theNosenkocaseto be surethereareno repetitions .
We have also enlargedandexpanded theauthorityofourorgani-
tion wit h inspections, and as I indicated earlierany employee in
can report any impropriet y or wrongdoingto anyoneof three
a le wit hin the Agency or to the Intelligence Oversight Board
peJide t he Agency, or, if they desire, to ouroversight subcommit-
oU
e
SO I t hink therearea goodly numberofchecksandbalancesto
a repetition ofthisunfortunateepisode.
pMr. DODD. I think you anticipated, in your response to my first
ues
tion
, my second question. Namely, who had jurisdiction over
Mr Nosenko with regard to any evidence he might have brought
forth to theWarrenCommission on Oswald and hisstayin Russia.
We have had the CIA saying thatthey had in fact turnedNosenko
overto t he FBI and coming and saying "Hewas not
our pri nCIpal responsibility, because It mvolved an external oper-
ation and not an internal operation." As a resultof that inconsis-
tency it appears that the Commission had less than the best evi-
dencewith regard to theNosenko testimony. In answeringmy first
question did you respond thatthatshouldnotnow occur?
Mr.CARLUCCI.It should not. The Directorof Central Intelligence
has fundamental responsibility for debriefing-the handling and
debriefing of defectors. We of course turn to the FBI for their
protect ion, and where they might have counterintelligence infor-
mation- infor mat ion on activities of Americans-we would, of
course,make themavailableto theFBI for debriefing.
Mr. DODD. This has been alluded to in several of the questions
from commit tee members here. Let me just ask it this way. As I
understand it from what you are telling me this would not neces-
sarily require any kind of triggering mechanism. In the past we
have heard from a variety of the agencies in the intelligence com-
munity that unless you ask the right question you do not get the
right answer . Here, itwould not take the FBI asking the CIA the
right quest ions, but rather, once the Agency was aware that cer-
tain infor mat ion belonged properly in the domain of the FBI, that
w?uld OCcur . It would not take the Director of the FBI asking the
DIrector oft he CIA for thatinformation.
Mr.CARLUCCI.Thatwouldoccur. .
Defect ing is a traumatic experience. Newly defected people are
somet imes in an unstable condition. We have them examined by
OUr psychiat rists and we have to make a judgmentwhen they are
for a communitywide briefing, but in my experience
at has only taken a matter of a week or 2 weeks,'somet imes 3
weu
ks
, unt il they are made available to the ent ire community.
Be sually the FBI is brought in at a very early point in time.
telfi
use
of the importance and the perishability of the counterin-
lgence information they might bring, we do bring the FBI in
e
ar ls.
to The last partof this is a bit more specific. It al so has
rni 0 with Mr . Nosenko. Mr. Hart testified that Mr. Nosenko's
wlnd was for a variety of reasons not in good shape, his memory
ques t ionable. I will speak personally here. It led this member,
of )\fay, to believe thatt here was some question as to the efficacy
as' r . Nosenko's testimony in a variety of different areas, or
isSlstance t o the Agency. Yet we have a sit uat ion today where he
on salary or atleaston a fee basisofsome kindwith theAgency.
84 85
Are you in the Agency satisfied that Mr . Nosenko is worth the
$35,OOO-plus, whatever he receives as a salary, in his consult ant
basis or whatever relationship exists? Is he useful as an emploYee
oftheAgency?
Mr . CARLUCCI. Without prejudice to the salary-and I do not
remember how much we are paying him-the answer to that is
yes . He obviously has limitations in terms of the kinds of infon
na.
tion he can provide us with.His experience now is manyyears Out
of date, but he has been our highest rankingKGB defector and he
is able to convey to CIA employees a sense of the atmosphere t hat
exists, some of the techniques thatthe KGB uses, and we find t his
valuable. He gives us a service that we request him to give. This
does not mean he is in a policymaking position in the Agency Or
anythinglikethat.He servesas a consultant.
Mr. DODD. My lastquestion is this. On page 7 of yourstatement
in the second paragraph you say, "All of our people are inst r ucted
to be alert t o assassination plots, and any CIA officer who learns
thata planexistswill reportit immediately,"andso forth.
I presumeyou are familiar with the presentst at ute having to do
with assassination plots. As I understand thestatute, explaining it
in layman's terms withouttryingto recite this thingverbatim,ifa
person assassinateda foreign leader, notin thatparticularleader's
own country, we would have jurisdiction in this country to arrest
and try that person, assuming the alleged assassin were in this
country. If the same person assassinated a leader of a foreign
country in the foreign leader's own country, t hen under our pres-
ent Federal statutes we have no jurisdiction to prosecute that
individual. Is thata fairsynopsisofthatstatute?
Mr. CARLUCCI. Congressman Dodd, you areovermy head.
Mr .DODD.Thisis 18U.S.C.1116.
Mr. CARLUCCI. PerhapsI shouldconsultcounsel, here.
Mr. DODD. Do you have t he right statute, the 18 U.S.C. 1116,
"Murder or manslaughter of foreign officials, official guests or
internationallyprotected persons"?
It starts out in section A, "Whoever kills or attempts to kill a
foreign official, that person shall be punished" and so forth, and
then it goes on and it defines an internationally protected parson
as a chief ofstateor a politi cal equivalent, wheneversuch personIS
in a countryotherthanhis own or herown.
And thengoingdown to paragraph(c)it says "Ifthevictim ofan
offense under subsection A is an internationally protected person
the United States may exercisejurisdiction over the offense if t he
alleged offender is present in the United States irrespective of t he
place where the offense were committed or the nationality of the
victimor alleged defender."
Mr.CARLUCCI. Doyou wantto repeatyourquestion? .
Mr. DODD. My question is, do you think we should plug up th.
1S
loophole? It seems to me that we have here a situation where In
our Federal courts we can prosecute a person in this country, whO
is physically in this country who had assassinated or attempted
assassinate a foreign dictator, provided thatdictatorwas not in hIS
or herown country.
In other words. if Fidel Castro were in London and he were
assassinated and the assassin was found in New York, we could
secute thatperson in New York. If FidelCastrowereassassinat-
PI'Oin Havana and that person came into t his country we have no
overthatperson to prosecute him in theUnitedStates.
JUMr. CARLUCCI. That would seem to be a question more appropri-
tely directed to the Departmentof Justice, butI would be glad to
ourpeople examine it and submit something for the record. I
hesitate toanswera legalquestion likethat.
Mr.DODD.Wouldyou takea look att hat for me?
Mr.CARLUCCI.Yes, sir.
Mr. DODD. I realize it is something the Justice Department
should look at , but since it involves internationally protected per-
sonsit seems to be an area where the CIA would become involved
toone extent or another. I would appreciate an assessment of that
statute in ter ms of t he possibility of a loophole. I am not stating
this as a conclusion on my own, but it occurs to me that way.
Mr. CARLUCCI.We will be glad to examine it and putsomething
inthe record.
[Theinformat ion follows:]
CcntrJllnldhgcncc
J anuary 22, 1979
Honorable Louis Stokes, Cha ir man
Select Committ ee on As s as s i na t i ons
House of Repr es ent at i ves
Washington, D.C. 20515
Honorable Chr ist opher J. Do dd
HOuse of Repre sen ta t i ves
Washington, D.C. 20515
Dear Sir s:
m . Dur i ng my appearan ce be f ore your Commit t ee on .11 December ,
Vl ew was so l i cit ed concerni ng t he
wh U. S. C. 1116 so t ha t i t woul d be appli ca bl e i n inst ances
is
en
a f or e i gn l eader i s ass ass i nated, and t he a ll eged offe nder
apprehend ed wi t hin th e Uni t ed St ate s .
bro I know of no r ea so n'why th i s st at ut e s houl d not be
de,ad ened i n the ma nne r s uggest ed . Howe ver , I r es pectf ully
comer t o the Depar t ment of J us t i ce concern i ng any i n- dep th
menta r y conc e r ni ng t hi s provi s i on.
Sins e.. .e ly, _
/ p/ / /
(/' ((;:(,(;....- .
-;/ RANK C. CARLUCCI
/
86
Chairman STOKES. Thegentleman from Connectic ut , Mr. MCRin.
ney.
Mr. McKINNEY. No questions.
Chairman STOKES. The gent leman from Nort h Carolina, 1\'11'
Preyer. .
Mr. PREYER. Mr. Chairman, perhaps t hisis more in the natureof
a comment or twocomments.
One,on yourstatementthat you have entered intoanagreement
wit h theSecret Servi ce relat ing t o procedures used in transmit ting
information between your t wo agencies, I think t hat is a very
forward step and I woul d hope t hat t he same t hi ng could be done
and t hat you will think about doing it with the State Department
and theFBI .
Going back to Mr . Fi thian's rain-on-the-roof analogy, it does
seem it is a lot bettert o workt hese things out when you arenot in
a crisis at mosphere, rathert han once somet hi ng happens.
The ot her point I was glad to hear about was you r statement
that t he compartmentalization in the interests of secu ri ty in the
CIA has been apparently broken down t o some extent . Excessive
compar t mentalization seems t o be one of t he reasons we got into
the Nosenko problem, where a small group holds t hatinstallation
closely.
And also where you have successful compartmentalization you
cannotdo what Mr. Faunt roy was talki ng about , use the taskforce
approach, where you can draw on all the different relevant pieces
of expertise in your Agency. I think t hat is a very forward step,
t hatyou have broken that down.
Let me as k if, in breaking it down, do you feel you had to
compromi se securityin any way?
Mr. CARLUCCI. It is a difficult quest ion t o answer, J udge. It isa
question of balancing equiti es. To t he degree that you make infor-
mation more available t hroughout theAgency,you do increase the
risk of compromise. On t he other hand, I feel very strongly and 1
know t he Director does, that we have an overall management
responsi bili ty, and that requires us to see that one part of the
Agency is working in cooperationwithanot her partof theAgency,
and t hat means making information more re adily available. It
means setting upcommon systems.
We stillhavea numberofdifferentfilingsystemst hroughout the
Agency. I think there are as many as 23 different systems thatwe
have to search through for Freedom of Information Act requests,
for example. There is, I think it is fair to say, a much broader
exchange of informati on throughout t he Agency, pa rticularly at
senior levels, than there ever has been in t he history of the
Agency, and the Director and I are working hard t o see that
exchange is increasi ngly effective and increasingly translated Into
improved management.
Mr. PREYER. I congratulateyou on that.
Thankyou, Mr. Chairman.
ChairmanSTOKES. Thankyou.
The gentleman from the District of Columbia, Mr. Faunt roY'
Mr. FAUNTROY. Thankyou, Mr.Chairman. e
I would like now to solicit your response to questions which W
tenderedearliertoday to theFBI Director.
87
1964 the President created the Warren Commission to look
. Int he President Kennedy assassination, and in effect it shifted
onUS ofdecisionmakingin conductingan investigationfrom the
t
etice Department , from the FBI to the Commission. My question
J
.US
do
you think that a similar agency should be created in the
IS .. d?
f 'ture or comrmssione .
UMr 'CARLUCCI.I would think thatwould depend very much upon
e circumstances. If the assassin survived you would obviously
the quest ion of protectinghis interestsin a trial, and I do not
knoW how much the Commission would prejudice his interests in
thetri al.
Should we have a situation such as existed after the assassina-
tion of President Kennedy? I would certainly have no problems
with the t he Commission approach. All agencies of Government
should be directed to cooperatefully with itandprovide itwith all
necessary information. I think the matteris sufficiently important
that it should be delved intoby impartialexperts.
Mr.FAUNTROY. Letus take a look atanotherway of handlingit.
ThePresident recently signed legislation authorizing the appoint-
mentofa special prosecutorin certain mattersinvolvingtheinteg-
rity of the President and related officials. Should this type of
legislat ion be extended at least to Presidential assassinations, in
yourjudgment?
Mr. CARLUCCI. Congressman Fauntroy, I am not a lawyer and
have not had much experience with prosecutors. My own personal
reaction is that the Warren-type commission group is more appro-
priate. I t hink it gives you a broadersetting, itgives more flexibil-
ityin terms of whatyou cango into with theagencies, andI think
you can enjoy broad credibility. We have had some success with
special pr osecut ors,butI thinkthatcanbe overdone.
Mr.FAUNTROY.Thankyou, Mr. Carlucci.
Chairman STOKES. Thegentlemanyields the balance of his time.
Thegentleman from Indiana,Mr.Fithian.
Mr.FITHIAN.Thankyou, Mr.Chairman.
Mr. Hartsuggested thatwe not believe Nosenko, basically, with
to the Oswald story. Particularly,.he said it was incredible
RCmnot true because he did not believe, as a CIA person, thatthe
would nothaveinterviewedOswald.
y Myquestion is simplythis. As an official of the Agency, whatdo
;:u recommend this committee do with regard to Nosenko's testi-
ony?Should we believe it or shouldwe notbelieveit?
wJhell; if you care to comment, if we should not believe that,
ISofcourse whatthiscommitteeis all about,thenshouldwe
leveanything elsehehadto say?
twMr. Sir, Mr. Hart's testimony made a distinction be-
U
hlS.
testimony on this particular aspect of his life in the
Ir rnon andothermatterson whichNosenkotestified.
cent indicated, if I remember correctly, that this was not a
tio
n
ra; feature of the interrogation process. In fact, the interroga-
Peo process was designed to expose him as a double agent, and
at that point in time at least were not terribly concerned
It .e Oswaldtravelsto theSovietUnion perse.
gati hlllk Mr. Hartalso indicated thatatthe outset of the investi-
on there were certain translation problems, certain physical
88
89
problems that Mr . Nosenko had, and that in the light of all of this
he would be inclined to discount the specifics of his testimony On
Oswald.
I do not think that t his calls into challenge the credibility of
everything else Mr. Nosenko said. In fact as Mr . Hart indicated he
did provide the Agency with some very valuable information, info
r
.
mation that turned out to be correct.
Finally, as I indicated, his services to the Agency, today, are
generally describing the at mosphere and general techniques t hat
are used by the CIA, and do not get into specific quest ions.
Mr. FITHIAN. I am troubled a bit more by one part of t hat
comment, I guess, than I was when I started out on this quest
Perhaps we see the whol e issue of assassinations as somet hing
more than a narrow focus, because that is the main purpose of the
committee, but I would argue the case historically that when t hey
were firs t interrogating Mr . Nosenko, whe n the Warren Commis.
sion was operating, that the request for all the facts surrounding
the President of the United States would have been ext raordinarily
important, and therefore could reasonably be expected if t he CIA
was on the ball to be a very, very important question as to whether
or not the person who has just been killed himself and who had
previously been the chief suspect of having killed the President,
that what he did or did not do in Russia would be a terribly
important thing to the CIA.
Therefore, I could not pass it off as being not as important as
some of the other things you are going t o tell us, unless I am to
agree that in your methods, your process and your sources are
more important than the assassination of the President of the
United States. That woul d bot her me deeply if we were t o close out
the investigation on that note.
Mr . CARLUCCI. If I may clarify, I think I was describing Mr.
Hart' s testimony to you, and I believe he was describing a factual
situation. I was certainly not passing judgment or giving ap proval
in any sense to the way Mr. Nosenko was inte r rogated or handled.
Mr. FITHIAN. I was not referring t o the way he was handled,
either, in terms of the focus. I am just trying to focus in on the
impor tance to t he count ry of t he individual s that the CIA had In
its hands at the time.
Mr. CARLUCCI. I would not disagree with you. I suppose if I
been making the interrogation and happened to have the expert
1s
d
necessary to do that, I would have liked to be able to say I woul
put more emphasis on t he Oswald quest ion, but I think the facts of
the matter are that those in charge of the interrogation at t hat
time did not put that much emphasis on it .
Mr. FITHIAN. One further qui ck question, Mr. Chairman, and
then I will subside.
What I am trying to get at is whether or not the philosophY
the CIA has changed basically from 1964 to 1978, and that is
Is the protection of a source more important , in that case and
future cases, than any possible assassinations of the Presiden;.
When it comes down to a real crunch it is more important 0
protect that source than it is to cooperate with the Warren
mission who is trying to get at the story of the killing in t
United States.
l\1r CARLUCCI. I don't know that you can give a categorical
t o the protection of sources, but let me indicate to you quite
ar
s
rly t hat there have been instances where we picked up infor-
c on potential violence, and in order to protect people we
a
ll1
ve
put a source in jeopardy.
hayOU have to weigh the merits in every case, and in the case of
e Warren Commission I don 't know that people were protecting
thurces. My understanding is that the information on Cuban activi-
was not provided simply because people didn't make the link-
a e between the two.
gI don' t know. I was not around, but I don 't know that it was done
to protect sources. Certainly, as I indicated to you earlier, we would
make every effort to turn over all information to the Warren
Commission, and in many cases to conduct an investigation you
don't need to know the source if you have the information.
That is one of t he fundamental principles of intell igence, why we
put out intelligence reports in such a way that we give out the
information yet withhold the source. Where it became important
for such a Commission to know the source and were the source to
be in a sensit ive position, my judgment is that in all likelihood we
would probably tell them but request that the source be protected.
They could then protect the source and base their judgments
with some confidence on the information that they receive from
the source. So the answer is that we would certainly be as forth-
coming as possible, recognizing that in some instances you really
may be put t ing people's lives in danger, and you have to make a
judgment call in each one of these instances.
Mr. FITHIAN. Thank you, Mr. Chairman.
Chairman STOKES. The time of the gentleman has expired.
Mr. DODD. Mr. Chairman?
Chair man STOKES. The gentleman from Connecticut, Mr. Dodd.
.M:. DODD. I would like to follow up on that same line that Mr.
FIthIan raised and, without in any way at all encroaching upon
may be security matters, there was at a time of the assassina-
or short ly thereafter, a photograph of .an individual who was
ongInally identified as Lee Harvey Oswald in Mexico.
t tbseqUent ly, the identification of the individual turned out not
Lee Harvey Oswald, but over the past 12 or 13 years there
M been all sorts of speculation as to who that individual was in
exlCo at t he time.
thaTto . knowledge, has the Agency ever been able to identify
IndIVIdual?
Mr. CARLUCCI. No, sir; we have not.
caMr. DODD. The reason I raise it is that it falls into the same
tiotegory as Mr. Fithian's question with regard to the whole ques-
t of.sources and information.
CUr' thInk you adequately responded to his question, but I was
MOlls as to that specific piece of evidence.
Mr. CARLUCCI. No, we have not been able to ident ify that person.
T r. DODD. Thank you.
Cha!lk you, Mr. Chairman.
Aflal: man STOKES. Any other members seeking recognition?
tIght .
90
Mr. Carl ucci,on behalfofthecommittee,we want to express0
appreciation for your appearance and your testimony here toda
Ut
Also, I want to acknowledge the cooperat ion t he committee h'1,
had from you, Admir al Turner , Scott Breckinr idge and others
we have had t o negot iate many mat te rs relat ive to access.WehavS
met many t imes,andwe appreciate t he cooperat ion we have
from you.
Mr .CARLUCCI.Thankyou,Mr. Chair man.
Chairman STOKES.Mr .Blakey says he hopes it cont inues through
t he final report.
All right.
There bei ng no further wit nesses to come before the committee
today, t he committee will adjour n unt il 9 o'clock tomor row rnoi-,
ing,
[Whereupon, at 3:35 p.m., the Select Committee on Assassina_
ti ons adjourned, to reconvene Tuesday, December 12, 1978, at 9
a.m.]
LEGISLATIVE AND ADMINISTRATIVE REFORM
TUESDAY, DECEMBER 12, 1978
HOUSE OF REPRESENTATIVES,
SELECT COMMITTEEON ASSASSINATIONS,
Washington, D.C.
The select committee met, pursuant to notice, at 9:10 a.m. in
room 2172, Rayburn Building, Hon. Louis Stokes
(chairman ofthecommittee)presiding.
Present : Representat ives Stokes, Preyer, McKinney, Fithian,
Dodd, and Edgar .
Chairman STOKES.Thecommitteewill come to order.
This morning our opening witness will be Mr . H. S. Knight, the
Director ofthe U.S.Secret Service.
Good morning,Mr. Knight,andwelcome to ourcommittee.
Atthist imeyou mayproceedin anywayyou sodesire.
STATEMENT OF H. S. KNIGHT, DIRECTOR, U.S. SECRET
SERVICE
Mr.KNIGHT.Thankyou,Mr .Chairman.
I do have a very briefopening statement, but before I get into
that, I feel obliged to comment on the relationship between your
staff,headed by Professor Blakey, and the people with whom they
workedin my organization.
I would characterize it as one of the best relationships I have
seenin my long service in the Government. They were responsible
and professional at all times, and we appreciate that very, very
much.
Chairman STOKES.Thankyou verymuch.
Mr.l(NIGHT. I am pleased to have been invited to be here today.
ISecalways appreciate the opportunity to discuss the mission of the
ret Service. . .".'
.Befor.e we begin, perhaps it would be helpful for'me'to summa-
bnefly the history and responsibilities of our organization.
ag e Secret Service is the oldest general Federal enforcement
in the United States. It was established on July 5, 1865,to
all the counterfeiting ofU.S.currency.
feT?at duty,al ong witht he suppression oftheforgery and counter-
of any U.S. Government obligations, such as checks and
remains a large portion of our mission today. We were
De Ished as, and we remain, an agency of t he U.S. Treasury
Partment .
the Nation's only general Federal law enforcement agency
t he late 19th and early 20th centuries, the Service investi-
many mattersin response to requestsofvarious departments
(91)
92
of the executive branch. Cases ranged from espionage to imrnigr
t ion;violati ons of statutesfrom theSherman Anti-TrustAct to th'
HomesteadAct. e
Immediately priorto WorldWarI,theService investigated viola
t ions of U.S. neutrality in connection with the war in Europe.
the early twenties, Secret Service agents investigated the Teapot
Dome scandal.
Our Presidential protective responsibilities began following the
assassination of President McKinley in 1901. Since then, t hese
duties have expanded. Presently, the Secret Service has 17 perIna,
nent protective details, covering the President, Vice President,and
their wives and families, as well as former Presidents, their wives
andwidows.
In the last Presidential election year the Service protected 12
Presidential candidates or nominees, as well as one Vice Presiden.
tialcandidateandtwo Vice Presidentialnominees.
While under our protection, these individuals visited 4,574 cities
and towns throughout thecountry, involving majorstops at a total
of13,491 separatelocations.
The Service also protects foreign officials, primarily heads of
stateand heads ofgovernment, who arevisit ing the United States.
During fiscal year 1978 we provided security for 126 foreign digni-
taries who traveledto 327 Americancitiesandtowns.
The duration of foreign protectee trips to the United States
varies greatly, butin the pastwe have found they average about 5
days.
In addition to its headquarters here in Washington and its pro-
tective divisions, the Secret Service has 62 field offices and 38
residentagencies located throughoutthecontinentalUnited States,
HawaiiandPuertoRico.
A Secret Service office is also located in the American Embassy
in Paris. Besides supplementing protective detail personnel as
needed, agents assigned to field offices carry on the invest igative
activities of the Service in the areas of counterfeiting and forgery,
as well as threatsto thosewe protect. .
There are currently 1,554 men and women serving as
agents of the Secret Service. Our uniformed division, which IS
responsible for the protection of the White House, Vice President'Z
residence and diplomatic missions of foreign governments, has 86
I
officers.
I
Supporting these operational pers onnel are 1,149 other employ-
ees.Total personnelemployedby theSecretServiceas ofDecember
6, 1978,was 3,565.
These numbers have expanded considerably in the past 15 years
to enable us to continue to perform our mission effect ively In
response to ourincreased protective responsibi lities. .
Security of former Presidents, their wives , widows and mlDO
r
children, as well as that of major candidates and nominees f0
1
President and Vice President and foreign heads of state, have al
beenaddedto ourprotectivemission duringthistimeperiod. he
In addit ion, our uniformed division, formerly known as t e
White House Police, has been charged by law since 1970 with th
protection of foreign diplomatic missions in the Washington metrO-
politanarea.
93
l\1r Chair man, I have endeavored to give t he committee a brief
rv"iew of the Secret Service. We view our protective responsibil-
ft1:s as being among the most serious t hat can be assigned to any
and will to do! our utmost t o perform
seduties III themost effect ive way possible.
thfwould be pleased t oanswerany quest ions you or yourmembers
mayhave. .
Chairman STOKES.Thank you verymuch,Mr.Kmght.
Thecommittee will now operateunderthe 5-minuterule.
Mr. Knight, I suppose the basic concern of all of us is that no
matter what all of us do, and particularly with reference to all of
ourlawenforcementagencies, all the precaut ions taken, there is a
general feeling that ultimately ifanindividual really wants to kill
the President of the United States, that there is perhaps nothing
that can be done to stopthattragiceventfrom occurring.
So, basically I guess the question I really want to pose to you is
canwereallypreventtheassassination ofa President?
Mr. KNIGHT.I thinkourphilosophy, Mr. Chairman, is thatthere
are a number of potential assassins, ifI can use thatword, whom
we can stop, whom we can thwart. We can putenough hurdles in
their way to make it, ifnot impossible, certainly exceedingly diffi-
cult,and for that reasonwe feel we have beeneffective.
Chairman STOKES.Mr. Knight, how abouttheAttorneyGeneral's
guidelines of domest ic security investigations? Have they had an
adverse effect on this service or the FBI's ability to prevent polit i-
calassassinations?
Mr.KNIGHT. We thinktheyhave, Mr. Chairman. We candemon-
a decrease in the quantity. Now, the other side of that coin
18 whataboutthequality. Thatis a much moredifficultassessment
tomake.
I think Judge Webster yesterday testified thatthey have signifi-
fewer infor mants in place. It strikesme thata resultof that
IS sIgnificantl y less information. It is very difficult to prove what
youarenotgetting.It is like tryingto provea negative.
I am not sure I can quantify that for you, but as a general
propositionI wouldfeel it hashadaneffecton it .
STOKES. Thank you very much. I have no further
questIons atthis time. : ','""
Thegentleman from NorthCarolina,Mr. Preyer. .,' ,-"
feMr. PREYER. Following up on the chairman's question, that you
ate: thatthe guidelines must have a negative effect on the quality
Se east oftheinformatiorryou get, canyou give us anyexampl e of
prcret or FBI conduct which in fact contributed to the
of a political assassination which is no longer possible
Mer theguidelines?
Mr. KNIGHT.I amnotcertain I can,JudgePreyer.
You r. PREYER. I realize that is a pretty tough question. Perhaps
Mcould give us a hypotheticalexample.
are r. KNIGHT.. Well, let me offer these observations for you. We
WIth preventing something from happening. We have
Zero Ifany, marginfor error. In effect, we aretryingto runa
eLect operation.
94
95
Now, it strikes me that the best way to prevent something frolb.
happening is to know beforehand who is planning what, when
where, and how. '
Now, that is a very, very difficult political and philosophical
dilemma, as to what a Government agency should do in terms of
arming itself with the information it feels it needs, but at the same
time not infringing on first amendment rights of all the citizens. It
is a very difficult problem to decide.
Mr. PREYER. Along the same lines, in 1976 the Attorney General
issued guidelines on the FBI' s handling of informants. That was in
answer to charges of serious misuse of informants.
What effect do you think these guidelines will have on you-
ability to prevent future assassinations?
Mr. KNIGHT. I think that goes just exactly to what we are talking
about. We no longer get information on groups that we think We
should be receiving.
I would be reluctant to name specific groups. But those that urge
violence, those that publish tracts describing how to make bombs
and Molotov cocktails, I think those are the groups that we are
interested in-and their potential danger to the people we protect.
Mr. PREYER. I think it might be pointed out that before t he
guidelines were put into effect, President Kennedy, Robert Ken-
nedy, George Wallace and Dr. King were all shot or assassinated.
I hope it does not make it more likely that we would have future
assassinations as a result of the guidelines.
We now have charter legislation pending in both Houses of Con-
gress to authorize and to prevent abuses of domestic security inves-
tigations, as you know. Those guidelines deal with the use of
informants, with the use of wiretapping.
Should the Secret Service be included in these charters?
Mr. KNIGHT. I am not sure I understand yet whether your ques-
tion is directed to a charter governing the Secret Service conduct
or whether the Secret Service should be heard in connection with
the charter being written for the FBI.
I am not sure which way you are coming.
Mr . PREYER. I was thinking of whether there shouldn't be a
charter for the Secret Service. Certainly you should be heard on it.
But I am wondering whether a charter should be written for you as
for the FBI.
Mr . KNIGHT. I would have no objection to that. We have operated
for 113 years in effect without a charter. I know of no problems in
terms of accusations of abuse of power that have occurred in that
time. But I certainly wouldn't dismiss it out of hand.
Mr. PREYER. Incidentally, I thought your recounting of your
tory here was very interesting. I don't think the general pubhC
realizes the evolution of this agency. Very few of us still think of
you in terms of counterfeiting as your main occupation.
I think the public views you as primarily a security agency, since
that is where the public visibility occurs.
If we worked out a charter for the Secret Service, just as we are
working on charters for the FBI, what is the best way to approach
such a charter? Should the executive agencies issue guidelines
subject to a congressional veto?
Is that the best way to do it, or should the Congress work out
cific legislation, getting input, of course, from the executive
pe
s
d part men
t?
.
KNIGHT. I would be satisfied with either, with the under- e
Mr
.
tanding that whether writing guidelines in the executive branch
legislation in the congressional branch, specificity is very diffi-
cuf\ hink we need some latitudes for exigencies that cannot be
foreseen at the time of writing either guidelines and/or legislation.
Mr. PREYER. Thank you, Mr. Chairman. I see my time has
expired.
Chairman STOKES. The time of the gentleman has expired.
The gentl eman from Connect icut , Mr. McKinney.
Mr. McKINNEY. Nice to have you here, Mr. Knight.
When you receive information from the FBI, is it information
that you request or do they, as a matter of form, hand information
over to you?
Mr. KNIGHT. Well, we have a letter of agreement between the
FBI and ourselves as to what they will furnish to us.
Mr. McKINNEY. One of the problems, I think, that the American
public and this committee has had is that in the tragic shooting of
the President , Lee Harvey Oswald had passed before a great many
governmental eyes, so to speak-the St ate Department obviously,
the CIA, t he FBI. Yet there was very little official interagency
communicat ion on that subject.
Is t here anyone specifically in your organization that requests
information from the FBI, or collates it or collects it and looks for
things that might be missing?
Mr. KNIGHT. Absolutely. We have a staff of intelligence research
specialists whose primary and sole responsibility is to receive infor-
mation from not only the FBI, but other Federal enforcement
agencies, State and local enforcement agencies, and their responsi-
bility is to analyze, assess and evaluate this information as it
relates to Our responsibilities.
Mr. McKINNEY. Do you carryon the same type of liaison with
the State Depart ment and the CIA? . :
Mr. KNIGHT. Yes, sir, we do.
p McKINNEY. So let me pick a hypothetical sit uation, say the
rWe sldent was going to Miami. It has a large immigrant population.
ould you as a matter of course, contact the ,FBI, the State
and the CIA to see if they were aware' 'or-Any problem-
a teal activit ies there?
I t
Mr
. KNIGHT. You asked me about three different agencies, and
e me deal with them in one, two, three order.
wIn the event of a trip of the President to Miami, the first thing
would do is notify our agent in charge, in our Miami field office,
o would then notify his counterpart in the FBI field office.
teAs YOU are aware, and without getting into technigues, we send a
am of agents out to that city prior to the President s visit.
reOne of that team is an intelligence agent whose sole
lb. IS to contact the FBI and everyone else in that com-
that may have information of interest to us.
YoIt IS a constant daily meeting prior to the visit. Does that answer
ur question on the FBI?
96
97
Mr. McKINNEY. Yes, it does.
Mr. KNIGHT. Now, on the others, there may not be a specific
request relating to a specific trip. However, there are constant
daily conversations between the CIA and ourselves and the State
Department and ourselves relating t o information which Inay
affect our responsibility.
Mr. McKINNEY. Do you feel it would be of any value to have a
top echelon board of, say, those four different agencies that would
be in constant communication?
Mr. KNIGHT. I would certainly not be adverse t o t hat . I would
endorse that policy, with the understanding that I am not implYing
what we currently have in place is less than satisfactory.
Mr. McKINNEY. We found t hat one of the problems we had with
the CIA in the Nosenko case was that the CIA at that point was so
tremendously compartmentalized that sometimes the left hand
didn't know what the right hand was doing. So, you woul d not
object to that type of board.
Mr . Chairman, I have no more questions but, I must make a
comment.
I was riding with President Ford when t he Har tford police forgot
about a green light. I don't know what you do to keep your agents
in good shape, but they move awfully fast. I learned never to follow
your natural human instincts when you are with the President ,
which is t o open the door and get out of the car , because I was put
back in the car in a hurry. But I thank you.
I think several of your agents aged about 10 years that night
when they saw that car come flying into the President's car. I
know I did.
Chairman Stokes. The time of the gentl eman has expired.
The gentleman from Pen nsylvania, Mr . Edgar .
Mr. EDGAR. Thank you, Mr . Chairman.
We have been listening for just a few moments t o your opening
statement and your responses to speci fic quest ions. I wonder if you
might respond to a more general question t hat relates to given all
that we know about the assassination of President Kennedy, and
the changes that have been made by the Secret Service, the FBI,
t he CIA, the State Department, and all the other agencies that
have some responsibility in dealing with the President's safety. Are
there"any specific recommendations that you would make, either
legislatively or policywise, that would be helpful for this committee
to consider in an overall general way that perhaps have not been
asked as of yet?
Mr . KNIGHT. I think I can reply in two areas, Mr. Edgar.
There is currently title XVIII, section 871; making it a Federal
crime, over which we have jurisdiction, to threaten the life of the
President or the Vice President.
That is a very good tool for us in terms of our protective respon-
sibilities, but it applies onl y to three or four of the people that W
d
protect. We would be very pleased to see that 871 statute
to all the people we protect, which would give us a better tool In
terms of all the people we protect. .
There is al so currently sect ion 1752. This relates to establishulg
a secure zone around the President, the will ful and knowing pene-
at io
n
of, which is, in effect, a misdemeanor but gives us an
to intercept someone under those circumstances.
a We would like to see 1752 applied to all the people we protect .
Mr. EDGAR. Are there any procedural modifications or refine-
ents that you would suggest in such things as the immediate
after an assassination, or are the lines of communication
the ot her agencies sufficient that no changes need to be made
in the procedures?
I I am thinking of all of the problems we had in Dallas with
confusion, and just the problems of in whose jurisdiction the body
was whose j urisdict ion it was to do the investigation in the early
and the relationship with the local police authorities.
Are there any refinements of those tools that you can suggest?
Mr. KNIGHT. I have one concern, and t hat relates to title XVIII,
section 1752, which is the Presidential assassination statute. I have
a different feeling about that statute, and perhaps Mr. Civiletti this
afternoon can clarify it.
But it is my understanding that in the event of an assassination
or assault, there must be an affirmative action to assert Federal
jur isdict ion, and this must be taken by the Attorney General.
I would feel much more comfortable if that was an assumption or
a presumpt ion immediately upon the act rather than waiting for
whatever time frame might be necessary for that affir mat ive act to
take place.
Now, expanding further on that, from a practical standpoint, if
such a tragedy occurs, our instructions to our people are to assume
that Federal presence will be asserted and we will proceed on that
unt il we are advised otherwise.
Mr. EDGAR. That is a new procedure that was not in place in
Dallas, is t hat correct?
Mr. KNIGHT. That is correct. Of course, at that time it was not a
Federal crime.
Mr. EDGAR. The President is shot. What does the Secret Service
do at that moment?
Mr. KNIGHT. Two things. First, we immediately take the Presi-
dent .to, I will not say the nearest hospital; because that may be a
hospItal not equipped for the accident. We preplan which hospitals
arhe along t he route. Wherever we are, we know which hospital has
W at facili ti es.
we evacuate the area, take him to the nearesf equipped
At the same time, our plans call for us to secure the scene
unt ll the FBI can arrive.
thMSr. EDGAR. So that securing of the scene is the responsibility of
e ecret Service?
c !vir. KNIGHT. As we understand it, until the FBI arrives. Any
n Ine scene.
ti Now, Judge Preyer indicated earlier that we do have investiga-
s ve responsibilit ies. I think it is important for people to under-
t hat we are primarily a criminal investigative organization.
l' yoU will permit me, as a measure of what we have accom-
Ished, last year we had over 12,000 Federal felony arrests. Then I
ar
Ust
hu r riedly add that the conviction rate was 95 percent. So, we
Whdeahng with well-trained, highly skilled criminal investigators,
o can secure a crime scene.
98 99
Mr. EDGAR. Let me askyou j ust a couple of additional quest ions
and then I will yield backto my colleagues. '
Are there interagency regulat ions established that are available
t o t his committee describing what will be done to freeze the crime
scene and who will do it, how you will do it as the SecretService?
Mr. KNIGHT.I amnot certainabouthow you do it.Thatgets
specifics. But there are agreements between us and the other Fed.
eral agencies as to who is responsible for taking what actions and
whatresponsibilitiesaregoing to be borneby whatagencies.
Those,ofcourse,certainlycould be madeavailable.
Mr. EDGAR.Does t hat describe how theFBI is notified?
Mr .KNIGHT. Well, yes, it would.
Mr. EDGAR. I yield backmy time.
Thank you.
Chairman STOKES. The gentleman yields back the balance of his
t ime.
Mr. Knight, I was interested in the figure you just quoted of
12,000arrestsandsomet hing like95-percentconvictions.
Mr. KNIGHT.Correct,Mr.Chairman.
Chairman STOKES. Can you give us some idea of the type or
gamutofcrimesinvolved in the12,000?
Mr. KNIGHT. This would be for violations of the counterfeit ing
laws of the Uni ted States, forgery laws, 871, which is the threat
statute, whichI mentionedbefore, andsomebankinglaws.
ChairmanSTOKES. I see.
One of t he concerns of t he committee was some test imony re-
ceived duringthecourse ofourhearings withreferenceto activities
of the agents t he ni ght prior to the assassinat ion in Dallas, and
some testimony to theeffect t hattheagents were up late partying,
andperhapsdrinking andt hatkind of thing.
At the same t ime, to put it in balance, we had testimony that
said thatwhatevertheactivitieswere, ithadno bearingupon their
ability to be able to react to the event which occurred there.
My question t o you would be What procedures have you estab-
lished, if any, with reference to the activities of agents who are
assigned t o t he President relat ive to their activities t he night
beforeandthat type ofthing?
Mr . KNIGHT. As I recall the summary report of the Warren
Commission, t hey looked into the allegat ion of whether or not
t here had been drinking-whether or not they had been up late I
think was given .That was understood.Butmy recollection of read-
ing the Warren Commission reportis t hat therewas no evidenceof
any drinking.
Now, to respond to your question, I thinkwe are talking abouta
different era, a different time frame. It is just understood
everyone will be fit to work whe n t hey report-keeping in mInt
t hat they may well be so tired afte r the day that they are no
about t o leave.
The hours that these men and women put in are t remendous.I
don 't know of a more dedicated, conscientious group. But perhaps
thegreatestdeter rent to activitysuch as you havedescribed is peer
pressure.
They all recognize the awesome responsibility. I don't think any
f the members are going to let one or two deviate from what
o ndards t hey feel they need in orderto dotheirjob.
SUChairman STOKES. We also had sometestimony with reference to
rhaps some laxity on the part of the Service in terms of having
outhigh buildingsin theDealeyPlazaarea.
C Ofcourse, in yesterday's I commentmade
byPresident KennedythatIfsome potentialassassmhadgottenon
high roof,thathe could kill anyPresidenthe wantedto.
a Can you give us some idea of what procedures are now in effect
tocheck out that kind of situation, the high buildings and rooms
suchas t he Book Depository in DealeyPlaza?
Mr. KNIGHT. I can assure you at least in public session that we
doengage in what we call routesurveys. I would be reluctant in a
publichearing to getmorespecific t han that.
However,I would be very pleased to do itin anexecutivesession,
toset your mind atease as to exactly and precisely the techniques
andwhatwe do,andso forth.
Chair man STOKES.I canappreciatethat.
Another concern I guess we have is thatduringthecourseof the
King hearings there was evidence received that Dr . King was also
under domest icsecuritysurveillanceby theFBI.
Then subsequent t o his death the same agency was assigned the
task of invest igat ing the assassination of a man whom they had
hadundersurveillance.
The quest ion that comes t o mind is, In order to assuage the
public's mind with reference to situations of thatsort , is there any
provision under the law where the Secret Service could come in
and conduct such an investigation, so that it would remove any
type of impropriety of the same organization investigating the
death ofa person whomtheyhave undersurveillance?
Mr.KNIGHT.We have no suchauthority, Mr. Chairman.
Chairman STOKES.Thereis no such authority?
Mr .KNIGHT.No,sir.
Chair man STOKES.I see.
OK.Ihave no furtherquestions atthistime.
gentleman from NorthCarolina, Mr.Preyer.
r , PREYER.Thankyou, Mr. Chairman.
1'1 was interested in yourcommentson the assassina-
Ion.statute which you made to Mr . Edgar. That statute does not
SpeCIfy who mustrequestassistancefrom theotheragencies.
.as I understand it , thatthe FBI will be in charge of the
Se and assistance may be requested from the
rnckret Servics , the military, and other agencies. It doesn'tsay who
a es therequest.
woAi i understand it, your understanding is the Attorney General
M make sucha request.
he r. KNIGHT. No, I think-well, yes, yes, that is correct. I think
sho makes the decision as to whether or not Federal presence
the Ul
ld
be asserted. Thatis where we differ in ourinterpretationof
aw,
.. PREYER. Since the statute leaves that nonspecific, theoreti-
Y It could be either the Attorney General , the Director of the
100
FBI, or the President who makes t he assertion of FederaljuriSdi
tion.
Mr. KNIGHT. Yes.
Mr .PREYER.It might be well t ospecify thatin the statute,would
it not?
Mr. KNIGHT.I would t hinkso,yes, si r .
Mr. PREYER. The stat ut e dealing with the murder of forei
officials, which is 18 U.S.C. 116,does specify thatitis t he
General.
Mr.KNIGHT. Yes, sir .
Mr . PREYER. So t hat by implication, per haps, you are right in
saying itwoul d be theAttorneyGeneral.
Those statutesalso saythatthe assistance of otheragencies rna
be requested. It doesn'tsayanythingaboutagencies being
to comply withtheassistance.
If you make it specific thatthe Attorney General is the one,for
example, who invokes Federal jurisdiction, do we need to make it
mandatory that the agencies comply with the request to investi.
gate?
Mr. KNIGHT. I can't speak for the other agencies, but I would
assume thattheir response would be t he same as mine; thatis,we
would respond to any request. Thatwould notbe a debatable item.
Mr. PREYER. Well, I should thinkthatwoul d be ri ght. But doyou
thinktherewould be anysituation where therewould be classified
infor mation thatyou had, information relatingt o yourinformants,
for example, which you would not want t o give to the FBI or to
anybody else?
Mr .KNIGHT.I can'tconceiveofthat,Judge Preyer .
Mr. PREYER. If a President is shot , going back to Mr. Edgar's
example, andyou areon thescene, you would be firston thescene,
the first Federal presence certainly. Do you feel you have the
authorityto freeze thesceneatthattime?
Mr. KNIGHT. As I indicated, we would certainly do that from
very practical standpoint because those initial moments are criti-
cal. We would do iton thebasisthatwe areassumingthatFederal
presencewill be assertedandthat1751will be in effect.
Mr. PREYER. What about the timelag between asserting the Fed-
eral jurisdiction? I believe you indicated that was a matter of
concern to you andthatyou thoughtthestatuteshouldimmediate-
ly haveeffect.
Mr. KNIGHT. Yes, sir, I do. As a matterof course, when we have
our meetings with the State and local enforcement agencies
are assisting us in any visit of the President, that matter is IS'
cussed. 1
We makeitclearatthatt ime thatwe areassumingt hat
presence will be asserted and thatwe will need their assistanceIII
securingthescene. d
Mr. PREYER. Well , what about your relations with the local
State authorities? Is there any sort of interagency agreement n
O
\
as to howyou handlethat? r
e
What if local law enforcementauthorities, as I understand th
hllt
was an effort to do in the Kennedy assassination, indicate t 'I
t hey have the control over the body of the President and caJl
release it ?
101
Mr KNIGHT.Of course, as you are aware, with President Kenne-
it 'was not a Federal crime to kill the President of the United
dY It is now. Perhaps more germane is those folks who we
Statect who are not covered by 1751. There I t hink you have a
proch difficult situation as to who will be the investigating
rJl
d
cont rolli ng office.
n
II
It
st rikes me t hat thatshould be clarified. We would like to see
hatclarified.
t Mr.PREYER.Would you like to haveFederaljurisdiction mandat-
dto preempt State and local lawenforcementimmediatelyon the
eommitt ing of an assassination against any public figure, or how
fardown thelinewouldyou goon that?
Mr. KNIGHT. I think that is really a policy question and I am
perhaps not your best witness on it: It is a matter I think that
certainlyshould be exploredandconsidered.
As I understand it now, the possibility exists, in some of the
people we prot ect , where there might well be concurrentjurisdic-
tion.That is a Statecrimeas well as a Federalcrime.
Mr.PREYER. Well,thatwas goingto be my final question. Does it
concern you that if we mandate the Federal jurisdiction immedi-
ately appl y and exclude local and State authorities, in effect, that,
one,wecould be takingthe first stepthatwould eventuallylead t o
perhaps a Federal police force or ; two, we may be excluding some
expertise at the Stateand local level where you will find a district
attorney in a number of districts who has more experience in
homicide cases than anyone in theJustice Departmentwould have
had?
Mr.KNIGHT.Thatis a very realconcern. Forthatreason I would
be relucta nt to make a sweeping statement thatall the people we
protect ought to be covered by Federal statutes in the event of an
assassinat ion.
Mr . PREYER.Thankyou, Mr. Knight.
Chair man STOKES. Thetimeofthegentlemanhasexpired.
Thegentleman from Pennsylvania,Mr. Edgar.
Mr: EDGAR. Mr. Knight, I think we have covered a lot of terri-
10
1In terms of kindsofquestionsthatMr. Preyerhasbeenasking
an that I and my othercolleaguesasked.
t Iguess Our concern as membersof thisassassinations panel is to
figure outwhetherin lightof thecurrentand..recentassassi-
I?ns, and the changes that have been made that' you have
netImed, t hat you have at your disposal the kinds of resources
scecessary t o carry out your investigation, your freezing of the
selns, and that the lines of jurisdiction are clear between your-
{es,theFBI ,theAttorneyGeneral,andothers.
itcget from yourtestimony that as far as you areconcerned, when
queon:es to the Presidentof theUnitedStates-andtherearesome
offestlOns aboutothers thatyou protect-because that is a Federal
that you are pretty clear that the regulations, the under-
M ll{?S, andthelawsin placebasicallycoveryourneeds.
11r. NIGHT.Thatis correct,Mr. Edgar.
thinr. EpGAR. And thatwould include your need to contactand use
11
gS
Jike thearmedservices if it were of thatkind of magnitude.
r , nNIGHT.Yes, sir.
102
103
Mr. EDGAR. Some of our questions may sound a little bit
though we are nitpicking at minor points of concern. But I
you understand our problem in trying to together recom.
mendations to the Congress and recommendations to agencies in
lightofourlong seriesofinvestigativeconcerns.
One of my concerns is the quality of response in terms of the
captureandapprehensionofanassassin.
In your experience do you thinkthatyour agency is equippedat
this time, given the fact the FBI is not on the scene, to, in most
cases, given what we know-and I know each assassination is
different, but in most cases-pursue that particular event of the
actualcaptureof theassassinwithinmomentsfollowing theevent?
Mr. KNIGHT. Theansweris "Yes." .
Mr. EDGAR.Is there anythingthatyou would suggestin terms of
the investigation procedures after the assassination that might
improveyourefficiency?
Mr. KNIGHT. No; I am quite satisfied with the agreement We
have withtheFederal BureauofInvestigation. As you canappreci-
ate, one of our concerns, immediate concerns, is is this a conspir-
acy, are there others, and are our other protectees in danger from
othermembersofthatconspiracy.
Butour agreement permits us to work with the Bureau, I mean
on the scene, in person, in the conduct of thatinvestigation. Ijust
couldn't think of a betterarrangement than we have between the
two agencies.
Mr. EDGAR. Let me pursuejustsomething else thatcame out of
some comments you made earlier. I don't think I have ever met a
law enforcement officer who has requested of any legislative body
less authority to know information about groups or potential
threats or people leafletting and describing how to make bombs
andthings likethat.
On the one hand we have the need for that information to flow
as freely as possible through the agencies. On the other hand, we
havesomeconstitutionalrightsofprivacy.
We saw particularly in the assassination of Dr. Martin Luther
King thatsome agency activity, particularly in theFBI, was exces-
sive in termsof theirsurveillanceof Dr. King-atleastithasbeen
sharedwithus.
How do you walkthattightrope, thefine linebetweenyour need
to have information and a person's right to privacy in a free
society, in a democraticsocietylikewe have?
Mr. KNIGHT. As I indicated to the committee earlier, t hat is a
very real dilemma that I think we certainly face and you, in the
positionofbeinga lawmaker,face.
All I can tell you is that as long as we have been in business!I
am not aware of any allegations or violations that we have In-
curred. .
I guess what I am saying is our track record in this respect IS
very good. It may be frustrating attimes, but I am confident that
ourzealousness to do thejob is notgoing to cause us to be blinded
to therightsofprivacyandeverythingelse . .
I should tell you that I speak really from two directions. One IS
as a citizen of this country, albeit a naturalized citizen, and a
nt and one who cherishes those rights himself and for his
,
other hand, I recognize the position I occupy and the
that my organization carries, and in that sense I
re
s
a nar rower focus on theproblem.
ve
haSo I am torn between those two competingactivities, ifyou will.
1\1; EDGAR.Well, I appreciateyourstruggle. Thatis the struggle
hati have because I do thinkthatwe haveto be careful notto set
t a system of response that begins to move us too far in either
of t he directions, either so much in the direction of privacy
wehave no effective lawenforcement, butalso the protections
that we have under the Constitution, to move us so far in the
direction of nothavingtheabilityto be privatecitizens.
Thankyou. Iyieldbackmy time.
Chairman STOKES. The gentleman yields back the balance of his
time.
Thegentl eman from Connecticut,Mr. McKinney.
Mr. McKINNEY. Mr. Knight, I am still having some problems
with1751. In listeningto your responses to JudgePreyer,I assume
that you have some, too.
It seems to me thatthere is anareaof indecision thereandthat
we could solve all of this by justsuggesting to the Congress thatit
makethe Federal presence mandatoryatthetime.
There is not hing in the law that would state that that Federal
presence could notbe relinguishedlater.But thereis thatinterme-
diatet ime.
There is also, itseems to me, anareaof doubt thatcould evolve.
There also is nothing in the statute that says that the Federal
Government can'tcooperate with State prosecutors and officials in
theinvest igat ion.
Howwould you feel aboutmakingitautomatic?
Mr. KNIGHT. I would be much more comfortable with that, Mr.
McKinney. I guess again we are talking about a policy decision,
and perhaps Mr. Civiletti this afternoon will have, from the legal
standpoint ,moreto sayon that.
But it would remove for me what I think now is perhaps-andI
haMv
e
to emphasize perhaps-anuncomfortableinitialsituation.
. r.McKINNEY. Now I am going to give you a hypothetical
d
1tu
ll;tlOn because this fascinates me. As I said, I was in the Presi-
limousine when it was hit Hartford. I had been
idled1.nthatcarcrashbutthe Presidenthadsurvived? Would you
Cmmedlately have invoked thesame procedures? You don't protect
ongressmen,nobody protectsus.
yoIr had.been killedin thataccident, or seriouslywounded, would
thU invokedall ofthesameprocedureseven thoughyou knew
e resldent was well?
we
Mr
. KNIGHT. I think that is a fair assumption in the sense that
sib.f re there, andeventuallysomeone is going to have thatrespon-
i It.y.W,e would do itas a matterofcooperation.
thi Ifwe look atthereverseof thatandsaywe did nothing, I
11 t hat wouldbe mostreprehensibleconduct.
don,r.McKINNEY. Now I was going to askyou one more question. I
disct t o embarrassyou by thisquestion. Buttherehavebeen
USSlOns aboutthis, andit fascinates me.
104
105
The President is, of course, not only the leader of the country b
he is a political animal. The trip to Dallas was very definitelyI.lt
political trip. a
There have been many suggestions made in all the pages w
have been pouring through that various peopl e did not really
that the President should go to Dallas because it was sort of
hotbed of conservative thinking at that point . a
There was also a great deal of opinion that the President should
not go t o Dallas in an open top car and go cruising around in a
parade route.
Just what do you do when you don't think the President should
go where he says he is going to go? I know that Jerry Ford had a
habit, as did John Kennedy, of leaping out of your protect ion and
into a crowd once in a while.
I could look at the expressions on the faces of your men Who
were protecting him, and I could see that they were just going
berserk. But initially, before a trip is made, do you have any
official way of protesting the trip?
Mr. KNIGHT. As I indicated earlier, prior to any trip of the
President we send agents out in advance. At t he same time t here
are members of the President's staff, in that same capacity, in the
same city. We work together all the time.
Now, recognize that there may be a difference of object ive in
terms of our mission and the mission of the staff. But I think we
also must remember that the staff is just as concerned about the
President' s personal safety as we are.
So, there is constant discussion between the two groups as to
where the President will go, what he will do. I must say I find
them very cooperative.
At t he same time, I have to say we live in a democrat ic society.
You cannot keep the President totally out of the public view. That
is our problem.
Mr . McKINNEY. Are you allowed, by memo, t o say to the White
House, "We don't think the President should go to X community
because of certain problems"?
Mr. KNIGHT. I am not sure it is so formalized as t o be reduced to
writing, but there have been times in the past, and I presume in
the future, when we have strongly recommended that the Presi-
dent not engage in a certain activity or visit a certain place, and
that advice has been taken.
Mr. McKINNEY. Thank you very much, Mr. Chairman.
Chairman STOKES. Mr. Knight, let' s talk for a moment
extra territorial type sit uat ions. Let's assume that the Presiden! is
traveling in a foreign country and is assassinated in a foreIgn
country. The Secret Service of course is with him.
How do we operate under those circumstances? What type of
jurisdiction have you, et cetera?
Mr. KNIGHT. In regard to the latter part of your question, as to
what authority or jurisdiction do we have in a foreign count ry, we
are there as guests, if you will , of the host government. We have nO
authority extra territorially.
I should hasten to add, however, that generally we have ve.rY,
very good cooperation from the enforcement. agencies in foreIgn
nt ries. We have maybe had one or two problems, but generally
cOUaking it has always been very, very good.
SpChairdtan STOKES. Taking it just a little bit further, let's assume
t t he perpet rat or is a national of the foreign country.
h
What
would our rights be then with reference to that individual,
o posed t o, let's say, if it is in America?
as KNIGHT. I am not sure I am your best witness on that. I
think the Deputy Attorney General could respond to that better
than I could, Mr. Chairman.
Chairman STOKES. Coming back then to the States, and once
again talking a little bit about the assertion of a Federal presence,
assume you have a situation such as the Dallas situation, where
ou have a rather aggressive police chief, and one who invokes sort
totalitarian jurisdiction with reference to crimes committed in
that city. I have in mind, in particular, testimony that we received
with reference to the fact that during some 12 hours of interroga-
tion of Lee Harvey Oswald, there was no recorded interrogation, no
record of that interrogation.
How would you assert the Federal presence, where you had a
police chief who was fairly aggressive in that respect?
Mr. KNIGHT. I think a part of that is the planning that goes on
prior to t he visit, where, as I indicated in the enforcement meet-
ings that we hold, that our folks spell out the responsibilities so
that t here is a clear understanding beforehand as to who is respon-
sible for what .
Now to respond to your direct question, there are what, 17,000 or
43,000, depending upon whose figures you believe, police depart-
ments in t his country, and I woul dn't for a minute try to assure
you t hat , given the various personalities, there might not be from
time to time difficult ies, but I think generally we would do quite
well.
Chair man STOKES. Let me make some specific reference to the
President ial congressional assassinations statutes which provide
that t he FBI shall be the agency which investigates the crimes.
Those statutes provide further, and I want to quote from the stat-
ute: "Assist ance may be requested from any State, Federal, or local
agincy, incl uding the Army, Navy, arid Air Force, any statute,
ru e, or regulation t o the contrary notwithstanding."
Under those statutes, what is your understanding of who may
request this assistance? Is it the Director of the FBI or -the Attor-
ney General or the President? . ,, '
asMr. K.NIGHT. Request assistance for the FBI? It would be my
sumpt IOn t hat it is the Director of the FBI.
thChairman STOKES. I guess what we are really trying t o get at, is
s at .under 18 U.S.C. 116 covering the murder of foreign officials, it
uPeclfi es that it is the Attorney General who must request assist-
snee. from other agencies. 18 U.S.C. 1751 and 351 do not seem to
any particular person or agency, and the statutes on Presi-
renhal congressional assassinations provide that assistance may be
reqUested but do not require that any agency comply wit h such
( uest.
giv gUess what we are asking is, should the Service be required to
asse the FBI any and all intelligence information with reference to
aSSlnat ion.
106
107
Let 's assume that intelligence information comes to your atten
tion, with the FBI having primary responsibility in terms of
investigation. Should your agency be required to turn over any
intelligence information coming to you?
Mr. KNIGHT. If there is doub t in anyone's mind that we would
not do that, certainly I would have no objection to enact ing that
into law. But I would hasten to assure you that whatever we have
they will have, not only what they request, but anything t hat
think might even be connected with the crime.
Chairman STOKES. I see .
Mr. KNIGHT. In other words, it is not just a matter of responding
to specific requests as the fellow said. You have to ask the right
questions to get the right answers.
Chairman STOKES. Right.
Mr. KNIGHT. We would do just whatever we were asked, plus, in
the sense that we think t hese things might be of help, we would
certainly give it.
Chairman STOKES. Without any reason to withhold anything.
Mr . KNIGHT. No, sir.
Chairman STOKES. Thank you very much. My time has expired.
The gentleman from North Carolina, Mr. Preyer.
Mr . PREYER. Thank you, Mr. Chairman.
I would like to ask a few questions in the area of news policy,
where you have an assassination. The chairman mentioned t hat
the chief of police in Dallas was very aggressive. He was very
aggressive in his news releases al so, overly aggressive. The Warren
Commission criticized him and criticized the Dallas police, for hold-
ing press conferences in which they released pieces of evidence
which tied Oswald to the killing of the President and the killing of
Officer Tippett. If Oswald had lived and had gone to trial, that
would have raised some real constitutional questions about his
right to a fair trial, so the Warren Commission was critical that he
said too much.
On the other hand, when you have a Presidential assassination,
t he public undoubtedly has a higher right t o know than they would
in an ordinary homicide. The press does have a right to explain
what happened to the American public and to the world, where
you have an assassination of this importance. So striking that
balance is a very delicate and t ri cky thing.
Let's say that a President is assassinated, and you are the first
on the scene, the Secret Service. You freeze the scene. You are
controlling it, so you are the first source of information.
What would be your news policy? What is . the Service neWs
policy in such a situation?
Mr . KNIGHT. Well, I suppose a flip answer would be t hat ,
much as it is a Federal violati on over which the FBI has jurisdIC-
tion, we could refer them to eit her the Bureau or the
of J ustice, but that doesn' t get to the answer of your question.
t hink we have an obligation to inform the press as to, in a sense,
t he name, rank and serial number of anyone who might be arrest-
ed.
Now beyond that, and in those initial moments, I am not sure
that we should or could give more than that.
Mr. PREYER. So you are saying you would give them the bare
basic facts. .
Mr. KNIGHT. Yes, SIr.
Mr. PREYER. But I gather you would defer any further expl ana-
tion to the Justice Department or the FBI.
Mr. KNIGHT. Correct.
Mr. PREYER. Is that a set policy of the Secret Service? Is that set
out in any sort of rules or regulations?
Mr. KNIGHT. It is not, Judge.
Mr. PREYER. Do you think that would meet t he needs of the
American public, its right to know, assuming the FBI and the
Depart ment of Justice is going to be delayed getting to the scene,
and perhaps you have had experience with the press, where there
is a major story breaking, where they are under tremendous pres-
sure to get some news? Wouldn't holding back on the news simply
allow them or encourage them to write up every rumor that has
come down the pike?
Mr. KNIGHT. I am not sure, and I say this with many of my
friends in t he room, no matter what information we furnished, that
that would necessarily decrease the speculation and conjecture.
Mr. PREYER. Well, is there anyone in the Secret Service now who
has specific authority to disseminate information to the press?
Mr . KNIGHT. Yes, sir; there is, I bear all the responsibilities. But
we do have an Assistant to the Director for Public Affairs, Mr.
Jack Warner, who is also a special agent, and has been at that post
for, I would say, 10 or 15 years now.
Mr. PREYER. But I gather that presently there are no rules or
regulat ions or statutes which govern who may speak to the press,
and specifically who would govern who may speak to the press or
how much they may say- -
Mr. KNIGHT. No.
Mr. PREYER [continuing]. In the event of an assassination.
Mr . KNIGHT. In the event of an assassination, I am confident
that the senior official on the scene, who would probably be our
agent in charge of that field office, would do what I have
Just. related, that is, give the very barest of facts, and refer all else
to eIt her the Justice Department or our headquarters.
Mi . PREYER. Wouldn't it be well to adopt some sort of general
or guidelines dealing with the dissemination of infor-
!llatlOn in this unique case of a Presidential assassination and
Incl.uding ways to correct misinformation, rather than waiting
UntIl the hurly-burly of the moment strikes you?
f Mr.. I think that it is certainly worth pursuing in terms
guIdelInes. But as you indicated, the circumstances are so con-
changing that to be too specific I think would be impossible.
rn r. PREYER. I would agree wit h that, although it does seem to
Coe working with the media, perhaps some sort of guidelines
voU be .drawn up to make sure you don't have a police chief
fal unt?ermg evidence which impinges on the defendant's right to
bar t n al, but that on the other hand, you don't lean over so far
the public's right to know, which is important if an
w aSSmat lOn IS thwarted, that should be full y met, but with some
ay of correcting misinformation. I think there was much misin-
108
formation in the Kennedy assassination, and I don't think th
mediawentbackandcorrectedthatinformation later. e
Mr . KNIGHT. I think, Judge, there is one other factor in thi
equation that can'tbe ignored, and that is that in the case of thS
President, at least, his press secretary would be present , andi
certainly think that is a facto r t hat has to be considered in th]
entirematter. S
Mr. PREYER. Thankyou.
Chair manSTOKES. The gentleman from Pennsylvania,Mr. Edgar
Mr . EDGAR. Thankyou, Mr. Chairman. I only have one question
ofthewitness.
In 1964 the President created t he Warren Commission t o look
into the death of President Kennedy. In effect, it shifted t he onus
of decisionmaking in the investigation from the Depart ment of
JusticeandtheBureau t otheCommission.
Do you thinka similar agency should be created in thefuture if
in fact thereis anassassination? '
Mr. KNIGHT. Well , it strikes me that there are two important
things in the quest ion you have just asked me . No. 1, will an
investigation ensue with the hopes of successful prosecution, and
will the defendant have a fair trial and, second, will the American
people have confidence in theagencies that conduct thatinvestiga-
tion?
Unless there is overriding evidence or indications that t he J us-
tice Department is in someway connectedwith theassassination,I
would prefer to see it left in their hands so that the rights of the
accused are preservedas well as therights of theAmerican people.
It is possible, I would not rule it out, that circumstances may be
such that a Warren Commission or a special prosecutor might be
preferable. But my rule of thumb thinking would be to leave it in
theestablished criminaljustice procedure.
Mr. EDGAR. Thankyou.
Iyield backmy time.
Chairman STOKES. The gentleman yields back the balance ofhis
time.
Mr. Knight , let me ask you this: There are a variety of penaltY
provisions applicable to Federal homicide statutes. A recent Su-
premeCourtdecision, Furman v. Georgia, hasdeclaredthatmostof
them are probably unconstitutional, capital punishment
in the context of either Presidential or other political assassm
a-
fuM. .
My question to you would be,do you favor capital punishment In
theeventor in theareaof Presidentialassassinations? .
Mr. KNIGHT. I have a difficulty with capital punishment, if it.
1S
mandatory, and I base that only on the sense that perhaps jurIeS
arereluctantto convi ct, if theyknowby so doing, theyarein effect
killing someone. I am not convinced either. And I again beg youi
indulgence as not being your best witness on this. But I am nO
r
sure that , in the case of an assassination, it is necessarily a det
e
. -
rent, which is theoretically at least part of t he factors involved In
punishment. . e
Chai rmanSTOKES. I guessone of t he concerns thatthe commIttee
would have in that particular area is the questi on of kill ing
assassin as a result of a t rial and a finding of guilty, and then,
109
course, not having him available for anyother reasons lateron, in
light of ot her information that may come to light. That, of course,
isone of ourconcerns, in terms of tryingto draw up anyloopholes
in the law.
Let me ask you this: The Congress has in recentyears enacted a
variety of stat utes dealingwith access to t hird party records. Some
ofthem werementioned earlier. Butthemostrecentone, theRight
to t he Financial Privacy Act of 1978, makes an exception for cer-
tain of the Secret Service' s protective functions and foreign coun-
terintelligence functionsof theFBI.
Do you think that similar except ions would be helpful or neces-
sary to assassination prevention or investigation not only to this
actbut ot hers similar to it?
Mr.KNIGHT.I would thinkso, yes, Mr. Chairman.
Chairman STOKES.I havejustonefurtherquestion.
In 1964 President Johnson created the Warren Commission. By
virtue of the creation of the Commission, the onus of decisionmak-
ing, in terms of t he investigation, was transferred from the FBI
over to t he Warren Commission, and, of course, in terms of the
overall investigat ion, particularlywiththeFBI havingtheprimary
responsibilit ies, that appeared to create some problems, and I was
just wondering ifyou haveanyviews with reference to whether, in
the eventsuch a tragic occurrence everdoes occur again, we ought
toconsider havinga Warren-typecommission.
Mr.KNIGHT.My mostimmediatereactionto that,Mr. Chairman,
is that I would prefer to see it remain within the established
criminal justicesystem, unless therewas strongevidence or strong
indicat ion thattheycould not handleit, or weresomehow involved
inthe assassinat ion.
Chair man STOKES. I guess one of ourconcerns in thatareais the
public percept ion of things at that moment, with the kind of
trauma t hat comes from such an occur re nce. And one of our con-
cerns,ofcourse, is thefactthattheAttorneyGeneral is thelawyer
for the person who is next in line for succession, that is the Vice
President , and ourconcern is whether t hatkind of impropriety, or
at least appearanceofimpropriety,ought,tobe removedandlodged
maybe in a specialprosecutortypeofsituation.
Mr. KNIGHT. I certainly think that is a valid concern. I'm not
thatjustby virtue of having thatoffice he necessarily has
obe I thinkyou would agreeto that. . ' .
ChaIrman STOKES.Yes. ' :':,,, ' -r "
Mr ..KNIGHT.Itis moretheappearance.
ChaIrman STOKES. Right.
Mr. I agree with you t hat there are certainly some
\VhPle In thiscountrywho would look askanceatthatrelationship.
e ether that requires thatyou set up an entirely new and differ-
k
nd
separateoperation to handlet hisis a question thatreallyI
thIn of a policy nature that someone else could better answer
an myself.
STOKES. Thank you very much. I have no further
est lOns.
goes anyone else seekfurther recognition?
r. PREYER.Mr. Chairman.
111
110
Chairman STOKES. The gentleman from North Carolina, !'.i
r
Preyer. .
Mr . PREYER. I would just like to ask one question, following u
on the chairman's comments about the exception in the
PrivacyAct--
Mr.KNIGHT. Yes.
Mr. PREYER [cont inuing). Which we justpassed atthe end ofthe
session for certain of the Secret Service's protective functi ons and
foreign counterintelligencefunctions.
Have you drawn up any rules or regulations relatingto how you
would dealwiththatexception?
Mr. KNIGHT. Not as yet . It is my understanding thatthat act is
not in effectfor anotherhundredand-well,perhaps 100days now.
Certainlywe shall.
Mr. PREYER. Good. I amgladto hearthat,becauseI do think it is
not the intention of Congress-Mr. Edgar brought out this point -
to just allow a blanket search into an individual' s bank records.
The question of invasion of privacy is an important one, and I
believe that you answered Mr. Stokes that you felt this sort of
exceptiondid needto be writtenintootherstatutes.
Mr. KNIGHT. Yes, sir ,I did.
Mr. PREYER. Such as medical records, insurance records and so
forth.
Mr .KNIGHT. Right.
Mr.PREYER.As well as bankrecords.
I would think that it would be very important in getting Con-
gress consent to writeexceptions intothose areas; thatCongressbe
convinced that you are seeking blanket entrance into the recor ds,
and that it would be important that you have some gui delines
drawn up to make sure thatyou recognize the rights of privacy as
well as theneedsfor security.
Mr. KNIGHT.Yes, sir.
Mr .PREYER. Thankyou for yourtestimony,Mr.Knight.
Mr. KNIGHT. Thankyou.
Mr. EDGAR.Mr. Chairman.
ChairmanSTOKES.Thegentlemanfrom Pennsylvania, Mr.Edgar.
Mr.EDGAR. Thankyou.
The question of capital punishment was raised, which begs the
next question,which dealswithguncontrol.
Have you personally, as a law enforcement person, had any
vie". s relat ing t o how any form of gun legislation or gun control
mightassist you in thepursuitofyourduty? .
Mr. KNIGHT. Well, as a preliminary to answering that questIon,
as you are aware, the Bureau of Alcohol, Tobacco, Firear ms en-
forces thefir earmslaw.They are in t he DepartmentofTreas uryas
we are in the Depar tment of Treasury. Treasury has taken a
position on the subject that you have asked me. My standar d
response to t hat questi on, and I don' t mean to say standard in th'
r
sense thatI dismiss it, because I don't have the answer. Ideallr ,\
we coul d prevent t hose who are mentally ill , those with crimIna
records, and t hose who have a propensi ty for violence, from pos-
sessi ng or having access to firearms, you know I woul d be in favor
ofsuch a thing.
Iam not atallconfidentthatwe canlegi slate or draw up laws or
rhaps evencreatea monstrous bureaucracy to administer it t hat
peul
d
be effective, so in thatsense, I cannotbe responsive t o your
WOestion, except, justsome of my personal thoughts on the matter.
qUMr.EDGAR.Thankyou.
Mr. Chair man, I would just like to say I have been personally
ressed with the Director's comments this morning, and his
in sharingwith us his thoughtsabout the issues, and I
no fur t her questions.
Chairman STOKES. Mr. Knight, letme on behalfof thecommittee
concur in the remarks of Mr. Edgar. We also woul d like to t hank
yOU not onl y for your appearance here this morning, and the hel p
and assist ance you have provided this committee here today, but
also the cooperat ion you andyourentirestaffhave given Professor
Blakey and all of ourstaffpeople during the course of the investi -
gation, and we appreciate very much t he kind of assistance t he
Servicehasgrantedthiscommittee.
Mr.KNIGHT.Thankyou verymuch, Mr.Chairman.
Chairman STOKES. Thankyou,sir.
There being nothing further at this t ime, the committee will
reconvene at2o'clockthisafternoon.
[Whereupon, at10:25 a.m., thecommitteewas recessed, to recon-
veneat2p.m.]
AFTERNOON SESSION
Chairman STOKES.Thecommitteewillcome to order .
The commit tee's witness this afternoon is Mr . Benjamin R. Civi-
letti, Deputy AttorneyGeneraloftheUnitedStates.
Mr. Civiletti, welcome to our hearing, and at t his time we will
accept your presentation of your testimony in any way you so
desire.
STATEMENT OF BENJAMIN R. CIVILETTI, DEPUTY ATTORNEY
GENERAL
Mr.CIVILETTI.Thankyou,ChairmanStokes .
I have a short formal statement , parts of which I will read and
Introduce in its short entirety into the.record, and t hen I will be
pleased to addressany quest ions or subjects or issues which will be
of as!';stance to thecommi ttee.
l knowyou have alread:y heard fro.mtheBureau andthe
. A and the Secret Service concernmg their needs plans to
respond on this seriesofsubjects.
As you also have heard, the Service and t he Bureau have the
l!lJ. mediate operational and specific stat ut ory responsibility for the
of the President, on the one hand, and investigation of
a assassinat ions or attempts as well as other crimes
gjlnst U.S. officials, and foreign officials andguests, on theother.
h would like to discuss briefly current Federal authority to
andle political assassinati ons.
tiOur. Current legal posture wit h respect to Presidential assassina-
l\ons IS very different from what it was in 1963 when President
i nn.edy was assassinated.
kid
t
IS now a Federal crime to kill, kidnap, attempt to kill or
nap or assaultthe President,thePresident-elect,theVice Presi-
112 113
dent-elect, the individual next in order of succession to the Pres'
dency if there is no Vice President, a Member of Congress 0
1
Member of Congress-elect. r
The criminal code reform that we have proposed would cont inu
this coverage and extend it as well to Supreme Court Justices and
Cabinet members. In addition, many crimes that could likely be
termed political assassinations may be prosecuted federally under
the civil rights laws.
Itis now also a Federal crime to kill or attempt to kill, kidnap Or
assault foreign officials in the United St at es and protected foreign
guests and their families. The proposed criminal code again would
continue those provisions and would add a provision new to the law
that would make it a Federal crime to conspire within the United
States to assassinate a foreign official outside the United States.
We believe that the current statutes very clearly establish Feder-
al authority to investigate and prosecute these particular political
assassinations. The statutes provide specifically that the exercise of
Federal jurisdiction suspends State or local jurisdiction un t il the
Federal action is terminated. .
The statutes charge the Bureau with handling the investigation
and authorize the FBI to request assistance from any other Feder,
al , State, or local agency, specifically including the Army, Navy,
and Air Force, notwithstanding any other rule, regulation, or stat-
ute that might limit the assistance those agencies would ordinarily
provide, such as the Posse Comitatus Act.
We are, therefore, in a position where we can call on help as
needed, but where it is clear that the Federal authorities will be
conducting the investigation ent ir ely.
Director Webster has already discussed with you particular oper-
ational plans and arrangements currently in force that could be
put into effect in the event of a Presidential assassination.
Basically, I think it is the major case or major investigation plan.
Because we are aware that the Secret Service would already be on
the scene before the FBI would arrive, the FBI and Secret Service
have a working understanding of procedures and practices to
assure that the area is secured and evidence retained. These proce-
dures and others are currently being reviewed by the Secret Serv-
ice and the FBI as to their efficacy.
There are three additional points that I know are of concern to
this committee that I would like to mention.
First, the question of access to materials in the possession of .thj
media. Itis very possible that any incident involving a
assassination or attempted political assassination would occur in
the presence of the media and be recorded at least in part on film
or tape.
We are confident that in the unhappy event of such an incident
the media would be cooperative with us in providing us wit h anY
recordings, photographs, tapes or other materials they might have.
The Department of Justice has available to it the power to subpen:
such. materials or , if necessary, to search for them, and woul d us.
those powers in accordance with the applicable law and
mental regulations, if necessary, in the conduct of a complete In
vestigation.
We expect , however, as has been our experience often in the
!lst that the media will share materials with us and provide
Phatever assistance they can to our investigation.
'IISecond, I am pleased to report that in recent years we have had
onsiderable success in obtaining the cooperation of foreign govern-
in some criminal investigations that have required their
help. We anticipate that we would be able to call on foreign gov-
ernments for assistance in our investigation of any political assassi-
nation in this country, if the need should arise.
Finally, I would like to turn for a moment to the question of
accesS t o third party records. Recent laws such as the Right to
Financial Privacy Act of 1978 place limitations on access to bank
and ot her records by Federal law enforcement officers.
However , the restrictions in the new privacy law do not apply to
grand jury subpenas and, further, the new law makes adequate
provision for immediate access to bank records in emergency cir -
cumstances in which serious physical injury or property damage is
feared, as well as for the Secret Service in its protective functions
and for foreign counterintelligence investigations.
We believe that our needs to obtain prompt access to third party
records in any investigation of a Presidential or other political
assassinat ion are not incompatible with the current statutes which,
for the first time, give recognition in the law to the expectation of
privacy with regard to those third party records.
I know that there are many other issues that can be discussed
about how these investigations and prosecutions mayor should be
conduct ed, and I will try to answer any questions that you might
have and discuss whatever issues you would like to raise, and
unfort unat ely I will have to say in some instances I am positive
that I don't know the answer .
[The full st at ement follows:]
. .
114
115
PREPARED STATEMENT OF MR. BENJAMIN R. CIVILETrI . DEPUTY ATTORNEY
GENERAL
.'
.
' . \.. DX
l ':'.,
REMARKS
BY
R. CIVILETTI
DEPUTY ATTORNEY GENERAL
BEFORE THE
HOUSE SELECT ON ASSASSINATIONS
WASHINGTON, D. C.
DECEMBER 12, 1978
I am pleased to have the opportunity to contribute to
. f ina l phase of the activities of your Committee. I know
tO yOU have already heard directly from the FBI, the CIA,
at
and the Secre t Service concerning their needs and plans to
respond to Presidential and other political assassinations.
Toe secret Service and the FBI have the immediate operational
and speci f i c statutory responsibility for protection of the
president , on the one hand, and investigation of Presidential
assass i nations , as well as certain other crimes against U. S.
offi c ial s and foreign official guests, on the other. I am
oere to discuss current federal authority to handle political
assass inati ons.
our curr ent legal posture with respect to Presidential
assass inations is very different from what itwas when
Pres ident Kennedy was assassinated in 1963. It is now a
Federal cr ime to kill , kidnap, attempt to kill or kidnap,
or assaul t the President, President-elect, Vice President,
Vice President- e le c t , the individual next in order of succession
to the Pr es i dency if there is no Vice President, a Member of
Congress or a member of Congress-elect . The Criminal Code
reform tha t we have proposed would continue this coverage
and extend it to Supreme Court Justices and Cabinet members.
In addit ion, many crimes that could likely be termed political
-r ...
117
116
assassinations may be prosecuted federally under the Civil
Rights laws.
It is now also a federal crime to kill, attempt to kill,
kidnap or assault foreign officials in the Uni ted States
and protected foreign guests a nd their f ami l i es . The
proposed Cricinal Code again would continue those p rovisions ,
and would add a provision new to the law that would make it
a federal crime to conspire within the United States to
assassinate a foreign official outside the United States.
We believe that the current statutes very clearly
establish federal authority to i nve s t i ga t e and pr o sec ut e
these political assassinations. The statutes p r ov i d e
specifically that the exercise of federa l jurisdiction suspends
state or local jurisdiction until t h e federal a c t i on is
terminated. The statutes charge the FBI with handling the
investigation and authorize the FBI to request assistance
from any other federal, state or local agency, specifically
inclUding the Army, Navy and Air Force, notwithstanding any
other rule, regulation or statute that might limit the
assistance those agencies could ordinarily provide. We
therefore are in a position where we can calIon help as
needed, but where it is clear that the federal author ities
will be conducting the investigation .
Di r e c t o r Webs ter has already discussed with you
part i c ul ar operational plans and arrangements currently
in for c e t ha t c oul d be put i nto e f f e c t in the event of a
pr es identi a l as s a s s i na t i on . Be c ause we are aware t hat the
sec r e t Service wou l d already be on t he scene before t he FBI
would arri ve , t he FBI and Secret Se r v i ce have a working
unde r s t a nd i ng o f procedu r e s a nd practices to assure that the
are a is s e c ur e d and e vidence retai ned . Those proce dures are
curr en t l y being reviewed by the Secret Se rvice and the FBI.
There a re three additional points t ha t I know are of
c oncern to t hi s Commi t t e e t hat I wou l d l i ke to address
brie f l y . First i s the question of access to materials in
the possession of t he media. I t i s very possible that any
i nc ident i nvol v ing a pol itical a s sassin a tion or a ttempted
pol itical a s sassination would occur i n the presence of the
media and be rec orded a t l e as t in part on film or tape .
We are c on f i de nt t ha t i n the unhappy e ve n t of such an
i nc iden t , the me dia would be coop e rative wi th us in providing
us with any recordings, photographs, tapes or other materials
t he y might have. The Department of J us t i c e has available
t o i t the powe r to s ub poena such materials or, if necessary,
to s e a r c h f or them, a nd would us e those powers in accordance
wi t h t he applicab le law and Department regulations, if
-r . < r . ~ . ;
119 118
necessary in the conduct of a complete invest igation. We
expect, however, that the media will share materials with
us and provide whatever ass i stance it can to our investigation.
Secondly, I am pleased t o r eport that in r e c e n t years
we have ha d considerable s uc c e s s i n obtai ni ng t he c ooperation
of f or e i gn governments in criminal i nve stigations that have
requi r e d their help. We anticipate that we would be able to
call on foreign government s for a ssistance in our i nve s t i ga t i on
of any political assassination in this country, if necessary.
Finally, I would like to turn for a moment to the
question of a c c e s s to third pa r t y r e c ords . Re cent l aws such
a s the Right to Financial Privacy Act o f 1978 place limitat ions
on access to bank a nd ot he r re cor d s by federal law enforcement
officers . However, the restrictions i n the new privacy
law do not a pp l y to grand j ury s ubpoenas . Further, the new
law makes ade quate provision f or immediate a ccess to bank
records in emergency si tuat ions in whi ch s erious phys i c a l
injury or property damage i s f e a r ed, a s well as f or t he
Secret Service in i ts protective funct i ons and f or f ore i gn
counterintel ligence investi gations . We belie ve that our
needs to obt ain prompt a cces s t o t hird party records in our
investigation o f a Presidential or other pol i tical assas s i na t i on
are not imcompatible with the current statutes.
I know that the re a r e many othe r i ssues t hat c a n be
discussed about how these inves tigations and prosecut ions
should be conducted, and will try to answer any questions
that you might have a nd di scuss what eve r i ssues you would
like to raise.
hair manSTOKES.Thankyou verymuch, Mr. Civiletti.
Cam suret he committeewill havesomequestionsfor you.
couple of witnesses previously have sortofdeferredto you, soI
sure we will have some questions for you in many respects.
aJJ.fhecommittee will ope:atenow underthe5-minuterule.
First let me askyou this:
Doyou re ally feel that under existing statutory law with the
gulat ions now in effect that we can effectively prevent political
re assinat ions from occurring, or would you have to say that not-
whatever we do, notwithstanding the statutory law
w
nd
allofthe lawenforcementproceduresin effect, thatifsomeone
:eally wants to kill the President of the United States that in all
probability there is verylittle that canbe done to stopit?
Mr.CIVILETrI.No;I wouldn'tagreewiththator saythat.I would
saythat solong as a publicfigure or officeror official goes aboutin
the public, in the manner of the public officials in the United
States, Federal , State, and local, then the duty and burdens of
prevent ing attempted assassinations or guarding against them are
increased many-fold. I think t hat given the fact that our public
officials in our democratic society do travel freely about the coun-
try and in the public, then there is exposure to risk, despite the
fact that the Secret Service takes enormous steps, including plan-
ning and making contingency plans and special training to guard
against assassinat ions and assassination attempts, as do other
agencies and groups in a support capacity to the Secret Service.
So,I guess my answer would be that it's not the law so much
that provides any inadequacies nor is it the quality of the protec-
tiveservices thatprovide inadequacies. The risk is imposed by the
nature of our Government and our country and our historical
characterist ics of free movement, participation with the public,
itemsofthatkind.
Chairman STOKES. We have posed a question to several of the
other witnesses in the past 2 days with reference to the Attorney
General' s guidelines that have been set up for domestic security
Invest igat ions.Thosearepresentlyin effect, aretheynot?
Mr.CIVILETrI.Yes, sir.
Chairman STOKES. Andcanyou tell us whethertheyhavehadan
at.dverse effect on the FBI's ability to prevent political assassina-
Ions?
Mr. .CIVILETrI. I cannot tell you that as a matter of empirical
I can only relate two things: One, second-hand informa-
Ii0\more or less from the Bureau and others, and then, based on
edexperience,my bestestimateof things.
intirst, t hink that everyone acknowledges that the quantity of
tio now obtainedas a resultofdomesticsecurityinvestiga-
.1S a fraction of what it was 3 or 5 years ago. To the extent
info In loss of quantity there is a possible loss of a piece of
thinkrnatlOn or so which proves out atsome point to be valuable, I
You h everyone would concede that merely by the loss of quantity
S ave lost some capacity.
such
cond
, I think that the Bureau feel s that the guidelines are
produthat the lessening of the information which they now obtain
gOOd. ces from an evaluative point of view information which is as
as the information they received in the past in terms of
121
120
quality and in terms of having relevance or predict ability to lik
cri mi nal acts against public officials, and that qua lity
is transferred from t he Bureau to the Secret Service. 101)
I have heard it said, although I don't know if it is accurate t
of all the infor mation transmitted in the past from the Bureauhat
the Secret Service only a small percentage was relevant and USe to
material and that it is the opinion or viewpoint of the Bureau t{UI
although the mass of material is no longer collected and
ted to the Secret Service, they are still giving them, on a relatiit,
basis, about the same amount of relevant or qual ity materivi
I think, again, on hearsay, that the Secret Service may have
a.
slightly different view and may feel that the loss of capacity thati
fir st mentioned makes their task more difficult. The Secret Servic
might like t o see the domestic security investigation
modified in some way for this particular circumstance.
My judgment is that the Secret Service has not done an evalua.
tion either historically or at present of the quality of t he domestic
security investigation information in 1978 or in 1968, so that their
good faith expressions are based more on feeling t han on hard
analysis, if they have those good faith feelings.
Furthermore, to the extent that the gathering of infor mat ion on
the activities of individuals or groups can have a prevent ive effect,
then I t hink the present domestic security guideli nes, which
impose a standard of either the use of force or violence or conduct
which will involve the violation of the Federal law in certain
specified areas, strike a fair balance to allow the collect ion of
material and relevant information.
The caveat I have to that statement is that a grave difficulty in
both maintaining security and conducting investigations arises
from the unpredictable nature or often unpredictable nature of the
threat posed. To change the domestic security guidelines to broad
en the amount of information in the hope of increasing the return
of quality information, I think, would be very dangerous to some
basic rights and constitutional rights, because in order to have
perhaps more quality information we would have to expand the
nature of the intelligence gathering beyond that which most judg
ments would say would be intrusive.
Chairman STOKES. Thank you very much.
My t ime has expired .
The gentleman from North Carolina, Mr. Preyer.
Mr. PREYER. Thank you, Mr. Chairman.
We appreciate your being here today, Mr. Civiletti. 0
I think what we are trying to do with these hearings is, one, t
assure as far as possible that assassinations like the ones we ado
e
investigating don't happen again and, second, that if they. le
happen they can be dealt with, with as little confusion as posyre-s
and without the kind of confusion that was present in Da
On that second point, we are exploring questions about
tlo
the law is adequate now and questions about autopsy, ques
about news policy, and so forth. 'J1g
On t he first point , whi ch is what Chai rman Stokes was
you about, what we can do to prevent assassinations, now I WO
like t o just ask a few more questions on that point.
have commented that you feel that domestic security guide-
fOu ight now are adequate and that what we may lose in quanti-
lineS r may make up in quality, which I think is good to hear.
ty -:ntaHy even before we had the guidelines , when there
any' of. these restrictions, I think worth noting that all
we
r
h se assassmat lOns took place at that time, the King assassina-
or t two Kennedys a!1d Wallace. . .
addition to the guidel ines which some
said inhibit our ability t o protect the Presi-
WI t there IS pending in Congress the new charter legislation
would attempt to prevent abuses of electronic surveillance
w dabuse of using t he tool of informants, for example.
anDo you have any comments on how this charter provision should
be worked out? Do you anticipate that the Attorney General would
'ssue the guidelines or an Executive order would be issued subject
a congressional veto or is it your thought that Congress should
a forward wit h that legislat ion?
g Mr. CIVILETTI. Essentially, my views-and I believe they are on
all fours with the Attorney General but I have not reviewed his
statements closely before coming here, and if they are different
then they are different- one that I think the charter ought to be a
statement of principles, covering not only the scope of the FBI's
investigative activity and duties but also announcing within the
FBI certain standards, including principles which are prohibitory
in nature. The charter ought to cover the general range of the
FBI's responsibility, for the investigation of domestic law, Federal
law, for foreign intelligence in the United States and, to a certain
extent, foreign counterintelligence, although that may be covered
bythe intelligence charters which are also being worked on.
As to the domest ic law enforcement charter, I think it would be
a mistake for t he Congress to try to enact into statutory law a code
or ,a code of conduct or set of rules or regulations which when
finished would look like the Internal Revenue Service Code to
govern the actions and responsibilities of the Bureau.
Rather, I think after the basic principles and prohibitions and
shhere of duties and activities are thoroughly covered-and I think
t at can be done in a manageable ' form-then the regulations to
out t he direction and the intent and the force of those
should be promulgated by the Attorney General and
reVIewed under some process of approval or rejection or mutual
by the appropriate congressionalvcommittees and the
ic, III due Course.
reMi' I,>REYER. One principle that might apply in such a code or
atlOns might relate to this, and I would like to get your
Jrnent on it: .
veiU
nder
t he present guidelines the kind of domes t ic security
ag ,ance t hat was used against Dr. King would never be possible
I believe, but suppose, if the FBI does have aut hority under
guidelines to conduct domestic surveillance, a
Was er of some group that was under surveill ance, as Dr.
as thwl;lS assassinated, do you think the FBI should be disqw;1hfi ed
the [e lllvest igat ive arm to investigate the assassination in of
Victi act that they had the group under surveill ance to which the
rn was a member?
123 122
Of course, the argument has been that the FBI should ha
disqualified itself from investigating Dr. King when they had hive
under such intense surveillance. ll)
Mr. CIVILETTI. I don't t hink so, myself. You are absolutely right
we would not have another circumstance like King beca use th '
COINTELPRO type of activit ies and the investigation which wa
e
conducted with regard t o him are now abs olutely prohibited as i
think they probably were then. '
But, you trade off a potential conflict of interest in your fact
circumstance against the experience, the ability, the training and
the system that is in place within the Bureau, as opposed t o either
an ad hoc group or a group which has a substantially different
responsibility, and I think it woul d be fair t o say lesser abilit ies. In
that trade-off I would st ay with the Bureau and think we would get
a better job done, more complete, and let t he job stand on it s Own
feet with the Bureau's attention t o facts and its thoroughness
rather than under the appearance of conflict or init ial suspicion of
conflict go to a different group and then have the job really
botched in substance.
Mr . PREYER. Thank you, Mr. Civiletti.
I see my time has expired.
Thank you, Mr . Chair man.
Chair man STOKES. The t ime of t he gentleman has expired.
The gentleman from Indiana, Mr . Fithian.
Mr. FITHIAN. Thank you, Mr. Chairman.
Mr. Civilet t i, we are happy to have you he re today and I would
like to ask you specifically with regard to your written testimony,
on page 2 where you indicate that the proposed criminal code again
woul d continue those provisions and then t his is the part I am
interested in, "and woul d add a provision new to the law that
woul d make it a Federal crime t o cons pire within the United
States to assassinate a foreign official out side of the United
States."
Is it your interpretation that the proposed code that is now being
worked on in the Congress, as it now stands, would then make it a
Federal crime to conduct the kind of activities which the CIA
conducted against Premier Castro?
Mr. CIVILETTI. If we are talking about domestic law enforcement
and without any other conditions attached, time of war or other
kinds of circumstances in which there would be ot her facto rs, then
a plot or conspiracy in the United States t o assassinate a foreign
leader would, under the code, be a crime.
Mr. FITHIAN. Whether the conspirators were working pri vatelY
or for a Government agency; is that correct? Is that what you are
saying?
Mr. CIVILETTI. That is what I am saying. But the only hedge aIIl
putting on or condition I am putting on is that I am limit ing I.t
domestic law and not speaking of times of attack or war or thI ng
of that kind.
Mr. FITHIAN. Thank you. I
It is my general understanding of history that leads me to
that in the pas t there have been a lot of questions, some cal 1
territorial turf questions , between the various agenci es.
In wondering if you could shed any light on what the role of
I Attorney General would or should be with regard to differences
the inions between the Secret Service and the FBI as to what kind
of the FBI ought to regularly provide the Secret Serv-
?f 1 with regard to domestic security investigations and information
Ihe't they might develop as a result of that. In other words, infor-
t a
tion
that might have some important impact on the way the
Service attempted in this or that city of the United States to
ovide for the President's protection.
prMr. CIVILETTI. I have two answers to that. The first is that the
Attorney General has played and does play a very important role
. attempt ing to coordinate, to communicate and to break down
differences which may be considered to be detrimental to collective
law enforcement efforts, and to eliminate or ease the level of
territorial differences or turf battling.
Of course, almost by design, it seems, within the Federal system
we have a lot of independent agencies and groups and bureaus, all
with separate law enforcement authorities and duties, and a good
many of them in separate departments entirely from the J ust ice
Department , and I cannot help but t hink that that is by design and
not simply by coincidence.
So even in t hat good faith effort to break down barriers and to
communicate well and t o have memorandums of understanding
and clear guidelines applicable to everyone, we have to have some
sensitivity to the fact t hat we don' t have one Federal investigative
agency, and I think neither the Congress nor the executive nor the
Amercian people want that, and we have to preserve, to some
extent, the independence and independent responsibility and duty
ofthose respect ive agencies.
Second, the second answer is that I think that the Attorney
General has t he duty and the responsibility in his legal role and in
the delegated function of it from the President to the top law
jpforcement official in the U.S. Government, to promulgate guide-
ines or regulat ions or directions, which are binding on all law
enforcement agencies or bureaus so far as they relate to their
with the public and to investigations which are under the
JUrISdICt ion of title XVIII of the code. . '
. or not it' s either necessary or desirable for that respon-
to be exercised in all instances is another question, but in
lIS Instance I think the Office of Attorney General is a sound
a
k
e
to rest the responsibility for the collection of information. It
es Isense for us not only to protect the security of the country
offj ly and its people but to protect the occupants of high public
Procs rom risk of assassination, and for the Attorney General to
the standards and guidelines under which such infor-
investigation, surveillance or other techniques is
that should there be and if there are irreconcilable
stan s'hfor example, between the collection agency, in this in-
thence} e FBI, and the operational agency, the Secret Service,
resolul. s appropriate that the Attorney General determine the
and b?n of those disputes based upon information and direction
received from both agencies, if the disputes cannot be
ve directly by the FBI and Secret Service on their own.
- --- - - - - - -
124 125
ChairmanSTOKES. Thetimeoft hegentlemanhasexpired.
Mr. FITHIAN. Mr .Chairman, I ask unanimous consentto proceed
for one additional combinedquestion in thisarea.
.Chairman STOKES. Without objection, the gentleman is recog.
nized.
Mr. FITHIAN.Whatspecificallyis theDepartmentdoing to insure
that the Secret Service, say, is getting t he kind of intelligence
information thatrelates t o thesafetyof the President , andwhat Or
how do you determine specifically whatgoes into that- what kind
ofinformationis requested?
Doyou havespecific officers in theJusticeDepartmentin charge
of this? I would like to know with some specificity what is, in fact
beingdone. '
Mr. CIVILETTI. Well, as I may have indicated from my general
statement, we have not yet been, except perhaps for a letter reo
ceived at the end of last month, presented with an exhaust ion of
discussion between the Bureau and Secret Service directly on the
amendment or modification of their memorandum of understand.
ing which covers the transfer of infor mat ion from the Bureau to
theSecretService.
We have not been presented, an issue has not risen to the De-
partment of Justice's, to either my office's attention or to my
knowledge to the Attorney General's attention, which would reo
quirea mechanismor anevaluativeprocess rightnow to determine
whether or not if a claim of irreconcilable difference were to be
made, how bestto evaluateandresolvethatclaim.
I haveseen the attitude, shall I say, or a viewpointof the Secret
Service on this subject. I have al so seen that they intend to and
are, as I understand it, meeting with the FBI to see if they can
resolvewhateverdifferenceson thissubjecttheymayhave.
Ifthat, as it mayturnout to be, does notresultin a resolut ionof
differences, then either my office or the Criminal Division or the
Office of Legal Counsel will assign an avenue to begin meeting
with the Secret Service to hear the data they present, the studies
that they have done with regard to the quality of the infor mation
thathas been transferred in comparison to t he quality of
tion transferred in the preceding 10-year period, to deter mine I
possible how they relate or project the quality of the int elligence
information to theriskwhichtheyareguardingagainst.
Rightnow I have no knowledge, I haveseenno studies,I have no
information which indicates that an increase, for example, in
number of security investigations of one type or another by t.e
Bureau would lead to any positive increase in anylevel or perceiV-
abledegreeof protectionafforded to anyhighofficials. f
Now, it may not be possible, under our analyses, in our state 0
the art, to do that in any kind of mechanical or precise
But I certainly would be greatly interested in numbers of InC
I
dents predicted or statistical analyses which show that by
in some way or series of ways increasing the number of domes
security investigations, that that would help to increase the sec
rity or protectionofthePresident. I
Unless it has a direct relationship, a meaningful one, then
t hinkthatthecasefor remedialaction would notbe made.
q
If I were responsible for protecting the President or the Vice
p e<:identin an immediateoperationalsense, I would be advocating
ri pushing within that responsibility for as much information as
3ncould possibly acquire in as great a volume as I could get it ,
the task is so difficult and overwhelming, and because the
onsequences of a failure of information are so devastating to the
count ry andto thepublicandto theworld.
c So that as an advocate, were I the head of the Secret Service, I
would want, if even from anotheragency, or perhaps I would want
toget the resources within my own agency, and the power within
myown agency, to conduct the most elaborate intelligence system
consistentwith statutes passed by the Congress and the rulings on
theapplicable lawby theAttorneyGeneral.
So I am not surprised, in other words, by the Secret Service's
simple comparison between the present level of domestic security
investigations and the information obtained from them as com-
pared with 5 or 10 years ago and the resultant view of the Secret
Service.
ChairmanSTOKES.Thetimeofthegentlemanhasexpired.
Thegent lemanfrom Pennsylvania,Mr.Edgar.
Mr.EDGAR.Thankyou, Mr.Chairman.
Is there a specific person or groupof personsin theFBI respons i-
ble for seeing to it that the Secret Service or State Department
gets all rel evant informationpromptly?
Mr.CIVILETTI.Yes, I believeso.
Mr.EDGAR.Who arethosepersons?
Mr. CIVILETTI. I believe it is Mr. Migosa's office, which includes
thedomestic securitysection.
. Mr. EDGAR. Is there a corresponding person or group of persons
In the Secret Service or State Department whose function is to
receiveinformat ion from theFBI?
Mr. CIVILETTI. I believe so. I don't know the proper title, but I
it is t he research and intelligence section of theSecretServ-
Ice.
Mr.EDGAR. Has thedepartment,SecretService, or State Depart-
menr entered into any agreements with one another which set
for transmittingthis kind of information between
eagencies?
thMr. TheFBI andtheSecretService have. I don't-think
beere IS any other agreement or memorandum of understanding
A tween Just ice and theSecretService other than thatagreement.
to t he Stat e Department, I don'tknow ifthey have a separate
b t with the Secret Service or not. I assume the CIA does,
U havenot seen it or reviewed it myself.
EDGAR.We have been listeningfor several days to a number
Yo dIfferent persons who aretryingto give us some input, including
on what kinds of recommendations or directions, alter-
In exist ing law or specific kinds of suggestions you might
asve I? procedure or law thatcan help us in case there is another
or theprocessofpreventinganassassination.
Par IS rnorning and this afternoon I heard the words of the De-
eel t
Ment
?f Secret Service, FBI , CIA, different legal coun-
. Ymind quickly goes to a game board that would have all of
126 127
those blocks listed and an event like the death of a Presi d
occurs. ellt
The question on my mind is, Do we have in place on that li
board sufficient direction so thatwe won't have the kind ofchttle
semichaos, thatoccurredattheexperiencein Dallas? aos,
Are we able and prepared, in your opinion, to respond withcle
lines ofauthorityandwithclearindicationas to who is responsibj t
for securing t he scene, for doing the investigat ion, for monitori e
it, so thatwe don'tgetourselves in the predicament thatwe
ourselves aftertheDallas assassination?
Mr. CIVlLETTI. I think yes. I cer tainly think much better tha
1963. I t hi nk that the adoption by the Congress of title XVIII
section 1751,and t heot he r sect ions which relate to it, whichclear:
ly give, and were intended to give, the authority to the FBI to
supersede all ot he r authority for the investi gation of an assassina.
tion, an attempted ki dnapping, whatever, put us in a better ops-.
ational plan, a better course of action plan, with fewer players
manyfewer playerst hanexisted in 1963. '
It is really a very simple, in my view, legal basis now for pro-
ceeding. I think t he Attorney General-and even this may not be
necessary-butin the event of an act which falls within the stat.
ute, if he makesa simplestatement, declaration or assertionofthe
authority of that stat ute , and even in the absence of that, I think
theassertionby t he FBI on thescenewoul d be sufficient .
Then from that point on, under the Bureau's established major
case planning and major case operation, the operat ional heads of
the Bureau, with hourly reports insome instances to the Director,
would take over all facets of t he investigation.
I beli eve the reading and intention of thatsect ion, as well as the
section with regard to Members of Congress and Members ofCon-
gress-elect, which is substant ially the same,would be thatit would
supersede all ot her applicable law and all other applicable State,
local, or municipal authorities.
Mr. EDGAR. Doyou have anyspecific recommendationsofchang-
inganyofthatstatuteor procedures, so thatthedepartmentmight
playadifferent or more efficien t role?
Mr. CIVlLEITI. Well, I don' t know if it will require statutory
change or not. There is the I-hour period, maybe, or half-hour
period, or whatever- and I don't know, it depends on where the
incident occurs-between the transfer of operational control fro
d
theSecret Service to theBureau,from t he Service's protective and
security services to the FBI investigative and containment an
confinementdu ties.
I believe that that is one of t he areas dealt wit h in the FBI-
SecretService memorandumof understanding, thetemporarytran-
sitory short period of time of t ransfer, whi ch is being worked
Now, it may be that that should be changed somehow so t .a
there would not be that gap because a lot can happen in 15 mIn-
utes or halfan hour, unless it is clear either by regulation ?r by
theagreementthattheSecretService is delegated theauthorIty
act for theBureauin the same mannerand form until the Bure
a
chiefarriveson thescene.
Mr. EDGAR. Thankyou.
ChairmanSTOKES. Thetimeofthegentlemanhasexpired.
gentlemanfrom Connecticut,Mr.Dodd.
The DODD. Thank you, Mr.Chairman.
Civiletti, I hB;ve just a couple of questions I would like to
toyOU first, If could.
add CIVILEITI. Yes,sir. . .
DODD. In all our discussions we have talked about the
. and who does what, andso forth, whenan assassi-
IOU 'onwould occur.
nait occur red to me, in t hinking over this whole process, and what
might be promoting as possible suggestions to improve the
w:d rly procedures ifsuch anoccurrenceshould happenagain,that
?ailseemed to be prefaced on assassinat ion.
It Is it your understanding t hat if the President were to die, the
deathofa President- let's assume afterproper investigation it was
determined to have occurred by normal causes-would t hese same
procedures apply or does it take a conclusion at the very outset
thatan assassinationhasoccur red?
Should a President have a heart attack-andas I am sure you
would appreciate, and as everyone on this committee does after 2
years that should that occur-Ihave no doubt in my mindwhatso-
everthat there would be an immediate conclusion on the part of
manyin this country t hat there was somehow foul play, and t hat
therewould be demands for invest igat ions,and so forth.
Is it fai r to ass ume t hat t he responses t hat would be called for ,if
itwereclear,as we saw in Dallas,witha shoot ing, that thesesame
procedures would come into play under a set of circumstances such
as Ihaveoutlined?
Mr.CIVILEITI.I amnot sure.I t hink not.I thinkthatthepresent
statutes may not provide, in t he absence of any indicat ion, any
facts of any nature or kind, to indicat e t he potenti al of a violation
of the principal t hree provisions- assassination, attempted assassi-
nation,or kidnapping- t hat t here reallywould be putin operation
full-blown investigatory powers envisioned by and ready to be in-
vt
ed
.bythe facts which woul d indicate a violation of the stat ute.
think not. If the President were to die on an operating table
undergomg a serious operation, or to die in his sleep of a heart
attack, with no indication whatsoeverof'aviolationofthe statute,I
amno.t su.re the stat ute is broad enough to permitall t he cri minal
InvestIgatIve authorit ies ofthe FBI to be geared up.
8fiMr. ,DODD..I you would agree t hat I pot be far
SO eld m saying that If thatoccurred there would be anoutcry for
Ine sortofaninvest igation.
Would have t o aut horize such an invest igation under t hose
Mumstances-thePresident dying in hi s sleep?
Ce r. CIVILEITI. One of two people, I guess. Eit her t he Attorney
n
Cenerai or the Dir ect or of the FBI. In all likelihood the Attorney
all , one of hi s plenarypowers,broad powers,to conduct
MrVestIgahon.s and t oenforc. e the law,and so forth.
that .l?ODD. Is It yoursuggestion thatwe oughtto stay away from
of scenario in ter ms of dealing with this particular
is No; I don'thave a suggestion.Thatis a concern.It
indicPfhc
y
Issue of how far t o go, in the absence of any facts t o
a e any kind of cr iminal act or foul play, and all facts appar-
128
ently t o indicate a natural demise, of what t he Congress Want
do, or what the Government ought to do to insure that it is wh: t
tt
I can see arguments both ways, a special inquiry to be lllade
special statute, because of the import ance of the office, even in tha
absence of criminal indications, just to be certain and confide e
and not leave that kind of a determination to the normal
processes which now exist in State law or Federal law. I
Mr. DODD. Yesterday I raised two questions to Mr . Webster. 11
pointed out, and I would agree, that more appropri at ely thee
should be addressed to you . Y
The first has to do with the issue of capital punishment. It would
appear that as a result of recent decisions, one by the fifth circuit
and an earlier one by the Supreme Court, that at least at this
particular juncture the status of capital punishment is somewhat
in question.
Under the present statute, with regard to the assassinat ion of a
President, that is one of the options of penalty.
Do you envision making recommendations to the Congress with
regard to the capital punishment statute in the upcoming Con-
gress, or would you care to comment at this particular junct ure on
what you think this committee ought to be recommending in its
final report with regard to what would appear at this particular
juncture to be a gap in the statute?
Mr. CIVILETII. First, I would agree that there appear to be sig-
nificant frailties, constitutional frailties, to section 1111 of title
XVIII.
I think that the Department has testified on at least two occa-
sions in the 95th Congress-and I am sure the testimony will be
the same in the 96th Congress on similar bills-that t here is a
statutory met hod, setting out processes and procedures and clear
definitions, to provide for amendments to section 1111 or other
murder statutes so that a death penalty consistent wit h the consti-
tutional mandates of the cases to which you refer can be enacted
and can pass constitutional muster.
I think that we have testified, I believe, on three occasions to
that effect. Furthermore, I think the Attorney General has indicat-
ed on at least a couple of occasions that his own view is to that
same effect.
Mr. DODD. The last question I have that deals wit h
questions, has to do with the handling of a person apprehended. 1U
the United States who was allegedly an assassin of a foreIgn
official.
I am looking at this 1116 provision, the murder or manslaughteJ
of foreign officials, official guests, or internationally prote
cte
persons. . n
As I read this statute it would appear that we cover the
wherein a person apprehended in t his country allegedly r
ed a foreign official, either in t his country or in a country ot e
t han t he victim' s own country, and we could proceed to
However, if we apprehended a person allegedly involved 10
assassination of a fore ign dignitary in that dignitary's own
then we would be precluded under this statute from procee In
with the prosecution.
129
That is my int er pret at ion. I am not suggesting that it is absolute-
rrect but I would like you to comment on it , if you could.
ly key paragraphs I am looking at are paragraph (a) under this
ute the first sentence there, "Whoever kills or attempts to kill
stt;,treign official, official guest, or internationally protected person
llh 11 be punished," and so forth.
s Then going to paragraph (b),
For purposes of this sectio n-
And then it goes down and defines in subparagraph (4) an inter-
national prot ect ed person-
a chief of state or politi cal equivalent, head of government or foreign minist er .
Whenever such is .a .count ry ot her than his own and any member of his
family accompanymg him .
And t hen going down to paragraph (c) where it says,
If the vict im of an offense under subsection (a) is an internat ionally protected
person the United States may exercise jurisdict ion over t he offense -
And so fort h.
It seems to me, after reading that, that we would be precluded
from prosecuting someone in this country who was allegedly in-
volved in the assassinat ion of a figure, a head of state, in his or her
own country.
Mr. CIVILETII. I quickly read t hrough those provisions, and I am
no expert in int er national law, but your inference seems to me to
be one that is-at least from that quick reading-seems t o be
correct.
If it is, and I would have to study it to be sure , it may be under
the theory that in the instance in which there is the exclusion on
the basis of comity, t r adit ions of international law, extradition
treaties and t he rest, t hat t he count ry of the offici al's status and
residence ought to be the one that has t he authority to prosecute.
like circumst ances we have insisted upon that with other na-
tions with whom we have dealt, so as to allow perhaps as is fitting
the citizens of t he country in which the public official is a public
t o be sat isfied that the perpetrators are tried according to
e in which t he public official operated and lived, and in
our .mstance that we may be able, free of any prosecutions by
fOheign gover nments, t o have retur ned t o the United Stat es anyone
h' hhas attempted or succeeded to assassinate or kidnap a
Ig public official of t his country. _ '.
hDo?D. 'I'hat thought occurred t o me as I wastrying t o figure
th tw Y It might have been excluded. But it occurred to me that
i would probably be t he case even under t hi s scenario:
Or f a head of st at e were assassinated in a country other than his
her
con own, that I would assume that same set of circumst ances or
statcerns. would be raised, t hat the coun t ry in which the head of
indt ci esided would probably want the opportunity to prosecute the
I VI ual, and that the ext r adit ion process would proceed.
t her efore caught up wit h why we should eve n have that
ar provision if that t he case. .. .
Unit 'dCSVILETII. Well , In some Instances that IS different In the
Withe t ates as to other fore ign countries because, as you know,
toriali ome special exceptions our law does not apply extraterri-
y.
130
In a great many European countries and foreign countries th .
law does apply extraterritorially, their criminal law. It follo;"s
citizen, wherever he may go, and when he commits a crime .e
another country, that is a crime of his residence count ry as well II)
his temporary country. as
That is not true generally as to United States law, criminal law
and as a result our agreements, our extradition treaties and ou'
memorandums of understanding with foreign countries are differ
r
ent in material degrees from those agreements between
countries exclusively.
So it may have been with that difference in mind in this section
the Justice Department recommended and the Congress passed
and the wisdom was such to enact into law, this 1116, to close
gap which otherwise would have existed, so that we would have
authority in this country to prosecute perpetrators who offended
for example, a public official, either in a South American count ry
or some other, who was a European official, because our statutes
and our extradition not being geared t o extraterritorial application
may not have been sufficient to allow the ease of return which does
apply when the act occurs by the perpetrator in the public official's
own country.
Mr. DODD. Could I ask you--
Chairman STOKES. The time of the gentleman has expired.
Mr. DODD. Just 10 more seconds. I appreciate your response. It
sounds sensible enough to me.
Could I ask you to have your staff take a look at that for us and
if you are correct, I would appreciate a memo, if we could get that,
explaining it .
Mr. CIVILETTI. I will be glad to supply it to you. It may be totally
incorrect.
Mr. DODD. It sounded awfully good. I appreciate it.
Thank you, Mr. Chairman.
Chairman STOKES. Mr. Civiletti, let's move to another area.
Assume that the President is in a particular city here in the
United States and that he is fatally shot. Under existing statutory
authority the local authorities-or does the Federal
have the exclusive power at that point to conduct a forensIc
autopsy?
Mr. CIVILETTI. Well, as I read and understand not only this exact
language, but also the legislative intent of the assassination
utes, the Federal Government would have that exclusive authonty
superseding all other law. .
Chairman STOKES. All right. Is it your understanding that It
would be performed by Air Force pathologists?
Mr. CIVILETTI. That is my understanding. Not by statute, but b)
the existing agreement between the Air Force and the Federa
Bureau of Investigation.
Chairman STOKES. OK. e
On that point, there has been some concern-and if you haVe
any views I would appreciate them-with reference to whether
Attorney General perhaps ought to be able to set up an indepef;
ent panel of pathologists, so that in the event of this kind 0 . J1
traumatic situation, accompanying it, would not be the realiza
t lo
131
at the is such 8;n a,utopsy, in light of the
th sibili t ies of militarily mvolved assassi nat ions, et cetera.
POMr. CIVILETTI. I have any view on. t hat. I am not
faJ11i1ia
r
wit h the Air Force people. But If they have a substantial
. tit ute or unit and they are scientists, my guess is t hat t hey are
first and military second or third even and that it
SCi uldn't as a practical matter, make much difference.
WIt may be a significant difference in symbolism, perhaps, and
that to be weighed and considered, but I don 't have any
strong view.
Chairman STOKES. Let me ask you this, on t he sa me question,
dealing wit h some degree of independence.
In 1963, when President Kennedy was assassinated, of course the
Warren Commission was set up by President Johnson t o conduct
the invest igation.
The effect of it then had the onus of transferring to the Commis-
sion the invest igat ive and decision and policymaking authorit y
while at the same time the FBI had the investigative burden in
terms of the invest igat ion.
Do you think in the future, in the event t hat this were to occur
again, we ought to have a similar type of commission or ought we
to be going towards some type of special prosecutor route?
Mr. CIVILETTI. I don 't know the answer with regard to the com-
mission because it is hard to predict the kind of event which gives
rise to t he invest igat ion. In some instances a commission pre-exist-
ing would get in the way of an investigation, and there would be
again a diffusion of authority and direction.
On t he other hand it may be highly desirable t o have the t heo-
retical benefit of a totally independent review or analysis at some
point of the actions taken by t he FBI or by the prosecut or' s office,
or by whomever is involved.
It is difficult to think of all the hypotheticals in advance and
then make a sound judgment. At least it is difficult for me.
I assume that the Warren Commission at least was intended and
to have that kind of independence and impartiality, espe-
m picking the most respected jurist.. the Chief Justi ce of the
nited States, as the head of it . .
WYet either through circumstances or events or experiences, t he
wiiren Commission certainly did not serve that fun ction entirely
e ,or at least as it may have been designed to do. - ... .
rnSo, I ar,n doubtful that any given commission desigiied now will
whet entI rely the goals or the intentions that we now envision
traen don' t know the crucial thing, which is t he nature of t he
wsactlOn or the act or the activity.
kno e know the mood of the country at the t ime. We don 't
If the. event will be inside t he United States or outside. We
valid.; now If the unknown factors which affect the credibility and
for I Y of t he process are such as to overwhelm a simple approach,
look:xample, a perm.anent be
time d upon perhaps Itself as an inst it ut ion of ht tl e credibi lity over
As' anot her arm of the Government, so to speak.
the p 0 a special prosecutor, I have a firm view. The prosecution is
resentat ion of fact and law t o a trier of facts on the merits. I,
132
myselfdon'tsee any need or requirement thatwould aid the proc
ess by havinga special prosecutor. -
In fact, I can see thekind of traditionalargumentsthathereYOll
would notwantto havesomeone who was nota regular prosecutor
well -trained and experienced, and in the Department of Justice'
because you would not want to wait until he had set up his
and established his procedures and withstood a fight about who he
wouldbe andthe rest.
So, the prosecution part of this, I think, as a general matter is
not as troublesome to me as some of the other issues which the
committee hasgrappledwithandis grapplingwith.
ChairmanSTOKES. Thankyou. My timehasexpired.
Thegentlemanfrom Nor t h Carolina, Mr. Preyer.
Mr .PREYER.Thank you, Mr. Chairman.
In your statement, Mr. Civiletti, you point out that should an
attempt be made to assassinate a President today, the legal sit ua-
tion would be quite different from what it was at the time Presi-
dentKennedywas assassinated.
We now have an assassination stat ut e relating to the President
and Vice President. We have an assassination statute relating to
Congressmen. You make the very sensible suggest ion that that
coverage ought to be extended to Supreme Court Justices and to
Cabinetmembers.
There could possibly be an amendment on the floor to exempt
one or two Cabinet membersfrom thatcoverage. Buton thewhole
I thinkthatthatis a sensible suggestion.
Those t wo statutes that we now have, the assassination statute
for the President and Vice President and for Congressmen, both
startout like this: "If Federal investigat ive or prosecutivejurisdic-
tion is asserted * * *"-so someone has to decide at the outset
whethert he Federal Government will assertjurisdiction andmove
intothecase or not.
I take it that that decision is made by the Attorney General?
Mr. CIVILETTI. Yes.I thinktheintentof thestatute,atleastfrom
the brieflegislative review thatI did with regard to itin anticipa-
tion of this testimony, was that it be automatic, and I think that
theBureauandtheAttorneyGeneralhavethatview in carryingit
out.
I don'tthinkitis a question of weighingfactors anddetermining
whether or not you do it. I think there would be an assertion
immediately.
Mr. PREYER. So you think the Federal jurisdiction under
statute attaches automatically, that there is no discretion in It.
Mr. CIVILETTI. I think that was the intent. I think that is the
practical effect of the FBI's operations and of the Justice Depart-
ment'sviewpoint.
Certainly in niceties, if I were redrafting that statute and
was the intent, I would put that exact language in. But I dont
thinkthatthereis a frailty in thatregard.
Mr. PREYER. I wonder if the statute shouldn't be made a little
more clear on that. To just read it, and with the history of the
concurrent jurisdiction, of State and local jurisdiction in these
matters, I would think the way it reads right now that the State
133
ld have the power to investi gate until and unless the Justice
",ou rtm
ent
assertedjurisdi ction.
I gat he:r from what you say clearly your belief t hat
au aljurisdictionshouldbe automaticm thecase.
fettCIVILETTI.It shouldattach, itseemsto me,immediately upon
oftheacts.
ther. PREYER. The statute has another pr:ovision in regard-
. .r.\equesting assistance from other agencies.It reads, Assistance
109 be requested from any Federal, State, or local agency, includ-
Army,Navy, andAir Force,any statute, r ule, or regulati on
contrary notwithstanding. "
toWhat is your understanding under that statute of who has t he
'ghttorequest thatassistance?Is ittheDirector oft he FBI,or the
AttorneyGeneral,or t he President,or allofthem?
Mr.CIVILETTI.Well, it is clearly the Attorney General. Probably
if delegated, redelegated undertheFBI charter, or some otherrule
orregulation,t he Director of theFBI, andto t he extent t hatthere
is not a restrict ion on the President, in some express manner ,
ordinarily the President has all the authorit y of the Attorney
General,ifnotmore,undertheConstitution.
In most instances, he has delegated t hat authority out complete-
ly to the Attorney General. So, I would think that under this
specific st at ute, as opposed to the general application of t he mili-
tary,that t he Attor ney General and the Director of t he FBI woul d
be able to call upon t he equipment, special equipment , flights,
military forces, to maintain the premises or things of that kind,
withoutPresidential authorit y.
Mr.PREYER.If I could askone more question about thatstatute.
Since they are new,I thinkwe need a little history behind themto
clarify them.You are certainlyin thebest position to give us that.
It says thatprovision atthe end thatyou can request this infor-
mation, " * * * any statute, rule, or regulation to the contrary
notwithstanding."
Is It your underst anding that , say, you request assistance from
SecretaryofTreasuryto getincometaxreturns, andt hat there
provision of law from the Treasury Department or regulation
Wtalch says it would not be available to you under these circum-
s nces?
t his law override thatTreasur y Departmentregulation? Or
bankrecords case that you were asked aboutearlierhere.
....n...) this overr ide all of our other laws t hat permit' l3f;l Cords being
'''aue available? "
CIVILETTI. I don't know the answer to that. I tend to t hink
Felit was designed to override State law as well as conflicting
Co'::tal law applicable to theuse of themilitary,such as thePosse
j"latus Act.
unctould have to research the legislative history because it is
WOUWab from the face of the statute whether what you suggest
hroa e true or not, to determine whether or not the inte nt was
he d so as to override the protective statutes which have
en
If .a either beforeor sinceitsenactment.
ptobit dId,.or if it was designed to do that, I don't see much of a
the wit h it myselfbecause of theinfrequency oftheexercise of
rUSIOn andtheneedfor it.
134
However, as we noted in the Bank Privacy Act, we thought .
Justice so much of Treasury's arguments on behalf of the SecIII
Service, that we recommended to Congress, and they agreed
the Secret Service in its security function be exempt th
t
restrictionsof theFinancialPr ivacy Actof 1978. e
ChairmanSTOKES. Thetimeof thegentlemanhasexpir ed.
Thegentlemanfrom Indiana,Mr. Fithian.
Mr.FITHIAN. Thankyou,Mr.Chairman.
Mr. Civiletti, I am interested in your understanding of jurisdic
tion and assumption of jurisdiction in the case of non-Federai
officials. In the case of Martin Luther King, I believe, t he jurisdic.
tional authority rested on his civil rightto travel. Thatseems toa
layman as kind of a far reach to getto a position where you could
actuallytakeaction.
There are two or three questions. I will sort of group them
together.
Would it be more direct and more specific to recommend or to
draft a homicide or an amendment to the Federal homicide stat.
utes t o deal with this, rather than to go t o t he extentof t rying to
workundersomeone'scivil rightsamendmentorcivil rights?
Thesecond partof thatis, from your perspective, is this general.
ly leftthatway, to permittheJusticeDepartmentandthe FBIthe
maximum flexibility as to whether they do or do not get into a
case? In other words, you don't have to invoke the rightto protect
someone's civil rights, I take it, but you would have to invoke or
you would have to apply or comply with the homicide statute?
Mr. CIVILETII. No. The answer to the first question is yes, and
theanswerto thesecond questionis no.Sure, itwould be,in terms
of investigation and prosecution, more simple to have a specific
crime applicable to the action thatyou wanted to prohibit as well
as the subj ect that you wanted to protect. A homicide statute
dealing with some narrowly described group, which might be sig-
nificant to the national interest, or frequently engaged in inter-
state commerce, or related to any other traditional Feder al jUrIS-
dictional hook, could be designed and promulgated, and would
make, to a lawyer as well as to a layman, the investigation in the
Martin Luther King circumstance one that was more clearly
withinthe reachof thespecificstatute.
Mr. FITHIAN.Doyoubelieve--
Mr. CIVILETII. I think, though, that the reason that t hat is
true now has little to do with flexibility. Ithas more to do Wit
federalism and more to do with theidea, which is somewhat weak
d
ened in the modern world, today's world, both in terms of law an
practicality, that there ought to be a direct, immediate
interest before the Federal Government passes particular ly cru
t ll
-
nallawswhichareduplicativeofStatelaws.
So I think that the attitude traditionally and hi storically has
been that ifthe subject matter is covered by the common law
t he statutory law of the respective States, that there have to.
sound and good reasons of one kind or another directl y
the Federal interest in order to get the Federal Government Inrt
that jurisdiction in a duplicative fashion. And when you s18.
moving away fr om high Government officials to public figures, I
t
........
135
rues perhaps difficult t o det ermine whether you are not pass-
a gener al Federal homicide statute.
regard to flexibilit y, I t hink t he unifor m approach, despite
of any statute,t he unifor m int er pret ation of t he
tbB is and has been, I t hink, to t he !1at ure of the
la
w
cific
cr ime, that part of t he constitut ional aut hority t o en force
srlaWincludes t he exercise of discretion in enfor cing the law as
t B
such
issues as how many t imes, how frequently, which cases,
toder what criter ia t o pr osecute or not to prosecut e. So it is not
anyone would want or would have more flexibility under a
lvil rightsstatutethan a homicide statut e.
CI Mr. FITHIAN. Absent any changes in the Feder al homicide stat-
utes doyou think thatthedevelopment of guidelines which would
outlinespecifically when t he Federal Governme nt will asser t j uris-
dictionwould be helpful?
Mr.CIVILETII.Itmightbe helpful. Again I assume you ar e speak-
ingabout some type of expression or guideli ne under exist ing law
as to when the Government would int endor under what criter ia it
would int end to invest igat e attempts t o assassinat e ' or kidnap
publicpersons, notnecessar ily Federal officials.
Isthat the thrustof what you were saying?
Mr.FITHIAN. Yes.
Mr. CIVILETII. To issue a guideline to say, if not in st at ut ory
form, th en what it is t he Depart me nt of Just ice and t he Bureau
envision as their responsibility, and how t hey int end to act in t he
area.
Mr. FITHIAN. And at what poi nt t hey woul d exercise or clai m
jurisdiction,whetherornottheywould toler atejoint jur isdiction or
concurrent investigations with t he States, how important t he indi-
vidualwould have t o be by some defi nit ion as t o whether or nothe
then would fall underthis or shewould fall under this.
Mr. CIVILETII. The reason I hedged the answer is t hat the coun-
terargumentto guidelines, despit e the factt hat t hey are he lpful in
many ways, is that if they are less t han t otal invest igation and
prosecut ion, they leave open beneat h t he gu ideli ne t hreshold an
area .of jur isdict ion which has been precommitt ed to not being
To a certain ext ent , t hey then give the public a sense or
a sense t hatthey have a license at leastfree
ar e eral below thresh<;> ld: And that is. ..general
argument , not. particularl y relatmg to this mstance, but a-general
wf::f!1
ent
which the Justice Department is sensitive t o, in not
t
$5OOln
g
to spell out in each detail- if the case involves less than
cO, are not going to invest igat e and prosecute federally; if
someone younger t han 10, we are not going to
Proseute, If It mvolves someone olderthan 90, we ar e not going t o
rent cure, and all t hose other fact ors-because we want the det er-
Want v: ue .ofthe stat utes to apply to everybody. Per iodically we
Partie Ishift the prosecutive effort , eit her to make examp les of
he u ar whi ch have become epidemic in a certainarea,or
cau
dial We t hat a ser ies of prosecut ions would have a rerne-
So gUIdelines, ,Prosecutive guidelines, although t hey are
Which h Y under st udy m the Department, impose a down side
as t obe considered.
.........
136 137
Mr . FITHIAN. Wouldn't t hat same argument apply to try]
draft a Federal homicide statuteto coverthesepeople? ng to
Mr. CIVILETTI. No; because you would have the ot her avail
invest igat ive hooks which now existto supplement,say, a narrable
drawn statute. I don'tt hink anyone would want to make the; Wly
mentor really recommend thattheGovernmentoughtto have rgu_
FederalGovernmentoughtto have, broadinclusivehomicide
t igative and prosecutive jurisdiction which would duplicate the
States. So I think that the argument of license would not
available in a narrow public person's statute, although I rnys
would not recommend it unless perhaps it was very, very
Chair man STOKES.Thetimeofthegentlemanhasexpired. .
Thegentlemanfrom Connecticut.
Mr .FITHIAN.Maybein hisabsenceI could asktheot her question
I havein mind,Mr. Chairman.
Chairman STOKES. The Chair recognizes the gentl eman from
Indiana.
Mr. FITHIAN. This is a question that pertains to an earlier set of
questionsthatI had.
Specifically, if the Secret Service, let's say, in the case of oneof
the names of all the securit y risks or individuals whom they Con-
sidered, whom theFBI considered securit y risksto thePresidentin
Des Moines, Iowa ,or wherever ,because the President was goingto
travel t here, and the FBI, for whatever reason, wanted to protect
either the source of how t hey developed this name or the name
itself, the name of this securit y risk, by not supplying the name,
what could and what would you or the Attorney General do ina
case likethat?
Mr. CIVILETTI. Supplythename.
Mr .FITHIAN.Thankyou.
Chairman STOKES. The gentleman from Connecticut, Mr. Dodd.
Mr .DODD. Thankyou.
Mr. Civiletti, there is another provision of anot her statutethatI
would like to bring to your attention, the Financial Privacy Act
that was passed recently which provides exemptions from disclo-
sure to Governmentauthoritiesauthorizedto conduct foreigncou:n'
terintelligence, theSecretService for the purpose of conduct ingIts
protective functions and so forth, and I would like to draw y?Uf
attention t o provision B, having t o do with the Secret
As I understand it, theSecretService does nothave theauthorI-
ty to investigate or to serve in any sort of counterintelligence
capacit y, on thedomesticscene.
I would wonder why we would want to extend the exempt ion
theSecretService,particularlyherewhen it is narrowly defined
its protective functions, in light of the fact t hat they are nO
engaged in theacti vitiesthat I mentioned. ir
Mr . CIVILETTI. I don't think there is a prohibit ion against th
el
I
engaging in intelligence or infor mati on collect ing activity at all. r
don'tknow of any st at ut e which prevents them from doing that0t
restrictsthem from doing it firs t hand, and in factitis curious
over theyears the Secret Service has n' t seen fit to develop its 0 is
sources and methods in that direct ion. And I guess the answerr
e
that because there have been so many more FBI people who a11'
actively charged with counterintelligence and with domestic seC
nd antit er rorist activities, it is sounder , more economical and
rity more efficient to havethe transferoverof relevant material
J1lrmat io
n
from all lawful intelligenc e gathering to t he Secret
ill or'
ce
so t hat it can fulfill its functions of protecti ng the execu-
and its ot her security functions. I guess that is t he answer.
tl
veS
DODD. Didn't the guidelines t hat were promulgated limit
r
kind of act ivit y specifically to the FBI and exclude ot her such
thanciesfrom engaging in thatki nd of acti vity?
ag'Mr CIVILETTI. I don' t thinkso;no.
Mr'DODD. I don' t haveitin frontof me.
Mr' CIVILETTI. No; I have the domest ic security investigations
guideiines before me,butI t hinktheyapplyto thefunctions andto
the nature of t he activit ies, particularly by t he Burea u. I don't
think there is any provision that says that for other missions
another law enforcement agency or bureauor groupcould provide,
can conduct what would be known as eit her domestic security or
intelligence invest igat ions under similar standards or the same
guidelines.
The reason for t he exempt ion was the Treasury Departmentand
the Secret Service's argument thatwhen they receive information
as a result of domest ic security invest igat ions, to check out that
informat ion, and particularl y because of the nature of the execu-
tiveswho travel, they have to have prompt and immediate access,
to follow the leads and to reduce the risks or to find out more
informat ion, to t he kinds of records that are available in not onl y
financial insti t ut ions,but employment records andall ot hers.
So it is not simply t he initiation, but it is the pursuit and
evaluat ion, once the leads are obtained fr om t he collect ion
agencies.
Mr. DODD. I might point out this morning the Secret Service
testified that t hey were formul ating regulations as to their access
under this section, which woul d limitthei r access, so as to prevent
i:useof individual ri ghts. The Director said he would like a simi-
r exemption, except ion rather , to other acts enacted by Congress.
Mr.CIVILETTI.I am sure thattheirposit ion will be the same with
to health records andemployment records andto t he whole
senes ofprivacy init iat ives. . .
thMr. DODD. Will your office have any input into thatat all, or is
at somethingt hat will come solely from t hem?
hMr. Yes; we will have inputin t wo ways: One,we will
Dave a .vIewto express in the process in t he White House; in the
Office, which is dealing with t he general issue of
palVf!-c'y pursuant to the Pri vacy Commi ssion report. We
m that particularseries of init iat ives, as do most of the
iva departments , and I have at tended a number of t hose
ings.
art
cond,
we will have an input on the appli cabilit y of t he stand-
recoand mechanisms set up in t he Banking Act to ot her types of
prop
rds
d
when
are the subject of specific pieces of legislat ion
eXec by different committees in t he Congress or by different
Fu lVe commit t ees.
be : example, there are reasons or some arguments which could
thOseade Why t he model adopted for financial record privacy, and
except IOns andexemptions and thetests and thetimesandso
138 139
forth, should not be determined on an administrationwide basis
be immediately applicable to all kinds of records. Instead, a polito
determination might be made to leave some type of model cy
standard for evaluation as each particular category of records
presented, such as employment records or health recor ds or
other t ype of record, subject only to the principle that t here be i.
certain instances recognition of anexpectation of privacyand
thatmeansin termsof protections.
There are arguments that are less or more strong from a law
enforcement point of view, and from the point of view of Treasury
and many other legitimately interested agencies, depending on
whether you aretalkingaboutone kind or subjectmatter of record
or another.
Mr. DODD. Thankyou.
ChairmanSTOKES. Thetimeofthegentlemanhasexpired.
Mr . DODD.Thankyou, Mr. Chairman.
Chairman STOKES. Mr. Civiletti, I am sure you are familiar with
the fact that the Warren Commission was quite critical of the
Dallas Police Department, with reference to many of the state-
mentsthatwere madeby police officials relative to theguilt ofLee
Harvey Oswald, to the degree that had there been a trial in his
case, in all probability there would have been the assert ion of
violation of his constitutional rights by virtue of this type of preju-
dicial releaseof information.
I would be concerned in knowing what the Justice Depart ment
policy is with reference to the dissemination of news regarding an
assassination, in theeventthereweresuchanoccurrence.
Mr. CIVILETTI. There is a tug between two sound principles, in
answering that question. The first principle, which the Attorney
General has reinforced and extended, is that the Justice Depart-
ment, in criminal investigations and prosecutions, in accordance
wit h standardlaw, butin greaterdetail in application,should have
nocommentwith regard to invest igat ions,andno comment even at
t he time of the public disclosure of particular dependents through
chargingor arrests or public searches, on theguiltor innocenceor
details of facts which relate to evidence or the determinat ion of
guilt or innocence. And the Attorney General has applied, both
the U.S. attorneys and to the FBI , a standard that limits pubhc
comment to a simple recitation of the charges in the indict ment or
of the limited particulars available in a public document, such
thearrestwarrant, atthe time of the prosecution, andhasins iste
t hat therebe no othercomments.
Now despite that insistence, from time to time you will read in
the paper of a prosecutor, an assistant U.S. attorney or someone
else who goes beyond those rules, and t hey are called by the head
of t he PIO Office, or in some inst ances written to by me or by
Att orney General, r eminding them, and in effect r eprimandlOg
them, for havinggone across thatline. So thatour view consistent
with that principle, sound principle, with regard to
to the extent that it was a criminal invest igat ion and involve
potent ially a prosecution, would be to forb id thecomment.
On the other side, in those instances where t here may not be a
specific matteror a specific suspect or a specific courseof action
prosecution or investigation underway, but somet hing occurs t ha
mes un der our jurisdiction concerning an intensely newsworthy
COb'ect, a judgment is difficult to make as to whether or not there
i. public right to know, under some principles, first amendment
ISrinciples or other principles. Largely that often is determined in
ihis second area almost by default, by the ability of the press and
the media, despite whatever rules are in existence, to obtain good
ources and obtain facts and infor mat ion through hard work, dig-
andt he rest. Sometimes in thatinstance it becomes a necessi-
ty ack nowledge.a action in order to PTe-
vent wild speculat ion, mis leading or mflammatory rumors which
are floating aroundina volatile circumstance.
Sothe line between the two, between when it is important and
roper in a highly explosive and inflammatory situation t o ac-
knowledge and pr ovide sensible general information, accurate in-
format ion, and the other duty not to prejudice or hinder or inad-
vertently even handicap an investigation, is one that I could fore-
seein t he circumst ance of an at tempt ed as sassinat ion or assassina-
tion of a high Governmentofficial not to be ent irely clean cut and
easy.
My own judgment would be that the Attorney General, because
ofhis disposit ion and his efforts to enforce his press policy in the
rest of the department and the U.S. attorney's office's, would be
inclined toerr,ifwe er r , on theside of prot ect ing theinvestigation
and the nonpr ej udice of all the r espect ive rights involved. But you
can see the kind of difficulty in t he great tragedies and the r esul-
tant mas sive inquir ies concerning t he Guyanian and Congressman
Ryan' s deat h.
Chairman STOKES. I suppose then in act uality, t he precise situa-
tion which existed in Dallas as it relates to the local authorities
would st ill be t he same today really. There just are no rules or
regulat ions.
.Mr.CIVILETTI. I amsorry, I didn'tmean to give you thatimpres-
sion, There arewritten guidelines, directions by theAttorneyGen-
eral to all U.S. attorneys, which al so have been di rected to the
alt hough-I saw a draftabout 2weeks ago-theyarebeing
and spelled out. mor e clearly. -They would be generally
apphcable to all SAC' s and other Bureau personnel as well as to
the Depart ment of Justice, and they setout expressly prohibitions
and allo.wances in the handlingof pressinquiriesand press matters
cr iminal investigations andcriminalprosecutions.
fi 0 t hink that thoseguidelinesanddirectiveswouldbe looked to
in the responses and for the formal communications they
oudgener ally be followed.
r I am suggesting is thattheywould perhaps suffer some in
iob
ctIce
, because of the enormous pressure that would be brought
C on the department.
Mhal: man STOKES.Thankyou verymuch.
T Yt ime has expir ed.
Mhe gentl eman from Nort h Carolina, Mr.Preyer.
F; ' PR.EYER.Thankyou, Mr. Chairman.
We up on that point, I am encouraged by what you say.
.ed Mr. the head of Secret Service, this morning
hIS news pohcywould be, anditin effectwasto give informa-
140 141
tion in the nature of name and serial number, and refer it to th
JusticeDepartmentwhentheytookovert odo therest. e
I am encouraged that you actually are considering this in th
form ofwrittengui delinesto offerguidanceon it. e
Generally, I agree stronglywith yourposition aboutno comment
on guilt or innocence, but I would hope, in the case of a Presiden.
tial assassination, those guidelines will take into consideration'
that where a President is assassinated, and you are dealing with
the transfer of power and the need to make sure that it is a
legitimatetransferof power, thatprobably we have to lean a littl e
moretowardthepublic'sri ghtto know in thatinstance.
Generally, I am notin favor of double standards,butin this case
it seems to me we do have to work outsome way thatthe Ams-],
can people can get, in an orderly way, information on that, and if
we can also figure out some way, I hope your guidelines will
considerthis:how false information canbe corrected.
In the Dallas situation there was a lot of false information, and
as far as I know, mostof it is st ill uncorrected in the source, in the
newspapers, for example, thatputitout.
Let me justaskoneotherquestion for yourlegaljudgmentonit,
which is not directly related to what we have been talking about.
The Presi dent recently signed legislation which authorized legal
representation of the Senate. The House did not go along with that
in the conference, so it was left just that the Senate has legal
representation.
We have found in the assassination hearings that the staff has
quite a few, has run into quite a few problems, in going into court
and askingfor immunity orders or habeas corpus orders, and that
something like a House legal representative would have been very
useful.
Doyou haveanycommenton whethertheHouseshould dowhat
the Senate has done, that is, authorize a legal representative for
theHouse?
Mr. CIVILETII. No.
Mr. PREYER. You are a very wise man, Mr. Civiletti. Thankyou.
ChairmanSTOKES. Thetimeofthegentlemanhas expired.
Thegentlemanfrom Indiana,Mr. Fithian.
Mr. FITHIAN. I haveone additional question,Mr. Chairman.
Would you personally favor the drafting of a code of conduct for
attorneys who accompany clients before an investigative congres,
sionalcommittee?
Mr. CIVILETII. I don't think so. I think that I would probably-I
don't know the experiences that you have been exposed to and
suffered throughor found intolerableor very distasteful, whateve
d
But the only two things that spring to my mind in that reg
ar
,
would be rules perhaps, rather than a code of conduct. I havent
given anythoughtto it,butrules of theHouse mightbe
which would atleastbe directed toward two things: One, multIPe
representation, which I think is a problem with which the code of
professional responsibility does not adequately deal, and, seco
nd
f
rules which relate to the demeanor and conduct, the method 0
giving advice and counsel to a witness, particularly during
course of testimony before the committee. As you know, in mO
s
circumstances of witnesses testifying, other than in congressional
itte
es
, once the inquiry is underway, and if is a presid-
CoI1l'fficer then counsel is not allowed to communicate constantly
irt%; the or to interruptthe interrogation, or to impede the
WIt ioning, unless it reaches a point of some different subject
or whatever , unless special permission is obtained from the
ll1
at
'
d
ing officer, be it a judge, a magistrate or some other official.
I would suggest that those, and perhaps many others, but
eare two areas thatcould be or might be dealtwith by means
committee rules, rather than trying to enter the
o of a general code of conduct for lawyers who appear with
or on behalf of clients before congressional committees.
cII would t hink as a general proposition, aside from the specific
. terrogat ion and fact finding, thatas to general conduct, conflict
11; interest , dut ies owed to the law, duty not to misrepresent, and
onthe other ethical considerations thatare included in thecode of
arofessional responsibili t y, that in the event of aggravated viola-
iionsofthose et hical or. directives, the ought
toexercise Its authority by invoking, to the extent possible, the
disciplinary procedures and complaint procedures available for all
other kinds oflawyermisconduct.
But I do t hink there are some legitimate rules thatcould be set
out such as the two that I mentioned, which would apply specifi-
caliy to congressional hearings and might deal with problems that
otherwise do not violate the code of professional responsibility of
lawyers.
Mr. FITHIAN. And you think that ifsomething were worked out
in those two areas,thattheCongress could balancetherightof the
witness to adequate advice and counsel on the one hand, against
impeding an invest igat ion or obstructingan investigation or delay-
ingan investigat ion on theother?
Mr. CIVILETII. I think a rule could be devised which would be
sound and lawful to do that, and I think it would help. I am not
t hat a rule alone would completely resolve the difficul-
ties thatare inherentin a lawyertryingt o do everythinghecan to
protect the interests of his clients or client in a semiadversarial
and the members of the committee and their counsel
find the facts as forcefully andquickly as theycan. There
wl stIll be difficult ies,but itwould helpI think.
M
r.FITHIAN.Thankyou.
Thank you,Mr .Chairman. . . . .
STOKES.Thetimeof thegentlemanhas'expired.
M eBent leman from Connecticut,Mr. Dodd
Cr. . ODD.I have no furtherquestions.
STOKES. Mr Siviletti, let me refer you to partof your
on page 3 of your prepared remarks. I am going back
You mamto the media aspectof the former question thatI asked
course you mentioned in your tes timony that it is very
any incident involving political assassination or at-
rued} ed polIt ical assassination would occur in the presence of the
Yoa recorded atleastin parton film or tape.
ity th then go on to say thatyou would expect and in all probabil-
tile media would be cooperat ive with you in terms of
et Cet estIg:'lt lOn and sharethose types of recordings, photographs,
era,Withyou. Butyou also cite thefact thatin theeventthat
142
.did not, that in all probability coul d reSort t
j udicial process. And I guess the question that points to is the
you are invest igat ing an event, such as a political assassinat i here
become involved in confrontation in the courts, and the to
delay that would ensue as a result of that leads me to wond
n
. of
whether or not in a relative period of calm such as the
t here any possibility or any merit to the suggestion that Sorne IS
of an agreement be worked out with the press relat ive to SUCh
nd
situation in order t o try and avoid this type of confrontati a
n
realizing re.cently we ?ave had cases where the press h,
been very Jealous of Its prerogatives m terms of assertion of
rights to certain materials? 1 s
Mr. CIVILETII. Certainly I would favor discussions to reach SOm
kind of a voluntary understanding with responsible members
newspapers or media or press or whatever, which perhaps would
not have the force of law, but certainly in which each side would
be honor bound. That might be worthwhile.
I would oppose a broadening or increase in Federal authority
to secure, through preemptory means, materials or mformation or
work product of the press or the media, even in the event of
allegations of, or suggestions of, or the occurrence of, kidnappings
or attempts to assassinate, or assassinations of high public officials.
Mr . CIVILETII. I might further answer, without comment ing on
the investigations themselves, that as you know perhaps, in some
very newsworthy investigations we have had absolute cooperation
from t he media with regard to availability and the use of materials
which were relevant to the occurences.
Chairman STOKES. Let me ask you another question, sort of a
spinoff of the question being posed to you by Mr. Fit hian relative
to the appearance of lawyers before a congressional committee.
The problem first came t o light during the Watergate hearings,
of course, where there was joint legal representation by one lawyer
for more than one wit ness appearing before the commit tee, and
this committee encountered the same kind of a problem from the
viewpoint of the possibilit y of t he conflict of interest where there IS
such joi nt legal representation, and there being no law applicable
t o the situation under congressional rules and regulati ons we
resorted to bar association ethics and excluded such representatIon
on t he basis of bar association ethics.
I wonder if you would have any comments wit h reference to
whc t her t here ought t o be some r ules or regulations or law
in t hat area? I might just add with reference t o you r grand JurIes
as well as our executive hearings might be applicable here. d
Mr . CIVILETII. I am reasonably content with t he soundness anr
t he operat ion of Federal grand juries now. We have adopted oV' e
t
the course of the last year a great many improvements to. m
ee
e
criticisms of apparent defects or alleged capacit y for abuse In th
t.
grand jury process, at least 10 major changes adopted by Depa
r
e
ment of Just ice regulations, so I am reasonably content with
authorit y and use and safeguards t hat are presentl y available 1
the Federal grand jury process. JlI
Certainl y multipl e representati on is a concern there. But I a
reasonably content with the way t he grand juries are now.
143
It'\., trouble is a quid pro quo of a bill or procedure for nonmulti-
resentat ion by a lawyer in the grand jury, and t hat is
pIe I think is not in the best interest of our syste m of
9O[1le
iL1jti
d:fi
nitely think, though, that a congressional r ule or House
which prohibited multiple representat ion would be in the
ru!\ of the code of professional responsibility for lawyers. To the
SPlrI t hat it was-and you woul d have t o look at this quite
nt
t he extent t hat it was effective to prevent the transfer
c0the communicat ion of at t orney-client information obtained by a
ore-o -
one
relationship to ot her clients or attorneys, again singu-
n
r:rIY represented one-on-one, then I t hink it would be beneficial.
The t rouble with it as a panacea is that it is t oo easily avoided
'Il1ply by a consor t ium of ot herwise independent clients or inde-
lawyers, so t hat you would have to have that extra protec-
tionand it would have to be a valid and lawful purpose, one which
I think could probably be designed.
We are somewhat protected, at least t here is the second and
third-hand protect ion of the fact that the grand jury, being a secret
investigat ive body, can move somewhat more quicky with regard to
witnesses.
Chairman STOKES. I have just one additional question.
As you know, t his particular committee goes out of business
December 31, and a couple of matters have come to the attention of
the commit tee during the course of its investigation.
Specifically I would have in mind the Bronson film which has
just been t urned over to this committee about a week or so ago
with reference to movi e photographs taken of the book depository
window, and then an acoustical tape which this committee has had
before it with reference t o the shots in Dealey Plaza, and for a
committee going out of business in a few days and certain ques-
tIons being raised' wit h reference to materials of this sort, my
question would be whether the Department would be in a position
to perhaps pursue further an additional investigation relative to
maten als of this sort?
Mr. CIVILETII. As a general matter, my answer would be no.
As a gene ral policy, the Department of Justice seldom turns
dOwn exploring at least or reviewing a petition or reasonable re-
qUest or whatever .
a own view is that the committee's work has substantial
. one well and really remarkable. Of course, we"'have had in
to substant iated other efforts which have gone on prior
the Dcommittee's work. In the instance of the Reverend Dr. King,
SO did a partial study analysis which was completed
I believe around June of 1977, prior to the change in the
UInlstrat ion. To some extent, even where we have investigated
senndly. and. prosecuted soundly and there has been conviction and
worYd;,cmg, incarcerat ion and the rest, to some extent in the best of
hum t here is always a question of the imperfection that attends
Prodan events as opposed to mathematical calculations or scientific
Cert or results. It becomes a matter of the public will to a
dUti:
1n
r xtent , but also a matter of judgment that falls within the
as toS 0 any particular department or agency of the Government,
how far and how fruitfully questions which always surround
144
human events can be tracked and explored to a useful or frUitf
purpose. \11
I don 't pass judgment on the Bronson film or the acoustical t
or whether or not they would be wort hwhile to experiment with
ape
examine in themselves, but as a general proposition I would thi Or
that there would be little dispositi on unless there was a sUbstant!l1
showing for the Department of Justice to begin any general
tion or investigat ion in t hi s rega r d. a,
Chairman STOKES. Thank you very much.
My ti me has expired.
The gentleman from North Carolina.
Mr. PREYER. I have no questions, Mr. Chairman.
Chairman STOKES. Mr. Fithian?
Mr. FITHIAN. No; I have no quest ions, Mr. Chairman.
Chairman STOKES. Mr . Dodd, anything further?
Mr. DODD. Not hing further, Mr. Chairman.
Chairman STOKES. Cert ainly, Professor Blakey?
Mr. BLAKEY. Mr. Civiletti, there are some really minor legal
questions that have occurred from time to time from the staff.
I wonder if a letter was written to the Department we could
expect a reasonably prompt answer for some?
Mr. CIVILETTI. We can probably get it t o you ar ound the first
week in January.
No, I am kidding. Cert ainly, Professor Blakey, we will be glad to
respond prior to t he expir at ion of your efforts and duties as soon as
we can.
Mr . BLAKEY. The hour is lat e and I would not burden anyone
wit h what would look like baroque det ail.
Mr. CIVILETTI. Thank you.
Chairman STOKES. Anything further?
There being nothing further, Mr. Civiletti, on behalf of the com-
mi ttee, I want to thank you for your appear ance he re today and
all of t he cooperation you and t he Department have furnished this
commit t ee.
We appreciate it very much.
Mr. CIVILETTI. Thank you, Chairman Stokes, Congressmen.
145
ADDITIONAL MATERIAL S UBMITTED BY MR. B ENJ AMIN R. CIVILETTI
THE DEPUTY ATTORNEY GENERAL
WASHINGTON, D.C. 20530
J a nuary 9 , 19 79
Hono r a ble Loui s St oke s
Chai r man
Se l e c t Commi t t e e on As sassinat ions
un i t e d State s House of Representatives
Room 3369 , Annex 2
Wa s h i ngt on , D. C. 20515
De a r Chair ma n St okes:
Th i s i s t o clarify one o f the i s s ue s t h a t I dis-
cuss e d i n my test imony be fore yo ur Commi tte e on
De c e mbe r 1 2 and to provide a f ulle r explanation of
a que s t i on of l aw t ha t I was asked by Co ngressma n Dodd.
I wou ld a l s o l i ke t o respond to the q ue s t i ons r ai s e d
i n Mr. Blakey 's l e t t e r subs e que nt t o t he hear ings.
First, i n t he ear l y portions of my testimony and
i n my wr i t ten s tatement, I referred t o the Department ' s
a ut hori t y t o c onduct s e a r c he s o f t he me d i a f o r mater ials
in t he ir po s ses s ion t ha t might provi de informat ion
r e l e va nt to a n i nve sti ga t i on into t he as sas s ina t ion or
a t t empte d a s sas s i na t ion of a pub l i c official. To avoid
any po s s i ble misunderst and i ng o r mi s interpretation of
t ho s e state ments, I wa nt t o make i t c l e a r t ha t when I
s poke o f exerci s i ng ou r sear ch powe r s in a ccordance
wi t h t he app l icable l aw a nd r egu l ati ons , I ful l y i nte nde d
for s uc h s e a r c he s t o be c overed by t he l e g isla tive
p ropos a l be ing devel oped by t he Crimina l Divi sion which
was announc e d s oon af ter t he hearing on December 12 .
Unde r t ha t proposal genera l ly , s ub poe na s wou ld be required
f i rst before a searc h f or mater ial s i n t he pos session of the
me d ia , and we would be prohi b i ted f rom s e a r c h ing for work
p roduct mater ial s o f t he p res s.
Se c ond , I wou ld l i ke t o appr ise the Commi tte e o f
t he r esul t s of furthe r resear ch "i nto t h e que s t ion raised
by Mr . Dodd c o ncerning t he apparent a nomaly tha t
18 U. S .C . 111 6 c onf e rs Un i ted St ate s j ur isdict i on over
i nd i vi dua l s who commi t various cri me s agai ns t
nati onal l y p r o t e c ted persons i f t h o s e
outs i de t he pers on ' s home c ountr y, whe ther "i n ' the
Unite d St ate s or else whe r e , but doe s not confer
146
147
Uni t ed States j ur i s di c t i on ove r p e r pe t r ato r s of s u ch
c r i mes i f t h e c r ime s o c c ur i n t h e protected pers on ' s
home count r y . I now un de r s t a nd t h a t t h e anoma ly y ou
s uggest i s i nde e d t he l aw, though f or di f f e r e n t reas on s
t ha n t ho s e I h ad pos t u lat e d i n my t e s t i mony . Se c t i on
11 1 6 wa s a mende d by Pub l ic Law 94 -46 7 on Oc t o be r 8 ,
1 97 6 , in order t o imp l eme nt t wo i n t e r na tion a l convent ions
tha t h a d b e e n s igne d and r atifi e d by t he Uni t e d St a t es ,
t he Uni t e d Na tion s Conve nti on on t he Pre ve n ti on a nd
Puni shment o f Cr i mes agai ns t Int ernat i ona l l y Pr o t e c t e d
Pers ons , Incl uding Di p loma t ic Agen t s , a n d t h e Or gani za t i on
o f Amer i c a n Stat es Co nve nt i o n t o Pr e ve nt and Puni sh t h e
Ac t s o f Te rrorism that a r e o f I nt ernationa l Sign i f ica nc e .
Both con vent ions c arr y a l t e r na t i ve prov i s i on s t h at i f the
p e r pe t r ato r of an off e ns e a gai ns t an inte r nati onal l y
prot e c t e d pe r son (defin ed a s i t is de f i ne d in Section
111 6) is f ound wi t h i n t h e b orde r s o f a s t a t e tha t h a s
r atifi e d t he c onvent i on , t he r a t i fying s t ate mus t e i t her
e x t r a di t e t he perpe tra t or o r t r y him un de r its own l aws .
Ne i t h e r o f these conve n tions is s e l f -execut ing , so that
Congr e ss h a d t o t ake act ion t o impl eme nt t he m, wh i c h
was a ccompl ished by t he most r e cent a me ndme n t s t o
Secti on 111 6 . Th e a noma l y that Mr. Dodd poi n t e d o ut i s
the r esult o f the defin ition o f "internati onally pro tect e d
pe r s on" under thos e conven t i on s , wh i ch a r e conce r ne d
s o l e ly with the pro t e cti on o f f orei gn o f f i ci a l s tra ve li ng
ou t si de t hei r home c ountri es from t errori s t a c ts.
Finally , Profe s s or Blake y i n h is l ette r r aise s t wo
ques t ions r ela ting t o possib l e l e gi slative initiatives ,
one concerning the condemna tion o f items r elating t o
pol i t i cal ass a s si na tions t o pr e s erve the h i storica l
r ecord, and the other c on ce rning for f eiture o f the
instrumentaliti e s o f the cri me . The f orfe iture o f
f i r e a rms used in a c r i me that v i o l a t e s t he fede r al
c r i mi na l l aw i s mandate d by 1 8 U.S.C. 924 (d ) . I n
addi tion t o t hat provision , however, it may be t ha t i n
t h e s pe c i al circums tance s o f a Presi dent i a l a ssa s s i -
na t ion , ce r t a i n o t he r ins t r ume nt a l i t i e s o f the cr i me
or items r elating t o the cri me wo ul d pr operl y b e t he
subj ect o f f orfei ture o r conde mnation . We wou l d be
r e ce pt i ve t o na r rowly dr awn l e gisl ati v e prop os al s
t hat s pec i f i ed with s ome p a r t icu lar ity t h e t y pe s o f
items cove r ed, though our e xperie nce wi t h t he for f e itur e
stat ut e s c a ut ion s tha t t he y be q ui te s peci fi c a s t o
t hei r c overage. Th e Crimi n a l Di vi sion o f the De partme nt
o f J ust i c e would be very will i ng t o r e vi e w and wor k with
t he Congre ss in effort s to de v i s e an appr opri a t e f or f e i t ur e
a nd con demnat ion s t a tute .
I wa nt t o e xpres s t o y o u aga i n my appr e ciat i on f or
t h e work o f the Se l e c t Commi tte e on As s a s s i na t i ons.
Ve r y tru l y y o ur s ,
? LJ /. , / h -;'"
1-*" {l';'
Be n ' i n R. Ci vi l e t t i
De pu At t or ney Gene r a l
Chairman STOKES. Thank you.
The Chair would like to make some closing remarks.
prior to those remarks I would like the statement to appear on
he record that some of the questions raised in these last 2 days of
t arings and the answers given by the witnesses have posed some
hether serious issues relative to civil liberties and to address these
the committee has contacted the American Civil Li-
berties Union.
Unfortunately, prior commitments prevented the union from
having a witness available to testify in these open hearings.
However, they have consented to submit a statement for the
record, which the committee will be glad to receive.
. (,:}
148 149
STATEMENT AND MATERIAL SUPPLIED TO THE COMMITTEE
FROM THE AMERICAN CIVIL LIBERTIES UNION
AMERICAN CIVIL LlaRTIES
W.. hlngton ornce
Jan ua r y 29 , 19 79
Mr . G. Robe r t Bl ake y
Ch i e f Co un sel
Se l e c t Committ e e on As s a s s i na t i on s
U. S. House of Re pr e s e nt a t i ve s
333 1 Hou s e Of f i ce Bu i l di ng , Ann e x 2
Washi ng ton, D.C . 20515
Dea r Mr . Blakey:
We wa n t to thank yo u f or the to expres s o ur
vi ews on th e o f t he Hou s e Sel ect Committ e e
on Ass a s s ina t i ons . Th e iss ue s wh ich mus t be r eso l ve d are
q ui t e i mporta nt. Obv ious l y ma ny of t hem rai s e s ub s t a nti al
c ivi l l i b er ti e s i ssues :
lVi t h r e s pect t o yo ur we s ubmi t for your
c on s i de rati on ACLU po lic y s t a t e me n t s wh i c h ma y be r ele va nt
t o t h e r esol ut i on o f t he s e mat t e r s by t he Con gress .
I . Le g i s l a t ive Re c ommenda t i on s on Issue s I nvolving the Prohi -
b i t i on, Pr e ve nt ion a n d Prose cut i on o f Assas s i na t ions and
Fede r a l l y Cogn izable Homi c i de s
A. Proh i biti on a nd p r e vention
1. no comment
2 . Th e Judiciary Commi t t e e s ho uld process for e ar ly
cons ide rati on b the Hous e comprehens i ve l egi s l a t i on
t hat would codi r e vi se and r eform the Fe dera l l a w
o f homi c i de , s pe c i a l attention t o a ssass i na t i ons .
Th e Commi tte e s hou ld g ive a pp r o pr i a t e a t ten-
t ion t o t he r e l a t e d off e nses o f con s p i racy, atte mp t ,
ass ault a nd k idnappi n
r
i n t he c onte x t o f assass i na t i ons .
Such shou d be p r o ce s s e d inde pendent l y of the
propos a l s f or t h e cod i f i c a t ion , or
r efor m o f t he Fede r a l crimi nal l aw.
Comme nts:
The ACLU oppo ses t h e c u r r e n t pr o posed r e vision of
t he Fe de ral c riminal l aw. Th i s o pposi t i on i s b a s e d on
t he un j usti f i e d e xpan s i on o f t he c rimi na l l a w a t t he
e xpense o f civi l libe r t i e s a nd t he r ights of defenda nt s .
600 PennsylvaniaAvenue,S.E. Washington,D. C.20003 (202)544 1681
John H.F:Shattuck,Director JayA.Miller,Assoc iale Director Kal hleen Mi ller,Legislal lveRepresenl al lve
Pamel e S. HorowItZ, Jerry J Berman, Legislahve Counse l Ellen teuzer, DaVid E. Landa u. Slaff Counse l
Norman Dorsen, Chai rperson, Board 01DireclOtll Aryeh Ne", r, Exec uhve O,recl or
i nc hoa te crimes of attempt of c onspiracy have been
The art icu la r concern. In the past, the combination o f
of e;e c r i me s and s ubs tan tive offenses have l e d t o co nsti-
t ht i ona l defic i e nt prosecut ions s uch as the ca s e against
t Ut Spoken p ublic cri ti c s of the government for conspiracy
OU i nc ite dr a f t r esis tan ce . Moreover, i nc hoa t e offense s
tOve bee n used t o j us t ify i nt rus i ve inves t igat ions i nto
po l i t i c a l activity. The ACLU the expan-
o f Federal i nc ho a t e crimes.
The r e vision o f the Federa l l aw o f homici de and ki dn a pping
do not d i r e c t l y present a c i v i l l i b e r t i e s issue. However, any
expa nsion o f c r imi nal law must serve compel l ing
governmental
s ee f rom t esti mony on t he proposed Feder a l
cr imi na l Cooe; 1 .
(a) no comme nt
(b) no comment
(c) no comment
(d ) Th e penalty to be provi ded for homi cide and the
relat ed of f e ns e s , incl Ud ing t he a ppli c a bi l i t y and the
const itut ion al i t y of t he death pena lty,
Comments :
Th e ACLU oppo s e s t he de a t h penal ty i n any context
becau se it denies equal protec t i on of the laws, is c rue l
and unus ua l punishment, and removes guarantees of due
pr ocess of law. See ACLU Po l i cy 1234; Appendi x 2.
(e) no comme n t
( 0 no c omme n t
(g ) no commen t
(h) no c omme n t
( i) no comme n t
(j ) no comme n t
(k) no c omme nt
150
(1) no commen t
Comments:
The ACLU is c urrent ly l i ti gati ng the extent t o which
such a trus t is an i mpermi s s i ble bu r den on Fi rs t Amendment
r ights in the c onte xt of civi l l i t i gation . un ite d States v.
(No . 78-165 1 E. D. Va . 19 78 )
(n) Th e applicab i l i ty o f t h r e at and phy sical zone of
Eotec t ion l e gi s l ation t o persons unde r t he physical pro-
tect ion o f Federal i nve s t i gative o r l a w e n forcement
Comment s :
Zones o f s a fe ty al s o r a i s e Fi rs t Ame ndment questions
sin ce t he y may be used t o shi e ld o ffi c i a l s from l a wf u l demon-
s t r a tions or otherwise i nt erf e r e wi t h ci vi l lib erti e s . See
Sher ri l l v. Kn igh t , 569 F . 2d ( 19 77); Quake r Ac t i on Group v.
Hi ckel , 42 1 F. 2d 11 11 (19 69 ) .
3 . Th e a r o r iate conmi t tees o f t he Hou se sho u l d rocess
for ear ly c ons 1dera t 10n y t e Hou se ch a r t e r l e gi slat10n for
t h e Ce n t ral Int ellige nce Agency a nd Fede r a l Bureau o f I nve s ti -
gat i on.
Comme nts :
Th e ACLU strong ly endorses t he enac tment o f charter
l e g islati on whi ch s pe l ls o ut t h e a u t hori t y o f t he a ge nc i e s
and p laces l i mi t s on t ha t a uthor i ty t o pr o tec t c i vi l l i be r t i es.
La st year t he ACLU e ndorsed c ompr e he ns i ve c ha r t e r l e gi s l a t i on
f or t h e CI A a n d FBI introduced i n t he House i n t he 95 th Congres s .
H.R. 60 51 a nd H. R. 41 73 . H. R. 41 73 h a s r e c ently b e e n i nt r o-
d uce d i n t h e 96 t h Congres s (H. R. 261 ) . At t a c hed a s Appendix 3
is a commentary on H.R. 60 51 i n First Pr i nc iples publ i s he d by
the ACLU's Pr o jec t on Na t i ona l Se cur i t y .
The
t he
t he f o llowi nq iss ue s i n consider i n a Uu res s r r
l Qrn c 1 ::..... , ....... .... .
151
AS y o u know, Congress is considering separate
r s for f o r eign intelligence and domes t i c intelligence.
chJ r t ea i s e c i vi l liber ties quest ions. The ACLU has testified
&o t h. r a llY on S . 2525 the f or e i gn i nt e l l i ge nc e charter
cr 1t 1Cl 1245 in t he House), argui ng t h a t it de p a r t s from the
lH: R" pa l
s
i n cor por a t e a i n H.R. 60 51 b ut a l so f rom the recom-
o f t he Church and Pike c ommt t t ees . attach our
n on S. 2525/H .R. 11245 a s Appendix 4 . Also we
t es t 1h a c ompa r i s on of the various proposals for your consi -
attJt\ on as App e ndi x 5.
de
r J
(b ) The r ela t i ons hi p between t he domestic
and t he 1nt e r f e r e nce w1th the exercise of ind1v1dual
Both l e gi s l a t i ve l y and l e ga lly , a distinction has been
dr awn betwe e n na ti onal secur ity o r fore ign i ntel lig e n c e f unc-
tions an d "dome s t i c i n t e l l i ge nc e functions ", the latter ' being
invest i ga tive functions directed a t domestic terrorist or
ass J ss inat i on when t he subject of inves tigation has no substan-
t ia l "for e i gn c onne c t i ons . " These investigations are the sub-
ject of a separate FBI charter t o be i n t r oduce d this year by
the Admini st r a tion and c on s i de r e d by t he J Ud i c i a r y Commi ttees.
The ACLU has t e s t i f i e d on the pricipals that should be incor-
por at ed i n s u c h a charter to protect civi l liberties, which
is attach e d a s Appendix 6. Since cons titutional rights are
al so invo l ve d i n the exercise of the foreign i nt e l l i ge nc e
(e . g . Mart in Luther King, Jr. was i nve stiga t e d because
of his a llege d connections with the foreign dominated Communist
Par ty U. S . A. ) , the statements submitted above with respect t o
the foreign i ntel ligence charters should be considered here
as we l l.
-r ....
152
153
Conunents:
Bot h the f o reign i n t e l l i gen c e c har ter and domestic
FBI charter mu s t establ ish t he ba si s for inve s t i ga t i o ns and
t he s tandar ds and proce dures to gu i de t he us e o f covert
inves tigat ive t e c h ni que s . From ou r point of view, these
mus t be a l on g the lin e s r econune nded i n H. R. '6 05 1 and by
t h e Chur ch and Pi k e Conuni t tees. Se e t e s t i mony a nd state-
ments under (a ) and (b ) a b ove .
Since t he ena c t ment o f the Fore i gn Intel l i ge nc e
Su r ve illance Ac t o f 197B , PL- 511, es t ab l ish i ng a wa r rant
for nationa l s e curi t y wireta ppi n g i n t h e United
St at e s , Con gr e s s ne e d on l y address t h e c onduct o f e lectronic
surve i l l a nce t a r ge t e d aga i n s t c i ti ze n s a broad. We would
r e q uire a wa r ran t r equ i r e me nt a l ong the l i n e s of PL-5 11 as
a minimum pos i t i on , a s d isc us s ed i n our t e s t i ma ny on
S . 2525 and H. R. 11 245 ( s e e ( a ) a bove) . The re s houl d be no
" dome s t i c security" except i on e na c ted whi c h depart s from
Ti t l e I I I r eq uireme n ts f or e lec t r oni c s urvei l lance of
crimina l acti vi t y as t h e r e now i s f or na ti on a l secu rity
wiretappi ng . Wh i le t he ACLU s uppo r ted t h e e na c tment of
PL-511 a s a modes t " i mp r ove me nt" ove r c ur r e nt l aw, we
con t i nue to o ppo s e a l l e l e c t ron i c s u r veil l a nc e a s a general
s e a r c h ba r red by t h e Four t h Amendment . For y our cons idera-
tion, we a t tac h o ur t e s t i mony on PL- 511 (H. R. 73 0 8 i n t he
95 th Congr e s s ) a s Appen dix 7 t o expl a i n our pos i t i on on
e lec t roni c sur ve i lla n ce.
Howe v er , we wa n t t o p oint o u t f or e mph a s i s s a ke
tha t we wou ld r e q u ire a j Ud ici a l wa r r ant f o r t h e us e of
i n f or mants t o i n f i ltrat e groups r e a sona b l y b e l i e ve d t o be
enga ge d i n Fi r s t Amendme nt a c t i vity who are s us pec t e d of
e ngagi ng in c r i me . The wa r r a n t wou ld al so cove r i n f i l t r a -
tion by un de r cove r a ge nt s , bu t not app l y to i nve s t i ga t i ve
us e of c on f i de nt i a l s ou r ces , wa lk- ins , or o t her s i mila r
i n f ormant s . I n t hi s r e ga r d , s ee our t e s t i mony on t he
FBI chart e r, Appendix 6 a nd our conune nt s a nd t est i mony
on S . 25 25 , Appendi x 4 .
lle nt s :
Wh i l e the ACLU h a s not addressed thi s q uestion
1 we be l i e ve we h ave covered the p rob lem in part
direct cons ideration of the need for a special
i n our when i nt e lli ge nc e agency officials are resonably
pr os ec ud to h a ve en9'aged in criminal act ivi ty. In our
be f or e t he House J ud i c i ary Commi ttee l a s t y ear ,
t es t l mued in f a vor of l e gi sla t i on es tablishing a t empor a r y
pr osec utor mechani sm, wh ich even t ua l ly was enacted
VI of t he Et hi cs i n Gover nment Ac t o f 197 B. We
Tl s t a nd the spe cial prosecutor t o be able t o appoint
under , t
' r
e
i nvest l ga ors.
or h1
Howev e r , i n a rguing f or a special prosecutor , we
mrnended one a ppo i n t e d when a ny offi c i a l or agent o f
a ge ncy was i nvolv e d in crime because o f
con fl i c t s of i nt e r e s t p resent in a l lowing the
De p a rtme nt t o hand le the investigation or prosec u-
I f l e gi sla t i on extended the jur i s d i c t i on of the
t l eci a l pr os e c ut or as we r e c omme nd , t h e n a special prose-
woul d be a b l e t o a ppoi n t invest igators i n s ituations
where i t wa s ne ce s s a r y . We attach o u r t e s timony as Appendix B.
Comment s :
The ACLU i s de e ply concerned about t he s e issues and
woul d favor t he i r r e solut i on in l e g i sla t i o n , s o l ong a s t he
res ult i s not t he enact ment of an Offi cial Secre t s Ac t or
an expa ns i on o f the i n formant privi lege .
Wi t h r e s pec t to " s o ur ce s a nd methods " , we submi t
t es t imony o f ACLU o f f i c i a l s wi th r esp e c t to expansion o f
the es pi on a ge l aws , CIA secrecy agr eements a n d prior res traint,
and , i ssues i nvo l ve d i n l i ti ga t i on i nvo l v i ng c l a s s i f i e d infor-
matl on as Appendi xes 9, 10 , 11, 12 , and 1 3 .
Wit h r e s pe c t t o " i n formers pr i vi l e ge " , we submi t
Pl a i nti f f s ' Memor a ndum i n Oppos i t i on t o Fe deral De fendan t's
t o Re c ons i de r J une 7 , Or der to I nf or me r
l Vl l e ge in ACLU, e t . a l v. Ci t y o f Ch i cago, 75 C 3295
Di s cov e r y wl th 74 C 326 8 & 76 C 19 B2 ) (ND Il l. )
PPend ix 14.
" ,
154 155
CO ( g ) ( h) no comme nt
Comme nt s: Whi le the ACLD does not ta k e a p os i t ion here,
we s i mp ly not e t hat thi s i s cove red i n Ti t l e I
of S . 2525 , H. R. 112 45 .
B. Pro secut ion
1 . Th e J udici a r y Committ e e should cons i der the impac t
o f t he pr ov i s i on s of law deal ing wi t h third- party r e cords ,
ba i l , and speedy tri al a s it app l ies t o b ot h the i nve s t i ga -
ti on a nd prosecut ion o f f ede rally congi za b l e h omici de s .
Ge neral Recommendations for Congressional Investigations
Commen ts : III .
no c omme nt
A.
Wi t h respect to third p a rty r e c ord s , t he ACLD i s
on r ecor d a s favoring strict s upoena and wa r r a n t r equi r e-
no comme nt
B.
ments t o p r o t e c t pr i vacy . Se e t e sti mony on FBI c harter ,
Appen d ix 6 .
c omme n t
C. no
Wi t h r e s pect to bail, the ACLD i s opposed to p r e ve n-
no comme nt
D.
t i ve de t e n t i on . Se e Appe ndi x 1 5.
E.
no comme nt
F. Appr o pri ate c ommi t t e e s of the House should c ons i de r i f
r ul e I I of t he House s hou l d be amended, so as to res trict
t he cur r e n t access by all Members of the House to the
cl as s l f i e d i n f o r ma t i on in tne possess i on of any commi ttee.
Comme nts:
Th e ACLD wou ld oppose any restri ction on Congressional
Th e ACLD po s i t i on wou l d e xt e nt t he l egis l ati on t o
ac cess to c l a s s i f i e d informati on, whi le permitting the Congress
a ny a s sassination r e a s onab l y bel ieve d t o i nvo l ve a ctiv i t i e s
to fas hi on r u l e s to protect the informat ion from disc losure.
o f the i ntel l i gence ageni c es. See t e stimony , App e ndi x 8 .
IV. Rec omme nda t i on s for Further Investigation
I I . Admini s t rative Recommenda t i ons t o the Ex e c ut i ve
A. no c omme n t
A. n o c omment
B. no c omme nt
B. no c ommen t
C. no c omme n t
C. Insu r i ng t hat i ts fair tri al /fre e press gu ide line s , cons istent
wi t h a n all e ged o f f e nde r ' s rl ght to a f alr trlal, a l l ow l n f or ma-
t l 0n about t he f a c t s a nd clrcurnstance s s urround lng an assaSSlna-
tlon pr omptl y be mad e p Ubl l C, a nd p r ompt l y be c orrect e d when
e r r one o us lnfor matl0n l S rnlsta kenl y r e l eas e d , a n d
Comments:
Se e ACLD po lic y , Append ix 16. r , ~
~ :
The ACLD would stress the "vo l un t a r y " nature of
t he agree me nt s .
Commen ts:
156
157
If you have further questions, please do not hesitate to COnt
us at our Of f i ce . With respect t o tho s e r ecomme ndact
tions whe r e we offered n o comment , we do no t wish t o imp l y tha-
the se mat t ers do no t r a i s e ci v i l l ibe r ties q ues t ions, b ut onl a t
that the recommendations as f ramed were too ge ne r a l in na t ur e Y
to r aise a specific civi l l iber t ies i ssue f or us .
;I
f ry J . Be rman
egislat ive Counsel
Enclos ures
f/kL. V
restraint.. incarce!'ati on, or such collateral consequences of
ff(:oJh
t a
s under current law, the inclusion of t heirfingerprints
arr
es
'
,
1I1 cr:1Jll
e
cont r ol data-banks and the r efusa l bv public or private
anpl Oyers to hire than on the basis of their brush ,,'ith the Iaw,
2d 933 (D.C. Cir.1973).
C.
Asecond way in l1hich H.R. 6869expands f ederal j uri sdi ct i on
over cr ime i s t.hrough the establishnent, for the first time, of a
cOllprehens ive approach to inchoate cr-imes .
The criminal l awhas wrestled long and hard with the problem
of lihen t he Law may intervene to prevent criminal corduc t b.y
j)n!Xlsi ng sanctions against activi t i es which l ead up to the actual
cr 1rn1rol event . 'TheACW aclmowledges the importance of crime
prevention arrl t he logic of puni shnent l'lhich protects t he i nnocent
public before r at her than after ccmpletion of t he cr1m1nal act.
At t he same t ime , we believe that t he so-c al l ed. inc mateoffens es--
sol i citat ion, at t empt arrl conspiracy--offer unparalleled
opr..ortunities for over-zealous Law enforcement which invades
constitutional guar-ant ees of freedem of t he press , free speech,
fr ee associat i on l'lithothers, and due process of Law,
'The combination of overbroad inchoate lvith substantive
Offenses can l ead t o const i t ut i onal l y defi cient prosecut i ons ,
SUch as tl:e case against outspoken public critics of t he goverrmcnt
fo ..:'.
r consPiracy t o i nci t e draft r esi st ance . See United States v ,
416 F. 2d 165 (1st Cir. 1969). I n such cases the conduct
.
. 0 a criminal of f ense is r emoved from any act.
In 1t 1
so f cr iminal , ard the links connectmg t hemmay consist
ent1r el
Yof pUblic and const i t utionall y pro t ect ed speech and
Such prosecutions move f ar aI"ay from the r,eneral
158 159
r-or!XlSC'S of t:10 cril'lin<ll Lau ard the t hoor-tes urxlor
of'f'onscs IKlVC been held
fee v.
353 U.S. 301, IH12 (1')57) ''7(l)' cv",r" consptr-ac: is by 1ts vei-v
natur-e secr et : a CIlRe can h,well" he sunrosed "']>e1'o ncn C(ll1CC'.\'t
tor:etllCr for cr-ime arrl advert tse tlle1r our-pose 1:':) the 1'Ol'lrl.,.
uncuestdonat-LyIns a stake or debwr1T1[';
""10 seelt to urrlermlne itby cr:ll'li.nal activity. rtlt 1t Ins
at l east as ['X'c.>at a st ake i.n c.IeanLv r.ar! .-j,nr; tIll? lil:l1ts of t'o
criln1nal sanct.ron. Lavs v!hichmake contr-over-sfa'l sr-ecch of'
cr1m11')'111ty L'1.Ve no ptacc in our constttut tonal svstem.
1. Cr1m:tnal Attemnt
SecUon 1001 Nould r;lve the fpckral f,overmiO'nt for the f:l.l' st
time an across-t.he-board attC"'1pt statute apnlicablc to all other
offenses. Such a statutemay have the' v:l.rtue of untrormtt v, but
itel:lrectlj r.onrres sional attention at"ay fran the salutorv effort
to detcrmtn v, inr-esrect to rorticular cr-imea, l.hether an at' t emnt
statute i
r
, or necessarv. no \':0 rpally l'!:l.'1t to punish
unsuccensfu'l attempts tomake a false oral statement, denons t r at e
to influence a .1udiclal proceedinr; or disclose r:ov8rnnent
information? Are such prosecutions an intelligent use of limited
resources for canlJattiP.[; serious crine? "oreaver , the ACW
bel.Ievee tint punishin.."; attempts to incite corduct
seriously :!.ncrea :}es the darl(:er of r.overment !JC'osC'Cut:l,on for
advocacy nlainly protected hy Pirst ftmenrn'lent.
lOOI (a) of E."'. (.86C'J--l1J:e but contrary to tl'Jl:>
3r'OI'1I1 Cormd,s:.ion roccnmerriatdon-def'Ines thE> conduct; sufficient
to constitute an attermt as "more than mere,P"t"par.ationf'r'Or:'am
that 1n:l.icatcs his intent to the of the crimE'. -'
&lch a stardard could affect1TlIU1YT.':l.rst ftmE'mment activities frOM
t )lelr berinnin;. Pol' examol.e, TTl3Jdno; arr-angement s for a
,1C Assel"'hlv 'it ir!flClJ'lTlatory statement s l"cre to be made
11
II IL!..IhiiL :! H!
! J IU J- 1 . t t i it
ttl
I It i i ! II pt a! Ithl
lsi
H
I ] t l]j ! Hl ]ll h
11
.
11 It
If 11_j - I]i- J' J i
H
uII 1)
hI
! II ! l!II iU !H
H
i\j Ij \el
lllWlSMlN L:lVNOUVI'OtQ;tNlJOr:XJ]] lU SlDPIlJ:JVDtoa:>I1UJ.N
I
WM tNt tM dec ision to indict thowFBI Itripped .w.y from officiillis of FBIand
Point
Jil'ft'l1I allflrdl y involvrd in hurgluin. wiret.aps . other intrl lige'l"lce .azencin the ir wnw 01immun
m..il OP"' inS- in connt"C1ionwilh the Weilther ity , of beingbt-yond the Iillw. l hilt h.al ch.rter-
OfView
lIndrf'l round umeOI her Allomey Lnl" tht1r beNvior. For tlwt iII 10nt il is.
d"ion 1'101 to indict ilny or thOM' involvrd in the import.nt ' 0 1ft thi s. invesHg. tion throUJh to from
(lA opening progum lhe indictfM'nt .J.nd Irial of ..II of thow who.c-
Th. \'.... r. per jus tifying deci sion to in- cord inl to It.ncb rd prolK'Utoriill cril er iol. would
dactFBI bul not erA OIgenls will not s.1.and as norma lly beindktt'd..
1MItulia Drp .rlment' s moo wnsitive showing Other pro gr.J.ml now concrdrd to be illepl or
01ronm'1'l for the rig hts. of citizms u they r.isr SOmf'WN I diffrm"ll qun
olnt Into connict with the governmmt's pernp- hOM. There is, for ex.ample . II conflicl betWft'n
lion of Nt ioMI $'Urity requirements. Nonetlw cond uct ing cri min.al prowcutioM .and millking In-
n .lhe Paper donNvrone point : the was formati on public so that who the
KIm. .bou t the rights or tM Pmi subject of iIIt'gill surveill.. ncr iII nd manipul.tion
dtrtl 10 cond uci intelligence opt"l".J.lions coli n be COmpt'T'lSilI.-d in .. ppropri.te Wolyl , c::;..1
1(1pttt infonn.aUon .about govt'rn- tin g the full story out. doing lomething for Ihe
rnt'nb . II il Ihis th.J. 1 the CIA mail victims. .and dnr:rmining how lo prevenl futurr
upeninIC program from Ihe investigation of the outragn llft'mS to m" to be more impo rtanl
WiNlher Undu groun d . Th e l.J.lter WOllS. pure and tholl n conducting cr imin.1 inves.tigatlons un I""
IImpl. . .. domnt ic cri mi na l invts.l lgati on .J. nd the viol.. tions of the loIw wt're unambiguoul iII nd
there hili f'lt''YC'I' bn the slightesl doubt ilbout the rnpoMibill ty clear.
ttl. rfquntmml to follow th. dictiltn of the The Attorney General thould considrr offrrlng
Fourth in such inve.tigalions ilnd the FBI .nd other ilgencin .. fr.ad. In
lhal the FBI musl sure a warrant before mahon to lpeciflc program. : lhe threal of pr o-
:n-:iII r" mml'd, phones ilr. liIpped. or INil sution would be removt'd in return for COOPft' -
ation in edtinl oul the facti &nd providin g
indictmml for the finl time of iII n FBIof compmytion from fut\d. for thOM'who
hd.J for "ctiYil ifS con nrc tt'd wilh his officiill wer r d.m.J.grd. 'The deci sion not to pr oweutr
II " 1'1Ktion of the grnte'St importilnce. should 1"101 borne. .Ill it hill in the CaM of tht'
d It It gOft Withou t s.ying th..t the agmt in nuil open ing. a to df'fmd lhe prosrilm.
1Ct f'd In<!oth,.,.. tNt m.. y follow mu st be Pff'- Ratht"l' . it s.hould millle it pou. ible for Ihe gov-
Innoanl until and unles they are found er nmmt to iIIdmil hum .. nd compt'T'ls.l te the vic-
1\11ty by iI jury. the very lIel musl Nve lims.
fj:.t:. :
184
F1rtIPrind.... 122 Muyland AVlP1'lut , N.E.. D.C. 20002
itpublitJwdbytN
(202) S44-S380
ProjKton N..
xa mly and Civil
Ubtrt i... which is
JPClNOftd by th..
Anwrkan Civil ubrrtlft
Union Foundation and lh1'
Cmh'rfor National
s..curily St ud.... oflhl'
fund fOf PQC .
o19nbyTlw Projt'Cl
onNlllonalS-urily
andCiv il Gbtrlin
Mor_H.HaIprrift,PropKtDlrwaor
00,.,.. ... .Marwk".Edl l or
no......M.01.....Ad"' iNal u.... ANaI ."1
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_C.-..m..L..,.IAaMr.lafti
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J-r11 aoo..RrrilrwEdiIOf
tWlI, u...... _ EditOl'
idMOI'Lei
Non-Profit Org.
U. S. Postage
PAID
Permi t No.45490
Washington. D.C.
Perhaps it is a universa l truth that the loss of liberty at home is to be charged to
provisions against dange r, real or pretended, from abroad,
JAMESMADi SON TO THOMASJEFFERSON. MAY 13.1796
Point
TheFBIonTrial
of View
MORTON H.HALPERIN
The fact that AnorMY Crneul Griffin Bell
friends on the Hill seek to undermine dfl"Clivt'
reforms . And with crimes of parlic ular intnt'S1
dn.t'rvC!o high for resitling tremendous
to the Whit e Houw or the Justice !Apar lmmt.
prnsure not to indict FBI official, for allegedly
rbe FBI can choose to draa their feet.
carryina out oper ation, in clear violation of the
When the Att 01"MY Cen eral is told thai "the
I. aw tdl, u, a good deal ;IIbout tM environment
morale of the Bureau will suff"" if FBI agmts
in which wnior official , of tM executive bTitnch
a ft' indi cted or forced to If''Sti fy against eilCh
must optnle. It nnphuius al so tM reed10
185
TES'1'I
,
of
,JERRY J. BEHlj1'..i-.J 1 LEGI SLATIVE COUl:SEL
JOHN H.F. SHATTUCKI DIREC'rOR
CIVIL LI DF: R'l' I S UNJ:ON
on
1
'j'dE: nn.'ET.!,TGJ;!WF.
AC'I'
S.252S
other. he must listen . The morale of an agt'f'lC)'
leu nftI by the agencies of the
develop diff"lP1'lt pt'OC'l"dum10 deal with taw-
is a concern. but he411'0 cannol iX-
United Statrs governmml.
nore 1M implicit "undermine my monl..
II i, obvl ou,ly nl"Cf"Swry that tM Justice Dr-
1.x,fore
and I will undermine your f..ver ite progr;llm,."
Parlmrnl trrat FBI agmt. as they Irr.1 other
All of this suggests the need, argued many
citizrn s and to recommend indiclmmts to th..
times before in thi s column, for a IIpKial prose-
jury when Ihe evidence
curer to monitor the intelli gmcr agencin. Per-
haps it is not too much to ask thai , h.aving
fl\Us!beclear 10 Judae Belland hi' ....sOOatn;
.uggrsb a vio1.ltion of the I. ws. Th i' TIl E SELEC'],' J':L'TLE G21\! CE
now gone through thi s painful '1' isode. Judge
the .rgummUl art' presented conciwty in the edi-
Bell and his senior associates willTt'CogniztthaI
from the CMcQgo Tribun.. repneted in
tt. prosecutor proposal is not inll'f\ded
thi, inue of First Principl, . 18, 19'i 8
10 u sl ..ny doubts on the integrity of the [u..
Th e hidden (Qt.l' of the Ancrney Ge-nrral' ,
uce 'Department. It is simply based on the or-
'"........1 Sft kinl Indict ment not found in compromis-
confl icts, wh ich tMy too musl now
ing an rven-ha ndt'd rul e of law. thry aft'
feel. in both doing their dut y as prosut oA .and
Ilft'ding to work with the FBI and ether intelli
FBI day in and d.yout on .. r.nge of m..uers. genre agenci es.
1, With the national ieCUrity wiretap legis-
(-2;'i found in his need to wor k wil h officials of the
The f.ct tha.Ithe particular ly rankled Bureau
u-_"...... ...
-
cxmroILI NG 'lliE FBI
ACID 'IES'I'IMOOY
on
CHAR'IER IElJI SLATI OO
be fore
'lliE SEJIA'IE JUDICIARY CCTofIITIEE
April25, 1978
Jerry J. Berman
Morton H. Hal per:ln
30m H. F. Shattuck
600 Pennsyl vania Averue , S. E.
Wasl1iJl>;ton,D.C. 20003
(202)
AMERICAN CIVIL UBIRnl1UNION
22 Slreel New York, N.Y. 10016 (2121725-1222
.. f.:. :t .
344
Ml'. chairman am Member s of t he Cc!:rn1t t ee :
\'Ie welcome the oppor-t urn.ty t o t est ify here t cday on t he urgent
need t o devel op a statut or y charter t o gover n the Federal Bureau of
Invest i gation am t o state our vrews on cri tical i s sues which must
be r esol ved . Concurr i ng i n your vi ew t hat this is a mat t er of para-
Il' ount l egislat i ve priorit y , we conrnerrl you for i nitiating these de-
l i ber at i ons am look to working with t his Commit t ee and the
Congress i n a cor.certed ef f or t t o enact a statutory charter i nto l aw.
'This l er;i sl ation i s l ong overdue . POI' t,'o "ears both the Congress
am the previous ar.d pr esent Admini st r ation Mve r epeatedly said that
the FBI char -t er- i s ur gent , yet we are only now get t ing t o busi-
ness.V In t hi R r egard , "Ie are par-t I cuIar'Iv pl eased t hat you pr cdded
t he Justice Departrr:ent t o ccrre I'orward in ,Tilly with some ki rd of proposal
f or an investihator v charter. l'Ie al so share your vlew that t hi s is the
first pr i ority and t hat the Admini stration's recent ca l l for a campre-
henslve FBI ard even Federa.l "Law enforcement " chart er must not become
2/
a r eason to furt her delay t he r esol uti on of basic i s sues . -
1le ernpt a s ize the necesst t v f or t he Comni ttee t o f ccus i t s pr incipal
':lOr k on defini ng t he criminal i nvestir,;atory ,Juri sdict i on of t he Pur eau .
l'Jhile we agree wi t h the Just ice Department t hat a comprehens i ve FBI
char t.er srould be developed t o pl ace all of the Eureau ' s invest igator y,
police t r ai ni ng: , suppor t ard l ia.ison functions urder- l aw, we believe
t her e are reasons f or the Comnitt ee to make t he establ i srrnent
345
of st at ut or y stamards and pr ocedures f or FBI investigations the
first order of business.
!'!hUe other j ur isdi ctional issues ar e of vital concern to the
AcIJ}, as for example, t he Eureau' s r ol e in maintaining and di s semi na t i ng
cr 1l11
i nal
history dat a ) l we vi ew the i nvestigat or y charter as a matter
of consider abl e urgency lliii see no valid reason t o delay its considera-
tion and enactment perding t he r esol ution of t hese other issues. loJhen
a roor e crmprehens i ve chart er i s wor-ked out over time , the investigative
4/
statut e can easily be included as one or more of i t s titles . -
'!he Need f or an I nvest iftator y Chart er
The massive an:i disturbing pUbl i c record of investigat ive abuse
by t he FBI J.s t he primary impetus for cffirter l egi sl at i on. I'.'hlle we
can hope t hat t hese programratic abuses are i n t he past , we must bear
in rnirrl that the central concl usion of each of the many congress ional
inquiries is not t hat invest igat i ve abuses wer e comnit t ed but toot
t hey occurred l argel y because t he FBI 's invest.igative po wer-s are un-
defined, unchecked, ar.d unr-egul.at ed by statut cr v star.dards am
proCedur es. 2!
As tee f r amers of t he Fourth Jlrner.dment urrl er st ocd, the unchecked
PO':!er of the Executive br anch t o i nvest i gat e roses a furdamental
t hr eat to const i tut i onal liberty. As the &tpr eme'Court sa i d in the
"[T) t.ose charged. l-:1th [t he) tnvest t gat t ve and prosecutor1aI ,,:.:
346 347
duty should not be the sol e of to ut i l i ze
const i t ut i onal l y sensiti ve means i n pursuing t hese
t asks . The hist or i cal ,judfl]1lent , which t he Fo.u-cn
A'11emment accept s , i s t hat executive
discr et ion rray yiel d t oo r -:C1ully to pressures t o
obtain incriminat.:. ,g evi dence am overlcok po- 6/
t ent i al ':'Jvasi ons of pr i vacy and pr otected speech. -
S:lgni ficantly, t he Court , in poi nt i ng out the i nherent danger of'
en unchecked "execut ive discreti on" t o i nvest i gat e, i nvi t ed the
Congress t o est abl ish st atutory st andard s ar.d proc edures for sensit i ve
teChniques .I! The es senti al validi ty of t hi s hi stori cal
judgment ar.d t he burde n of congr essi onal r es ponsi hi lit y ext end to the
whole of t he i nvestigat or y process .
Since t he incept i on of t he modern Feder al Bureau of Invest i gat i on
i n the Congress , by enact ing. a ITul tit ude of criminal stat ut es ,
has greatly expanded t he cr iminal i nvest i gat ory aut hor i t y of the FBI.V
At t he sarr.e t ime, i t has permi tted the Executive Branch t o exer ci se
a cl a:lIr.ed "i nher ent IXlwer " t o overlay t hi s author i t y wi t h a f ormidabl e
10/
i nt elli gence j uri sdi ction.- Yet t he Congr-eas has declined t o def' Lne
how t he FEI is sunr oscd t o exer ci se t hi s aut t or i t y except in t he most
rudimentary f ashi on. The Attor ney Gener al is s:lIr.pl y aut hor ized t o
direct t he FBI "t o det ect . . .. .cr imes against t he Uni ted Stat es . ,,11/
i n the United St at es Code does the Congr es s set out st andard s
12/ ' .
and proc edur es ':;0 gut de t he Eureau i n detecting cr ime :- the basis
f or init i at ing invest i gat i ons ; tr:e st andard t hat must be met t o con-
duct Int.rusdve i nvestigat i ons ; or guldel.Ines t o control the use of
l 3/
tigative rr.eans . As f or the Bureau' s "domestic security"
in
ves
14/
t he Code i s simol y si l ent . -
i on
fllsS ' -
This def er ence to t he Executive has been
destructive of ci vil liber ties and damaging t o l aw enforcement. I t
resulted in
__broadscale int el l igence survei l lance of l awful pol i t ical
act ivi t y in vi ol at i on of the First ftmendrnent right to
privacy of pol itical associ at i on;
--rout ine invest i gat i on of ci t i zens wit hout probabl e
cause or r easonabl e suspici on of cr ime in bot h
dorre stic security arrl cr iminal cases i n viol ation of
the Fourth Jlmer.dJnent ;
--ext ensive use of paid and directed informants lilt hout
adequat e guidelines or procedur es for ir.deperrlent
revi ew cont r ary to t he spiri t and purpose of t he
Four t h Jlmernment ;
--inspect i on of cOJ'1Sidential r ecords lilt bout subpoena
in violat i on of t he Fourt h Jlmer.dment ; arrl
--use of investigative techni ques t o "chill speech" i n
viol at i on of t he First Amendment .l2!
Tni s l i st does not even incl ude cl earl y illegal 'act i vi ties such as
Use of intrusi ve surveillance techni ques (e .g . , break-ins , wiret aps ,
J1la11-
openin
g) wit hout judicial warrant or COINI'ELPRO act.tonsto -i "
. c.-_o
349
348
16
/ "di srupt ard neutralize" political prour s .
Fost of the publi c r ecord ava:larle r el at es to ir. -
abuse cOMmit t ed by t he PBI i n i t s conduct of
domest ic sec urit" orerations , there are reports t hat "bl ack- l"E1 [,;
,10bs , " "sui ci de tans" and ott-e r- abuses have also occurred i n FliT
or["ani zed cri me
The darrare to Lav enforcement is obvious . I n pur-sufrrt the
dissenter and the merely suspect , and i n overreachinr the laN, the
Bureau pas souandered valuahle nUhl i c r esour ces whtch should have
been devoted to se rious destro"ecl public trust in its OM1
institution, and exposed agents to civil and crimi nal liahil it".
1"e cannot and should not r eI " pr-Imarf l v on the court s to
resolve these basic issues . I n criminal cases, t he onl" means the
courts have to control the rnvest inatorv funct ion is the exclusionary
rule . Eut rncr-easmr-Iv th; ruf.o i s locked on .I"i t h di sf avor bv
19
/ hoth judr:es and ler:al scholars . It is obviouslv ineffective i n
providin[" standards or reF-edies for i nvestir:at l vP ahuses i n a
orit:,I of cases "Ih:lch are never prosecuted , arvt in all intellir;encp
Lnvest irtat.tons vmere pr-osecut ton is not the aim. 20/ AlttoU["h \'le
believe it is rcoutr-ed by the Foui-t h Amerxlrcent , t he excl usfonarv
rule i s Inadeouate as a F-echaniMl f or estahlishin[" r:eneral
invest,ir,ative the prirrar:r obj ectdve here, s ince l'evie.! is
00 a a number of r ecent decisions, the
supreme Court ha s strongl,v suggested tha t it i s t he Congress
21/
t hat must l egislate starrlards ar:d procedures f or invest i gat i ons.-
Rel iance on Execu t i ve cont r ol of invest i gat ions is the very
core of t he problem whi ch l egi slat i on must redres s . Despi te t he
premi se of t he Just i ce Depart rr.ent to devel op guidelines for all
i nves tigations t wo years ago, the exist i ng gui de l ines remain
22/
incomplet e . Domest i c Security Gui de lines pave bee n prernulgated
2<'/
but ther-e are no s1mil ar guidel ines f or cr imi nal investigations . -
!(or eover , althoue;h mor-e strict t ha n previous t nterrat sec urity
procedures , t he current Comest i c Securi ty Gui delines authorize
ongoine; intelligence i nvest igations of Lawf'ul, politica l act ivity
ar.d can be r ead t o permit many of the same kinds of investigations
24/
that t he Congress has so r ecently cr :l.ticized . -
import.ant , the Guidelines derive their authority frem
t he Executive ' s claim of an "inherent power" to conduct intelligence
231
invest igat i ons . In the past , t hi s claim has permi t t ed the
exact scope of the investigator y power to remain nebulous. I n t he
absence of public debate , Execut i ve guidelines have been am may
2Y
al . a ys be i nt er pret ed broadly. Even st r i ct e;uidelines may be
alt er ed by a str oke of the Executi ve pen . The Pur-eau has already
27/
r er,r esent ed that serne of t he p;uidelines are teo restrictive. -
The JI.dmin1st. r-at i.on r.as f our.d that cr:lrninal investill;l:-tive guidelines
.- ..- '( ' ;"-
351
350
28/
ar e "not possible" t o devel op. - t}ui delines , as the Jl_clr.1i nistratlon
has so aptly put it , are onlv "s trop-gap" measures . ,,29/ They do
not r esol ve basi c issue s.
Cnly an investigat ive chart er can provide a f irm f oundat i on
for c i vil l:l ber t i es . Guidelines am. t he electi on of a new
Jldmlnist r a t i on make no lasting f'urdament al changes . '!'he pr:!.l'lary
r eason for t he decline in t he number of Investtr-at t ons , ac cording
to the Bureau , i s t hat "t he pol:l t i cal/sccial climate changed . ..30/
Tcday the FBI i.:; only invegt i[!:at:L,\,; i ndi vi dua l s and or ganizati ons
' -1110 have ccnmf.t t ed cr iminal acts. 31/ Isrt the soci al cLfrnat e wi ll
certainly change , Civil l:lbert ies shouId not rest on mere circum-
st ance . '1J1e Cart er Admini st ration has l eft the door open for a
r ea ssertion of br oad tnher-ent power s in t hf., domest i c security
area . It has never admi tted error or of fer ed t o set .tLe any of the
W
many c i vil sui t s cha llenging past abusive sur-....eillance practices.
-\1i t hout statut ory redress , invites r erJet i t i on of past
abus e . Executive di scret i on perpetuates t he dange r of over zeal ous
efforts to "detect " cr ime .
Toda;T "Ie I-rill f ocus our t esti"llOny on t he case f or t he five
basic r eforms a st atut or y chart er must in, t i t ut e :
First , t he chart er must abol:l sh t he domest i c
:lnt ellir;ence j urisdict ion of t he PBI.
Secord , t he charter must only autbor-I ze i ntrusive
inves ti r;ations pur-suant to a criminal stardard,
excludinG conspiracy as a bas i s f or i nvestigation
I'T)-,en First Amendment ac tivity may be :l_nvoJ.-.red. The
of such invest igations shoul d be the
gathering of evidence for' arrest and prosecution.
Tjdrd , t ile char-t er must est ablJ. sh stri ct statut ory
procedures gover-nfng -;.nvesti gati ons wruch may
D1tr ude on First activity in order
to insure that they are pronerly authorized and
conducted so as t o minimize the jntrusion.
Fourt h , t he chart er must est ablish a j udicial
war-rant procedure gover-rring t be FBI 'sdirecti on
of i nf ormant s or under-cover- agent s to i nfil t r at e
associ at i ons in aut hcr i zed cr iminal Dwest:J.eations .
Fifth, the charter must prohibitthe PEl from
engagi ng in "preventive acti on" or COI NTELPRO-
type
These pr oposal s are embod'led in the mcde'l l er:i sl at i on , !l
raj-{ t o Contr ol t he f RI , 33/ and in H.R . 6051,,4/ nowbefore the House .
fIltheugh t hey ar e cont r over si a l, we hope t hat over the course of
t hese t earings the Cormrt t.t.ee and the Congress vIill becane convinced
t hat theirenactment is both I"ise public policy and necessary f or
tr.e prct.ect I on of furdamentaL constitut i onal liber t i es .
Cese Jlgainst Domestic Security I nvestigations
Domest i c securi t y i nve sttgations are int el l i gence invest i Gations
umer t aken by the Feder al fureau of I nve gt i gation primarily t o
pr f'vent act s of polit1.ca1 vi olence r at her than t o effect criminal
prosecut i on . Alt hough t he FBI never r-ecogni zed such a distinction
in tte past , domest i c securit y inve stigati_ons are today defined as
dist inct rron cOUl1terintel lif;ence investir-:ations because Violent
352
acts t hey are i ntended t o ant ici pat e ard prevent are rot urrler-
351
t aken for or on behalf of a forei en power- , flost of the
intelligence jn vest igati ons conduct ed by t he FBI , from invest ip",ation
of "subver si ve :act l vi t i es" to invest i e;at l ons of r adi cal s and
321
ext r emist s , i n f act fall in this category, Today domestic
securi t y invest i gat i ons are authorized t o wlti ci pat e and pr event
t he viol ent over-throw of t he gover rment , ci vil d:!..sorder s, and
37/
dcmestic ter ror i sm. -
The val ue of dcmestic intellir,ence does not outweagh t he
risk t o ci vil libp.Fcies. Over t he course of our hi st ory, \'Ie have
always recogni zed t he t ensi on between maintaining an open , ;-i::<" '"
democrat i c societ y am protecti ne that soci et y fran vi ol ent dis-
ruptl on , Repeat edly we have est ablished "domestic securi t y
measures " in r esponse t o percei ved threat s to our social order .
In every case , from t he Alien and E'e::l. i t ion Act s t hrough the "Palmer
Paids" in t he 1920 ' s ard t he loyalty an::i securi t y program 1.'1 t he
1950 ' s , to t he r ecent r evetat i ons of massi ve covert FBI sur vei llance
ard disruption of l awful politi cal act i vi t y over the l ast f our
decades , t hese meaour-es have pr oved far more damaginG t o our
soci et y than prot ect i ve of i t .
Yet t oday Vie are cons t der-trr- the continuat i on of a dcmest t c
int ellir:enc e jurisdi ct i on f or the FBI.. 'Ihe neu t hrea t t o \'rhiCh
1,;e are r espond! ne; i s polit ical ter r-or-Lsm. 38/ Persist ently we
353
r el
v
on these der.onstrabl v danr:erous l':easures hecause of (lUI'
stubbor n adherence to t\10 basic assumntions : (1 ) that it is
pos si bl e "t o drai: the fine line betwe en l ep" i t :1JlJat e conduct and
i nvestip:ation of advocacv I'lnd association" and
thereby miniMi ze t he threat t o civi l liberties; arrl ( 2) that
dompst i c se curi t y oper ati ons can suhst antially nrevent or reduce
pol i t i cal viol ence . These assumpt i ons t he asser tion
"on bal ance" t he benefit s outl:ei r:h the r-t sl-s , 'The only problem
t hen i s to desf.gn pr oper r;uldelines and pf f ect i ve over sir:llt . 3/
These assumpt i ons are thoroup;hly debun}{ed hv the evidence .
By def i ni t i on domest i c investir:at ions reauire
surveillance of 1211ful pol itical act i vi t y. Part icularly i n
of soci al t IL'TlO:'l , t hose charr-ed \'.' ith a preventive intellir;ence
Missi on have been umrilli nr; or unable t o di st inr:u1sh between
40
vi f,orous citizen di ssent r eal sec urity t hreat s. / At
least i n part because of thi s dcmest i c intellir,ence
oper-at ions have f ailed t o accOIT(Dlish their p:oal. there
1s sir.ni f icant evidence t hat t hese ef fort s are count er pr oduct i ve
in political viol ence oft en have the opposite effect .
these fact s of life, sound nubl i c poli cy , based on the need
t o pr otect fundament al const i t ut i onal r j.r:ht s as I:ell as society
f'r om se r i ous Vi olence , mist r e,j ect this frui tles s and danr:er ous
course .
:: ':..
355
354
Reaching this conclus ion in no vav implies that we do not
consider terror ism to be a serious pot ent ial threat t o the f abr i c
of our soc i ety and t o our i nsti t ut i ons . Rather i t is
based on a larf,e body of empiri ca l evidence on t he publ I c r ecord
cont r-ar-y to t radit ior.al dcgma , indicates ti"at prevent i ve
t o the ext ent that it t s corrluct.ed wit hin "t ol er abl e
int r us i ve means" may well he more ef f ect i ve . The evidence indicat es
t hat "more of the same" is not is ca lled for i n meeting this
ser i ous potential t hr eat. 'The Corrmi ttee shoul d use t he oppor t unit y
af forded by calmer times t o make d i f f erent and wise public policy.
1. Dra\!in,g the Li ne is Imposs ible
It is not di f f i cul t t o f athom why t he Church Corrmittee f our.d
i ts ef f or t "to draw t he f ine l ine bet ween l egi t imat e con::l uct ar.d
i llegi t1mate invest ieation of advocacy and associat t on" f or
prevent ive intellie er.ce invest i&itions "t he most difficu l t .
41/
t o dr aft . "- i s it hard t o urder-stard \"11:1 t he J ust ice
Department ' s ef for t t o do the same i s interpret ed by some FBI
42
cf f k ial s t o aut hori ze cont inutrr; invest 1c;ation of "subver s i ves . "---..-'
I t is s impl y not possi ble to make t he necessar-y di st inct i ons
in t he fremewor k of a Gorr.es t i c i ntelligence authori t y.
I f their object i ve i s t o permit t l:e FBI to prevent a cr ime
befor-e i t occ urs , int elli.r'ence i nvestir;ations, by defini t i on ,
must be initiat ed 'Nit hout r-cas onabLe sus pic f.on trat, a criminal
]-1,.:J.s been, is beinr;, or is about t o be corrmitted . 43/ FBI
agent s i nevi t abl y focus I nvestIgat Ive attention on persons
who vi gorously dissent goverrment policy or social
r.oncti t i ons , or \100 advccate the need for r ad ical , or
r evolut i onary crange , even t hough t nese act i vities are cons t.r t u-
tionally pr otected . Di ssenters are vis i bl e ar.d r easonab l e targets
of i nt elli gence inves tigations whi ch are suppos ed to prevent
polit i ca lly mot t vat ed viol ence . r.lor eover , if t he m vest tgat Ive
purpose i s to piece t Of,et her a "Neb of intelligence " whic h
intelli gence agent s claim to require to dist ingui sh the r eal
tnreat .s of potential violence from "legitimate cor:duct," inves-
t igator s have t o gat her ir.formation about a ll of t he pl ans ,
acUvitl es , beliefs , a ssociations ard member shi ps of sus pect
. 44/
ir.dividuals ar.d f.'I'oups . - 'This danger i s particularly acut e
when the principal i nvest i gat i ve t echnique is the pl anted
inforrr.er who canno t be with t he dec i s i on to deci de wi"at
i s r el evant or activit y which may s i gnal ps s s i bl e
45/
violence.- 'fr.e r est;.l t i s the ver y evil which t he
gui del ine s ar:d charter s are int er.ded to prevent : ongoing inves-
t i gat i ons of l awf ul polit ical activi t y in vi ol at ion of f r ee speech
ar.d assoc iat i onal privacy pr ot ect ed by the First pmen::lment,46/
searcr.es sei zures in vi ol at i on ,of t he Fourt h
Jlmerrlment ; 47/ and a concomi t ant on all political
act i Vi t y when ci t i zens are subj ect ed t o a f ear of invest i gat i on ,
,r.,,';:.:
356
exposure, ani reprisal if they p-np'ar,e in unpopular- political
Because t he cpec Lt'.lcs of the .rust i co Department Gu"ldelines
and the Church Conmittee RecorrmerdatLons are not at i s sue at
t nts t i:ne , we s:lmply point out t.hat; have analyzed themin
ter ms of their potenttal, overbreCldt:1an::l concluded that the:! can
be interpreted to permrtmany of t he k trrt s of investigations
4G/
which occurred i.'1 tne 'IPe l ate Senator- Philip furt
expr-essed our succ inctly i n his dis sent f rom tr.e Church
"The Col'lYlittee vas concerned about
such ext ons t vo investic;ations bef or e there i s a
' r e?sonable basis of suspicion ' the subj ect
enr age in terrorism. 'llie Report offers exampl.es
of hO':1 t his !"'ecO!'l11em ption woulrl work, and in-
di cat es our desire t o Insul.at .e I a-rfu.L Polit ical
activity from of tsrror-tsm. But
t.heae ver:.J exampl es Elustrat e hO\'I .tnextr-Ic ab l .e
the two rna:! be at the outset of ar. ir>ol.1 iry into
an illlef,aUon or tnrornat Ion. The
task of out \.rhether a dj,s sident .l ':, con-
templat:!ng vt ol ence or i s onl y Invo.lved i n
vi[';orous pi'otest i r,Eevi t ahly r equi r es InvestI-
cat jon of his protest I!'!the
pr oces s , t",e FBI could 1'0110\'1 the
of the HashiP.[;ton peace ra11y for three months
on t he 0:' an allegaEh'1"l that th"lYnig11t
er{" ,ar;e i n vi olence ,"L .
\''1111e some m'J.:! ar'r,ue that thts Ls 8. strained rcadil1F- of
t.l-,8 Guidelines ard Cburch Carl"littee r-eccrrmerdat t ons , t umul t uous
t:!llles proo uce such. i nterpretat i ons . President Rooseve l t ' s secr et
1939 Executive Directive only tnst ruct ed t he [0"' 1 to
357
vio l at i ons of sabotage , espionare, treason , am violat i ons of
t r.e neut r alit y I aws . '.:':1i s i)irect i ve CeCaIT'2 the princinal ba s l
for that foll o\'reU. 51/
Prevent i ve I ntell i r;ence is Ineffective' aOO Count erproductive:
2.
The inevitable costs of t hese i ntelligence ac t i vi t i es re-
qu:lre t he Congr-ess to carefully assess t hei r value befo r e aut bor-I zlnc;
ttem. Based on the pubHc record, the BureauI s "offerof proof"
t o suppor t U s missi on , arrl the General Accountt ng Office ' s
intensive audit of FBI ;)omestic I rrte'l l Igence , arxi i ts f'o.L l.civ-up
st udy appropriatel y t itled"FBI Comestic Intell:tt",,;ence Operat ions:
An Iir.cer t a in Future , ,..2/t here i s literally no evidence to SUpDC. 't
the value of domest i c intelligence in antic i patir.g or or-evont Ina
acts of colitical violence.
--f,ccording to the Church Cormdttee, "between 1960
arrl 1974, t he FBI conduct ed over 500 ,0 00 separate
invest i gat i ons of per sons am ["roups umer t te
' subversi ve ' cate[SOry, predicated on the cossi bl i t y
that t hey :nif,ht be likely to overthrow the gover n-
ment of the Un1t:ed States. Yet not a stngl e
iOOivi dual or TouP has been pros ecut ro since 1957
urrier- Laws whi ch prohi bi t planning 0g_advocat ing
act i on t o overthrow the goverrment ,"2
- - Accordi ng to t he GAO auditof some17 , 523 FBI
' domestic int ellir.:ence invest igations of irxl ividual s
in 1974, oruy 1 . 3%r esul t Ed i n prosecution am
convicti on, ard in only "about 2%" of the cases
vas advance knowl.edge actiVity -r- legal
or illegal -- obt ai ned . - '
--I n r evtevdng 11)1 orp;ani zat i on files , the GAO
found onl y 119 instances '.'lhere ac t i vi t i es were
anticipated by the FBI. Qlly 127. of these
359
358
could ;oooaelva9l y i nvolve vi olence . . Ther e
i s no r ecord of l'ihether the FBI prevented
any of thispotential violence. '!'he FBI
cont ends t hese st at i st i cs m1g.'1t be unfair
because t hey concentrate on 1r.dividual s ",:,.r,;:.. <:!"
rat her t han groups . I n r esponse , GAO states
that i t s "samp.le of or ganizat i ons and control
files were sufficient to determine that
gener ally the FBI di d not report advance
knowledge of pl anned violence. " I n rrost of
the 14 instances wher e suc h advance know.ledge
\'J3.S obt ained , i t r elated t o "such acti vities
as speeches , demonst r ations or --
all essent ially non- violent .
t o supply mor e support ive inf ormat i on
to the Church Ccnm1t tee , t he FBI pr oduced a
memor andug6J!1which 3 cases of prevention
detail ed.-
--'.rhe gener al f Wing of t he GAOestablishes
t hat the 'ant i ci pat i on or prevention of violence
by the FBI just does not happen . "Investigations
of sabot age , cer t a i n bombings , and r i ot violations,
of f ore1e-n of ficial s , although
as part of the domesti c intelligence
operations, us ually involved criminal acts
ccmnitted bef ore the investiSations wer e initiated . ,571
- -One of the main reasons advanced for expanded
. ,-collection of mrormati on about urban unrest
and anti-war protestwas to hel p respons i bl e
officials cope ldt h poss i bl e violence. However,
as t he Church Commi t t ee r epor t s , a 'former
'.'hlte House offic i al ldthmaj or- dut ies in tnis
area urxier J ohnson Arnnini stration has
concluded in r etrospect t ba t ' i n none of t hese
situations....would advance i ntel ligence about
di s si dent groups [have] been of much help, ' and
that what was needed was intellieence'
about geography of major cities, am that the
attempt to 'predict ,vas rDt a
successful
The Eureau' s f ailure occurred during a per i od when i t
oper-at ed covertly "wit h no holds barred.,,591 None of the major
outbr eaks of political violence \'!hi ch are cited t o support the
need f o!' a preventive intelligence juri sdi ct i on were anticipated
or prevented: t he civil disorders of the 1960' s , t he campus
di sord er s of the 1970 ' s , t he Capitol Bcw.bing, the political
assa ssinati ons and attempts , t he viol ent act i vi t i es of t Ile
601
Under grourxi or the SLA.-
So l ong as "prevent ion" remains the goa l of domestic security
i nves t i r;at l ons , new rest rictions ar.d procedures will furt her
insur e f ailur e . The often heard criti cism t.hat these r estrictions ,
necessar y to prot ect ci vil liberties , \'Iill "t i e the hands I! of the
611
FB:': ' s i ntelli gence agents is not unfourxied.- The follow-ur
!i.er;or t of the Gener al Accounting Office Repor t , FBI Domest i c
Int elligence Oper ations : An Uncer t ain FUt ur e , r eal i sti cally
desc r i bes t he dilemma :
''Despi t e t he impr ovement s in t he direct i on and control
of' domestic 1ntelIir;ence, trere are stlII 1ewvis ible
r esul ts..... Reali stically this may be the best that
can be exoected, particul arly in viewof the greater
invest i t i ve r es trict i ons now pl aced on t he PBI and
i n vi ew of its pact r ecord l':hen t her e wer e ewer 62
r estrict i ons an:! l ess contr ol. " (emphasis supplied )-I
' 'breover, t here is cons i derable evidence that pr event i ve
int ell i gence measures are in fact, counterpr oductive. I nst ead of
serving t o detect and pr event viol er.ce , they have the oppos i t e
effect of crime more difficult arxi violence more
likely.
.: ., li:) i,-
./
361
360
By f ocus ing on t he di ssent ers and pr ot est ers :in order t o
f erret out potent i al vi ol ence , agenci es play int o
tre hands of t error i st s . As t he aim of the t err or i st is t o both
intimidate and cr ea te sympathy f or his or her cause by
people that r epress ion mcU<es viol ence neces sary, overreact i on bv
author ity is a key element in t he strategy. If police inve sti8at e
Innocent per sons or those svmpat bet t c t o t htO "cause" of the
terrorist, t he poli ce confirm or appear t o confirm t re trut h about
r epres sion. By vi ol atinr: cons:li i t ut ional r ip' )ltf1 , intelligence
agencies help to pr omot e the succes s of t error i st
63/
tact icfo.-
By engaging i n over br oad surveillance , intel l igence ar,enci es
creat e paranoia and dist rust of the police makes detect i cn
of t error i sts rror e di f f i cul t . To c i t e j ust tvo exampl es , t he
r-eason \.1hy t he FBI has had p;reat difficul t y in over t aking the
SLA and Heather Undergrourd i 3rt!'.at a sir,ni ficant segment of t he
public has been u!ll' .'1ll inr: to establish t heir whereabouts t o t he
pol i ce and some peopl e have helped t hese stay under r,r ound .
I."1t elli gence investi,:.at i ons have made them "e nemf.es: of t he police
and t hey \'T0nV-Y but underst andably i dent i f y wi th other "enemies"
of the police. VIithout publ.t c t rus t in police au tbor-Lty, ",hi ch is
urdermined by surveillance or fear of surveillance , PRI criminal
invest ir..at or s are hj .mcred in l egi t i 'nat e ef f or t s to enfor ce t re
l aw.
6V
flinally, by t ak ing "pr-everrt I ve actions" or us i ng i llez..al means ,
''In i nt elligence agency becomes t he mirror image of the terrori st s it
i s bUP!X>Sed to t h.,'8I't. \'lhen a police agency becomes a kim of' t er r orist
orf,ani,:;at i on usfng intimi dation and vi olence to achieve publ i c ends ,
t l".at is a f ar wor se t hreat t Hm Black Sept ember or PALN, 0 1' ,<;LII,
of f::.clal t er r or is t he ul t imat e ev il in moder n t imes , 65/ and tI lE' FBI ,
as the public r ecord Sho:'IS, used t actics in its int cll:1[;ence missi on
\'!hich lie associate \.'i t h police stat es ; from t !:e canpilation of emergency
detent i on t o
n * * * * i? * * X J:
A tot al change in empha sfs is r equired . Inst ead of fo cus i ng on
litical di s sent . t he FBI shoul d zero in on i llegal conduct . '!'he
appr'opriat e alternative i s cr-tminal cord ueted urder-
st rict standards and pr ocedures . Eot !'1 t he Mministr ation ar:d
66/
C
1
ement.s of t he Congr-ess are aopar- ent l y coming to t he same conclus i on. -
\-1hen we f irst t est ified in f avor of pr ohi bi t inb dcrr.estic i n-
67
t plligencc invest i li;at i ons t wo years ago , only t he Pi ke Corrmittee ard /
a manber - of public organt zat Ions , 68/ the Uni t ed Aut omobile
ar.d Corrmon Cause , advocat ed a s imilar flat ban . 69/ fut h the
. ' "ro/
Jus t :i.ce Cepart ment under f ormer Att or ney General Levi- am t he Senat e
Sel ect Oll Act i viti es (the Church ccmmittee)7l/
r pcorrmerxk d tna t tr.e Congres s aut hor-Ize l imi t ed
363 362
Invcst tgat I ons becau se 0:' tl1Q recess tty to "ant l cfpate ard prevent "
poEtica l vi ol ence bef or e itoccur's .
72/
Re'cently , however , a number of House member-a , 1....- includin8 t he
chairman of the FBI Overs ight Comnittee of the Jud iciary Comnitt ee ,
the consti t ut ed Senate I ntell 1(';ence Commit tee , and t he Just i ce
9'partment have t aken t he r ositi on t pa t investigative standards
urxler st r i ct shou l d be used i n domest i c security
cases . Chairman ron Ech-mrds of the FBI Oversight Comni t t ee has
introduced which would acccootLsh this result
Tre Chai r man of t he I ntell i gence Corrm:Lttee, Senator Bir ch Bavh,
also a member of thi" Corrrnit tee, announced on Pebruary ') of thi s year
that the CGr.Jmittee decl i ned t o i ncl ude domest i c
securi t y investtgo.tions in t he f oreir"..n i nt elligel'ce cbar-t er , 3. 2525,
"because they shoul d be treated as I aw enforcement r ather than in-
7/
j
tellie:ence functions. "-I the Attorney General has adopted a
similar vie" r, which he descr i bed i n r ecent t est imony before t he
Ho use .Judi ciary Corrmittee :
"IE.st veal' we began effor t s t o drai't l el2: i sl at i on
dealin', I:rith tr.e ctcrnest i c security investivations of
the PEl . It Quicl<ly became apoarent ! hm-iever ! that is
is unsn'.md! both lefCo.llyFro nr act1call y ! t o i sol at e
this particular. sUb.lect frcm other areas of FBI crimi nal
r espons i bi l ity. There is no r eal differ ence
[,?t ,;een investigat::'ons of criminal enterpr ises bent on
violence for political rrotrves ani cr1r.Jir.a1 enterprises
bent on vj.olence to extend the influence of or r.:anized
cr-ime f or eco nomic sain. n.lrd0r , assault , and
extortion are Heapons p.:lUally adapted to ca lling
attention to a pol1Ucal cause or er.dorsinr, a loan-
or l,q,atevcr the motIvat.Ion
the come int0 nlav in
at tempting to identify thE: per-sons or organfcat.ronc
behi rxl these act s , det errl'b i nc; \..110 provides the
l eadership 1:'.00 bringing a halt to such crtmes , 'Ihe
onl Ydistinction :'s t In t creat eI' sa f er;u9I'df' for the
pr ot ect i on of First be
rrovided in the investl,,,:ation of crimes ur.de ken "
for political r easons. emphasIs supplied -
The FBI's curr ent policy in t he dcoesttc security area is i tself
a 8r8'Wnent f or the of abolishing the
do:'\cst1c security jurisdict10n. The Bureau 'laS transferred all
domestic security t nvestigat Ions t o i ts CrlJ11inal Di vi s i on .: Despite
the ar8'Jabl y broad jur:sdict:ion 13X'3.!1ted by t!Y: Ju stice Department
';uidelines, the Eur eRu, in :;.:s o\'m "quality over Quantity" approach,
h::w limi t ed i t sel f to investigating c:1ly "irrlividuals ard organizat ions
involved in crimes aga inst the U. 3. "..rnch invol ve act s of vi ol enc e. ,,76/
I nstead of \:astillg t lme ard r esources am i nfri ngi l'.g rights by trying
t o pr event violence bef or e it occurs , t he Eureau seems to be t ryi!1: to
vi ol ence by detectinGan::l prosecuting :hose v:ho commit crimes
of violence in order to deter such ::l ets.
Prohl bi t i ng Other Domel'tic Security I nvest if;atlons
I n order t o cl ose the Bureau' s domestic int elligence
j ll!'l :.vl1ct i on, t he charter must pr e-empt al l execut i ve order s and
limi t t he FBI to the conduct, of cr-trunal. I nvesttzat tons . The charter
must al so carefully define the F31I S i nvest.1iatory r es!"'ons i bili t y in
the areas of ci vildLsorder-s and bac kgr-ound in':est:i.e..at ions. These
fu nct i ons must no l onf,er const i t ut e a fo r ,inves-
3.64
365
tigations. 77
Civil disorder information r,athering InuSt be stri ct l y l imi t ed .
'The Attorney General must aut hor i ze collection only if there i s a
clear an:l immediate t hreat of viol ence lilcel y to r equire the
out of f ederal t roops . Cnl.Y tempor ary (30 days ) collect i on should
be permit ted am the PI3I sbould be l 1r.li t ed t c t he use of overt t ec h-
niques unl ess a full cr:lminal i nvestigat i on in autlx>rized . The &!reau' s
autlx>rlty t o gather inforrratior,781 about pl anned derronstr-at .Ions sbou l d
be similarl y r est r i ct ed .
The scope of t r.e fureau 's aut hority t o corxluct bac kgr-ound ard
securi t y invest i gat i ons should be r eassesned mld expl i ci t l y def ined .
1"0 bac kgrourd invest igation should be con::!uct ed wit hout the subj ect ' s
consent . Cnl y i nformat i on relevant t o the l egi t imat e purpose of the
investigation slx>uld be collected or maintained; dissemination shoul d
be t 1ght l y controlled . Eecause of the inher ent tension betwee n the
FBI's counterintelll.eence and backgr ound Investigat.Ive fu nct i ons ,
the Omrnittee should seriously consider t he t r ansf er of most of this
791
author ity t o the Ci vi l SeFvi ce Commiss ion .
A Stardard. f or FBI Cr imina l I nvest i p:.at i ons
'The Congr-ess must define carefully t he FBI ' s criminal investiga-
t ory authority. The chart er shoul d mardate that the primary purpose
of a criminal law enror-cemont investi:l:ation i s to "det ect " .. ... crimes
against the United States," identif:r1r.g the perpetrator s arxl gathering
to establish the basi s for arr est and pr osecut ion.
coJ1i7'ess can thus insure t ea t the 1''81 \'Ii ll not conduct "int d l igence "
i nvestigat i ons .
Of part icular importanc e , t he Conc;ress must establ ish an investi-
gat orY st and ard l'Ihich the FBI must meet be f ore it can conduct a
covert , intrus i ve cr-tmt nal investigati on . He believe t he FBI rray
not conduct an int rusi ve i nvest i gat i on unl ess i t has a r easonabl e
suspici on , based on spec ifi c and articulabl e f act s and r a tional
1Ilf er el1Ccs frcm such f ac t s , that the subj ect of an investigat ion ,
whet her a person or a group , has corrmi t t ect, i s ccmni t t i ng, or is
about t o ccrrrnit a speci fic act which violates a f eder al criminal
statute ,
80!
Supreme Court in Terry v . Ohi o- held t l1at a reasonable
suspicion stardard mist be met, t o justif y a search pursuant to an
nves tigation . Spec ificall y , t he Court stat ed t hat :
"in j ust i fyi ng the parti cul ar i ntrusion t he police
of f icer must be abl e t o point t o specif ic and
art1culahl e facts ,,'hich, t aken together with
rational inference s frCl g t hos e f act s r easonabl y
varr-ant that l ntrusi on .-l!
'111is hol di rJP.: doe s not r esol ve the issue of what k1n:i of "reasonabl e
just ifi es a fu ll cr iminal inveRt igat i on . But t he I.'
"specific Vi olati on of 18.1'1" basis for invest i.{"-p.-t ion i s a IOp'cal
ext ens i on of the Terry deci si on t o th':? "part i cul ar int rusion" we are
C(l!1sidcr inp; here. 1.'1 Terry t he police wer e only r ecuired t o have a
- - ... .., .. :.:. ;.: ;: .
J.... _ 0 79 24
367
366
r-eascrn hl.e susnt cIcn t r nt .'1ct::tvity rrflYbe afoot , ,,82/ hl<L
t he Cour t ernpha s l zed t hat t his was only a l i mi t ed "st op ard :'ri .,1\ "
and not a "full--bl o\'ll l search.,,831 An on- going criminal
... I.)
whi ch i nvol ves covert , i ntr usive neehnfque s such as cont.Inuous
surveillance , inspecUon of pr-Ivat e r ecords , and use of pai d am
di r ect ed informant s i s mor-e a 'dn t o a "full- blown search" r eq1l1ri ne;a
h:1gtler degree of cer taint y that criJni nal conduct; i s involved than t o
a "stop am 541 In such I nvest.I gatIons, wher-e t.he FBI does 1'Ot
have prohable cause to or does not use techniques which r e-
quire a search Iarrar.t , .....<. we believe the Const ttutton r-equn -es the
Eu."' 8au t o :neet t.be st andard we have proposed.
Fe do not pronase a "pr-obab'l e cause" stardard , both the
A': t or :1ey General ard PBI Director have indi cated mi ght be wor-kabfe ,86/
because we are at t empting t o articulat e a standard of i nvestigat i on
t hat is r.ot premised on "conspiracy 'I st at ut es . I n our vi ew, r-easonabl e
suspici on of a specific act in violat ion of I aw i s a tighter tnvest r -
c;atory stardard than probable cause of conspiracy, ard the onl y stardar '
t hat can prot ect consti t utiorul r ight s adequat ol.y.
I n t he past, t he FBI cor.duct e 1 mas si ve of
Iawf ul polit i ca l ac.t ivity premi sed on t he vi ol at i on of conspir acy
stat ut es such as the 5'mit h Act osU.S.C. 2385) ani Voorhis Act
(18 U.S.C. 2386) I' !fli ch on t'Jei r face ! .uni'3hlmlful speech am
871 Her-econmerd the repeal of these statutes by this
5
Q
ch3I't er l ('j-i sl a t i on. .:..:I I'owever , pven i f t hev art" r-epeal.ed , the
use of consoir acy statutes (lR u.s,c. i n conjunct t on
.,ttJ1 stat ut es prohi bi t ill[': substant ive corxtuct !I S !3. pr-ed t ca t > f (lr
l.nvest i r:at i on ner petuates the pr-onlen . 'The neport
() ccanpanyinC the> recentlv enacted 8.143'1 r-er-eals thf' ,"mitlo
roses t he i ssue :
':'he r C(1.c mor e aD]')r onr i atp.l " l eaves 1U'P.3 t o
the consprr-scv r rovision (sect j on 1( 02) ,
,.-hich '-; ill mal-e i t an orrense t o consrdr'e to
vi ol atp. ei ther .,ection 1101 or 1102
Qr
I n case l aw, t he court s E:':T1rhasize t Ile i nhereJ"t n:'Ul{"er i n pr o-
secuUnr: !"lersons e!'l:aged i n First Jlmer.dment act Ivt t " urrt er- consp t r'acv
001
statutes.-- Com;t ituUonallv pr otected conduct; coul d be puni shed.
Consr.i rac'i statutes, on tl,eir' f'ace , pr ohibit associ at i ons estahH shed
for iller:al purposes, I\n overt act, \'I' ic'1nay be Lavf'ul , i"
sufficj ent t o pr ove t he crime . nterrntivel:' , i f the a ssoctat Io n
for t'1e pumas", that oul d be i llel'"al can he r.hOlm. then an j llep;al
act t>' r one associa t e mav be to all other
IberRof
t hat associ ati or. . 0
11
1"'rohlern in the first JlJ"!erment area i., tmt vtr:orous
dissf'nt hv political as socl llt1.onc; of t en inv01ves aclvocacy of act s
' 'Oul d l:n i llef!:al i f cO!'1!0 t t ed (e.r.. , ovept!"a'ow of thE:'
"'.overnnent 0" rli sru'1t i on of a r:overr:I'lf'ntal fu ncti on). over-t acts
\'II11ch mirht suffice t o pr ove consptr-acv i n '" c,. irliJ"al case such as
-." ';';,'
368 369
Rnd r ai r,i nr ar e t r.c or political
nc tivl tv . ConsoouontI v , court s h<tvp r f'(1u ire{1 A. sho"'i nr of
:m",cifi c i nt ent i n t l;e prosecut ton of' T'i .rst AJ1'!C'r;c'nent r elat Pd
cases , Fur-t her", !:'pcause thO' nct r ve s foY' oor tici".'1t i on rna" bave
or H l er:al asrect -i, cnur t " have r efu sed t o at t r-t but.e
tl"'f' llle[':al r-ct.s of ope 'If'>''ociRt e to ot.hp!", s t r-e rr-our-. (J 2/
A::,!"' l t'.;e court s I obser-vat tons concerrn Tl} nrose cut tnp;
consrur-ac tes t o ir.vpst i r ati nr: such conspfr-ac tes l.11us-
tr-at es t he :;'1or t ccmi ngs of cuch a hFlSi '3 "or' 1rwes l :i["ation.
"ea' 1inr: consotr-acv stat ut es l1t er al lv. advoca c: of 111pf':Fll ac t s hv
in j ust ifies i nves t 1Rat1on . 'ureover , cc,rmi s-
s lon of "'!loll:,' l efCFll overt act :" .. I nter-t vdned "rtth t he>
r ol.f.t i cal. process , coul d a l so .1ust1fy .' nvest 1F,ation . ,'I qt ':-lm ard
of pr obahlp cause of such act avt t v if: eas f I v rnet , Even if ther e
is no s pec f f'I c i ntf'nt t o violat e t l"R Lav by one or a ll of t he
assoc i at es , consr cr acv ost?tutes r-er-ut i ntru":'. ve I nvest tr-at t on of
Fir st act i v rtv . I nvest .tr sr t or v t o r roceed
under t he :ce statut es r-errl er-s R ' r:r iJ"li nal "t 8!')' lcm:l' an U luGor v
i nvC' st ::: at j.vc a....u se".
nr osecutor i al r equirement of snnc i f i c i nt ent J1'!U<;t be
T)ilI'A.l l cled i n t ,le starrtard for f nv est. !.. "',ilt :ton . Fer-sons or rrroups
should not Iv> t 8rr-:et ed f or i nv2'";tirClt1on unles ther e i s r ea sonabl e
susrdc f.on t hat t he "uhst ant l ve cr-Ime (r at her t hAn consr d.racv) i s
ato
ut
to be Por exampl e , i f t he PDI obtains of
a SPl;.'CH ic threat of 1.llepa l bv an association t or;et hf'r
,,,ith soeci fic, am articul able f a cts i m icating t rot a member ha s
pur chased ""apon::; . t he "'Ell woul d have r-ea sonabl,e susp.lcLon tha t a
criminal act \'11S abou t t o be corrmi tted. "1at her t han "any' over t
act. onl\T an over t act which '.oul d const1t ut e an el ement of t he sub-
stantive cr:1ne "'oul d .l ust.Lf' v r-easonab'I e suspicion of specifi c ,1nt ent
tJ3/
or imninence of i lle(T,al corduct , - t 'le sane r-equfr-ement I"hich tile
courts US" t o narr- ow t he over-br-eadt h of conspiracy prosecutions .
st arxtard vould pr ot ect Pi r st am Pourth . Arnen:lmetIt
r 1r ht f' ,it)"Dut urdermt ntne the prJ! I S l aw enfor cement ef f or t s .
'Ole FBI "'oul d not be r eouired t o "si t on i ts hams" unt il a
suhst pntive cr ime occurred . The cr-Irunal, st andard al Lows a full
!.rwst J.r at ion l, efo r e t he Law has been vt ol at. ed , ' u r e tmror-tant , i t
shoul d not bar t he Pureau frem corrtuct inz preUmi nary i nqui r i es
ustm les s int rus ive t echnf cues , A chart er , pr oviding f or a pr e-
l im:!n3I"T cr 1l'li l'.rtl i nouirv , 1''QUl d 3.110,", the PRJ: to check i t s own
r ecords , comuct int erviews, cont act establ i shed sources of
and use ot her such means t o f i r.ct out whet her t he basis
1i 4
/ f or " full investi,O' ,:;t i on iC l st s . Ilithout l'lef't i ng a r ea sonahl e
susn tcIon standar d . t he FBI cou.ld chec k out spec I f'I c thr- eat .s,
credi bl e all er ati ons , i ncident s ard t ho E l<:e : '1n other ham , if
the aller at ::'on is unf'ourded , or in t he c ase of a full i nves t ir, at i on ,
i f t he, SUbst ant i ve cr-Ime does not occur , t "'e inve stir;at i oT).:.:fUst
370 371
t errunatc .
l"..:lther than ! rJrder t he "ur-eau , t he starrtard vould na ke tl1e
RBI 1'10 1'1" out its enror cement r-csoonsf t-j ,
lities . Consr i r ncy nr edl cat ed l ean t o over br oml
Invest Ir-at .Ions are f1 !.' ast e of r-esour-c- e on virtually t'ruJtl ess
,1t tl'1nt s to nrevent cr-ime .
I;n the a s sumnt t on tr.1.t nr evcnt t on mav be mor e eff ective if
cr ir.1i m l s are ard prosecuted , t l-Je narr-o-er cr1l'11na.1
starrtaro "'oul d caus e the "'PI to f ocus f t o r esources on ':' ol vi m
scr :\ous cr ime , In poi nt of fact , the starxtard ,'.'1" propose 1'3' a
stat ut or-y embcdImont of the versus ouant t t v' appr oach tbat
ha s caused the :.eD! to make an 1nter Ml deci sf on t o f ocus r nvest.trn-
tions on oer-sons or or rtan t zat i ons \'hrJ bave canni t t ed serious or
vi olent cr-imes fo r political or ccoronic mot i ve .
" creaver . stnce riost suchcr-tnina). consntr-acI es ccme to tty>
at t eot:lon of the a l-Ja.s r.een ccmmlt ted, Most
i nve stip"8.tive act i vit" ("r:J t 111n st r-t ct er- r-ocedur-es ) t l' 1t now [; 0 on
woul d be peI'l'1h ;f,ible urd"!r t ho r oasonat .Ie susntci en starriard .
T!1e "prtJnJlry" rur-rose i s t o invest i r;at e am to [T.1. t
hf>
r evidenc e
of cr-Jmo , t he FBI still r rC"le nt cr-ime befor e i t occurs .
PRI could ; prevent D cr-ime" r easonably belk'/cd t o be about to occur ,
us inr; t r-ad at tonal mean s such as a"T-C' '''t., "'Qrninr ootent i al victlms ,
an.1 t he I H:e . 'The st at ute- as l at er ::,U["[;est , must nrohi bit
cnIHI'FlJ'P0 act.fvtt.tes .
'The narrow standard \"e ororose in r-equr r-ed wh" n Firr-t
[1ctivi t i es may be investJ['"at ed . ".:111" same standard i r.; orobab tv not
const itutionall y r-eouir-ed in ot her cr-Imtna .l invest igat i ons . Ho,'ever,
Fourth JI:ner.dment considerations r emai n a cr-Imtnal st an:lard is t her e-
f or e r enul r ed .
'l'!"e !'luhl1c policy Lssues h" orrtantzed crime "Int el lir.encI" ,
invest i p.nt i om are not unlike t ho'lp. r a i sed hy t he deba te over danestic
i ssues . Ef f or t s to t !ll'art orv-ant zod cr-Ime have been 18r r;el y
j nef f ect l ve , Arecent GAO r eport concludes mil lion tax
dell ars have been Na st ed by or rtarrlzed crime st r i ke forces i n t he l ast
decade. 5/ fo s in t he donest sc secur .tty area , a rajor- prohl em bas
"9(,/
been the inability t o def ine "orr;anlzed cr-Ime,
Jllthough di f fer ences t ",t ' ,'C' cn these t l"o areas of t nvest tsa t I ve
concern extst , jmnor tant constrtut t omf "'00 pract tcal, s imilarjtles
CRn also be noted , These si milar i ties RI'pue f or a tlf.",ht cr:lminal
stanjard cr ime investl f",at iom , per haps t he same
stan:J<lI'd ":hi ch gover ns First Jlt"endment r r:l ated ilct i vi t ic' s . ' .Ie l ook
to the ,Tust i ce Depar-tnent am the FBI to exnlain a uni f om
stamard uoul d not he pr act.t ca bl e ,
r, ;"
373
372
Spec1;u Procedures for FBI Crlnl.n.'11 Tnvcstirii tions
As Impor-tant as i t i s to se t starrtards f or in1.tlatlnr; F"lI
cr-Immal InvestIrtatIons, the charter MUst aLso establish pr-ocedur-es to
i nsure t!la t investi r:ations are corrlucted so as t o mtrumt ze i nterference
wit'! constItutt onal, rights. Particultrly str i ct or-ocedures are neceSS81'1r
in cases "'hich involve tnvc"t1.r:atlons of rer-scns or /TOUpS enr;Ewed in
First Ar.1endmcnt ac t tvtt t es . the "'!:'J ' ns r eason to believe frat
a cr-Ime l1aS been com-ut .ted , nr ocedures ar-e needed to r r-event over br oad
survef.Ll.arce of l al1U1 Fi r st 1'rJ('nir",Ent act i vi t " , ,)'lich coul d "chill
soeecb' am intrude on the of nolitical assoct at.Ion. lis
J ust i ce POl:el l stat ed t r.e case for a vif, i lance this investi-
r:ative area:
' ''T'he or-tee of public dissent mist ro t be a
dread of sutrl ectton t o an unc!Y'cked survetLl .ance
oower- . lbrMUst t !"E' rear- of urrurtbor-Ized official
df'ter citizen di ssert. and
discussion of Government action in nrivate conversat i on .
For private cilssent , no l ess t Im open TXlblic ,Us-
course, i s essent ial to our free fJociet y. Q71
The t''f'e of procedural sa r eruar-t s reClUl.r R:1. i s i llustr ated one
examnle f'rxm t Ile r-ecent past: The r!3I 's five am '\ ':al f vear- cont i nuous
tnvest .tgat .ion of t he I nrvt .l.tute for Policy ,St udi es , R 'IrellJmolm l ef t -
l i beral r esearch orr-anr zation in "lashL'l"tan, I).C. '!.'he Inst itut e "las
t he; v1ct1m of hat h unregul.ated, urr-iarr-anted t arr,et i np: am over-br oad
surveillance of pol i t i cal act i vit ies fromother
legitimate cr1n1. '1r'll " 1-:Instit ute ' s case indicat(>s tt:e
need t o mandate procedur-ea t o r er:ulat e ",vpr:! stage of the i nvest i,o:at i vE'
preces s . Pased on discovery In a ci vil suf.t , wo know t rat :
')he ini ti!1t ro. th> I PS i nvc'ltlr;atlon in l ii68 "t o
determine "'hether ('If Inst itut e and
its "ersonnel were in 0f Title 18, United
St ates Code (USC), Sections ;:18380, r el atIrr: t o
r ebellion and insurrect io n , sedit ious
ant advocacy of the overthrowof t'1e Government." In
ot her word s i t an investir'ntiw in1tintP.d on t he
of cr imi nal statut es but any evidence.
The investiration continued a fu llyear bef or e a
"confidenti al source" advised that r,iU'CUSRasldtl of
Inst i t ut e had made allof t.ho "l.!"r anr;ement s for a
Pan- African Conf er ence i n ftlr-iers withmoney
provtded by IPS. Pecause t he "tone ard cijrect i on of
the Conference vzas t he resultof s1...n:nificant sovt et,
influence' accorctinR to the conf i dent i al source, the
lrwesti{::ati on continued on the bants of pos s fbIe
vjol ation of 18 U. S.C. 2383-'35.
The deart h of evidence in t hi s case a lso inn l cates
t he license perr'itted by t ty, cons'-'i r "lcy st :m:lard .
By this t1me i n t he I nvf'stigat i on more
than a prcl1minar:r one, since t he 1"''11 had infilt r ated
the Institute "lith informants . FUrt her , because
P.icha.rd Barnet t of I PS publicly stated that he had
visi t ed llaro i , t he PD1 det(>rminE.'(\ tiYl t he rnir',ht be
in viol ati on of 50, U. S.C,
?o SlS8 Dert3.i nir.r; t o f ailure t o r pr:i st er as an
esoi onar:e ap;ent of a fore:lJ:7l pover-. the ':'it le
18 or Title SO Invest1.r'r'ltions l':ere ever by t he
Justice to determln(') the evidence
amounted to a reasonable susoicion of a crime to
"!urrant t he i nvestirratl on.
'The .Iust Lce Depar-tment did enter tt:P. ricture in
AUfUst of 1971 , \'1hen Ass istant Att or ney Gener al !'lober t
request ed t he r SI t o resol ve t he ''FBI fnvestt -
rati on" 1'Thl ch had "determined' that I PS had ool..lr,ht
copies of the Panel's' in 1"7f'l. F.l even
af ter t he "determinat i on, " in ot her vords , t he
FBI was Instructed to invest1/2;at e I PS f or pos s i bl e
Vi ol ation of ':'i tle 18, U.S. C. Sections 792-
n
8
r el ating t o
'The Justice Dcoar-tnent a.ril F"3J afnoi.als made- .'. ,
".- . < :, ' :'-
374 375
no eff or t t o "n1nimizp.' t hl' invest i :""ation or rnkf' any
de ternination that intrusive t echni oues "'ould have
t;een <;uf fic i e'1t to out thA a ller.:at i ons of'ill e"''11
act i vt t v. ASSl.JJ'11i m aI':":Uemo t hat a criminal s t ardard
had r-et , the only named t arr:;ets of
verc '1Rskin UIl r:.t er s Conference ) ar.d Ric hard
i'arnet t (vi si t i ng Panoi ) tbe Pentagon
farArs ) of t he In stitut e . Yet t he FGT collected
Inf'ormat ton through !ntrusive surveillar.ce of all I PS
personnel and as sociatez ar.d al l IrS oolitica1
meetings. Extensive fill'!s ver-e maintatned.
In 1971 , the FBI of the whereabouts
of the Ireather Uraer/lTOunr] resulted i'1a new avenue
f or investigati on of IPS. Cmt.ho basf s that one member
of the Urrlerf.!"Oum v" obtained money fran
Art!1ur Haskow of I PS, prior t o becorn:l.np: a fUr:itive
am that another- fur,itive allo,,:edl.v '"vi s i t ed
offi ces," t he !"DI continued its t ot al cover age of
I Pf, 'Ira its poUt i cal activi ties on t he rrClUJ'rls
t hat per sons a ssoc Iat ed I PS may have vi ol ated
Ti t l e 13 , U.S .C. Sect ion 1071 t o Concealing
a PerR)J1 from Arrest . i\!oeff ort''':is made to pr even t :, ',
this ler-itw.ate criJrli:'.al investl f"ation from
in over br oad surveillance of I PS' ?ir st flJ1lerrlment
act i vity .
In 1971 , apparent I v because an I PS s taff associ ate
sponsor ed a conferenc e wonted views (in the
Eureau's opinion) "ident ified with Arab p.uerrillas '
aml ater r eoues t ed r'arcus Faskin of IPS t o fi nance R
t r i p cf 'hi s t o t he IUdrUe fast t o study t he politi cal
situat io n , t he FBI det ermmed t hat I PS J11ip:ht be
in violat i on of Title 18, Secti ons
1541-
1
15r elatir.;; t o violatiom of Passpor t am Visa
Pa t t er s . TI1e investigation continued.
Cebleen and 197
J
no otl-)er "evicte nce" of
H ler.al act i vi t" ' ca.'1e t o "'!:.r attention hut t he
investi?,at j on Nas not tlomi nat ed untilP2r ruar:.' 28,
1974 , aft er a c i vil l 8,\-Osul t Ivas filed t-y IPS chilrrinr:
surveillance.
Other than AssLstnrrt At t or np.,! Gener a.l 'ardinn I S
r eouest in 1971 and an "':'1 ;readaunrt0rs review in Ar.':'il ,
1')7'3 (11 rrx:mtr:s cef or e the t enmna t i on of t he
tion and a1Jllost five Yf!ar s a fter i t s ccrrrnencernent ) , t here
i s no evidence of F!3J sUl'l 'rv islon of t he I PS tnvest t r-at aori .
over- t he cour-se of t'10 i nvp",tif.' at i 0n, t he Bureau
pai d or di rected over ')0 informants t o f"ather i nforr>.a-
tjon on I PS, obta Ined confi dential dccuments , per-sonal,
mail (fran trash covers ), member-shfp list s, research
documents, pl ans of !!1eE'tin.":s, deta iled reports of ",hat
-ent on at meettrrtc , and built a r-a s s t ve f ile on the
or p:ar.iza t i on .
I n "'f>bruary , 197
L
I, upon di scont i nui nr; t he
irwe"tir,ati0n , the FBI concluded after "careful ana lysis"
t rat t her e 'va s insuffic ient evidence t o support
n!,osecution of IPS leaders or member-s un::ler existinr:
Federal s t atutes . '!he u.s. llt t or ney l s offi ce I';as
never i nvol ved.
Tre J usti ce Depart ment am t he FBI continue to
defem the corduct of t his investigation as Legal,
arrl pro!'r. 2!Y'
The chart er must include requirements f or procedural saf'eguards
insure: (1) accountability for the authorization and conjuct
of investir;at i ons ; (2) t r.at no investigation i n vrlthout,
statut or y basi:;; 0 ) that criminal t nvest .tgat.tons do not bec o-ie a
pretext f or open- erdecl intelUgence i nves ti[':at i ons; (11 ) t hat the
least i ntrusi ve t ecbntoue necessary 1:: 0 oi .tatn evi dence is employed,
(5) t 'lat tnvesttrat iona are not over-broad ; ard ( 6 ) t hat pr i vacy i s
not vi ol at ed by unnecessary maint enance am dfsseminat t on of infornation.
";-ecial provrsfons to achieve these ems are l ai d out in A t o
Control t il" PelI. 'I'hey incl ude (1) r equirement s f or "/I'itten au1:: hori-
z'Iti<:m ar.d certificat i ons ' (2) time liJ111ts f or invest:1["ations;
(3) Just i ce Department r evi ew, author i zation, ar.ct supervision of
inve stigations: special author i zation and .Just ice
mardated procedure s to t he use of -i ntrus i ve !:,.eql'miQues ;
r - t .. -i:
376
377
and ( 5) t l-at n:l.n !r1i z"t i on nr ocexi ures be
'Jl:':'!'e pr ovtatons Cll"f! not df't allecl r(''""l.ll r.>. t i on::; , d tl ch t he ,lustlc,.
Dopart m",nt nr.d t he !llreau seEm t o f ear.
Rather g:!mpl " rnaniate
t h.at t he J ust i ce l)p.p.1r t!"!cnt establish r r ocedur es acc orxtirs- t o
s t at ut or y crit er i a .
Tl I" ,\' se t aDDr ooriate l imit!' on Cl.dninl str at ! ve
discr C?t:ion.
f,ll of t hese procedures sroul d '1n'Jl.v in cri minal cases
i nv01v1n,.,; Pirst flmerxt" cnt ac t f vt t v, Put::Ja!l;li' nrot cct ar.:ai nst Pourt:1
f.r.:em"lE' nt nri vacy violat ions and shoul d apply t o all crir;1inal
mvcst i r.:atiol1f; .
f or Intr uJive Technioues
;..::;---
Special procedur-es to m.1..niJllize r.'B! i nterference 11.th First
r i r,ht s must be r einror cec by a '.arr-ant reouirenent for
cr:tmi nal invest i gative techniques which may int rude on r i ght s of
flOUtical pri vacy . For t he same reason t hat a varr-ant is reoutr-ed
t o corxluct a ' Tiret ap , it shoul d be used t o guide and restrict t he
use of Inronmrrt s ard searches of pri vat e r-ecords , The tarrret of
each of t hese t echniques is speech , albei t in differ ent fonns , ani
the onl y I'Jay t o insure that t he purpose ant corduct of the search are
Umit ed to the seizure of cr imir.al evi dence i s t o r-eoui r-e prior
judi cial appr oval . Nowher e is the need f or j udicial supervi sion
!Veat er than in case s i nvolv1n.. ": dcrnest ic secur i ty, vJtY.'re Pirst am.
Fourth JlmerxlPtent r ight s are simultaneously j eopardized. As the
Supr err.e Court pofnt ed out i n reit h '
National securi t y cases ... . often r efl ect a converwenc e
of Pirst and Fcur-th Amerdment va lues not or esent in
cases of ' ordi nary ' cr ime . Thouf,h t he invest igative
duty of t he execut ive be stronr-er in such cases,
so al so is ther e great er J eopardy t o const i t utionally
pr ot ect ed speech . .. .. Hi.st orv a t urd ant l v document s t he
t en::l ency of i:.overnnent - bovever- benevolent and
benign i t s mot i ves - t o vi ew \'.1.t h suspf cI on t rose 1110
most ferventl y di sput e i ts pol i cies . Fourt h ftmen::lment
pr'ot ect i ons become t he more nece s sary Noon the t arr; et s
of official survei llance m y be those suspect ed of
Q9
/ unort rc doxy in t heir beliefs .
Tl:e First Amerdment , of course, guarantees freedan of speech ,
of the press , of as sembl y and of t he r ir,ht to pet i t i on for redr ess
of gri evances . 'Ire Supr-eme Court has often observed that the
378
379
effective oxerc tse of these r-equ n-es assoc lat lona'l nr-rvacv.
Sit I zens must l1e ab le t o meet am assocfat privately to discuss
politica l beliefs arxl plans arx' to cons l dor- ':'hat l awf ul ac tIons t o
t o promote their i deas. r ol at i nf, t o these
activi t i es are r r otect,f'ct unless they cont atn evi dence of cr-Ine ,
'The r i V"t of nS30ciatiom l :Jrivacy ' ''''is f irr.Jl y estnbf I shcd by tl'
:cupr ene CO'lI't :L, r er'Cllir>.r: t h" ef f ort of t he St at e of A.lnh8TJ\'1. to c:,m,-<e]
disclosure the "':':\CP of nEnhershiD lists. nAJ',-CF v. ....rn,
357 U.S. 449 ( LQ')8) , It 81')'} E'r'Jnhasized most r ec ent l y
h:,' the Court in i tsdecision cer-t a i n intrusive discl osur?
provi s ions of the Federa I Election C?.Jn!Caii'Jl ,ICt . v. Vnl ,,: ,),
42
1
1 1 (F'76). !\s Cldef J us ti ce "uri<p.r poi::ted out :.n his
COn0Ul'Tinr; cotnt on
[ S'[ocr-ecy am pr i v<lcy a s to polit icnl preferences arrl
are a free societv..... This
Court has to i t t oot J::overn"le'1t?l !'O"ler cannot; be
used to f'orce a clti zen t o disclos f' private
affili at i ons , even " tthout a r-ecor d r ef'l cctinp; an'!
syst.ermt f c " 2ras P.:1cnt or r et :cl.1at :l.on . . . . ."'or one i t is
f ar t oo 1l'1t e i n t ne d,!y t o an ill-d efine(!.
' public Inter-est.' t o l!!' p.Qch t.he .. s:U'er;uards
':)l'lI'anteed by t,;e T.' ;.T'c:t . 100/
1f the first pr-events t r -e goverlT.!ent frm ccr.' .pcllinr
discl osill"e of :! r.f omation r el '1tecl to Lavf u'I political and other
aseocf.atI onal acttvttv, :'.t must also require restra ints to be :!.r.mos ed
o n .t he usc of intrusiv" i.:lves t:i<;at i ve to J:rathpr 'Ouch inf orma-
tton . In f'act , i t i ::' f or t his r-ea -ion tl1at t l,.) rest.ratnt of a "IDTant
procedure ha s been Imposed upon r,overnment 1r1ret appi.rJr; . Surely t !Jf'
First Jlmerrlment j s no l e ss violat ed if t '1e FBI obtains a copy of t he
membership or contribut or list s of t he Sociali st lklr kers Part y throunn
t he use of paid informers or the search of the Party's bank records
th'JIl if the Party ' s member ship ani contr ibut or informat i on is obta i ned
tl1I'Ough a lmetap or a s a result of the campai gn r ef orm law. I ndeed ,
the First Jlmen:iment violation is CO!T1IXlUmed when it results froman
intrus i ve search which also r a i ses Fourt h Ameo:lment quest i ons . ':'his
i s why we believe that a warrant requirement shoul d be impos ed on
the use of informers arrl r ec ord searches in crimiml invest 1e;at i ons .
1. I nformers
The FBI record on the us e of pa i d informers in political p:rou!1s
shovs a rras s tve violation of First Amerrlment right s . Altlx>ugh the
vor-st abuses in the l a st three decades occ urred in t he urrlercover
provocations of the COINl'ELPRO ani C01"PJFIL prop.;rams, the Church
Corrrni t t ee document ed many exampl es of r outine informer act i vities
"!hich cut deepl y; int o a ssoc iat i onal privacy . The COI1J111t t ee ' s
Fi nal Report points out that during the 1964-76 period:
'The FEI expanded its use of informers for gathering
int elli gence about dcmestic politi cal groups , sanet:imes
upon the urgi.np;of the Attorney General. N:> s ignificant
l:lm1ts ...rere placed upon the kin:l. of political or
personal informat i on collected by informers, r ecorded
in FBI files , am o1'ten disseminated outside the Eureau.101/
'me s e vast informer operations typified by the f ollowing:
--by 1972 ,' 7, 402 "ghet t o tnr ormant s" (e . r;. , "t he .. , ,,:,:!: ';
380
381
proprietor of a candy store or barber shop") had been
put in place as FBI "listening post s' to provide
information abcut I'rac ial ac t i vi t i es [ arrt] ident i f y
ext r-emf st s pass ing t hrough or locating in t he ['",het t o
area;102/
- - i n 1964 t he FBI had inf i l t r at ed t he Part
USAat a rati o of one 1 agent f or ever y 5.7
- in1070 FBI Direc t or Hoover lifted rest ricti ons against
r ecruitinp; H3to 21 year oJd i nformers , an:! field
offi cers wer e urged t o take advantage of thi s
"tremerrlous opportunity" to expand coverage of "New
Lef t col l ec t i ves, communes an:! st affs of underf,rourrl
news papers;"104/
- - bet ween 1966 and 1976 t he Chic ago FBI office paid mor e
t han $2. 5 mD.lion t o -S ,145 informant s ard invest i gated
or opened files on 27, 900 organtzat tons am irrlividlals; "105/
- - the General Accounting Office reports t hat 48%of all
domestic securi ty inve sti gat i ons are i nit iat ed on t he
ba sis of information provided by an F81 informer - a
percentage almost three t1mes higher than the next
most ccmronly used source f or opening an investirat i on; 106/
-asr ecent l y as Piscal Year 1976 tJ1e PEl budget
al l ocated $7, 401 , 000 f or i ts intel ligence informant
pr ograms - - mor e t han t wi ce t he sum f or organi zed
crime infor'r..jrs . 107/
These stat i stics reveal t he magnf t ude of t he informer i ss ue
am i ts impact on associati oT' .al privacy. But t he i s sue i s even
l arger t han the st atistics i rrl icate . Informers are at once the JOOst
complex, comprehensi ve and unpredictable investigat ive t ool s t hat the
B>.lT'eau empl oys. Fnile the informer is , as t he Church Corrr:Jittee
pointed out, a "vacuum cLeaner-' f or informat i on , the information is
often di storted or inaccurat e am in thi s r espect is far l ess r eli abl e
than infonration obt ained by a wiretap. Furthermore , an iriformer
preterrls to be a member of a oolitical proup cannot simply gatber:
i of orwati on. or she must participate ac tively in the dec i si on
fTl3ldJ"!C' of the organization, takinf': stands on issues am seekinr; to
erJi--ance credi bili t y by influencing t he positions t he or ganizat i on
t akes ani t he act ions i t engages in. Inevitably, as Alan Der-showrt z
11'15 p.ointed out in his penetratirlg account of a Defense League
mJrder case in "Ihich his clt errt t urned out t o be an informer, the
i rSormer corrupts the or ganizati on :
Violence inevitably stems from a police syst fJ1 tlat
recruits (am educates) secret informers am
provocat eurs I"ithin a r adi cal movement. '!he
recruited agent , almost by definition, is an
unst able , psychot ic, or psychopathic irrlividual .
His t emnt at i on t o improve his st at us by
in or encouraging violence i s almost irresistable .
'This is what touches off the f atal cratnreaction.
Violence feeds on violence am the question of
is informer, who is terrorist, beccmes confused
beyond comj):(' ehensi on even by the irrlividual
involved
I n our View, the case for informer warr-ants is oven/helming.
If.1ile i t i s true that t he SUpreme Court has hel d that an irrlividual
has no irrleperrlent Fourth Jlmen:lment r ight t o be free fran varr-arrt I ess
inf ormer surveillance , Hoffa v . United Stat es, 385 U.S. 293 (1966) ,
the Court has never directly addr essed the questi on of ,'!'at restrictions
na:r be const i t ut i onall y required when informers are used t o corrluct
surveillance of private political or otter associational activities.
rrr.e Court has intir.1ated, J:owever , t ra t here the bal ance woul d shift
aryl a warrant ,":auld be required . As Just i ce l'lhi t e put itin his
1,:.::"- "
382
opinion in united Statesv . 1','h1t e, 401 u.s. 745, 752 (1971) , uphol dt ng
t he l egal i t y of a "wil'ed infoI'lller" targeted at an indivi dual, "our
problem , in t erms of the nrinc1r>le announced in fr.atz v . States ,
389, u.s. 397 (1967), is what expectati ons of pr ivacy are const i t u-
tionally ' j ust ifiabl e' - what expectations t he Fourth Arnen:J.ment will
protect i n t he absence of a warr-ant . " Since an expec t ation of
a es ocIat t onal pr ivacy i s constit ut i onall y j WJt ifiabl e , t he First and
Four-t h Amendment s conver ge t o r equire a warrant for t he use of informers
in cr1minal tnvest agat t ons of E1'OUps.
To sum up, Congres s should enact a warrant procedure simil ar to
Title III of t he Qnni bus Criminal Control ani .':;af e s tr-eet s Act f or
t he use of pale and direct ed un::lercover agent s by t he FBI t o
investigate criminal acts by member s of a group. 1091 No wart-ants
sboul d be i s sued aut:QriZL'1[; t he infiltration of polit i cal or gantza-
tions not suspec t ed of engagil1[!: i n specLf'I c cr iminal corduct. , This
new procedur e is necessary t o pr otect First as as Fourt h
Jl merdment r ight s , and is urgently r equired to insure t hat political
freedan \'lill not again be t r-ampl ed upon by FBI domestic securi t y
activi t i e s .
2. P.ecorQ.s Searches
Anot her f orm of int rusive search which r a i ses bot h First am
Fourt h Jlmen:J.ment questions i s t he warrant less inspecti on of pr ivate
records . Most peopl e believe in t he pri vacy of t heir per sonal tax
r-ecords , bank r ecords , emplovrnent recorda ard ot her r ecorded "t hird
383
part y information" about bow t hey lead their lives. Thl.s cxpec
of pr i vacy has oft en proved to he unjustified, alt hough in cons
t ional t erms i t \'lOuld certainly appear to be j ustifiable. fls t
Californi a Sui'reme Court r ecent l y pointed out in Inval tdat Inr; a
\..-arr antles s search of copies of cancelled personal checks in th
cust ody of a bank'
: For all pr act i cal purpo ses , the disclosure by
indivi dual s or business f :\rr1s of their financi al
r ecords to a bank i s not entirely \'Tillful since
it is impossibl e to participate in the econcmic .
lif e of cont empor-ary society \Tithout maintain:1r.g a
bank account. In tbe course of such deal.Ings the
deposit or reveals many aspects of 'lis per-sonal,
aff airs , opinions , habits, as soc dat .Ions , I m eed
t he totali t y of bank records provides a virtual
current bi ography. The of photo-
cop:Ji.ng rrachf nes , elect ronic conput.er-s am other
sophi st i cat ed instrument s have ac ce lerated the
abili t y of government t o intrude int o areas whi ch a .
person normally choose s t o exclude from pr ying eyes
and inqui s itive minds . Consequently , the j udi cial
interpretat i ons of t he r each of the Fourth Amendment
const i t utional protect ion of imividual privacy must
keep pace with t he perils created by these new
devi ces . "1l01 - .
I nformal i nvest i r,ative searches of private r ecords have
become i ncr easingl y routine in r ecent year-s , \'lith t he arrival
of new ccmputerdzed storage systems and mctrods of facilitati.nl;
acc es s to ard exchange of ccmputerized information (e . g ., the
ban}: industry's fledgl i ng "e lectronic rums transfer" svstem) ,
gover rrnent investic..at i oris have burned increasinp-,ly to privat e
records . At t he same time , levslation such as t he Bank Secr-ec
of 1970 has f acili t o.t ed record searcJ.:l i i1g:.by requirinE: private!
384
to be retained for longer periods of time. In short, a revolution
in information t ec hnology has far outstrifPE;d t he expec t ations peoPle
have about the privac y of theirpersonal records .
. There are many recent examples of informal access to bank
r ecords . Congres si onal invest ic;ations and ACLULawsutt.s have
uncovered the foll owing.
--A Cal i f orni a supporter of radi cal causes di scovered
that his checld..ngaccount statement had been reviewed
by FBI agent s when an int er nal hank mano was mistakenly
sent to him read: "This memo 1s to autbor-Ize
you t o r ead checks to "the FBI bef or e seming the
st at ement t o t he custaner . "1111
--As part of a se r i es of FI31 danestic securi t y
investic;ations, the bank accounts of Jane Forria,
Dr . Benjamin Spock, Floyd !'bKiss i ck am ot her anti-
war amcivil r ic;hts activi st s were inspec t ed
Without process;1l21
--A memo to FBI fiel d offices fran Direct or Hoover in
1968 stat ed : "there i s a need t o compile ina s ingle
investigative r eporta clear-c ut picture of t he
ent ire Left rlov6:lent \Jh1ch \<'111 i dent i fy i t .
sources of funds "1131
-- The FBI inspected am copi ed the creeks of ci vil
rights ac tivists in Philadelphia amDetroit to
make a record of theirprofessional activiti es,
includinsl:, in one case ,' a l awyer-client rel at i on-
ship.
Records searches are an important am permi ss f bI e criminal
invest:1F;ative technioue. Nevertheless, they can intrude
subst antiall y on associational privacy am therefor e raise t he
same First amFourth Amendment issues that arise in the case of
infonner searches . Al t hough t he Supreme Court has hel d t hat a warrant
385
procedure is not constit utionally r equired f or bank r ecords searches ,
St at es v . rtl l ler , 96 s.Ct . 1619 (1976) , guidance is
;::.0---
cl earl y needed in this area .
\'Ie propose several principl es as a point of departure . Fi r st ,
a person' s privacy interest in bank, tax, credrt and employment
record s should be r ecogni zed by statute . second , a person' s
st anJ ing t o asser t his or her pr i vacy r i r.,ht s overrecords in the
J1';lJ'rls of third part i es shoul d be conferred by st at ut e , on t he same
basis as if the records ver-e in hi s or her personal possess ion.
Third, government i nvestigat or s should not be able t o obt ain access
to the r ecords wi toout I egal process -- i. e., an administrative
sunmons , SUbpoena or search warrant; Lssued on a shOldng appropriate
to the method of proces s . Fourth, i n all inst ances except the
issuance of a search ' 'J31'I'ant, t he r ecord subject should be F;iven
pr ior notice of t he proposed i ns pection and a r easonable t:l.me to
ass ert 'lis or her rights before disclosure. These proposals are
set f or t h in more detail in Ti t l e II of H.R. 6051, and t hey paral l el
var i ous other peming r ecord pr i vacy bills .
Ther e i s a my3tique about t he use of r ecord searches in l aw
enfor cement. The trail of paper and computer tape is said to be
di f f er ent from the trailof physical evidence ..-. so mien so
that the "old-f ashioned" rul es do not appl y . T1'x:mgh there has
been mich t alk about the need f or breed search power-s to f ight
or ganized cr ime and l'lhite collar cr-ine , the r estri ct i on-.-of,j ,nvest i g,ative
386
meth::ds within recognized constitutional boundaries vould not preVent
vigorous lawenforcement efforts against these types of criminal
violati ons. WOOre the would be the greatest is the
abuses have been t he greatest in the use of secret , unrestrict ed
governmental access to private r ecords for the collection of POlit i Cal
intell1r,ence; access to the toll r ecords of news paper
r eporters t o pinpoint t he sources of POlit ically embarras sing "inSidE>
stori es ;" ac cess t o t he bank records ofant i war and civil r i ght s
groups to identify theircontributors ; access to the records of
political opponent s in elect i on campaip,ns or out spoken cri t i cs of
goverrrnent policies, or 1n1eed anyone at all, for t he i nt elligence
p,atherers have l ong had a completely f'ree hand . FJ.1m1nation of these
abuses 111 the purpose of the procedure weare propostng,
Statutory Prohibitions Required
The statutory chart er should inc l ude t wo flat prohibi t i ons :
1. The FBI shoul d not be permitted to i nvestigat e
any per son or groun solely on the basi s of First
Pmendment ac tiviti es. 115/
2. 'TheCP.arter must ban preventive action and CLI!1I'F.LPRO-
116/
type activiti es.
To enforce these prohibit ions the char-ter- should establish
cr1m1nal penalties f or t heirintentional viol ation and a civil
cause of action for vict:lr.1s.
387
rsif'ht of the FBI
We chart er s should establish effective over-stght mechanfsms ,
'.rit h1J'1 the Just i ce Department , the Attorney oenerar shoul d be r equired
t o i nsure Depar-t ment and Bur-eau compliance "l1th the lawant to comuct
a periodic revi ew of agency investi gat i ve act i vi t i es .
117
/ The
Attorney General must have ful l and complete access t o fureau files . I I B/
Hi thin the Congress , the Judi c iary Ca:rn1ttees should also have
access to all fllesmlun::ler appropriate privacy safeguards and
shOul d be r equired t o conduct pr i or review of all procedures de signed
to implmcnt the legislation. 'Ihe Attorney General shoul d be r-eoutr-ed
to repor-t FBI violations of chart er pr ovisions which viol at e const i-
t ut ional r i ght s t o t he committees .
Public overs i ght i s also necessary and requires the statute to
mardate that all invest1gatory guidelines and r egulat i ons be publi shed
in accordance "l1th the Administrative Pr actices Act.120/
'Thank you f or the oppor-tunrtv to apoear bef ore thi s ccmnitt ee .
-r" 1,: '-;'"
388
389
Acm STATEI'lENI' ON FBI CHARI'E..'1If/HSLATI W
ri r;hts of cit izens mO that they have done so primarilY because
FOOINarES : chec!{S am balances deRiJ;:nedby the framers of the Constituti oi1
1. E.g. Test:1mony of f ormer Attorney General Edward H. Levi and
Deputy As si st ant Att orney General rvarv on "'?dnpooa
v
Feb . 11 , 1976 , in "FBI Oversi p;ht" , Hearings Bef ore t he
Subcommit tee on Civil aro Constit ut i onal Right s of t he
Cormdttee on the Judi ciary House of Representatives (94t h
Cong . 2n::l Sess. Serial l'b . 2 Part 3) (Hereinafter cited as
House Judiciary FBI Over s ight Hear-Inns ) pp . 253-262; Test imorw
of Attorney General Griffin Bellhef ore the SUbcommittee on
Government Information and Ind i vidual B:1p;htsof the House
Government Oper ations Carmit t ee , June 11 > 1 977 ; and Reccmnematlons
in the ''Final Report of the Select ccnmtt.tee to Study Governnent
Oper at i ons \'li t h Res pect t o Intelligence Activit i es", Book II ,
Uni t ed States serate , (94th Cong o 2d . Session Repor t 94- 755)
(Goverrrnent Pr int ing Of f i ce : Apr il26 , 1976) (Hereinafter ci t ed
as Church Cormdt t ee Final Reoort Book I I ) pp. 289-341 .
2. This i s a recent positi on of t he Ju stice Department and t he
Feder al Bur-aau of Invest i gati on . Testimony of Attorney General
Gr iff in Bellbef ore t he Senate Judi ciary Comnitt ee , April 20,
1978. See al so Pr epared Statement of At t orney Gener al Griffir.
Bel l Bef ore t he SUbcoMmit t ee on Ci vi l and Constitut i onal
Cornm1t tee on the J udici ary U.S. House of Represent at i ves
February 28, 1978.
3. See TestimOl'l,.V of Aryeh Nei er , Executive Director, .Amer i can
Ci vilLiberti es Uni on on S. 2008 , t he Criminal
Informat i on and Pr otect i on of Pr i vacy Act of 1975 on July 16,
1975, in "bear-Ings on t he Criminal Just i ce Information and
Prot ection of Pr i vacy Acts of 1975 bef ore t he Subcorrrn1t t ee on
Const i t ut i onal Right s of t he Committ ee on the Judi c i ary
United States Senate" ( 94th Cong. 1st Sess, July 15 and 16,
1975 ) (56-8 33 U.S. GovtPr i nting Of fice 1'Iashington : 1975) .
4. As for exampl e S. 1566, the For ef gn Elect r oni c Surveillance
Act of 1977 i s proposed as an eventual part of Ti t l e I II of
t he onnt bus S. 2525, t he Nat i onal Intelligence Reorganizat i on"
and Ref orm Act of 1978 , introduced on February 9 , 1978, 95t h
Congo 2d Sess.
5. See. e.g, Church Committee Final ReportFlook II , Note . 1 surra
at page 289: "The Committee ' s f'urxl.amental concl usi on i s t hat
intelligence activities have urdermined the constitutional
t o assure accountability have not been applied . " See also
compt rol l er :}eneral of the Uni t ed St at es , "Repor t to t he Fouse
ccmM1
t t ce
on t he Judi c iary PoEI Domestic Intellir,ence 0per at ions . ...
'TheirPurpose and sc ope I s sues That :leed to rye Resolved"
(General Accounting Office: Feb . 24, 1976 ) p.26 (Hereinafter
ci ted as GAOFBI Audi t ).
Uni t ed St ates v . United States District Court, 407 U. S. 297,
fi.
317 (1972).
ra. at 769.
7
The Divisi on of I nvest i gat i on was fir:3t deslgnated as the
8.
Federal Bureau of Investigation by the of I'arch 22, 1935.
ch, 39 , t itle II , 49 Stat. 77 . and ha s teen so designated in
st at ut es since t r3t date.
For t he developnent of t ll Bur 0au' s i nvest i"q;at i ve jurisdiction,
Q.
see chapt er on "Criminal ,Turi sdi ct i ort ., 1.'1 Ungar , sanford J. ,
FBI : An Uncensored Look Pehim tIle '.ralls pp , 678. 3 (At l ant i c-
Litt le BrOlin 19761 .
see Generally "'The Development of FBI Domestic Intelligence
10.
Invest i gations " , in Supplementary Detailed Staff Repor't s on
I ntelli gence Activit i es and the Rights of .l\rnericans Pinal
Report Book III of t he Select Comni ttee t o Study novea-mental
Operations with respect to Intell1p;ence Activities United States
Senate ( 94th Cong , 2d ses s. Report !'Jo. 94-755 April 23, 19711)
pp. 3'13- 558.
11. 28 U.S. C. 533.
12. Former- Attorney General F.dward H. Levi interpreted the "detect"
claus e of 28 U.S. C. 533 to mean trot the fureau mist. f ollOl'1 a
cr:lmi nal staniard of "investigatinr, persons or vnen
there Ls a reason to believe that a federal crime has been or
is likely to be comn1tted so that the violators can be prosecuted
or the crime prevented." See Attorney General Edward H. Levi,
Mdress to the J\merican Ear Associ ation, August 13 , 1975. Isrt of
course , t hat was not t he int erpr et at i on of f ormer officials of
t he Department of Justi ce nor necessarily the interpretation
of future Attorneys General .
13. Sect i on 3052 of Title 18 defines the power-sof Bureau agents
SUch as carry1ng f irearr.JS, serv1l1[': warr-arrts , ard subpoenas ,
but only sets a stan:iard f or arrest: ",>lith or with3'ut
f or any offense against the Uni ted States corrmitted in their
390
presence, or f or any f elony coc;nizable urder t he l aws of the
Uni ted States if they have reasonable grourds to believe that
the person to be arrested has corrrn1tted or iscomnitt:1I'l8
such f el ony . ,;
14. Former Attorney General Edward H. Levi f'ourrl authority f or
"non-cr-tminal.' intelligence investigati ons in cl au se 3 of 28
U.S. C. 533 \'Ih1ch aut hor i zes t he &Ireau to "conduct suc h other
inve stigations regarding of fici al mat ters urder- the control of
the Department of Justice am the Department of State as may
be directed by the Attorney General. " See Attorney General
Edward H. Levi , Addres s t o t he American Bar Associat i on , August
13 , 1975. fut tReFii'Otory.cf t hIs language , orIgfrliil1y in the
Bureau' s appropriations bill, 1rrl i cates t hat only forei gn
intelligence or counterintelligence invest igations could have
been interned am not danest i c security investigations . 'lliat
i s why the FBI relied so heavily on President Roosevelt's
Executive Direct i ve of Sept ember 1939. See Devel otJTJent of FBI
IXxnestic Intelligence Invest igations , Not e 10 supra , pp. 395:ll 07.
I t should be not ed however , t hat t he FBI has over itshist ory
used the "penumbr a" interpret ation of certain pol i t i cal
conspiracy st at ut es l ike the Smit h Act , 18 U. S.C. 2385 a.rrl
the Voor his Act ; 18 U.S .C. 2384 t o deri ve an intelligence
authority fran what were interned as crirn1nal statutes urrl er
\'Ih1ch persons were to be prosecuted. See Developnent of FBI
Domest i c Int elligence Invest 1P;ations , Not e 10 supra , pp . 448-
454. Bit particularly , see 'Bri ef on FBI Authority For !Xlmestic
Intelligence Invest ip,at i ons " in GAO FBI Audit, 5 supra,
Appernix IV, pp . 199- 200. Both the GAOand the present
Attorney General , Gr iffin Eellbef ore the Subccmn1t t ee on
Goverrment I nformat i on am W i vidual Ri ght s of t he House
Goverrment Operat i ons Cam1i ttee, J une 6, lll77 .
15. See Generally Ch:.lrch r.crrett"E'?io:l :" 00)' U ! .
Note see 81so Halperm, 1-10rton A. am ferman, .Terry
J . eds . , The Abuses of the Intell ,ence enci es (Center f or
Nat i onal Securi t y St udi es : 1975 : and Halperin, Berman,
Borosage, and i'1arw1ck , 'The Stat e: The Cr:1mes of t he
U.S. Agencies ,(Penguin 1976)
16. See sources cited at Id , and also the Report s:
"COINrELPRO: The FBI ' 5Covert Act i on Programs Against American
Ci tizens" ; "1
1
arrant l es s FBI El ectroni c Surveillance" , ''' -/arr ant -
l ess Surrepti tious Ent ries : FBI ' Black f'ap; ' Break- in a.rrl
Installations ", ard ''Danesti c CIAard FBI l'ail
Opening" in Supplementary Detailed Staff Reports on
Ac t ivi ti es ard the Right s of Americans Final Report Boo!': III of
the Select Comnittee t o Study Goverrmental Oper ati ons with
r espect to Int elligence Activities United St at es Senat e (94th ;
391
Cong . 2d se ss, Report Jlo. 94- 755 Apr il 23, 1976).
"F.B.I. Cr:lme Inquiries Reportedly Tainted; l!eN York Times
17
C'c tober 6, 1977, , .11-1; "llel'! By U.S. Into F. B.I.
Activit i es, New York T:1.rr.es, rx::tober 8, 1977 , p , 11- 24. See
Villano, Anthon,y, Brici: Agent: Inside the IVafia f or the FBI
Accord ing t o t he Church Committ ee. t he cost of FBI domest i c
18.
int elligence i s $80 million annually . Church Ccmn1ttee Final
Report Book II , Not e 1 , supr a , p . 18. 'fue General Accountinp.;
Of fice audit sbows that most of this money va s spent on useless,
overbroad investigations. See GAO FBI I\udit , 1J0te 5! supra,
The GAO r eaches the same conclusion in i t s f ollow-up r eport .
Rel)Ort of t he Comptroller Gener a l of t he Unit ed States ,
"FBI Da:lestic Intelligence Operations: AnUncertain Future"
(November' 9, 1977) (hereinafter ci t ed as Follow-uP GAO
FBI Audit ) . 'Ibi s is disc ussed infra . In t he Organized Crime
area, t he GAO stat es that strike forces have wast ed
million in t he l ast decade . Report to t he Congress by t he
Compt roller General of t he United Stat es , "War on
Crime: Faltering Federal Strike Forces Not GettineJ ob Done, "
(r-Brch 17, 1977) (her einafter ci t ed as GAO Organized Crime
Study).
See e. g. Amsterdam, Anthon,vG., "Perspectives On The Fourth
19.
Amerdment, "58 Minn. L. Rev. 3
u8
(1974).
See e'. g , Terry V. Ohio , 392 U.S. 1, 13-15 (1968) .
20.
Id, see a lso United States v. United States District Court ,
21.
U.S. 297 (1972)' Laird v. Tatum, 408u.s. 1, 15 (1968):
"[SJuch a r ole C't o confine t he military t o their l egi t imat e
sphere of act i vi t y and to pr otect appellant s ' allegedly in-
fringed const i t utional r irhts" ) appr opriate for t he Congress
act1ng t hrough its ccmmt.t.ees arn the "power of t he purse ' .... . "
22. Jus tice Department Guidelines f or Domest i c securi ty I nvest iga-
tions, 10 , 197!l' l1h1te House Per sonnel and
Background Invest 1.[;at i ons _ Reporting on CivilDisorders and
Demonst .rat dons Involving a Federal I nterest : and Use of
Informants in Domestic security, Organized Cr:lme, and other
Cr :lm1nal Invest i gat i ons (Jaruary 5, 1977).
23. Despite a two year promise to develon guidelines in all
inve st i gat i ve areas , t hi s committ ee knows from the test:lmonv
of the Department on April20, 1978 t bat the task ..haB, not been
accompli shed. A little les s than one year ago, the'iJepartment
Task Force, established during the Ford klm1nistration but
393 392
which oper ates also in the Carter Administrat i on ' s J ustice
Department stated that "or1ginall:r" we "had intended.....
that we would draft all the p;uidelines to cover not only
domestic securi ty but al so the whole range of investtf,ati ve
activities that the FBI is engaged i n. 'Ih:it ''lasn' t possible ,
so we adopt ed guidelines a s went a l ong . " Test:1Plony of J ust i ce
Department 'Task Force Of f i cial s on FBI Cmrter Pr oposals An::l.
'JlJe At t orney General ' s Domest i c securi t y Guidelines , before the
Subcommit t ee on Ci vi l and Constitutional R1f;ht s of t he J udiciary
Comnit t ee of t he House of Representat i ves , (June 6, 1977)
(hereinaft er Justice Department and FBI 1977 Test im:my)
(quote from draft hearing t ranscr i pt ) .
24. t he probl em here i s that p;ui de lines bowever str i ct
mieht change , t he Just ice Department Gui delines are not very
st r i ct . Alt hough t hese gui deline s are not bef or e us t oday , a
couple of observations. The Church Comnittee pointed out that
i ntelligence offici als insi de t he FBI interpr et the Guidelines to
author ize continui ng invest igat i ons of "subversi ves ." Church
Camdt t ee Final Report Pook II , Not e 1 , suP1' p . 318. The
Commi ttee al so interpr eted t hemas OP t he ir ace overbroad .
As did the GAO, in concl ud1np; that "the l anr:uage i n the
draft r:ui delines would not caus e any subs t antial chanp:e i n t he
numher and of domest i c i nt elli Gence
initi ated. " GAO FBI Audi t , Note 5 supra , p . 150. The GAO
i nterpretation vas of earlier draft s of t he Dcmestic securftv
Guidel ines . Put i n t he f inally prcrnu}f;at ed ('Ui delines of
!w ch 10 , 1976 , t he standards of' i nvestigation art iculated vere
not ITUch tir-.,hter . statinp: that the ourpose of investi-
was to ascertain "tnf'ornat.ton on the activiti es of
individual s, or imivi duals actinp: in concert >Thich involve
' or W1ll:.invblve the use of r or ceoc vi ol ende . and . the violat I on
of federal Law," the "involve or will involve" standard is
dilut ed by fo l l owing sect i ons "mich author ize the FBI to
i ni t i 1'l te pr el imi nary i.nvest 1l';at i ons on the hasis of mere
"allegat i ons " and full investigations ifpersons or r.;roups "may
be " engaged in act i viti es t hat i nvolve or "lill i nvol ve
vi olence. The Attorney General, Edward Levt , admitted t hat a
mor e"fl exi bl e " st andard ','as r ecurr-ed t o expl a in t he choi ce of
"mav be" over "are involved" or ''1-Ttll be involved." See
Testimony ci t ed at Note 1 supr a . Fe believe t he Gui delines
r ecodi f y inF..xecutive Order t he premise t he PRI has all'1aYS
to i nvest i gat e possibl e violati ons of the Smit h Act,
18 U.S. C. 2385. First the per son or proup does not have t o
be ellfa!:.ed i n violence hut simpl" "invol ved" or 'It SOMe
t ime "Involved" in activities are vi ol ent . Their intent
may be LegaL and others illegal but no matter. secom, the .
threat of vi ol ence may be i n the dist ant fu t ure . Full investl.'!'a-
t i ons are based on a "may be" standard rat her than t he more
defini t e "1'1111 invol ve" standard cones at the preamhle
of the Guide lines . Efforts to make the test more definite
by talking about the :'ureau ,!eif".,hir.r: the m:l,";nitude of t he
harm and likelihood of itsoccurence do not because
t here i s no expl anat i on of bov to the balance. "'or
example, ifthe harmwoul d be large, "over-thr-ow of t he
goverrment ," t he FBI coul d amue that the liJeelihood of its
occure nce coul d be r emote . Thi s i s a stan:lard t hat l eaves
us right where we were bef ore the Guidelines. Although the
number of Bureau investigat i ons is SUbstantially, the
major- r ea son , as Eureau official s adMit, is t hat t he "s ocial/
political climate charsted" and because the PRI isoperating
on even more strict p.:uidelines f or "oual.Lt v over ouant i tv'
focus tnvest tgatIons on persons or r.;roups "n th a l one
history ofvi ol ence or "Iho are reasonably believed t o J1avp
c=n1tt ed crimes of violence . see ,Tustice Departmen t and
FBI 1977 TestimonY, 1I0te 23, supra .
25. Ift her e i s no statutory basis f or the !XJMestic secur-ttv
.Tur i sdicti on of t he ""'!1I , as pointed out in Note 14. supra,
then t he Gui delines can onlv be author1 zed urder claim of
inher ent power t o conduct national se curity
activi ti es .
2f.. See Committee on Peder al Legislation of t he Aseociation
of the Bar of the Ci t y of NeH Yorv, "Ie r;i sl at i ve Control
of t he FBI" p , 10 (May 1 , l Q77) (her einafter cited as
Ne,.; York Par Report).
27 . '",re do ... . . have some concern about t he l imi t at i on on the use
of pr evf ous'lv est ablished t nrormant s . . . . .1"e hoped to deal
\'li t h infonrlant s in P.7' eater dept h and detail an:i p:ive f ar
greater considerati on than we "'ere able to devote at t he
t ime the danestic securi t y guidelines wer e adopted and for
t hat r eason sane of the rules are st ated inrather shorthan::1
fashi on am l'1i llhave t o be thoug.ht out agatn ," Just i ce
Department and FBI I Q77 Tes t imon,v, Not e 23, supr a (quotes
f ran transcript ). - -
2fl. Thid.
29. Ibi d.
3
n
3l. Ibid.
-r d I ," ' ';'
394
32. The present Justi ce Department is argulnr.: proper
corrluct in the f o11owirr, exemplary cases : Palperin v .
(D. D. C. 1187- 73) (reasonableness of wiretap , tnminttv of -'
President or Government official s from l iabili t v) ; Ba lkin v.
Helms . Civil Action No . 75- 1773 (D. J1 .C. ) ( l ep;alit y nf l'larrantless
NSA el ect ronic surveillanc e arrl Lack of hann t o First Amen:Jment
right s arislnp.: out of CIA Operation CfI.Ao.. c;): L:lJront v . U.S . ,
Civil 77- c- I 029 (E. D.N. Y. ) (no l i abilit y f or i llegal nail
openlnr.:) ; Soc i aU st l'br kers Party v . Jl ttorney Gener'aI , 73 Ci v.
Action 3160 (S. D. N. Y. ) (legali t y of 40 year survei llance ).
33. Commit t ee for Publi c Justice, The Civi l Li berti es
Uni on, arrl The Center f or National Securi tv Studies, A laI"
to Cont r ol t he FBI , Feb . 15 , 1977. . --
34. 6051, 95th 1st Ses s . Apr i l 5, 1977. See also H.R.
4173, 95t h Cong o 1st Sess . March 1 , l Q77 . ( In H.R. 6051 ,
domest i c security investigati ons are prohi bited arrl crimi nal
investigat i ons r egulated in Titles I and II . I n H.R. 4173 ,
see Ti tles II ard I II , including the varr-ant r-ecuir-enent for
the use of informant s.)
35. The Church Committee made no distinction between counter-
int el l i gence arrl domest i c securi t y investiP-ations i n rnakirr.
i ts r ecommerrl ati ons . See Recommerrlat i on 44 , Cnlrch Committ ee
!Iot e 1 , supra , p . &It s. 1566, t he Foreign
Int el ligence Survei l l anc e Act of 1977 does r ecogni ze a di s-
t inction arrl incl udes l ower stan:lards f or counterint elli p;ence
arrl counterterrorism investigations involving wir-et.apotng than
present l y exi st for domesti c securi t y are
governed by The Streets Act urrl er a Probable Cause of
Crime Starrlard. The line is difficult to draw, but the issue
is rr.ooted for us by the sure passage of S. 1566 ard its l10use
counterpart II. R. 7308 , unless we permi t l ower standards in
domest i c securi ty investigati ons.
36. See Development of FBIDomest i c Intelligence I nvestigations,
10, supra , notes the histor i cal blurrine of invest1p.:ations
pr emised OriCOunt er acti J1ll: carmunist influenc e COMINFJL ard
later investigat i ons of civil r 1ght s ,rroups, ant i- war act i vi st s ,
c i vil disorders, arrl the rest. Fe cont end that most of these
invest1?,ations were premised on "anti-camnmisrr." ard the belief
tmt vi olence arrl dtsorder- were corrrnunist inspired. Remove
the ant i-communi st bi as arrl t hese are investi gati ons
of "homegrown t ana t oes " as t he FBI r ef erred t o t he :"1OCi al i st
I']orkers Part y. B..it caution that to matrrtafn t he "f orei gn
connecti on" premise or pr-esumptdon , bovever developed, would
blur the dist inct i on in t he future . The Congress :':illhave to
deal 171t h the bourrlary line between count er i ntelli r:ence Rl'rl
395
domest i c securi t y or cr iminal investteations. I f t he bourrlaries
are not dravm in f avor of hjvher stardards a"Y.l a presumption
t hat a f or eign pover i s not i nvolved , domestic sec urity
[!Uidelines or statut es t hese investi !'=ati om, will
not pr ot ect citizens s ince "ror etrnconnect.t on" i s so easy to
fird ard may be invol ved i n most cace s ,
See Domest ic Securi t y Guidelines of March 10 , 1976, c i t ed at
37
Note 22, supra.
Stat ement of Cl arence Kelley, Director , F:lI, hefore the
38.
Civil and Constitutional Subcommittee of the Hous e
Judi ciary Coornittee, February 11 , 1976, j n Judi ciary FRI
l)versf rr iit Hearings"Not e 1, supra, pp , 262- 6 . See general ly ,
N:.J.t i or.al Advisory Commit t ee on Criminal ,Tustice St arrlards and
Goal s, Reportof t he Task Force on Di sorders arrl Terrori sm
( LEAA 1976). Rejecting the f ocus on "subversi ves" in t he ,Tustice
Department Gui delines, the crur-ch Ccrrmi ttee r ecomnen::led a
more narr-ow f ocus on t error if>'l . see Recommerrlation 44 Di scussion,
Church Committee Final Report Book II, 320- 323. How
more narro, ! thi s coUld turn out t o be is debatable.
A most exemplary stat ement of this balanc i ng tecbnt oue i n t he
39
domestic security area is the reasoning of the Supreme Court
in the Keith case . United States v . United 2,t ates Di st r i ct
407 u.s . 297 (1972).
40.
'The Y.e i t h case , ci t ed in Hote 39, also conta ins the
t hat domestic securit y "stard ar ds" are overrun as a
matter of historical f act :in our hi st ory . See ouot e at p , 25
infra from 407 U. S. 297 at 314.
41. Chllrch Corrrnittee Final Report Book :r.T, Note 1, suer-a at n , '321.
11 2. See di scus si on , tbt e 24, sunra ,
1l'3 . Recent amendments have changed the National 1.Iiretap
Stanlard f or targeti ng per sons engaged i n i nt ernati onal t error i sm
fromprobabl e cause to a r ea sonable suspicion tecause of t he
need f or greater fl exibili ty to prevent the nann from occurring.
See Reportto Accompany 1566 from senate Ccrrmi ttee on
(Repcr t No. 95- 701 , 95t h Conr;. 2d. Sess. 11arch I
4telligen
ce
1 , 1978) , p. 26 . '
1; 4.
For t he expressi on of this vi ew, see Response of f ormer FBI
Director Cl ar enc e i'l . Kelley to the GAOFBI Audit arrl critique
of the Guidelines in GAOFBI Audit, Note 5, supra, Apperyji;<
V, p . 213: ''Limi t i ng domestic int ellir,en::e invest 1i!ations.:.: t 6
396 397
preventinr.; f orce am violence could r est r i ct the gather1ng of
intelligence information useful for anticipat1ng threats to
national security of a ITOre subtle nature. This is the case
because, in our such a Hmi t at i on would protect f'rcrn
governnental inquiry t hose plott:1n{1: t o urdermtne our institut i ons
durine: theirprel1minary stages of organization am preparati on
an::i thus inhi bi t the devel opnent of an intelligence collage
upon uhi ch t o base meaningful analysis lUX! predi ct i ons as t o
fu ture t hrea t s to t he stabili ty of our soci et y ." (Emphasi s
Supplied)
45. 'llie basis, we believe, for the "vacuumcleaner" metaphor for
what informant s do with r espect t o pr i vat e i nformation - -
i t up di stinct ions be:1n{1: made. See "The Use of In-
f ormants in FBI Intelligence I nvestigations " in Supplementary
Detailed Staff Report s on Intelligence Activities am the
RiWlt s of Americans Final Beport Book III of t he Se l ect
Corrmittee to Study Governnental Operations w1th Respect to
Act i vi ties. Uni t ed St ates Senat e (011 t h Congo
2d. Sess . ) (1976) pp. 225- 271.
46. A line of ca ses develop these propositions , e . g , , NAACP v ,
Alabama, 357 U.S. 1149 Bates v. Little Rock;35l
516 (1960)' Buckl eyv . Valeo, 424 U.S. 1 (1976).
See discussi on infra on use of tnrormants with:mt judi cial
f or their exposi tion.
47. United States v. Vnited States District Court, 407 V.S. 315,
313- 14 (l972):i1 'Historical1y t he struggle for fr-eedcmof
speech am press in Ehr' .,lam bound up with the iS5'Ue of the
scope of the search am seizure potrer' v. Search I'Tarrant ,
307 V.'S. 717.....(1961). "
48. NAACP v . fu t t on , 371 u.s. 415 (1963) ; but see Lairo v . Tatum,
408 lJ. S. 1 (1972) st ating t mt there' i s no st an::i:1IJr; to cha llenge
the exi stence of an intelligence sys tem merely because it
exists. "Allegations of a SUbjective 'chill' are not an
adequ at e substitute f or a cl a1mof specif i c present obj ect i ve
harm or a t hreat of speci fic future harm. .. .. " Id . at 14.
Not e however, t hat the Court not ed that t he al.Lezat.Ions were of
surveillance by overt techniques. "We are not cited to an,v
clandestine intrusion by a military ar:ent." at 9. Recent
cases have di stinguished Laird on this when speci f i c
intelligence activities are al. Leged , E.g. , cases ci t ed at Note
32, 3:1pra.
49. See discus si on in Note 24, supra.
50' S?urch Corrmittee Final ?eport ?ook E , Note 1, supra at 359-60.
51. See r,enera11y of FBI Donesti c Intelligence In vestigations ,
Not e 10, supra, par-t.tc.uar-I y lJ 05-07.
51'. f ollow n nAO FBI Audi t , Not e 18
53. Church Cor.m1ttee Final Beport !:ook n, 1, suora, p, 19.
5
11
. GAO FBI Audit , Not e 5, supra, pp ,
55. p, 144.
56. Church Carrm1t t ee Final Report Pock II, Note 1, sunra, p, 18, 1'11 101.
57. n;,o FBI ' J\.udi t , Fot e 5,s ur-ra , pp , 3-5.
51l . Church ColTJTl1t t ee Fi nal Rer.ort Eooy. II, tbte 1, sunr a , p, 19.
Test:lr.ony of Joseph Califano. - -
59. "This is a r-cugh, tough, dirt:, business, and danzer ous , I t va s
dangero us at t r.e t irr.es . Ib ho.Ids barred. .'This i s a r ou["11,
t our,h bus ines s , " as T'!i lli am C. Sullivan t he l ate and f ormer Assist ant
t o t he Director put i t . The FPJ:'s Covert Action
Prortrama Ap;ainst Amer i can Ct tizens" i n Supplemental Peoort.a , Note
16 supr a , p. 7.
60. See examples ci t ed bv Clarence t1. Kal I ey i n hi s test:!lr.orw cited
at l'ote 38 supra.
61. See Repor t on Di sorders ?-oo Terrorism, Note 38 suPra, Pl' . 145-148:
"I"an,v of t he appr oaches to ler i sl at i ve rerulation now under di scuss i on
voul.d seriously coneromtse t!1e ability of police to cope with the
probl ems of cr 1r.11nal di sorders and terrorist ac t i vities." Id, at
62. FOllOl';Up nAO FBI Audit , Hot e 18 sunra, p , 6.
1)3. llacker-, Frederick J., n.n. , crusader s Cr 1r:1nals! Crazies : Terror
and Ter r or i SMin Cur Time Ctbrton 197 ) . b
(,4. Ib id . 137- 78. "Between seven arrl tve'lve peonl.e successfu lly evaded
lit erall:' thousands of FBI and ot'"1er secur-Ltv f orces =bllized for
t he specifi c purpose of discoverinjT then, '!'he SLA rrember-s did not
even fe el compelled t o keep a Low prof1le. '1J1P.y popped up per icdicall y
In or in San Franci sco ." Id , at 158. "r i ve hundred
runt v- one days passed bet ween Pattv ' s totally i nvoluntary !':idnanpil1l!
by the and Tania ' s t otally invol untary capture by the FEL"
at 169. 0' .: ,,:;: '
65. p, 4: "Even in derrocratic sor.ieties , counterterror1st
actiVities cr.n, c:r use of plectrui c surveill ance, cl nndest i ne
_ 38- 028 0 _ 79 _ 26
398
infiltroti on , i llegal searches , am siP':ilaractions , compound
the violat ion of t he val ues t hat t hey i.'1tended (or pretend )
to protect . or by counterterrorist
campaagns often adopt the tactics they pr-esurnanl y abhor nad
for the sake of ef f i ciency , becme as terroristic as the
activities against which t!'ey O' ::' -,ee Packer P"enera11y
on this point. See also, Rosenbaum, .Icn H. and sederberg, Pet er
C., eds . Vigilante Politics : On:'ler 1'dthout Iaw, Defining the
problem, they use the term "of ficiiil vigilant:!.sm. " I d . at Hi .
66. As Hacker states , "Lip servic e is r eadilygi ven to t he novel. t v
of the phenomenon of modern terrorism, but nobody dares touch
the traditional enrcr cecent r outines.....These days every-
body is willinl; off i ciall y to acknowledge t he necessity f or
novel measures inmeeting moral challenges ; but when itcanes
t o brass tacks , the bras s want to depend on t he old met bods
that have fail ed ... .. " Ibid . at 246.
67 . P.ecOl'TTlemations of t he House Corrmittee on Intelli[!;ence ,
Feb. 11 , 1976, House Report 94-833 (r-eccrrmerdfng abolition of
the Internal Securi t y Branch of the FBI) .
68. t'ost recently, the C'.onm1ttee on Federal Legislat ion of the
Association of the Bar of the City of York. :' ee tlew
York Bar Rerort, llote 26, sunra.
69. See Letter to Senat e Intelli r:ence Corrrni teee on ?DI Charter
Ilecornnendat i ons , "'1arch 11 , 176 (on fUe at Cent er for
National Securit y St udies) .
70. See Test imony of Attorney General Levi ci t ed at lJot e 1 ,
supra.
71. Recomnerrlation 44, Church Comnittee Fi nal Reportfuok II,
Not e 1 , supra, p ,321.
72. For exampl e, H. R. 6051 has 2C) co- sponsors, a 10'-1 number only
because the billalso bans allcovert ooerations abroad and
espionage by the United except in time of I-Iar .
73. 95th 1st Sess . Dec . IS, 1977 .
74. i'lev;s Felease Senate Select Ccr..m1ttee on I:1te lligence, Statement
of Ser.ator Birch Bayh, cna irman Senate Select Cor.mittee on
on the Introduction of t he '<attonal I nt elli gence
Reor ganization ard Reform Act of 1978 , Feb. Q, 1978. p, 7.
75. Statement of Griffin B. Bell , Attorney General Pefore the
399
Subcommittee on Civil and Const i tutional Committee of
the Judiciary U. S. House of RepresentaUves , Feb. 28, 1978,
76. Justice Departm:nt and FBI 1977 Test:lmony, Note 23,
77.
For authori t y to assi st Pr esi dent in assess ing need f or t roops
i n ci vil disorders as basis f or FBI i ntelli gence gathering,
see Devel opment of FBI Domest i c
Note 10, supra , pp. 489-518. For hi st or y of backgrOUTrl
as bas is f or authority t o coll ect int elligence
by FBI, see I d. at pp. 431-35.
78. 'This is a st rict er version of t he J ustice Department Guidelines
on T'!pport1il;. r.:!.vU ni RmV'pl"S ? ryl Jnvolvil1l" a
"pQerol Int er-est., . 22, supra . And al so
str i cter t han Reconmemation 45-6, churchCCii1n1tt ee Final
Report Ecok II , p.323.
79. Consent is nowa requirement urrler Just i ce Depart ment Gui delines
on \oIhiteHouse Personnel Securi t y and Backgrourd Investip' fltion,s,
Note 22, supra . &It the dis semination rules need t o be t 1J;ht ened .
See Recomnerrlation 47, Church Cor.mi ttee Final Report flook II , PP.
323-4 . Trans f er t o t he Civn Service ismandat ed by t o
Control the FBI and r ecomnerrled f or consi derati on by the
York City Bar Association Report. , 2(" suora, p . 35.
Act ually more generally a t ransr er- t o "another' ageney;"
80. 392 U.S. 1 (1968).
81. Id. at 21.
82. Id. at 30.
83. Id. at 19.
84. In Terry, t he Court made much of t he danger t he of ficer s f aced
in the situation but also that this was an area of conduct
"necessarily swift ac tion predi cat ed upon t he on- t he-
observations of t he offi cer on t he beat -- which hist or i cal l y
has not been , am as a pr act i cal matter could not be , subj ected
to the warr-ant procedure',' Id, at 20. 'The Court stressed
that "we do not retreat fran our that the police must ,
\-nenever pr acti cabl e , obtain advance judicial approval of
searches and seizures t hrough t he warrant procedure. " Id ,1-!hile
weare not requiring a warrant here, the Court ' s reasoning is
stronp;ly suggesti ve t hat a higher st andard i s r eouired in
circumstances wher e a ;.. arr-ant might be r equired .... : ,,:'-", "
/.
400
401
85. 'The Church Comnitteer' ecorrmerded warrants based on probabl e
cause for mail opening am surreptitious Pecomnemations
53 arrl Church Cor.rn1ttee Fi n'll Report Book II, Note 1,
supra , p. 328. No statute is necescary to reouire this in the
domestic security area, since these surveill ances
wer e r:enerally r ecognized as "clearly i llegal. " Legi sl at i on
i s necessary to define f oreign int elligence or counterint elli r.:ence
war r ant standards since the Pr esi dent bas asserted inherent
power to conduct warrantless surveillance for these purposes.
Executive Order 1203/'i, J anuary 26, 1978. \Ie also reccnnend
warr-ants f or use of umercover agents am intrusive record
searches. See discussion infra; Hiretapping in the danestic
SE' curity area should be prohibited as a "general search"
Violative of the Fourth Amendment .
86 .
Testimony of Att orney General Griffin Pellbefore the
SUb''Comnittee on Government Infonnation am Individual Ri["J1t s
or t he ('o()verr.T'"pnt r r'p,.. " t 1.nn" CC'T'T'_1.t tf'P , ,Tll'1e ( , 1'177 :
r--" ::f-: :!ron
v
0 " 'pj-'rt"T' T)' p('ctor of tr(' "'T'I on PPI
?:;t ioI1ro T s1nt
i
on ' j-":t'ore th' :"-mt r> ,TurUc.i. ar" C0rT".1tt ee ,
}'.nr E 13,
87.
See text acc anpan.vi m !.... Jot e 53,
88.
See Section of H. R. introduced hy DJn Fdvards of
Calif ornia, r epealing cer t ain la;,/s to el imi nat e color of
authority: 'Chapt er 102 (relat inf, to r i ot s ) of Titl e 18,
Sections 2384 (relati ng to sedi t i ous conspiracy) , 2385
to advocating the over-throw of gover nment ) , 2386 (rel ating
t o r egi s t r at i on of cer t ain or ganizations ) , 2387 (relat il1[l; to
peacet1J'le interference with l oyalty, morale or
of mil itary f orces), and 2391 to temporary extension
of l'1art ime penalty f or i nt er f er er.ce wit h l oyalt y. Moral , or
di SCi pline of military f orces ) of such '?!.tle 18 are all
repealed.
89.
Report of the Corrmittee On the Judici ary,United St ates senate
to Accompany S. 37: Criminal Code Reform Act of 1977
(Pept , No . 95-6 05 Part 1) (95th Congress 1st Sess.) pp.... .'l 8')- r; .
9().
0cales v . U!1ited States , 367 U. S. 203 (1961) ; Yates v. United
States, 35/1 U. s. 298 (1957).
91. United States v . F. 2d. 165 (Lst Cir. 1969) .
92. Id .
See also Scales v. United 367 203 (1961) .
Brandenburg v . Ohi o , 395 u.s. (1969), in which the Court
93
held t hat politi cal groups are within their legal right s to
advocate any course of ac t i on including t he "use of for ce of
laN violation except where such advocacy is directed to inciting
nrpr- oducdng 1rnninent l awless act i on and is likely t o inci te
or pr oduce such act i on . " Id . at 41J7 .
This is es sent i all y along t he l ines of t he preliI!1inary inquiry 9
4
in the Justice Department D:>mest i c securi t y Invest i gat i on
Guidelines , March 10, 1976.
95. Report t o t he Congress by the Ccmptroller Gener al of t he
United States, "Tar on Organized Crime: Faltering - Federal
St rike Forces Not Get tins t he J ob D:>ne (GAO March 17, 1977) .
96.
Id , at i : "'There i s no agreement on what organized crime is
and consequentl y, on pr ecisel y or what the Goverrment
is fiehting. " One dangerous conseauence of t his shoul d be
noted. In several st ate inquiri es into operati ons of stat e
and l ocal police "Organized Crime Intelli gence Unit s " furrled
1r:l.th LEAA furrls, the major f1rrling is that organized crime
f or economic gain has bee n ignored whil e t he pol i ce cord uct ed
intelljg ence i nvestif/;ations , somet imes on mass i ve scale , of'
orr;anized "polit i cal act i vity" suspect ed t o be 1l1egal or
subver si ve . E. f';. > Repor t on t he Operat ions of the Intelligence
Di vi si on From Chief of Police , Dist rict of Columbi a To Mayor
Halter E. Hashington , Narch 7 , 1975; Improper Pol i ce Intel U r,ence
Activities, AReport By the Ex t ended 1/arch 1978 Cook County
Gram J ury, October- 10, 1975; P.epor t to t he senat e of l"arylam
By the Senate Investigat ing Corrrni ttee Es tablished Pur suant To
Senate Resolution 1 and 151 of the 1975 Maryland General
Assembly, December 31, 1975; Staff Report 'lb House
Civil Rights Ccmnittee I''embers ReGarding Inquiry into House
Bills am Dealinr, with Police Int elligence
Oper ations , September, 1976; State Police Survei l l ance ,
Report of the II. Y. St at e Assembly E'pec1al Task For ce on State
Police Non Cr1m1nal Files, Septerr:ber, 1977.
97. United St at es v . United States Distr i ct Court> 407 U. S. 297,
314 (1972).
98. Response By Def'erdant Clarence To Interrogatory
No. of Plaintiff's Secord set of Int errogatori es 'Ib Feder al
Bureau of I nvesti eat i on , January 23, 1978. Inst i t ute f or
Policy St udies v. f'Jit chell, (Civ . Act i on 74-316) (D.D.C).
99. 407 U.S. at 306.
"'
100. U.S. at 20.
402
i
101.
Intellie:ence Activities amthe T\i,r;hts of Americans, Final
, i
Report of the Select to Stu1y Governmental Operatio
with Respect to I ntellir, ence Activi ties , United Stntes Senate
nS
2d. Sess . , I'll: . II, p . 68 ['Churc h Report "] . '
102. Id., p.75.
103.
l"'arwi ck, "Tne Governnent I nformer," First Pr inciples, March 1977
p , 3. ,
104 . Church Repor t , p , 78 .
105. Washington Pos t, Apr i l 9, 1978, D. A3.
106.
1976 GAO FBI Audit , Not e 5, supra, p. 105 .
107.
i>nr! tho
p. -
lOB.
et
CUr 01'111 Client,
.r"' t r\ f' f '-'r.';,,())"'t s fin
()f (''''\;rr.'' ('('1'TJttpe '''''0;+, :' 00): -Tl:
. - - - '
a l., ' 'The JDL Murder Case; Informer Fas
"'SIvilLi bertieG Review, lIpr il!1"'ay , lC)7G , p. 59.
109.
WrrovTs v . Suoerior Court , 13 Cal. 3d. 238 , 243-44 , 529 P. 2d.
590, 593- 96 (1974).
110.
lfcari n County I rrl eperrlent J ournal , /Ipril20 , 1972, p . l.
111.
Hearings of t he Suhccmnittee on Pi nancial Inst i t utions .
Ccmnittee on Banking, Housing am Urban l\ffairs, United
St at es Senate, 92<1 Conr: . , 2(1. Sess , (1972) , at 136-37.
112.
Church Renort, BJr. VI , at 657- 75.
113 .
Crnr ch Report, Vol. 6, at 669- 75.
114.
Jabara v . Kelley , C. A. No . 39065 (F.. D. !'Uch) ; Kenyatta v .
Kellev , C. A. No . 71- 2595 m . D. Pa .) .
115. Such a provi so has been added t o S. 1566, t he Fbreif,n Intel l i gence
Surve illance Act of 1977. See Report To Accompany S. 1566 fran
Committee On (Renort No . 95-701 , 95th
2d . Ses s . 11Rrch 14, 1978) rp.
116. Attorney General Edward Levi , struck from the
Department Guidelines all reference t o "prevent i ve act ion
bec ause of congressional criticisr.! , he did not rule out
403
autr.ori zing such activitie s on a ca se by case bas ta, In
testimony before this Ccr.rn1ttee. FBI Director William
haS stated that i n sane ca ses t he FBI J1U.Ist t ake preventive
act i on mea sures. (Aorll20, 1978 I t i s cr i t i cal
t o 1Jlsure t hat this does not include incit ing di1lsensi on ,
f alse or 1r.forr.ation to rtiscredit
persons or groups , or any of t he ot her "prevent i ve" measures
engaged in by t he FBI i n its COTh'TELP:'1O operati ons .
AccordinL': to the GAO, the Justice Department has deac tivated
117
t he hirJ1 level ccmm1ttee that reviewed domestic security
1Jlvest i eat i ons . Such a ccmnittee rust be nan::lat ed by the
Chart er . Follow-up GAO PBI Audit, Not e 13, SUDra, p. G:
.,r':!'] he Just ice Department" s Investigat i ons Revie\'; (jnit , which
s respon::; ible f or providing policy gui danc e on t he FBI'e
darestic int elligence operations , i s currentl y \'T1t oout s taff
a."'rl its future urdecided,"
Untilr ec ently t he FBI never al.Ioved t he Justice Department or
UB.
even the At torney General to have access to i t s r.ase informat i on ,
even though the FBI is urder t he supervisi on of the Just i ce
nepartrr.ent. Astatute J1U.Ist rmn:iate thi::; access. f'f'e "Deve.lopnent
of FBI Domestic Intelligence Investigations . "}Jote 10, supra ,
f or a running ac count of t hi s refu,,-a1 or f a ilur e t o di sc l ose .
119. Corwess must rrardate t hat i t be kept "fully ard currently"
informed about FBI act i viti es . An investigation continues
into the failure of the FBI to turn over all files relating
to break- ins after 1966 . r!ash1.ngt on Post , April22. 1973 .
The GAO never been given complet e acc e::; s t o PDI f i l e s ,
an::! has had to work\11th sunmar-tes , Part of the current in-
vestifa tion , includes possiblemi sl eading information supplied
t o the flAO f or i ts audit.
- ?O.
Today the Domest tc secur1t" Guidelines are nuhlished. On the
ether hard t he Foreign Cmmter:tnt el1i gence Guidelines are
secr-et Am \oithhelrl urder- the Pref'dan of Information Act
Lxemptlons . Secr et directives have been the cause of much
OVerrp.achinr; . ;:t andards shoul d be T'Ublic and subject to
cri tic ismand possi bl e r evi s i on by the ,Tust i ce DepartMent .
1,::: \
404
FOREIGNINTELLIGENCE SURVEILLANCE ACT
-
Ik- LJ IJ
HEARINGS
DBFORE THE
SUBCOl\lMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE
OF THE
ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-FIFTH CONGRESS
SECOND SESSION
ON
H.R. 7308
FOREIGN INTELLIGENCE SURVEILLANCE ACT
JUNE 22, 28, AND 29, 1978
Serial No. 48
Printedt or the use ofth e Commit tee onthe Judiciary
U.S. GOVERNMENT PRINTING OFFICE
12-2170
WASHINOTON : 1978
405
od Mr. Halperin I note have been with us before; I don't know
\outMr. Berman.
a Welcometot he committee,gent lemen.
TESTIMONY OF JOHN SHATTUCK, DIRECTOR, AMERICAN CIVIL
LIBERTIES UNION; MORTON HALPERIN, DIRECTOR, CENTER
01" NATIONAL SECURITY STUDIES; JERRY BERMAN, LEGISLA-
TIVE COUNSEL, WASHINGTON OFFICE, AMERICAN CIVIL
LIBERTIES UNION
Mr.KASTENMEI ER. You may proceed as you wish.
There is a joint statement we have received from Messers.
Berman and Shattuck anda separatestatementofMr. Halperin.If
yoU wish, you may proceed from those and in anyevent they will
bereceivedandmadea partoftherecord.
[Theprepared statement of Mr. Berman, Mr. Shattuck, and Mr.
Halperin follows:] .
PREPAREDSTATEMENT OF JERRY J . BERMAN, LEGISLATIVE CoUNSEL, AND JOHN H.
F.SHATI'UCK, WASHINGTONOFFICE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION
Mr. Chairman,wewelcome the opport unity to testify before this Subcommitteeon
legislation to prohibit t he longsta nding and much abused executive branch practice
of conducting warrantless electronic surveillances for foreign intelligence purposes.
H.R. 7308, the HouseversionofS. 1566, which passed t heSenateon April 24th by
a vote of 95- 1, involves mat ters of vital concern to t he American Civil Liberties
Union, a nationwide nonpart isan organizati on devoted to protecting individual
rightsand libertiesguaranteed bytheConstitution.
Thislegislation was introduced t hreeyears ago(S.3197) in direct response to the
revelations ofmassive abuse ofFourt h Amendment rightsof individuals committed
by U.S. intelligence agencies in the name of nat ional security. With the exclusive
andunchecked power to employ taps and bugs for foreign intelligence purposes, the
FBI and CIA, and later the Nat ional Security Agency, frequently and often indis-
criminately targeted individuals and groups, as the Church Committee pointed out ,
"engaged in no criminal activi ty and who posed no genuine threat to the national
security." Often ignoring their own internal procedures or expanding them atwill,
intelligence agencies, at the direct ion of administrat ions of both parties, targeted
n.ewsmen, businessmen, members of Congress, presen t and former employees, civil
rights leaders, and numerous groups engaged in lawful polit ical acti vity. Private
andoften int imate fruits of those surveillances were disseminated widely and in
manycasesused for political and otherimroperpurposes.
We restate the findings of the Church Committee Final Report to right the
balance of discussion before this Committee and to emphasize what must be the
concern ofthe Congress:Doesthis.leW-slation afford incr eased protection
t'tt F0!lrthAmendment rights of"t he people'?Testimonybefore thisCommittee
at 'national securi ty" ta kes precedence and that judicial warrants and other
outlined in t he legislat ion unduly interfere with the prerogat ives ofthe
co branch ignores this record of abuse. Moreover it ignores the central
of the Church Committee that unchecked executive discretion led to
Xd Inthe past and threatensits recurrencein thefuture. ::.
1666 dren
Ing
this paramount concern today, it is our considered opinion that S.
inal ly amended by the Senate, and H.R. 7308, as amended by the House
law.Igence constit ute a modest advancementover present practice and
the national secur ity wiretaparea.Thi s by no means constitutesan endorse-
allWi .legislation,since the basic policy of the ACLU is general opposition
!"ClrarJ
e
PPIng as fundamentall y incompatible with the Fourth Amendment. In this
bini the views of Congressman Robert Drinan 80 eloquently stated by
eC?urse ofthesedeliberations. .
the moreih
thlS
does.representdifferent testimony from thatgiven by theACI;-U In
an ten timee we have appeared before House and Senate committees
tlonBgaing versions of H.R. 7308. Each t ime we have measured the legisla-
aPPearan
nst
eXISting FourthAmendmentlaw and found it deficient.In each ofthose
lIameof we stated t hat we will work to defeat any which I? the
re orm would have the effect of expanding or ratifying current Wireta p
406
abuses. At the same ti me we have repeatedly urged the Congress to 'revamp the
legislation so t hat it would in fact impose new restrictions on cur rent pract ice
In recent monthssome of those restrictions have at last been incorporated in
legislat ion so that it minimally improve s on curr ent Jaw. We refe r of course to t he
cri minal sta ndard amendment for U.S. persons, t he impr oved mi nimizat ion prOCe-
dures, and th e improved struct uringoft he Special Court funct ions.While wear c by
no means satisfied wit h the bill-it is fartoo per missive in many of its provisions_
we are even less sanguine about current law and it is in t his contextthatwe mUst
view t he bill.
Before t urning to the deta ils of H.R. 7308, it is important to place this bill in
perspect ive by viewing its provisionsagainst t he background oft hesevere er osion of
tradit ional Fourth Amendment values by recent Supreme Court decisions and ex.
ecutive branch policies.
ELECfRONIC SURVEILLANCE ANDTHE FOURTH AMENDMENT
The ACLU opposes electronicsurveillanceas an investigative tech nique it
is themost intrusive and inher entl y unreasonable form of search and seizure.Even
when taps and bugs are used agai nst a person suspected of engaging in cr iminal
activity, it offends t he Fourt h Amendment because t hey necessarily result in a
"generalsearch" ofall pr ivateconversat ions, incriminat ingor not ,whi ch occur over
t he period of the surveillance. The surveillance technology itself severely impedes
any kind of effective control, such as a convent ional search warrant which aut ho-
rizes theseizureoftangible evidence,"particularly describes" the thi ng to be seized,
and gives not ice to th esubject ofth esearchexcept under narrowly defined "exigent
circumstances." Cf.Osborn v. United States, 385 U.S.323,329- 30(1966).
The techn ology of electronic surve illance ma kes the search and seizure of tele-
phone conversations infini tely more int rusive t han t he physical searc h ofa homeor
a person, even when a tap is conducted pur suant to a courtorder.Sta tist ics rel eased
by t he Administrative Office oft he U.S.Courts,for exa mple,show t hat theaverage
court-o rdered federal wiretap in 1976 involved t he interception of 1,038 separate
conversat ions between 58 persons over a period of t hree weeks. These st ati stics
demon strate dramatically thateven in the case of a cri minal investigation, a wire-
tap search inevitably has a dragnet effect which strains the Fourt h Amendment to
the breaking point. Bugs, of course, are almost illimitable since t hey pick up
everything in a room.
Electronic surveillance, t herefore, is t he pri me example of Justice Brandeis' fore-
boding in Olmstead v. United States, 277 U.S. 438, 473 (1928) t hat "discovery and
invent ion have made it possible for the govern ment , by means far more effective
than stretching upon the rac k, to obtain disclosure in cour t ofwhat is whisper ed in
the closet ." Even where circumscribed wit hin th e confines of a cr iminal investiga-
tion, wiretapping representsan intenseandextensive inva sion of private speech and
th ought with almost no parallel. Wiretap an d ot her electronic surveillance devices
intrude so deeply and so grossly that they discour age people from speaking freely,
and,as JusticeBrennan has warned, ifsuch devices proliferatewidely, we may find
ourselves in a society where the only sure way to guard one's privacy "is to keep
one's mouth shut on all occasions." Lopez v. United States, 373 U.S. 427,456(1963).
CURRENT LAW GOVERNING NATIONAL SECURITY SURVEILLANCE
If the technology of electronic surveillance severely strains the fourth amend-
ment, the cur rent practice of nat ional securit y surveillance shatters it . Here t he! tJ
are virtually no restrictions under currentlaw, in contrastto the statutory restpC-
tions imposed in cr iminal investigat ive taps by Title III of the Omnibus CrUDe
ControlandSafe StreetsAct (18U.S.C.2510-20). . _
Today, as in the past, national security wiretapping, bugging, and even teleVllHon
surveillance are conducted by the Executive under a claim of "inherentpower." In
January of t his year, Presiden t carter issued Execut ive Order 12036 to govern
"UnitedStates Intelligence Activities." Under the Order, thePresidentmay .auth
or