Full text of "Final report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate : together with additional, supplemental, and separate views"

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INTELLIGENCE ACTIVITIES AND THE
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U.S. GOVERNMENT PRINTING OFFICE
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VCT A CTO'T T

SENATE SELECT COMMITTEE TO S'mJDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO INTiLLIGENCB ACTIVITIES 1

FRANK CHURCH, Idaho, Ohairman ;

JOHN G. TOWER, Texas, Vice Chairman f |

PHILIP A. HART, Michigan HOWARD H. BAKER, Jr., Teniiessee'

WALTER F. MONDALE, Minnesota BARRY GOLDWATER, Arizona

WALITER D. HTJDDLESTON, Kentucky CHARLES McC. MATHIAS, Jr., Maryland

ROBERT MORGAN, North Carolina RICHARD S. SCHWEIKER, Pennsylvania

GARY HART, Colorado '

William G. Miller, Staff Director

Frederick A. O. Schwarz, Jr., Chief Counsel

Curtis R. Smothers, Counsel to the Minority

Audrey Hatry, Clerk of the Committee

(H)

LETTER OF TRANSMITTAL

On behalf of the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities, and pursuant to
the mandate of Senate Resolution 21, I am transmitting herewith to
the Senate the volume of the Committee's Final Report which presents
the results of the Committee's investigation into Federal domestic
intelligence activities.

The Committee's findings and conclusions concerning abuses in intel-
ligence activity and weaknesses in the system of accountability and
control are amply documented. I believe they make a compelling case
for substantial reform. The recommendations section of this volume
sets forth in detail the Committee's proposals for reforms necessary
to protect the right of Americans. The facts revealed by the Commit-
tee's inquiry into the development of domestic intelligence activity are
outlined in the balance of the vokune.

I would add one principal comment on the results of the Commit-
tee's inquiry : The root cause of the excesses which our record amply
demonstrates has been failure to apply the wisdom of the constitu-
tional system of checks and balances to intelligence activities. Our
experience as a nation has taught us that we must place our trust in
laws, and not solely in men. The founding fathers foresaAv excess as
the inevitable consequence of granting any part of government un-
checked power. This has been demonstrated in the intelligence field
where, too often, constitutional principles were subordinated to a prag-
matic course of permitting desired ends to dictate and justify improper
means.

Our recommendations are designed to place intelligence activities
within the constitutional scheme for controlling government power.

The members of this Committee have served with utmost diligence
and dedication. We haA^o had 126 Full Connnittee meetings, scores of
other sessions at which Senators presided at depositions for the tak-
ing of testimony, and over 40 subcommittee meetings devoted to
drafting the two volumes of our final report. I thank each and every
one of my colleagues for their hard work and for their <letermina-
tion that the job be done fully and fairly.

John Tower's service as Vice Chairman was essential to our effec-
tiveness from start to finish. This inquiry could have been distracted
by partisan argument over allocating the blame for intelligence ex-
cesses. Instead, we have unanimously concluded that intelligence prob-
lems are far more fundamental. They are not the product of any
single administration, party, or man.

At the outset of this particular volume, special mention is also due
to Senator Walter F. Mondale for his chairmanship of the subcom-
mittee charged Avith drafting the final report on domestic intelligence
activity. During our hearings. Senator Mondale helped to bring into
focus the threats posed to the rights of American citizens. He and his

(III)

domestic subcommittee colleagues — Senator Howard Baker, as rank-
ing Minority member, and Senators Philip Hart, Robert Morgan and
Richard Schweiker — deserve great credit for the complete and com-
pelling draft which they presented to the Full Committee.

The staff of the Committee has worked long, hard and well. With-
out their work over the past year — and during many long nights and
weekends — the Committee could not have come close to coping with
its massive job. I commend and thank them all. The staff members
whose work was particularly associated with this volume and its sup-
plementary detailed reports are listed in Appendix C,

Frank Church,

Chairman.

PREFACE

In January 1975, the Senate resolved to establish a Committee to:

conduct an investigation and study of governmental opera-
tions with respect to intelligence activities and the extent, if
any, to which illegal, improper, or unethical activities were
engaged in by any agency of the Federal Government.^

This Connnittee was organized shortly thereafter and has conducted
a year-long investigation into the intelligence activities of the United
States Government, the first substantial inquiry into the intelligence
community since World War 11.

The inquiry arose out of allegations of substantial wrongdoing by
intelligence agencies on behalf of the administrations which they
served. A deeper concern underlying the investigation was Avhether this
Government's intelligence activities were governed and controlled
consistently with the fundamental principles of American constitu-
tional government — that power must be checked and balanced and
that the preservation of liberty requires the restraint of laws, and
not simply the good intentions of men.

Our investigation has confirmed that properly controlled and lawful
intelligence is vital to the nation's interest. A strong and effective
intelligence system serves, for example, to monitor potential military
threats from the Soviet ITnion and its allies, to verify compliance with
international agreements such as SALT, and to combat espionage and
international terrorism. These, and many other necessary and proper
functions are performed by dedicated and hard working employees of
the intelligence community.

The Committee's investigation has, however, also confirmed substan-
tial wrongdoing. And it has demonstrated that intelligence activities
have not generally been governed and controlled in accord with the
fundamental principles of our constitutional system of government.

The task faced by this Connnittee was to propose effective measures
to prevent intelligence excesses, and at the same time to propose sound
guidelines and oversight procedures with which to govern and control
legitimate activities.

Having concluded its investigation, the Cammitte^ issues its reports ^
for the purposes of :

providing a fair factual basis for informed Congressional
and public debate on critical issues affecting the role of gov-
ernmental intelligence activities in a free society ; and

' Senate Resolution 21, January 27, 1975, Sec. 1. The full text of S. Res. 21 is
printed at Appendix A.

^ The Committee's final report is divided into two main volumes. The balance
of this volume covers domestic activities of intelligence agencies and their activi-
ties overseas to the extent that they affect the constitutional rights of Americans.
The other volume covers all other activities of United States foreign and military
intelligence agencies.

The Committee has previously issued the reports and hearing records set forth
in Appendix B.

(V)

recommending such legislative and executive action as, in the
judgment of the Committee, is appropriate to prevent re-
currence of past abuses and to insure adequate coordination,
control and oversight of the nation's intelligence resources,
capabilities, and activities.

A. The Committee's Mandate

In elaboration of the broad mandate set forth at the outset of this
Report, the Senate charged the Committee with investigating fourteen
specific "matters or questions" and with reporting the "full facts" on
them. The fourteen enumerated matters and questions concern: (i)
what kind of activities have been — and should be — undertaken by
intelligence agencies; (ii) whether those activities conform to law
and the Constitution; and (iii) how intelligence agencies have been —
and should be — coordinated, controlled and overseen.^

In addition to investigating the "full facts" with respect to such
matters, the Committee was instructed to determine :

Whether any of the existing laws of the United States are
inadequate, either in their provisions or manner of enforce-
ment, to safeguard the rights of American citizens, to im-
prove executive and legislative control of intelligence and
related activities and to resolve uncertainties as to the au-
thority of United States intelligence and related agencies.
[Id., Sec. 2 (12)]

B. The Major Questioits

Our investigation addressed the structure, history, activities and
policies of America's most important intelligence agencies. The Com-
mittee looked beyond the operation of individual agencies to examine
common themes and patterns inherent in intelligence operations. In
the course of its investigation, the Committee has sought to answer
three broad questions :

First, whether domestic intelligence activities have been
consistent with law and with the individual liberties guar-
anteed to American citizens by the Constitution,

Second, whether America's foreign intelligence activities
have served the national interest in a manner consistent with
the nation's ideals and with national purposes.

' S. Res. 21, Sec. 2. Examples of the "matters or questions" include :

"The conduct of domestic intelligence or counterintelligence operations against
United States citizens" by the FBI or other agencies. [Sec. 2(2)] ;

"The violation or suspected violation of law" by intelligence agencies [Sec.
2(10)];

Allegations of CIA "domestic" activity, and the relationship bet\Aeen CIA
responsibility to protect sources and methods and the prohibition of its exer-
cising law enforcement powers or internal security functions [Sec. 2(1), (6)] ;

"The origin and disposition of the so-called Huston Plan" [Sec. 2(7) (9)];

"The extent and necessity' of "covert intelligence activities abroad [Sec.
2(14)];

Whether there is excessive duplication or inadequate coordination among
inteUigence agencies [Sec. 2(4) (13)] and

The "nature and extent" of executive oversight [Sec. 2(7) (9)] and the "need
for improved, strengthened or consolidated' Congressional oversight [Sec.
2(7)(9)(11)].

VII

Third, whether the institutional procedures for directing
and controlling intelligence agencies have adequately ensured
their compliance with policy and law, and whether those pro-
cedures have been based upon the system of checks and bal-
ances among the branches of government required by our
Constitution.

The Committee fully subscribes to the premise that intelligence
agencies perform a necessary and proper function. The Preamble to
the Constitution states that our government was created, in part, to
"insure domestic tranquility [and] provide for the common defense."
Accurate and timely intelligence can and does help meet those goals.

The Committee is also mindful, however, of the danger which in-
telligence collection, and intelligence operations, may pose for a so-
ciety grounded in democratic principles. The Preamble to our Con-
stitution also declares that our gover-nment was created to "secure the
blessings of liberty'' and to "establish justice". If domestic intelli-
gence agencies ignore those principles, they may threaten the very
values that form the foundation of our society. Similarly, if the gov-
ernment conducts foreign intelligence operations overseas which are
inconsistent with our national ideals, our reputation, goals, and in-
fluence abroad may be undercut.

C. The Nature or the Committee's Investigation

1. SELECTION or AGENCIES, PROGRAMS AND CASES TO EMPHASIZE

Necessarily, the Committee had to be selective. To investigate every-
thing relevant to intelligence — and even everything relevant to the
fundamental issues on which we had decided to focus — would take for-
ever. Our job was to discover — and suggest solutions for — the major
problems "at the earliest practical date".*

Accordingly, the Committee had to choose the particular Govern-
mental entities upon which we would concentrate and then further
had to choose particular cases to investigate in depth.

INIany agencies, departments or bureaus of the Federal Government
have an intelligence function. Of these, the Committee spent the over-
whelming preponderance of its energies on five :

The Federal Bureau of Investigation; The Central Intelli-
gence Agency ; The National Security Agency ; The national
intelligence components of the Defense Department (other
than NSA) ; and The National Security Council and its com-
ponent parts.^

The agencies upon which the Committee concentrated are those
whose powers are so great and whose practices were so extensive that
they must be undei-stood in order fairly to judge whether the intelli-
gence system of the Ignited States needs reform and change.

Having selected the agencies to emphasize, the Committee also had to
select representative programs and policies on which to concentrate.
Theie were many more possible issues and allegations to investigate

* S. Res. 21 : Sec. 5.

^ Substantial work was also done on intelligence activities of the Internal Reve-
nue Service and the State Department.

vni

than could be covered fully and fairly. The principles which guided our
choices were:

(1) More is learned by investigating tens of programs and
incidents in depth rather than hundreds superficially. Our
goal was to understand causes and, where appropriate, to sug-
gest solutions.

(2) Cases most likely to produce general lessons should
receive the most attention,

(3) Programs were examined from each administration
beginning with Franklin Roosevelt's. This assured under-
standing of the historical context within which intelligence
activities have developed. Fundamental issues concerning the
conduct and character of the nation deserve nonpartisan
treatment. It has become clear from our inquiry, moreover,
that intelligence excesses, at home and abroad, have been
found in every administration. They are not the product of
any single party, administration, or man.

2. LIMITATIONS AND STRENGTHS

(a) The Focus on Problem, Areas

The intelligence community has had broad responsibility for activi-
ties beyond those which we investigated as possibly "illegal, improper,
or unethical". Our reports primarily address problem areas and the
command and control question generallv. However, the intelligence
community performs vital tasks outside the areas on which our inves-
tigation concentrated. This point must be kept in mind in fairness to
the agencies, and to their employees who have devoted their careers to
the nation's service. Moreover, one of many reasons for checking: intel-
ligence excesses is to restore the confidence, good name, and effective-
ness of intelligence agencies so that they may better serve the nation
in the future.^

[h) Caution on Questions of Individual ''''Guilt?'' or '''■Innocence''^

A Senate Committee is not a prosecutor, a grand jury or a court. It
is far better suited to determine how things went wrong and what can
be done to prevent their going wrong again, than to resolve disputed
questions of individual "guilt" or "innocence". For the resolution of
those questions we properly rely on the courts.

Of course, to understand the past in order to better propose guid-
ance for the future, the Committee had to investigate the facts under-
lying charges of wrongdoing. Facts involve people. Therefore, the
Committee has necessarily had to determine what particular individ-
uals appear to have done and, on occasion, to make judgments on their
responsibility. We have, however, recognized our limitations and at-
tempted to be cautious in reaching those judgments ; the reader should
be similarly cautious in evaluating our judgments.

The Committee's hope is that this report wnll provoke a national
debate not on "Who did it?", but on "How did it happen and what can
be done to keep it from happening again ?"

* Indeed, it is likely that in some cases the high priority ffiven to activities that
appear qnestionahle has reduced the attention given to other vital matters. Thus,
the FBI, for example, has placed more emphasis on domestic dissent than on orga-
nized crime and, according to some, let its efforts against foreign spies suffer
because of the amount of time spent checking up on American protest groups.

This Committee examined a very broad range of issues and com-
piled a hughe factual record " which covers :

(i) the origins and development of intelligence programs
over seven administrations ;

(ii) intelligence activities both at home and abroad; and
(iii) the programs and practices of the several most im-
portant intelligence agencies.

Thus, for the first time, based upon the Committee's investigation, it
is possible to examine the patterns of intelligence activity and not!
merely isolated incidents.

The issues for the country to resolve are best posed by looking, as
we have done, at the aggregate, rather than at particular incidents
in isolation. Neither the dangers, nor the causes, nor the possible
solutions can be fairly evaluated without considering both the broad
patterns of intelligence activity which emerge from examining par-
ticular cases over the past several decades, and the cumulative effect
of activities of different agencies. For example, individual cases or
programs of governmental surveillance may constitute interference
with constitutionally protected rights of privacy and dissent. But
only by examining the cumulative impact of many such programs
can the danger of "Big Brother Government" be realistically assessed.
Only by understanding the full breadth of governmental efforts
against dissenters can one w^eigh the extent to w^hich those efforts may
chill lawful assembly and free expression.

D. The Purpose of the Committee's Findings and Recommendations

The central goal of the Committee is to make informed recom-
mendations— based upon a detailed and balanced factual investiga-
tion— about :

(1) which intelligence activities ought to be permitted, and
which should be restricted or prohibited ; and

(2) what controls and organizational structure are needed
to keep intelligence operations both effective and consistent
with this country's most basic values and fundamental in-
terests.

■^ Some 800 witnesses were examined, approximately 2.50 under oath in
executive sessions, 50 in public sessions, and the balance in interviews. The
aggregate number of transcript pages is almost 30,000. Approximately 110,000
document pages were obtained from the various intelligence agencies (still more
were preliminarily reviewed at the agencies), as well as from the White House,
presidential libraries, and other sources.

Over the course of its investigation the Committee has had generally good
cooperation in obtaining information from the intelligence agencies and the Ad-
ministration. Of cour.se, there were problems, particularly at the outset — com-
pliance took too long; bureaucratic rules such as the "third agency rule" (which
required agencies other than the custodian of the document to review it if they
were mentioned) were frustrating. But our experience suggests that those prob-
lems can be worked out.

The most important lesson to be derived from our experience is that effective
oversight is impossible without regular access to the underlying working docu-
ments of the intelligence community. Top level briefings do not adequately de-
scribe the realities. For that the documents are a necessary supplement and at
times the only source.

The first step for this Committee, its successor oversight Committees
and the Congress as a whole is to devise the legal framework within
which intelligence agencies can, in the future, be guided, checked and
operate both properly and efficiently. A basic law — a charter of pow-
ers, duties, and limitations — does not presently exist for some of the
most important intelligence activities {e.g.^ FBI's domestic intelli-
gence or NSA) or, where it does exist, as with CIA, it is vague, con-
flicting and incomplete.

The absence of laws and the lack of clarity in those that exist has
had the effect, if not the intention, of keeping vital issues of national
importance away from public debate.

This Committee's job was to pose the issues that have been ignored
for decades. The technique for doing so was to investigate and then
to propose basic laws and other rules as to what can and cannot be
done, and on the appropriate command and control structure for in-
telligence activities.

There are many other questions, such as the efficiency, cost and
quality of intelligence, which are also of vital national importance.
We have also examined these matters and consider them in this re-
port. But, the main emphasis of our investigation was on what
should be done and not on how it should be done. We seek in our rec-
ommendations to lay the underlying legal foundation, and the con-
trol and oversight structure for the intelligence community. If these
are sound, then we have faith that the other questions will be an-
swered correctly in the future. But if the foundation is unsound or
remains unfinished — or if intelligence agencies continue to operate
under a structure in which executive power is not effectively checked
and examined — then we will have neither quality intelligence nor a
society which is free at home and respected abroad.

CONTENTS

Page

Letter of Transmittal iii

I. INTRODUCTION AND" SUMMARY I ] lllllllllllllllllllllll 1

A. Intelligence Activity: A New Form of Governmental Power

to Impair Citizens' Rights 2

B. The Questions 4

C. Summary of the Main Problems 5

1. The Number of People Affected by Domestic Intelli-

gence Activity 6

2. Too Much Information Is Collected For Too Long. - 7

3. Covert Action and the Use of Illegal or Improper

Means 10

a. Covert Action 10

(1) The FBI's COINTELPRO 10

(2) Martin Luther King, Jr 11

b. Illegal or Improper Means 12

(1) Mail Opening 12

(2) NSA Monitoring 12

(3) Electronic Surveillance 12

(4) Political Abuse 13

(5) Surreptitious Entries 13

(6) Informants 13

4. Ignoring the Law 13

5. Deficiencies in Accountability and Control 14

6. The Adverse Impact of Improper Intelligence Ac-

tivity 15

a. General Efforts to Discredit 15

b. Media Manipulation 15

c. Distorting Data to Influence Government

Policy and Public Perceptions 16

d. "Chilling" First Amendment Rights 17

e. Preventing the Free Exchange of Ideas 17

7. Cost and Value 18

II. THE GROWTH OF DOMESTIC INTELLIGENCE, 1936 to 1976:

A. Summary 21

1 . The Lesson : Historv Repeats Itself 21

2 . The Pattern : Broadening Through Time 21

3. Three Periods of Growth for Domestic Intelligence. .- 22

B. Establishing a Permanent Domestic Intelligence Structure:

1936-1945 23

1. Background: The Stone Standard 23

2. Main Developments of the 1936-1945 Period 24

3. Domestic Intelligence Authority: Vague and Conflict-

ing Executive Orders 24

a. The Original Roosevelt Orders 25

b. Orders in 1938-39: The Vagueness of "Sub-

versive Activities" and "Potential" Crimes- 25

c. Orders 1940-43: The Confusion Continues- _. 27

4. The Role of Congress 28

a. Executive Avoidance of Congress 28

b. Congress Declines to Confront the Issue 29

(XI)

II. THE GROWTH OF DOMESTIC INTELLIGENCE— Continued

B. Establishing a Permanent Domestic Intelligence Structure —

1936-1945 Continued Page

5. Scope of Domestic Intelligence 30

a. Beyond Criminal Investigations 30

b. "Infiltration" Investigations 31

c. Partisan Use 33

d. Centralized Authority: FBI and Military

Intelligence 33

6. Control by the Attorney General: Compliance and

Resistance 34

7. Intrusive Techniques : Questionable Authorization 36

a. Wiretaps: A Strained Statutory Interpreta-

tion 36

b. Bugging, Mail Opening, and Surreptitious

Entry 38

C. Domestic Intelligence in the Cold War Era: 1946-1963 38

1. Main Developments of the 1946-1963 Period 38

2. Domestic Intelligence Authority 40

a. Anti-Communist Consensus 40

b. The Federal Employee Loyalty-Security Pro-

gram 42

(1) Origins of the Program 42

(2) Breadth of Investigations 43

(3) FBI Control of Loyalty-Security In-

vestigations 44

c. Executive Directives: Lack of Guidance and

Controls 45

3. Scope of Domestic Intelligence 46

a. "Subversive Activities" 46

(1) The Number of Investigations 47

(2) Vague and Sweeping Standards 47

(3) COMINFIL 48

(4) Exaggeration of Communist In-

fluence 49

b. "Racial Matters" and "Hate Groups" 50

c. FBI Political Intelligence for the White

House 51

d. IRS Investigation of Political Organizations.- 53

4. Accountability and Control 54

a. Emergency Detention Act 54

b. Withholding Information 55

c. CIA Domestic Activity 56

(1) Vague Controls on CIA 56

(2) Drug Testing and Cover Programs. _ 56

5. Intrusive Techniques 58

a. Communication Interception: CIA and NSA. 58

b. FBI Covert Techniques 60

(1) Electronic Surveillance 60

(2) "Black Bag" Jobs 61

(3) Mail Opening 62

c. Use of FBI Wiretaps 62

6. Domestic Covert Action 65

a. COINTELPRO: Communist Party 65

b. Early Expansion of COINTELPRO 67

D. Intelligence and Domestic Dissent: 1964-1976 67

1. Main Points During the 1964-1976 Period 67

2. Scope of Domestic Intelligence 70

a. Domestic Protest and Dissent: FBI 7o

(1) Racial Intelligence 71

(2) "New Left" Intelligence 72

b. FBI Informants 74

(1) Infiltration of the Klan 74

II. THE GROWTH OF DOMESTIC INTELLIGENCE— Continued
D. Intelligence and Domestic Dissent: 1964-1976 — Continued

2. Scope of Domestic Intelligence — Continued

b. FBI Informants — Continued

(2) "Listening Posts" in the Black Com- Page

munity 75

(3) Infiltration of the "New Left" 76

c. Army Surveillance of Civilian Political

Activity 77

d. Federal Encouragement of Local Police

Intelligence 77

e. The Justice Department's Interdivision In-

formation Unit (IDIU) 78

f. COMINFIL Investigations: Overbreadth 81

3. Domestic Intelligence Authority 82

a. FBI Intelligence 82

b. Army Intelligence 84

c. FBI Interagency Agreements 85

4. Domestic Covert Action 86

a. COINTELPRO 86

(1) Klan and "White Hate" 86

(2) "Black Nationalist" COINTELPRO 87

(3) "New Left" COINTELPRO 88

b. FBI Target Lists 89

(1) "Rabble Rouser/ Agitator" Index. _ 89

(2) "Key Activist" Program 90

(3) "Key Black Extremist" Program 91

(4) Security Index 91

c. Internal Revenue Service Programs 93

(1) Misuse by FBI and CIA 93

(2) The Special Service Staff: IRS Tar-

geting of Ideological Groups 94

5. Foreign Intelligence and Domestic Dissent 96

a. Origins of CIA Involvement in "Internal Se-

curity Functions" 96

b. CIA Intelligence About Domestic Political

Groups 98

(1) CIA Response to FBI Requests 98

(2) Operation CHAOS 99

c. CIA Security Operations Within the United

States : Protecting "Sources" and "Methods" _ 102

d. NSA Monitoring 104

6. Intrusive Techniques 104

a. Warrantless Electronic Surveillance 105

(1) Executive Branch Restrictions on

Electronic Surveillance: 1965-68.. _ 105

(2) Omnibus Crime Control Act of 1968. 106

(3) Supreme Court Restrictions on Na-

tional Security Electronic Surveil-
lance: 1972 107

b. CIA Mail Opening 107

c. Expansion of NSA Monitoring 108

d. FBI Cutbacks 109

(1) The Long Subcommittee Investiga-

tion 109

(2) Director Hoover's Restrictions 110

7. Accountability and Control 111

a. The Huston Plan: A Domestic Intelligence

Network 111

(1) Intelligence Community Pressures 112

(2) The Interagency Committee Report-. 113

(3) Implementation 115

XIV

II. THE GROWTH OF DOMESTIC INTELLIGENCE— Continued

D. Intelligence and Domestic Dissent: 1964-1976 — Continued

7. Accountability and Control — Continued P'lge

b. Political Intelligence 116

(1) Name Check Requests 116

(2) Democratic National Convention, At-

lantic City, 1964 117

(3) By-Product of Foreign Intelligence

Coverage 119

(4) The Surveillance of Joseph Kraft

(1969) 121

(5) The "17" Wiretaps 122

c. The Justice Department's Internal Security

Division 1 122

(1) The "new" Internal Security Division. 123

(2) The SuUivan-Mardian Relationship.. 124

d. The FBI's Secret "Administrative Index" 125

8. Reconsideration of FBI Authority 127

a. Developments in 1972-1974 128

b. Recent Domestic Intelligence Authority 131

III. FINDINGS! .' 137

A. Major Finding: Violating and Ignoring the Law 137

Subfindings :

(a) Violating Statutory Law and Constitutional

Rights 139

(b) Ignoring Illegal Issues 140

(d) Tightening Security for Illegal Activities 146

(e) Concealing Illegal Activities 149

(f) Weakness of Internal Inspection 152

(g) Weakness of Oversight by Senior Administration

Officials 157

B. Major Finding: The Overbreadth of Domestic Intelligence

Activity 165

Subfindings :

(a) Broad Scope of Investigations 167

(b) Imprecise Standards for Investigations 169

(d) "Vacuum Cleaner" Approach 178

(e) Excessively Long Investigations 179

C. Major Finding: Excessive Use of Intrusive Techniques 183

Subfindings :

(a) Insufficient Legal Standards and Procedures 185

(b) Excessive Collection Coupled with Violent and

Illegal Activities of Informants and Difficulty

of Limiting Surveillance 192

Techniques 205

D. Major Finding: Using Covert Action to Disrupt and Dis-

credit Domestic Groups 211

Subfindings:

(a) Targeting Law- Abiding Citizens 213

(b) Interference With First Amendment Rights 214

(d) Actions Against Dr. Martin Luther King, Jr 219

E. Major Finding: Political Abuse of IntelUgence Information.- 225

Subfindings :

(a) Political Intelligence for the White House 226

(b) Dissemination of Incidental Political or Personal

Information 232

and Targeting Critics and Political Figures.. 237

(d) Influencing Social Policy and Political Action.. 240

III. FINDINGS— Continued: "Page

F. Major Finding: Inadequate Controls on Dissemination and

Retention 253

Subfindings :

(a) Volunteering Irrelevant Information and re-

sponding Unquestioningly to Requests 254

(b) Excessive Dissemination 259

(d) FBI Retention of Sensitive, Derogatory, and

Illegally Obtained Information 262

G. Major Finding: Deficiencies in Control and Accountability.- 265

Subfindings :

(a) Presidential Failure to Limit and Control

Intelligence Activities 267

(b) Attorneys General Failure to Limit and Con-

trol FBI Intelligence Activities 270

(d) Executive Failures to Inquire 275

(e) Congressional Failure to Oversee Intelligence

Activity and Exert Legislative Control 277

(f) Intelligence Agencies Act with Insufficient

Authorization 281

(g) Termination of Abusive Operations 284

IV. CONCLUSIONS AND RECOMMENDATIONS 289

A. Conclusions 289

B. Principles Applied in Framing Recommendations and the

Scope of Recommendations 292

C. Recommendations 296

1. Intelligence Agencies Are Subject to the Rule of Law

(Recommendations 1-3) 296

2. United States Foreign and Military Agencies Should

Be Precluded From Domestic Security Activities
(Recommendations 4-27) 297

a. Central Intelligence Agency (Recommenda-

tions 4-13) 297

b. National Security Agency (Recommendations

14-19) 308

c. Military Service and Defense Department

Investigative Agencies (Recommendations
20-26) 310

3. Non-Intelligence Agencies Should Be Barred From

Domestic Security Activity (Recommendations
27-37) 313

a. Internal Revenue Service (Recommendations

27-35) 313

b. Post Office (U.S. Postal Service) (Recommen-

dations 36-37) 315

4. Federal Domestic Security Activities Should Be

Limited and Controlled to Prevent Abuses Without
Hampering Criminal Investigations or Investiga-
tions of Foreign Espionage (Recommendations
38-69) 316

a. Centralize Supervision, Investigative Re-

sponsibility, and the Use of Covert Tech-
niques (Recommendations 38-39) 316

b. Prohibitions (Recommendations 40-41) 317

c. Authorized Scope of Domestic Security In-

vestigations (Recommendations 42-49) 318

d. Authorized Investigative Techniques (Rec-

ommendations 50-63) 324

e. Maintenance and Dissemination of Informa-

tion (Recommendations 64-68) 330

f. Attorney General Oversight of the FBI,

Including Termination of Investigations and
Covert Techniques (Recommendation 69) __ 332

XVI

IV. CONCLUSIONS AND RECOMMENDATIONS— Continued Page

C. Recommendations — Continued

5. The Responsibility and Authority of the Attorney

General for Oversight for Federal Domestic Security
Activities must be clarified and General Counsel and
Inspectors General of Intelligence Agencies
Strengthened (Recommendations 70-86) 332

a. Attorney General Responsibility and Rela-

ship With Other Intelligence Agencies
(Recommendations 70-74) 333

b. General Counsel and Inspectors General of

Intelligence Agencies (Recommendations
75-81) 333

c. Office of Professional Responsibility (Recom-

mendation 82) 335

d. Director of the FBI and Assistant Directors

of the FBI (Recommendations 83-85) 335

6. Administrative Rulemaking and Increased Disclosure

Should Be Required (Recommendations
86-89) 336

a. Administrative Rulemaking (Recommenda-

tions 86-88) 336

b. Disclosure (Recommendations 89-90) 336

7. Civil Remedies Should Be Expanded (Recommenda-

tion 91) 336

8. Criminal Penalties Should Be Enacted (Recom-

mendation 92) 338

9. The Smith Act and the Voorhis Act Should Either Be

Repealed or Amended (Recommendation 93) 339

10. The Espionage Statute Should Be Modernized

(Recommendation 94) 339

11. Broaden Access to Intelligence Agency Files Should

Be Provided to GAO, as an Investigative Arm of

the Congress (Recommendation 95) 339

12. Congressional Oversight Should Be Intensified

(Recommendation 96) 339

13. Definitions 339

Appendix A: Senate Resolution 21 343

Appendix B: Previously Issued Hearings and Reports of Senate Select

Committee 355

Appendix C: Staff Acknowledgments 357

Additional Views :

Philip A. Hart 359

Robert Morgan 363

Introduction to Separate Views of Senators John G. Tower, Howard

H. Baker, Jr., and Barry Goldwater 367

John G. Tower 369

Howard H. Baker, Jr 373

Barry Goldwater 389

Charles McC. Mathias, Jr 395

I. INTRODUCTION AND SUMMARY

The resolution creating this Committee placed greatest emphasis
on whether intelligence activities threaten the "rights of American
citizens." ^

The critical question before the Committee was to determine how
the fundamental liberties of the people can be maintained in the
course of the Government's effort to protect their security. The deli-
cate balance between these basic goals of our system of government is
often difficult to strike, but it can, and must, be achieved. We reject
the view that the traditional American principles of justice and fair
play have no place in our struggle against the enemies of freedom.
Moreover, our investigation has established that the targets of intelli-
gence activity have ranged far beyond persons who could properly
be characterized as enemies of freedom and have extended to a wide
array of citizens engaging in lawful activity.

Americans have rightfully been concerned since before World
War II about the dangers of hostile foreign agents likely to commit
acts of espionage. Similarly, the violent acts of political terrorists can
seriously endanger the rights of Americans. Carefully focused intelli-
gence investigations can help prevent such acts.

But too often intelligence has lost this focus and domestic intelli-
gence activities have invaded individual privacy and violated the rights
of lawful assembly and political expression. Unless new and tighter
controls are established by legislation, domestic intelligence activities
threaten to undermine our democratic society and fundamentally alter
its nature.

We have examined three types of "intelligence" activities affecting
the rights of American citizens. The first is intelligence collection — •
such as infiltrating groups with informants, wiretapping, or opening
letters. The second is dissemination of material which has been col-
lected. The third is covert action designed to disrupt and discredit
the activities of groups and individuals deemed a threat to the social
order. These three types of "intelligence" activity are closely related
in the practical world. Information which is disseminated by the in-
telligence community^ or used in disruptive programs has usually
been obtained through surveillance. Nevertheless, a division between
collection, dissemination and covert action is analytically useful both
in understanding why excesses have occurred in the past and in de-
vising remedies to prevent those excesses from recurring.

^S. Res. 21. sec. 2(12). The Senate specifically charged this Committee with
Investigating "the conduct of domestic intelligence or counterintelligence op-
erations against United States citizens." (Sec. 2(2)) The resolution added
several examples of specific charges of possible "illegal, improper or unethical"
governmental intelligence activities as matters to be fully investigated (Sec. (2)
(1)— CIA domestic activities ; Sec. (2) (.S)— Huston Plan : Sec. (2) (10)— .surrep-
titous entries, electronic surveillance, mail opening.)

^ Just as the term "intelligence activity" encompa.s.ses activities that go far
beyond the collection and analysis of information, the term "intelligence com-
munity" includes persons ranging from the President to the lowest field opera-
tives of the intelligence agencies.

(1)

68-786 O - 76 - 2

A. Intelligence Activity: A Neio Forrrh of G^av elemental Power to Im-
pair Citizens' Rights

A tension between order and liberty is inevitable in any society. A
Government must protect its citizens from those bent on engaging m
violence and criminal behavior, or in espionage and other hos-
tile foreign intelligence activity. Many of the intelligence prograrns
reviewed in this report were established for those purposes. Intelli-
gence work has, at times, successfully prevented dangerous and abhor-
rent acts, such as bombings and foreign spying, and aided in the
prosecution of those responsible for such acts.

But, intelligence activity in the past decades has, all too often,
exceeded the restraints on the exercise of governmental power which
are imposed by our country's Constitution, laws, and traditions.

Excesses in the name of protecting security are not a recent develop-
ment in our nation's history. In 1798, for example, shortly after the
Bill of Rights was added to the Constitution, the Alien and Sedition
Acts were passed. These Acts, passed in response to fear of pro-
French "subversion", made it a crime to criticize the Government.^
During the Civil War, President Abraham Lincoln suspended the
writ of habeas corpus. Hundreds of American citizens were prose-
cuted for anti-war statements during World War I, and thousands of
"radical" aliens were seized for deportation during the 1920 Palmer
Raids. During the Second World War, over the opposition of J. Edgar
Hoover and military intelligence,* 120,000 Japanese- Americans were
apprehended and incarcerated in detention camps.

Those actions, however, were fundamentally different from the
intelligence activities examined by this Committee. They were gener-
ally executed overtly under the authority of a statute or a public
executive order. The victims knew what was being done to them and
could challenge the Government in the courts and other forums. Intel-
ligence activity, on the other hand, is generally covert. It is concealed
from its victims ^ and is seldom described in statutes or explicit execu-

^ The Alien Act provided for the deportation of all aliens judged "dangerous
to the peace and safety" of the nation. (1 Stat. 570, June 25, 1798) The Sedi-
tion Act made it a federal crime to publish "false, scandalous and malicious
writing" against the United States government, the Congress, or the President
with the intent to "excite against them" the "hatred of the good people of the
United States" or to "encourage or abet any hostile designs of any foreign
nation against the United States." (1 Stat. 596, July 14, 1798) There were at
least 25 arrests, 15 indictments, and 10 convictions under the Sedition Act.
(See James M. Smith, Freedom's Fetters: The Alien and Sedition Laws and
American Civil Liberties (Ithaca : Cornell U. Press, 1956).)

* Francis Biddle, In Brief Authority (Garden City: Doubleday, 1962), p. 224;
Roger Daniels. Concentration Camps USA: Japanese Americans and World
War II (New York : Holt, Rinehart, and Winston, 1971), p. 66.

° Many victims of intelligence activities have claimed in the past that they
were being subjected to hostile action by their government. Prior to this investi-
gation, most Americans would have dismissed these allegations. Senator Philip
Hart aptly described this phenomenon in the course of the Committee's public
hearings on domestic intelligence activities :

"As I'm sure others have, I have been told for years by, among others, some
of my own family, that this is exactly what the Bureau was doing all of the
time, and in my great wisdom and high oflBce, I assured them that they were
[wrong] — it just wasn't true, it couldn't happen. They wouldn't do it. What
you have described is a series of illegal actions intended squarely to deny

tive orders. The victim may never suspect that his misfortunes are the
intended result of activities undertaken by his government, and accord-
ingly may have no opportunity to challenge the actions taken against
him.

It is, of course, proper in many circumstances — such as developing
a criminal prosecution — for the Government to gather information
about a citizen and use it to achieve legitimate ends, some of which
might be detrimental to the citizen. But in criminal prosecutions, the
courts have struck a balance between protecting the rights of the
accused citizen and protecting the society which suffers the conse-
quences of crime. Essential to the balancing process are the rules of
criminal law which circumscribe the techniques for gathering evi-
dence,^ the kinds of evidence that may be collected, and the uses to
which that evidence may be put. In addition, the criminal defendant
is given an opportunity to discover and then challenge the legality of
how the Government collected information about him and the use
which the Government intends to make of that information.

This Committee has examined a realm of governmental informa-
tion collection which has not been governed by restraints comparable
to those in criminal proceedings. We have examined the collection
of intelligence about the political advocacy and actions and the private
lives of American citizens. That information has been used covertly to
discredit the ideas advocated and to "neutralize" the actions of their
proponents. As Attorney General Harlan Fiske Stone warned in 1924,
when he sought to keep federal agencies from investigating "political
or other opinions" as opposed to "conduct . . . forbidden by the laws" :

When a police system passes beyond these limits, it is dan-
gerous to the proper administration of justice and to human
liberty, which it should be our first concern to cherish.

. . . There is always a possibility that a secret police may
become a menace to free government and free institutions be-
cause it carries with it the possibility of abuses of power
which are not always quickly apprehended or understood.^

Our investigation has confirmed that warning. We have seen seg-
ments of our Government, in their attitudes and action, adopt tactics
unworthy of a democracy, and occasionally reminiscent of the tactics
of totalitarian regimes. We have seen a consistent pattern in which
programs initiated with limited goals, such as preventing criminal

First Amendment rights to some Americans. That is what my children have
told me was going on. Now I did not believe it.

"The trick now, as I see it, Mr. Chairman, is for this committee to be able
to figure out how to persuade the people of this country that indeed it did
go on. And how shall we insure that it will never happen again? But it will
happen repeatedly unless we can bring ourselves to understand and accept
that it did go on." Senator Philip Hart, 11/18/75, Hearings, Vol. 6, p. 41.

'As the Supreme Court noted in Miranda v. Arizona, 384 U.S. 436, ^^83. 486
(1966), even before the Court required law oflScers to advise criminal suspects
of their constitutional rights before custodial interrogation, the FBI had "an
exemplary record" in this area — a practice which the Court said should be
"emulated by state and local law enforcement agencies." This commendable FBI
tradition in the general field of law enforcement presents a sharp contrast to the
widespread disregard of individual rights in FBI domestic intelligence opera-
tions examined in the balance of this Report.

^ New York Times, 5/13/24.

violence or identifying foreign spies, were expanded to what wit-
nesses characterized as "vacuum cleaners'',^ sweeping in information
about lawful activities of American citizens.

The tendency of intelligence activities to expand beyond their
initial scope is a theme which runs through every aspect of our investi-
gative findings. Intelligence collection programs naturally generate
ever-increasing demands for new data. And once intelligence has been
collected, there are strong pressures to use it against the target.

The pattern of intelligence agencies expanding the scope of their
activities was well described by one witness, who in 1970 had coordi-
nated an effort by most of the intelligence community to obtain
authority to undertake more illegal domestic activity:

The risk was that you would get people who would be sus-
ceptible to political considerations as opposed to national
security considerations, or would construe political considera-
tions to be national security considerations, to move from
the kid with a bomb to the kid with a picket sign, and from
the kid with the picket sign to the kid with the bumper
sticker of the opposing candidate. And you just keep going
down the line.^

In 1940, Attorney General Eobert Jackson saw the same risk. He
recognized that using broad labels like "national security" or "sub-
version" to invoke the vast power of the government is dangerous
because there are "no definite standards to determine what constitutes
a 'subversive activity', such as we have for murder or larceny." Jack-
son added:

Activities which seem benevolent or helpful to wage earners,
persons on relief, or those who are disadvantaged in the strug-
gle for existence may be regarded as 'subversive' by those
whose property interests might be burdened thereby. Those
who are in office are apt to regard as 'subversive' the activi-
ties of any of those who would bring a'bout a change of ad-
ministration. Some of our soundest constitutional doctrines
were once punished as subversive. We must not forget that it
was not so long ago that both the term 'Republican' and the
term 'Democrat' were epithets with sinister meaning to de-
note persons of radical tendencies that were 'subversive' of
the order of things then dominant.^"

This wise warning was not heeded in the conduct of intelligence
activity, where the "eternal vigilance" which is the "price of liberty"
has been forgotten.

B. The Questions

We have directed our investigation toward answering the follow-
ing questions :

Which governmental agencies have engaged in domestic spying?

How many citizens have been targets of Governmental intelligence
activity ?

^ Mary Jo Cook testimony, 12/2/75, Hearings, Vol. 6, p. Ill ; James B. Adams
testimony, 12/2/75. Hearings, Vol. 6, p. 135.

* Tom Charles Huston testimony, 9/23/75, Hearings, Vol. 2, p. 45.

10 "The Federal Prosecutor", Journal of the American Judicature Society
(June, 1940), p. 18.

What standards have governed the opening of intelligence investiga-
tions and when have intelligence investigations been terminated?

Where have the targets fit on the spectrum between those who com-
mit violent criminal acts and those who seek only to dissent peacefully
from Government policy ?

To what extent has the information collected included intimate
details of the targets' personal lives or their political views, and has
such information been disseminated and used to injure individuals?

What actions beyond surveillance have intelligence agencies taken,
such as attempting to disrupt, discredit, or destroy persons or groups
who have been the targets of surveillance ?

Have intelligence agencies been used to serve the political aims of
Presidents, other high officials, or the agencies themselves ?

How have the agencies responded either to proper orders or to exces-
sive pressures from their superiors ? To what extent have intelligence
agencies disclosed, or concealed them from, outside bodies charged
with overseeing them ?

Have intelligence agencies acted outside the law? What has been
the attitude of the intelligence community toward the rule of law ?

To what extent has the Executive branch and the Congress con-
trolled intelligence agencies and held them accountable ?

Generally, how well has the Federal system of checks and balances
between the branches worked to control intelligence activity?

C. Summary of the- Main Problems

The answer to each of these questions is disturbing. Too many people
have been spied upon by too many Government agencies and to much
information has beeen collected. The Government has often undertaken
the secret surveillance of citizens on the basis of their political beliefs,
even when those beliefs posed no threat of violence or illegal acts on
behalf of a hostile foreign power. The Government, operating pri-
marily through secret informants, but also using other intrusive
techniques such as wiretaps, microphone "bugs", surreptitious mail
opening, and break-ins, has swept in vast amounts of information
about the personal lives, views, and associations of American citizens.
Investigations of groups deemed potentially dangerous — and even
of groups suspected of associating with potentially dangerous orga-
nizations—have continued for decades, despite the fact that those
groups did not engage in unlawful activity. Groups and individuals
have been harassed and disrupted because of their political views and
their lifestyles. Investigations have been based upon vague stand-
ards whose breadth made excessive collection inevitable. Unsavory and
vicious tactics have been employed— including anonymous attempts
to break up marriages, disrupt meetings, ostracize persons from their
professions, and provoke target groups into rivalries that might
result in deaths. Intelligence agencies have served the political and
personal objectives of presidents and other high officials. While the
agencies often committed excesses in response to pressure from high
officials in the Executive branch and Congress, they also occa-
sionally initiated improper activities and then concealed them from
officials whom they had a duty to inform.

Governmental officials — including those whose principal duty is to
enforce the law — have violated or ignored the law over long periods
of time and have advocated and defended their right to break the law.

The Constitutional system of checks and balances has not adequately
controlled intelligence activities. Until recently the Executive branch
has neither delineated the scope of permissible activities nor estab-
lished procedures for supervising intelligence agencies. Congress has
failed to exercise sufficient oversight, seldom questioning the use to
which its apropriations were being put. Most domestic intelligence
issues have not reached the courts, and in those cases when they have
reached the courts, the judiciary has been reluctant to grapple with
them.

Each of these points is briefly illustrated below, and covered in sub-
stantially greater detail in the following sections of the report.

1. The Number of People Affected hy Domestic Intelligerwe
Activity

United States intelligence agencies have investigated a vast num-
ber of American citizens and domestic organizations. FBI headquar-
ters alone has developed over 500,000 domestic intelligence files,"
and these have been augmented by additional files at FBI Field Offices.
The FBI opened 65,000 of these domestic intelligence files in 1972
alone.^2 In fact, substantially more individuals and groups are subject
to intelligence scrutiny than the number of files would appear to
indicate, since typically, each domestic intelligence file contains in-
formation on more than one individual or group, and this information
is readily retrievable through the FBI General Name Index.

The number of Americans and domestic groups caught in the domes-
tic intelligence net is further illustrated by the following statistics :

— Nearly a quarter of a million firet class letters were
opened and photographed in the United States by the CIA
between 1953-1973, producing a CIA computerized index of
nearly one and one-half million names.^^

— At least 130,000 first class letters were opened and photo-
graphed by the FBI between 1940-1966 in eight U.S. cities.^^

— Some 300,000 individuals were indexed in a CIA com-
puter system and separate files were created on approximately
7,200 Americans and over 100 domestic groups during the
course of CIA's Operation CHAOS (1967-1973).^^

— ]\iillions of private telegrams sent from, to, or through
the United States were obtained by the National Security
Agency from 1947 to 1975 under a secret arrangement with
three United States telegraph companies.^*'

— An estimated 100,000 Americans were the subjects of
United States Army intelligence files created between the
mid-1960's and 1971.^^

— Intelligence files on more than 11,000 individuals and
groups were created by the Internal Kevenue Service between

" Memorandum from the FBI to the Senate Select Committee, 10/6/75.

" James Angleton testimony, 9/17/75, p. 28.

" See Mail Opening Report : Section IV, "FBI Mail Openings."

^^ Chief, International Terrorist Group testimony. Commission on CIA Activi-
ties Within the United States, 3/10/75. pp. 1485-1489.

"' Statement by the Chairman, 11/6/75 ; re : SHAMROCK, Hearings, Vol. 5,
pp. 57-60.

" See Military Surveillance Report : Section II, "The Collection of Information
a,bout the Political Activities of Private Citizens and Private Organizations."

1969 and 1973 and tax investigations were started on the basis
of political rather than tax criteria.^^

— At least 26,000 individuals were at one point catalogued
on an FBI list of persons to be rounded up in the event of a
"national emergency".^^

2. Too Much Information Is Collected For Too Long
Intelligence agencies have collected vast amounts of information
about the intimate details of citizens' lives and about their participa-
tion in legal and peaceful political activities. The targets of intelli-
gence activity have included political adherents of the right and the
left, ranging from activitist to casual supporters. Investigations have
been directed against proponents of racial causes and Avomen's rights,
outspoken apostles of nonviolence and racial hannony ; establishment
}X)]iticians; religious groups; and advocates of new life styles. The
widespread targeting of citizens and domestic groups, and the exces-
sive scope of the collection of information, is illustrated by the fol-
lowing examples :

(a) The "Women's Liberation Movement" was infiltrated by in-
formants who collected material about the movement's policies, leaders,
and individual members. One report included the name of every
woman who attended meetings,^" and another stated that each woman
at a meeting had described "how she felt oppressed, sexually or other-
wise".^^ Another report concluded that the movement's purpose was
to "free women from the humdrum existence of being only a wife and
mother", but still recommended that the intelligence investigation
should be continued.^^

(b) A prominent civil rights leader and advisor to Dr. Martin
Luther King, Jr., was investigated on the suspicion that he might be
a Communist "sympathizer". The FBI field office concluded he was
not.2^ Bureau headquarters directed that the investigation continue —
using a theory of "guilty until proven innocent :"

The Bureau does not agree with the expressed belief of the

field office that ^* is not sympathetic to the

Party cause. While there may not be any evidence that

is a Communist neither is there any substantial

evidence that he is anti-Communist.^^

(c) FBI sources reported on the formation of the Conservative
American Christian Action Council in 1971.^^ In the 1950's, the Bu-
reau collected information about the John Birch Society and passed

^^ See IRS Report : Section II, "Selective Enforcement for Nontax Purposes."

" Memorandum from A. H. Belmont to L. V. Boardman, 12/8/54. Many of the
memoranda cited in this report were actually written by FBI personnel other
than those whose names were indicated at the foot of the document as the author.
Citation in this report of specific memoranda by using the names of FBI personnel
which so appear is for documentation purposes only and is not intended to presume
authorship or even knowledge in all cases.

^ Memorandum from Kansas City Field Office to FBI Headquarters, 10/20/70.
(Hearings. Vol. 6, Exhibit 54-3)

^ Memorandum from New York Field Office to FBI Headquarters, 5/28/69,
p. 2. (Hearings, Vol. 6, Exhibit 54-1)

^ Memorandum from Baltimore Field Office to FBI Headquarters, 5/11/70,
p. 2.

^ Memorandum from New York Field Office to FBI Headquarters, 4/14/64.

"* Name deleted by Committee to protect privacy.

^ Memorandum from FBI Headquarters to New York Field Office 4/24/64, re
CPUSA, Negro question.

^' James Adams testimony, 12/2/75, Hearings, Vol. 6, p. 137.

it to the White House because of the Society's "scurillous attack" on
President Eisenhower and other high Government olhcials.^'

(d) Some investigations of tiie lawiul activities of peaceful groups
have continued for decades. For example, the NAACP was investi-
gated to determine whether it "had comiections with" the Communist
Party. The investigation lasted for over twenty-five years, although
nothing was found to rebut a report during the first year of the investi-
gation that the NAACP had a "strong tendency" to "steer clear of
Communist activities." ^® Similarly, the FBI has admitted that the
Socialist Workers Party has committed no criminal acts. Yet the
Bureau has investigated the Socialist Workers Party for more than
three decades on the basis of its revolutionary rhetoric--which the
FBI concedes falls short of incitement to violence — and its claimed
international links. The Bureau is currently using its informants to
collect information about SWP members' political views, including
those on "U.S. involvement in Angola," "food prices," "racial mat-
ters," the "Vietnam War," and about any of their efforts to support
non-SWP candidates for political office.'^

(e) National political leaders fell within the broad reach of in-
telligence investigations. For example, Army Intelligence maintained
files on Senator Adlai Stevenson and Congressman Abner Mikva
because of their participation in peaceful political meetings under sur-
veillance by Army agents.^" A letter to Kichard Nixon, while he was a^
candidate for President in 1968, was intercepted under CIA's mail
opening program.^^ In the 1960's President Johnson asked the FBI to
compare various Senators' statements on Vietnam with the Commu-
nist Party line ^^ and to conduct name checks on leading antiwar Sena-
tors.^^

(f) As part of their effort to collect information which "related
even remotely" to people or groups "active" in communities which had
"the potential" for civil disorder. Army intelligence agencies took
such steps as: sending agents to a Halloween party for elementary
school children in Washington, D.C., because they suspected a local
"dissident" might be present ; monitoring protests of welfare mothers'
organizations in Milwaukee ; infiltrating a coalition of church youth
groups in Colorado; and sending agents to a priests' conference in
Washington, D.C., held to discuss birth control measures.^^

(g) In the late 1960's and eaHy 1970's. student groups were sub-
jected to intense scrutinv. In 1970 the FBI ordered invest! <Tations of
everv member of the Students for a Democratic Societv and of "every
Black Student ITnion and similar group regardless of their past or

^Memorandum from F. J. Baumsardner to William C. Sullivan. 5/29/63.

^ Memorandum from Oklahoma City Field Offipe to FBT Headquarters. 9/19/41.
See Development of FBI Domestic Intelligence Investigations : Section IV, "FBI
Target Lists."

=® Chief Robert Shackleford testimony, 2/6/76. p. 91.

^"Senate Judiciary Subcommittee on Constitutional Ri.<^hts. Report. 1973, p. 57.

^ Senate Select Committee Staff summary of HTLINGUAL File Review,
9/5/75.

^ FBI Summary Memorandum. 1/31/75, re : Coverage of T.V. Presentation.

^ Letter from J. Edgar Hoover to Marvin Watson, 7/15/66.

** See Military Report : Sec. II, "The Collection of Information About the Po-
litical Activities of Private Citizens and Private Organizations."

present involvement in disorders." ^^ Files were opened on thousands of
young men and women so that, as the former head of FBI intelligence
explained, the information could be used if they ever applied for a
government job.^^

In the 196U's Bureau agents were instructed to mcrease their efforts
to discredit "New Left" student demonstrators by tactics including
publishing photographs ("naturally the most obnoxious picture
should be used"),^' using "misinformation" to falsely notify members
events had been cancelled,^^ and writing "tell-tale" letters to students'
parents.^^

(h) The FBI Intelligence Division commonly investigated any in-
dication that "subversive" groups already under investigation were
seeking to influence or control other groups.*" One example of the ex-
treme breadth of this "infiltration" theory was an FBI instruction in-
the mid-1960's to all Field Offices to investigate every "free university"
because some of them had come under "subversive influence." *^

(i) Each administration from Franklin D. Roosevelt's to Richard
Nixon's permitted, and sometimes encouraged, government agencies to
handle essentially political intelligence. For example :

— President Roosevelt asked the FBI to put in its files the names of
citizens sending telegrams to the White House opposing his "national
defense" policy and supporting Col. Charles Lindbergh.*^

— President Truman received inside information on a former
Roosevelt aide's efforts to influence his appointments,*^ labor union
negotiating plans,** and the publishing plans of journalists.*^

— President Eisenhower received reports on purely political and
social contacts with foreign officials by Bernard Baruch,*^ Mrs. Eleanor
Roosevelt,*^ and Supreme Court Justice William O. Douglas.*^''

— The Kennedy Administration had the FBI wiretap a Congres-
sional staff member,*^ three executive officials,*^ a lobbyist,^" and a
Washington law firm.^^ Attorney General Robert F. Kennedy received
the fruits of a FBI "tap" on Martin Luther King, Jr. ,^2 ^nd a "bug"
on a Congressman both of which yielded information of a political
nature.^^

^ Memorandum from FBI headquarters to all SAC's, 11/4/70.
'' Charles Brennan testimony, 9/25/75, Hearings, vol. 2 p. 117.
^^ Memorandum from FBI Headquarters to all SAC's, 7/5/68.
^Abstracts of New Left Documents #161. 115, 43. Memorandum from Wash-
ington Field Office to FBI Headquarters, 1/21/69.
^ Memorandum from FBI Headquarters to Cleveland Field Office, 11/29/68.
^° FBI Manual of Instructions, Sec. 87, B(2-f ).

" Memorandum from FBI Headquarters to San Antonio Field Office, 7/23/69.
*^ Memorandum from Stephen Early to J. Edgar Hoover, 5/21/40 ; 6/17/40.
^^ Letter from J. Edgar Hoover to George Allen, 12/3/46.
** Letter from .7. Edgar Hoover to Maj. Gen. Harry Vaughn, 2/15/47.
^ Letter from J. Edgar Hoover to M. J. Connelly, 1/27/50.
** Letter from J. Edgar Hoover to Dillon Anderson, 11/7/55.
" Letter from J. Edgar Hoover to Robert Cutler, 2/13/58.
"" Letters from J. Edgar Hoover to Robert Cutler, 4/21/53-4/27/53.
^ Memorandum from .1. Edgar Hoover to the Attorney General. 2/16/61.
* Memorandtmi from J. Edgar Hoover to the Attorney General. 2/14/61.
"Memorandum from J. Edgar Hoover to the Attorney General, 2/16/61.
^ Memorandum from ,1. Edgar Hoover to the Attorney General 6/26/62.
^ Memorandum from Charles Brennan to William Sullivan, 12/19/66.
"Memorandum from J. Edgar Hoover to the Attorney General, 2/18/61.

— President Johnson asked the FBI to conduct "name checks" of
his critics and of members of the staff of his 1964 opponent, Senator
Barry Goldwater.^* He also requested purely political intelligence on
his critics in the Senate, and received extensive intelligence reports on
political activity at the 1964 Democratic Convention from FBI elec-
tronic surveillance.^^

— President Nixon authorized a program of wiretaps which pro-
duced for the White House purely political or personal information
unrelated to national security, including information about a Supreme
Court justice.^^

3. Covert Action and the Use of IJIegal or Imjyroper Means

(a) Covert Action. — Apart from uncovering excesses in the collec-
tion of intelligence, our investigation has disclosed covert actions di-
rected against Americans, and the use of illegal and improper surveil-
lance techniques to gather information. For example :

(i) The FBI's COINTELPRO— counterintelligence program— was
designed to "disrupt" groups and "neutralize" individuals deemed to
be threats to domestic security. The FBI resorted to counterintelli-
gence tactics in part because its chief officials believed that the existing
law could not control the activities of certain dissident groups, and
that court decisions had tied the hands of the intelligence community.
Whatever opinion one holds about the policies of the targeted groups,
many of the tactics employed by the FBI were indisputably degrading
to a free society. COINTELPRO tactics included :

— Anonymously attacking the political beliefs of targets in order
to induce their employers to fire them ;

— Anonymously mailing letters to the spouses of intelligence targets
for the purpose of destroying their marriages ; ^^

— Obtaining from IRS the tax returns of a target and then attempt-
ing to provoke an IRS investigation for the express purpose of de-
terring a protest leader from attending the Democratic National
Convention ; ^^

— Falsely and anonymously labeling as Government informants
members of groups known to be violent, thereby exposing the falsely
labelled member to expulsion or physicial attack ; ^^

— Pursuant to instructions to use "misinformation" to disrupt
demonstrations, employing such means as broadcasting fake orders
on the same citizens band radio frequency used by demonstration
marshalls to attempt to control demonstrations.*^" and duplicating and
falsely filling out forms soliciting housing for persons coming to a
demonstration, thereby causing "long and useless journeys to locate
these addresses" ; ^^

^* Memorandum f roni J. Edgar Hoover to Bill Moyers. 10/27/64.

^Memorandum from C. D. DeLoach to .John Mohr, 8/29/64.

^ Letter from J. Edgar Hoover to H.R. Haldeman. 6/25/70.

" Memorandum from FBI Headquarter.?, to San Francisco Field Office,
11/26/68.

^Memorandum from [Midwest City] Field Office to FBI Headquarters,
8/1/68 ; memorandum from FBI Headquarters to [Midwest City] Field Office,
8/6/68.

°^ Memorandum from Columbia Field Office to FBI Headquarters, 11/4/70, re :
COINTELPRO-New Left.

^ Memorandum from Charles Brennan to William Sullivan. 8/15/68.

*^ Memorandum from Chicago Field Office to FBI Headquarters, 9/9/68.

— Sending an anonymous letter to the leader of a Chicago street
gang (described as "violence-prone") stating that the Black Panthers
were supposed to have "a hit out for you". The letter was suggested
because it "may intensify . . . animosity" and cause the street gang
leader to "take retaliatory action".®^

(ii) From "late 1963" until his death in 1968, Martin Luther King,
Jr., Avas the target of an intensive campaign by the Federal Bureau of
Investigation to "neutralize" him as an effective civil rights leader.
In the words of the man in charge of the FBI's "war" against Dr.
King, "No holds were barred." ^^

The FBI gathered information about Dr. King's plans and activi-
ties through an extensive surveillance program, employing nearly
every intelligence-gathering technique at the Bureau's disposal in
order to obtain information about the "private activities of Dr. King
and his advisors" to use to "completely discredit" them.^^

The program to destroy Dr. King as the leader of the civil rights
movement included efforts to discredit him with Executive branch
officials, Congressional leaders, foreign heads of state, American am-
bassadors, churches, universities, and the press.®^

The FBI mailed Dr. King a tape recording made from microphones
hidden in his hotel rooms which one agent testified was an attempt
to destroy Dr. King's marriage.^® The tape recording was accompanied
by a note which Dr. King and his advisors interpreted as threatening
to release the tape recording unless Dr. King committed suicide.^^

The extraordinary nature of the campaign to discredit Dr. King is
evident from two documents :

— At the August 1963 March on Washington, Dr. King told the
country of his "dream" that :

all of God's children, black men and white men, Jews and
Gentiles, Protestants and Catholics, will be able to join hands
and sing in the words of the old Negro spiritual, "Free
at last, free at last, thank God Almightly, I'm free at last."

The Bureau's Domestic Intelligence Division concluded that this
"demagogic speech" established Dr. King as the "most dangerous
and effective Negro leader in the country." ®^ Shortly afterwards, and
within days after Dr. King was named "Man of the Year" by Time
magazine, the FBI decided to "take him off his pedestal," reduce him
completely in influence," and select and promote its own candidate
to "assume the role of the leadership of the Negro people." ^^

— In early 1968, Bureau headquarters explained to the field that Dr.
King must be destroyed because he was seen as a potential "messiah"
who could "unify and electrify" the "black nationalist movement".
Indeed, to the FBI he was a potential threat because he might "aban-

'- Memorandum from FBI Headquarters to Chicago Field Office, 1/30/69 re:
COTNTELPRO, Black Nationalist-Hate Groups.

•"William C. Sullivan testimony, 11/1/75, p. 49.

** Memorandum from Baum.cardner to Sullivan, 2/4/64.

'^Memorandum from Chicago Field Office to FBI Headquarters, 12/16/68;
memorandum from FBI Headquarters to Chicago Field Office, 1/30/69, re:
COINTELPRO. Black Nationalist-Hate Groups.

•^William C. Sullivan, 11/1/7.5. pp. 104-105.

" Andrew Young testimony, 2/19/76. p. 8.

** Memorandum from Sullivan to Belmont. 8/30/63.

** Memorandum from Sullivan to Belmont, 1/8/64.

don his supposed 'obedience' to white liberal doctrines (non-viol-
ence)." ''° In short, a non- violent man was to be secretly attacked and
destroyed as insurance against his abandoning non-violence.

(h) Illegal or Iiwpro'per Means. — The surveillance which we in-
vestigated was not only vastly excessive in breadth and a basis for
degrading counterintelligence actions, but was also often conducted
by illegal or improper means. For example :

(1) For approximately 20 years the CIA carried out a pro-
gram of indiscriminately opening citizens' first class mail.
The Bureau also had a mail opening program, but cancelled it
in 1966. The Bureau continued, however, to receive the
illegal fruits of CIA's program. In 1970, the heads of both
agencies signed a document for President Nixon, which cor-
rectly stated that mail opening was illegal, falsely stated that
it had been discontinued, and proposed that the illegal open-
ing of mail should be resumed because it would provide use-
ful results. The President approved the program, but with-
drew his approval five days later. The illegal opening con-
tinued nonetheless. Throughout this period CIA officials knew
that mail opening was illegal, but expressed concern about the
"flap potential" of exposure, not about the illegality of their
activity.''^

(2) From 1947 imtil May 1975, NSA received from inter-
national cable companies millions of cables which had been
sent by American citizens in the reasonable expectation that
they would be kept private.''^

(3) Since the early 19B0's, intelligence agencies have
frequently wiretapped and bugged American citizens with-
out the benefit of judicial warrant. Recent court decisions
have curtailed the use of these techniques against domestic
targets. But past subjects of these surveillances have included
a United States Congressman, a Congressional staff member,
journalists and newsmen, and numerous individuals and
groups who engaged in no criminal activity and who posed
no genuine threat to the national security, such as two Wliite
House domestic affairs advisers and an anti-Vietnam War
protest group. While the prior written approval of the Attor-
ney General has been required for all warrantless wiretaps
since 1940, the record is replete with instances where this
requirement was ignored and the Attorney General gave only
after-the-fact authorization.

Until 1965, microphone surveillance by intelligence agen-
cies was wholly unregiilated in certain classes of cases. Within
weeks after a 1954 Supreme Court decision denouncing the
FBI's installation of a microphone in a defendant's bedroom,
the Attorney General informed the Bureau that he did not
believe the decision applied to national security cases and

"' Memorandum from FBI Headquarters to all SACs, 3/4/68.
''^ See Mail Opening Report : Section II, "Legal Considerations and the 'Flap'
Potential."
■" See NSA Report : Section I, "Introduction and Summary."

permitted the FBI to continue to install microphones sub-
ject only to its own "intelligent restrainf'J^

(4) In several cases, purely political information (such
as the reaction of Congress to an Administration's legislative
proposal) and purely personal information (such as cov-
erage of the extra-marital social activities of a high-level Ex-
ecutive official under surveillance) was obtained from elec-
tronic surveillance and disseminated to the highest levels of
the federal government.^*

(5) Warrantless break-ins have been conducted by intelli-
gence agencies since World War II. During the 1960's alone,
the FBI and CIA conducted hundreds of break-ins, many
against American citizens and domestic organizations. In
some cases, these break-ins were to install microphones; in
other cases, they were to steal such items as membership lists
from organizations considered "subversive" by the Bureau.'^^

(6) The most pervasive surveillance technique has been
the informant. In a random sample of domestic intelligence
cases, 83% involved informants and 5% involved electronic
surveillance.'^*' Informants have been used against peaceful,
law-abiding groups; they have collected information about
personal and political views and activities.^^ To maintain
their credentials in violence-prone groups, informants have
involved themselves in violent activity. This phenomenon is
well illustrated by an informant in the Klan. He was present
at the murder of a civil rights worker in Mississippi and sub-
sequently helped to solve the crime and convict the perpetra-
tors. Earlier, however, while performing duties paid for by
the Government, he had previously "beaten people severely,
had boarded buses and kicked people, had [gone] into res-
taurants and beaten them [blacks] with blackjacks, chains,
pistols." "^ Although the FBI requires agents to instruct in-
formants that they cannot be involved in violence, it was
understood that in the Klan, "he couldn't be an angel and
be a good informant." ^^

Jf.. Ignoring the Law
Officials of the intelligence agencies occasionally recognized that
certain activities were illegal, but expressed concern only for "flap
potential." Even more disturbing was the frequent testimony that the
law, and the Constitution were simplv ignored. For example, the
author of the so-called Huston plan testified :

Question. Was there any person who stated that the activity
recommended, which you have previously identified as being

''' Memorandum from Attorney General Brownell to J. Edgar Hoover, 5/20/54.

'* See finding on Political Abuse. To protect the privacy of the targeted
individual, fhe Committee has omitted the citation to the memorandum concern-
ing the example of purelv personal information.

" Memorandum from W. C. Sullivan to C. D. DeT»aeh, 7/19/66, p. 2.

'" General Accounting Office Report on Domestic Intelligence Operations of the
FBT. 9/75.

■" Mary .To Cook testimony. 12/2/75, Hearings, Vol. 6. p. 111.

" Gary Rowe deposition, 10/17/75, p. 9.

" Special Agent No. 3 deposition, 11/21/75, p. 12.

illegal opening of the mail and breaking and entry or bur-
glary— was there any single person who stated that such ac-
tivity should not be done because it was unconstitutional?

Answer. No.

Question. Was there any single person who said such activ-
ity should not be done because it was illegal ?

Answer. No.^°

Similarly, the man who for ten years headed FBI's Intelligence
Division testif ed that :

. . . never once did I hear anybody, including myself, raise the
question : "Is this course of action which we have agreed upon
lawful, is it legal, is it ethical or moral." We never gave any
thought to this line of reasoning, because we were just natu-
rally pragmatic.^^

Although the statutory law and the Constitution were often not
"[given] a thought".^^ there was a general attitude that intelligence
needs were responsive to a higher law. Thus, as one witness testified
in justifying the FBI's mail opening program :

It was my assumption that what we were doing was justified
by what we had to do . . . the greater good, the national
security.^^

5. Deficiencies in Accountability and Control

The overwhelming number of excesses continuing over a prolonged
period of time were due in large measure to the fact that the system
of checks and balances — ^created in our Constitution to limit abuse of
Governmental power — ^was seldom applied to the intelligence com-
munity. Guidance and regulation from outside the intelligence agen-
cies— where it has been imposed at all — has been vague. Presidents
and other senior Executive officials, particularly the Attorneys Gen-
eral, have virtually abdicated their Constitutional responsibility to
oversee and set standards for intelligence activity. Senior government
officials generally gave the agencies broad, general mandates or
pressed for immediate results on pressing problems. In neither case
did they provide guidance to prevent excesses and their broad
mandates and pressures themselves often resulted in excessive or
improper intelligence activity.

Congress has often declined to exercise meaningful oversight, and
on occasion has passed laws or made statements which were taken by
intelligence agencies as supporting overly-broad investigations.

*' Huston testimony, 9/23/75, Hf-arin?s. Vol. 2, p. 41.

"^William Sullivan testimony, 11/1/75, pp. 92-93.

**The quote is from a Bureau official who had supervised for the "Black
Nationalist Hate Group" COINTEI.PRO.

"Question. Did anybody at any time that you r^memher during the course of
the programs discuss the Constitutionality or the legal authority, or anything
else like that?

"Ansiwer. No, we never gave it a thought. As far as T know, nobody engaged
or ever had any idea that they were doing anything other than what was the
policy of the Bureau which had been policy for a long time." (George Moore
deposition, 11/3/75, p. 83.)

^ Branigan, 10/9/75, p. 41.

On the other hand, the record reveals instances when intelligence
agencies have concealed improper activities from their superiors in
the Executive branch and from the Congress, or have elected to dis-
close only the less questionable aspects of their activities.

There has been, in short, a clear and sustained failure by those
responsible to control the intelligence community and to ensure its
accountability. There has been an equally clear and sustained failure
by intelligence agencies to fully inform the proper authorities of their
activities and to comply with directives from those authorities.

6. The Adverse Impact of Improper Intelligence Activity

Many of the illegal or improper disruptive efforts directed against
American citizens and domestic organizations succeeded in injuring
their targets. Although it is sometimes difficult to prove that a target's
misfortunes were caused by a comiter-intelligence program directed
against him, the possibility that an arm of the United States Govern-
ment intended to cause the harm and might have been responsible is
itself abhorrent.

The Committee has observed numerous examples of the impact of
intelligence operations. Sometimes the harm was readily apparent —
destruction of marriages, loss of friends or jobs. Sometimes the atti-
tudes of the public and of Government officials responsible for formu-
lating policy and resolving vital issues were influenced by distorted
intelligence. But the most basic harm was to the values of privacy
and freedom which our Constitution seeks to protect and which
intelligence activity infringed on a broad scale.

(a) General E-fforts to Discredit. — Several efforts against individuals
and groups appear to have achieved their stated aims. For example :

— A Bureau Field Office reported that the anonvmous letter it had
sent to an activist's husband accusing his wife of infidelity "contributed
very stronglv" to the subsequent breakup of the marriage.^*

— ^ Another Field Office reported that a dra^t counsellor deliberately,
and falsely, accused of being an FBI informant was "ostracized" by
his friends and associates.^^

— Two instructors were reportedly put on probation after the Bu-
reau sent an anonvmous letter to a university administrator about their
funding of an anti-administration student newspaper.^^

— The Bureau evaluated its attempts to "put a stop" to a contribu-
tion to the Southern Christian Leadership Conference as "quite
successful." ^^

— An FBI document boasted that a "pretext" phone call to Stokeley
Carmichael's mother telling her that members of the Black Panther
Party intended to kill her son left her "shocked". The memorandum in-
timated that the Bureau believed it had been responsible for Carmi-
chael's fliofht to Africa the following day.^^

{h) Media Manipul<ition. — ^The FBI has attempted covertly to in-
fluence the public's perception of persons and organizations by dis-
seminatin.fT derogatory information to the press, either anonymously
or through "friendly" news contacts. The impact of those articles is

^ Memorandum from St. Louis Field Office to FBT Headquarters. 6/19/70.
" Memorandum from San Dieeo Field Office to FBT Headquarters. 4/30/69.
** Memorandum from Mobile Field Office to FBI Headquarters, 12/9/70.
" Memorandum from Wick to DeLoach, 11/9/66.
*® Memorandum from New York Field Office to FBI Headquarters, 9/9/68.

generally difficult to measure, although in some cases there are fairly
direct connections to injury to the target. The Bureau also attempted
to influence media reporting which would have any impact on the pub-
lic image of the FBI. Examples include :

— Planting a series of derogatory articles about Martin Luther
King, Jr., and the Poor People's Campaign.^^

For example, in anticipation of the 1968 "poor people's march on
Washington, D.C.," Bureau Headquarters granted authority to
furnish "cooperative news media sources" an article "designed to cur-
tail success of Martin Luther King's fimd raising." ^ Another memo-
randum illustrated how "photographs of demonstrators" could be used
in discrediting the civil rights movement. Six photogi'aphs of partic-
ipants in the poor people's campaign in Cleveland accompanied the
memorandum with the following note attached: "These [photo-
graphs] show the militant aggressive appearance of tlie participants
and might be of interest to a cooperative news source." °^ Information
on the Poor People's Campaign was provided by the FBI to friendly
reporters on the condition that "the Bureau must not be revealed as
the source." ^^

— Soliciting information from Field Offices "on a continuing basis"
for "prompt . . . dissemination to the news media ... to discredit
the New Left movement and its adherents." The Headquarters direc-
tive requested, among other things, that :

specific data should be furnished depicting the scurrilous and
depraved nature of many of the characters, activities, habits
and living conditions representative of New Left adherents.

Field Offices were to be exhorted that : "Every avenue of possible em-
barrassment must be vigorously and enthusiastically explored." ^^

—Ordering Field Offices to gather information which would dis-
prove allegations bv the "liberal press, the bleeding hearts, and the
forces on the left" that the Chicago police used undue force in dealing
with demonstrators at the 1968 Democratic Convention.^^

— ^Taldng advantage of a close relationship with the Chairman of
the Board — described in an FBI memorandum as "our good friend" —
of a magazine with national circulation to influence articles which re-
lated to the FBI. For example, through this relationship the Bureau :
"squelched" an "unfavorable article against the Bureau" written by a
free-lance writer about an FBI investigation ; "postponed publication"
of an article on another FBI case; "forestalled publication" of an ar-
ticle by Dr. Martin Luther King, Jr. ; and received information about
proposed editing of King's articles.^^

(c) Distorting Data to Influence Government Policy aTuI Pub-
lic Perceptions
Accurate intelligence is a prerequisite to sound government policy.
However, as the past head of the FBI's Domestic Intelligence Division
reminded the Committee :

^ See Kins: Report : Sections V and "VII.

•* Memorandum from G. C. Moore to W. C. Sullivan, 10/26/68.

*^ Memorandum from G. C. Moore to W. C. Sullivan, 5/17/68.

®^ Memorandum from FBI Headouarters to Miami Field Office, 7/0/68.

*' Memorandum from C. D. Brennan toW. C. Sullivan. 5/22/68.

'"Memorandum from FBI Headquarters to Chicaeo Field Office, 8/28/68.

** Memorandum from W, H. Stapleton to DeLoach, 11/3/64.

The facts by themselves are not too meaningful. They are
something like stones cast into a heap.^^

On certain crucial subjects the domestic intelligence agencies reported
the "facts" in ways that gave rise to misleading impressions.

For example, the FBI's Domestic Intelligence Division initially dis-
counted as an "obvious failure" the alleged attempts of Communists
to influence the civil rights movement. °^ Without any significant
change in the factual situation, the Bureau moved from the Division's
conclusion to Director Hoover's public congressional testimony charac-
terizing Communist influence on the civil rights movement as "vitally
important." ^^^

FBI reporting on protests against the Vietnam War provides an-
other example of the manner in which the information provided to
decision-makers can be skewed. In acquiescence with a judgment al-
ready ex])ressed by President Johnson, the Bureau's reports on dem-
onstrations against the War in Vietnam emphasized Communist efforts
to influence the anti-war movement and underplayed the fact that the
vast majority of demonstrators were not Communist controlled.^^

{d) ^''Chilling'''' First AmendTnent Rights. — The First Amendment
protects the Eights of American citizens to engage in free and open
discussions, and to associate with persons of their choosing. Intel-
ligence agencies have, on occasion, expressly attempted to interfere
with those rights. For example, one internal FBI memorandum
called for "more interviews" with New Left subjects "to enhance
the paranoia endemic in these circles" and "get the point across there
is an FBI agent behind every mailbox." ^°°

INIore importantly, the government's surveillance activities in the
aggregate — whether or not expressly intended to do so — tends, as
the Committee concludes at p- 290 to deter the exercise of First
Amended riglits bv American citizens who become aware of the gov-
ernment's domestic intelligence prosfram.

(e) Preventing the Free Exchange of Ideas. Speakers, teachers,
writers, and publicatioiis themselves were targets of the FBI's counter-
intelligence proarram. The FBI's efforts to interfere with the free ex-
change of ideas included :

— Anonymously attempting to prevent an alleged "Communist-
front" group from lioldinof a forum on a midwest campus, and then
investi.o-ating the judge who ordered that the meeting be allowed to
proceed. ^°^

— IJsin.o: another "confidential source" in a foundation which con-
tributed to a local college to apply pressure on the school to fire an
activist professor.

— Anonymously contacting a university official to urge him to "per-
suade" two professors to stop fmidinor a student newspaper, in order
to "eliminate what voice the New Left has" in the area.

*'Snllivan. 11/1/75. p. 48.

°^ Memorandum from Bnnmgardner to Sullivan. 8/26/63 p. 1. Hoover himself
eonstmed the initial Division estimate to mean that Communist influence was
"infinitesimal."

08^ See Fniflins: on Politieal Abuse, p. 22.5.

"^ Sop Findinc on Political Abuse, p. 225.

'•^ "New T.eft Notes— Philadelphia." 9/16/70. Edition #1.

^"^ :\remorandum fmm "netroit Field Office to FBI Hendnuarters 10/26/60;
Memorandum from FBI Headquarters to Detroit Field Office 10/27, 28, 31/60;
Memorandum from Baumgardner to Belmont, 10/26/60.

-786 O - 76 - .T

— Targeting the New Mexico Free University for teaching "con-
frontation politics" and "draft counseling training"."^

7. Cost and Value

Domestic intelligence is expensive. We have already indicated the
cost of illegal and improper intelligence activities in tenns of the
harm to victims, the injury to constitutional values, and the damage
to the democratic process itself. The cost in dollars is also significant.
For example, the FBI has budgeted for fiscal year 1976 over $7
million for its domestic security informant program, more than twice
the amount it spends on informants against organized crime.^°^ The
aggregate budget for FBI domestic security intelligence and foreign
counterintelligence is at least $80 million.^"* In the late 1960s and early
1970s, when the Bureau was joined by the CIA, the military, and
NSA in collecting information about the anti-war movement and
black activists, the cost was substantially greater.

Apart from the excesses described above, the usefulness of many
domestic intelligence activities in serving the legitimate goal of pro-
tecting society has been questionable. Properly directed intelligence
investigations concentrating upon hostile foreign agents and violent
terrorists can produce valuable results. The Committee has examined
cases where the FBI uncovered "illegal" agents of a foreign power
engaged in clandestine intelligence activities in \aolation of federal
law. Information leading to the prevention of serious violence has
been acquired by the FBI through its informant penetration of ter-
rorist groups and through the inclusion in Bureau files of the names
of persons actively involved with such groups.^"^ Nevertheless, the most
sweeping domestic intelligence surveillance programs have produced
surprisingly few useful returns in view of their extent. For example :

^*^See COINTELPRO Report: Section III. "The GoaLs of COTNTELPRO :
Preventing or disrupting the exercise of First Amendment Rights."

^"^ The budget for FBI informant programs includes not only the payments to
informants for their services and expenses, but also the expenses of FBI per-
sonnel who supervise informants, their support costs, and administrative over-
head. (Justice Department letter to Senate Select Committee, 3/2/76).

^''* The Committee is withholding the portion of this figure spent on domestic
security intelligence (informants and other investigations combined) to pre-
vent hostile foreign intelligence services from deducing the amount spent on
coiinterespionage. The $80 million figure does not include all costs of separate
FBI activities which may be drawn upon for domestic security intelligence pur-
poses. Among these are the Identification Division (maintaining fingerprint
records), the Files and Communications Division (managing the storage and
retrieval of investigative and intelligence files), and the FBI Laboratory.

^"^ Examples of valuable informant reports include the following : one
informant reported a plan to ambush police officers and the location of a cache
of weapons and dynamite ; another informant reported plans to transport
illegally obtained weapons to "Washington, D.C. ; two informants at one meeting
discovered plans to dynamite two city blocks. All of these plans were frustrated
by further investigation and protective measures or arrest. (FBI memorandum
to Select Committee, 12/10/75 ; Senate Select Committee Staff memorandum :
Intelligence Cases in Which the FBI Prevented Violence, undated.)

One example of the use of information in Bureau files involved a "name
check" at Secret Service request on certain persons applying for press credentials
to cover the visit of a foreign head of state. The discovery of data in FBI files
indicating that one such person had been actively involved with violent groups
led to further investigation and ultimately the issuance of a search warrant. The
search produced evidence, including weapons, of a plot to assassinate the foreign
head of state. (FBI memorandum to Senate Select Committee, 2/23/76)

—Between 1960 and 1974, the FBI conducted over 500,000 separate
investigations of persons and groups under the "subversive" category,
predicated on the possibility that they might be likely to overthrow
the government of the United States.^"'' Yet not a single individual or
group has been prosecuted since 1957 under the laws which prohibit
planning or advocating action to overthrow the government and which
are the main alleged statutory basis for such FBI investigations."^

— A recent study by the General Accounting Office has estimated
that of some 17,528 FBI domestic intelligence investigations of in-
dividuals in 1974, only 1.3 percent resulted in prosecution and con-
viction, and in only "about 2 percent" of the cases was advance knowl-
edge of any activity — legal or illegal — obtained.^°^

— One of the main reasons advanced for expanded collection of
intelligence about urban unrest and anti-war protest was to help re-
sponsible officials cope with possible violence. However, a former
White House official with major duties in this area under the John-
son administration has concluded, in retrospect, that "in none of these
situations . . . would advance intelligence about dissident groups
[have] been of much help," that what was needed was "physical intel-
ligence" about the geography of major cities, and that the attempt to
"predict violence" was not a "successful undertaking." ^"'^

— Domestic intelligence reports have sometimes even been counter-
productive. A local police chief, for example, described FBI reports
which led to the positioning of federal troops near his city as :

. . . almost completely composed of unsorted and unevalu-
ated stories, threats, and rumors that had crossed my desk in
New Haven. Many of these had long before been discounted
by our Intelligence Division. But they had made their way
from New Haven to Washington, had gained completely un-
warranted credibility, and had been submitted by the Di-
rector of the FBI to the President of the United States.
They seemed to present a convincing picture of impending
holocaust.""

In considering its recommendations, the Committee undertook an
evaluation of the FBI's claims that domestic intelligence was neces-
sary to combat terrorism, civil disorders, "subversion," and hostile

"' This figure is the number of "investigative matters" handled by the FBI
in this area, including as separate items the investigative leads in particular
cases which are followed up by various field oflSces. (FBI memorandum to
Select Committee. 10/6/75.)

^'" Schackelford 2/13/76, p. 32. This ofllcial does not recall any targets of "sub-
versive" investigations having been even referred to a Grand Jury under these
statutes since the 1950s.

108 upgj Domestic Intelligence Operations — Their Purpose and Scope: Issues
Tliat Need To Be Resolved," Report by the Comptroller General to the House
Judiciary Committee, 2/24/76, pp. 138-147. The FBI contends that these statis-
tics may be unfair in that they concentrate on investigations of individuals
rather than groups. (Ibid., Appendix V) In response, GAO states that its
"sample of organization and control files was sufficient to determine that generally
the FBI did not report advance knowledge of planned violence." In most of the
fourteen instances where such advance knowledge was obtained, it relatetl to
"such activities as speeches, demonstrations or meetings — all essentially non-
violent." (Ibid. p. 144)

^•^ .Joseph Califano testimony. 1/27/76, pp. 7-8.

"" James Ahern testimony, 1/20/76, pp. 16, 17.

foreign intelligence activity. The Committee reviewed voluminous
materials bearing on this issue and questioned Bureau officials, local
police officials, and present and former federal executive officials.

We have found that we are in fundamental agreement with the
wisdom of Attorney General Stone's initial warning that intelligence
agencies must not be "concerned with political or other opinions of
individuals" and must be limited to investigating essentially only
"such conduct as is forbidden by the laws of the United States." The
Committee's record demonstrates that domestic intelligence which de-
parts from this standard raises grave risks of undermining the demo-
cratic process and harming the interests of individual citizens. This
danger weighs heavily against the speculative or negligible benefits of
the ill-defined and overbroad investigations authorized in the past.
Thus, the basic purpose of the recommendations contained in Part IV
of this report is to limit the FBI to investigating conduct rather than
ideas or associations.

The excesses of the past do not, however, justify depriving the
United States of a clearly defined and effectively controlled domestic
intelligence capability. The intelligence services of this nation's inter-
national adversaries continue to attempt to conduct clandestine espio-
nage operations within the United States.^^^ Our recommendations
provide for intelligence investigations of hostile foreign intelligence
activity.

INIoreover, terrorists have engaged in serious acts of violence which
have brought death and injury to Americans and threaten further such
acts. These acts, not the ])olitics or beliefs of those who would commit
them, are the proper focus for investigations to anticipate terrorist
violence. Accordingly, the Committee would permit properly con-
trolled intelligence investigations in those narrow circumstances.^^^

Concentration on imminent violence can avoid the wasteful dis-
])ersion of resources which lias characterized tlie sweepin<T^ (and fruit-
less) domestic intelligence investigations of the past. But the most
important reason for the fundamental change in the domestic in-
telligence operations which our Eecommendations propose is the
need to protect the constitutional rights o^ Americans.

In li^rht of the record of al^use revealed by our inquiry, the Com-
mittee is not satisfied with the position that mere exposure of what
has occurred in the past will prevent its recurrence. Clear legal
standards and effective oversight and controls are necessary to en. ure
that domestic intelligence activity does not itself undermine the
democratic system it is intended to protect.

^" An indication of the scope of the problem is the inoreasing number of official
representatives of communist governments in the United States. For exnmple,
the number of Soviic't officials in this country has increased from 333 in 1961 to
1.079 bv early 1975. There were 2,683 East- West exf^hange visitors and l.nOO com-
mercial visitors in 1974. (FBI Memorandum. "Intelligence Activities Within the
United States by Foreign Governments," 3/20/7.^. )

^"According to the FBI, there were S9 bombings attributable to terrorist
activity in 1975, as compared with 4.5 in 1974 and 24 in 1973. Six persons died in
terrorist-flaimpd bombings and 76 persons were injured in 1975. Five other deaths
were reported in other types of terrorist inf idents. Monetary damage reported in
terrorist bombings exceeded 2.7 million dollars. It should be noted, however, that
terrorist bombings are only a fraction of the total number of bombings in this
country. Thus, the 89 terrorist bombings in 1975 were amonfr n total r>f over
1,900 bombings, most of which were not, according to the FBI, attributable
cleirlv to terrorist activity. (FBI memorandum to Senate Select Committee,
2/23/76.)

II. THE GROWTH OF DOMESTIC INTELLIGENCE :

1936 TO 1976

A. Summary

1. The Lesson: History Repeats Itself

During and after the First World War, intelligence agencies, in-
cluding the predecessor of the FBI, engaged in re]Dressive activity.^
A new Attorney General, Harlan Fiske Stone, sought to stop the in-
vestigation of ''political or other opinions." ' This restraint was em-
bodied only in an executive pronouncement, however. No statutes were
passed to prevent the kind of improper activity which had been ex-
posed. Thereafter, as this narrative will show, the abuses returned in a
new form. It is now the responsibility of all three branches of gov-
ernment to ensure that the pattern of abuse of domestic intelligence
activity does not recur.

2. The Pattern: Broadening Through Time,

Since the re-establishment of federal domestic intelligence programs
in 1936, there has been a steady increase in the government's capa-
bility and willingness to pry into, and even disrupt, the political ac-
tivities and personal lives of the people. The last forty years have
witnessed a relentless expansion of domestic intelligence activity be-
yond investigation of criminal conduct toward the collection of polit-
ical intelligence and the launching of secret offensive actions against
Americans.

The initial incursions into the realm of ideas and associations were
related to concerns about the influence of foreign totalitarian powers.

^ Repressive practices during World War I included the formation of a vol-
unteer auxiliary force, known as the American Protective League, which as-
sisted the Justice Department and military intelligence in the investigation of
"un-American activities" and in the mass round-up of 50,000 persons to discover
draft evaders. These so-called "slacker raids" of 1918 involved warrantless
arrests without sufficient probable cause to believe that crime had been or
was about to be committed (FBI Intelligence Division memorandum, "An
Analysis of FBI Domestic Security Intelligence Investigations," 10/28/75.)

The American Protective League also contributed to the pressures which re-
sulted in nearly 2.000 prosecutions for disloyal utterances and activities during
World War I, a policy described by John Lord O'Brien, Attorney General Greg-
ory's Special Assistant, as one of "wholesale repression and restraint of public
oi)inion." (Zechariah Chafee. Free Speech in the United States (Cambridge:
Harvard I^niversity Press, 1941) p. 69.)

Shortly after the war the Justice Department and the Bureau of Investiga-
tion jointly planned the notorious "Palmer Raids", named for Attorney Gen-
eral A. Mitchell Palmer who ordered the overnight round-up and detention of
some 10,000 persons who were thought to be "anarchist" or "revolutionary"
aliens subject to deportation. (William Preston, Aliens and Dissenters (Cam-
liridge: Hnrvard T^niversity Press. 1963), chs. 7-8; Stanley Colien, A. Mitchell
Palmer: Politician (New York: Columbia University Press, 1963), chs. 11-12.)

^ See Attorney General Stone's full statement, p. 23.

(21)

Ultimately, however, intelligence activity was directed against do-
mestic groups advocating change in America, particularly those who
most vigorously opposed the "Vietnam war or sought to improve the
conditions of racial minorities. Similarly, the targets of intelligence
investigations were broadened from groups perceived to be violence
prone to include groups of ordinary protesters.

3. Three Periods of Growth for Domestic Intelligence

The expansion of domestic intelligence activity can usefully be di-
vided into three broad periods: (a) the pre-war and World "War II
period; (b) the Cold "W^ar era; and (c) the period of domestic dissent
beginning in the mid-sixties. The main developments in each of these
stages in the evolution of domestic intelligence may be summarized as
follows :

a. 1936-191,5
By presidential directive — rather than statute — the FBI and mili-
taiy intelligence agencies were authorized to conduct domestic intelli-
gence investigations. These investigations included a vaguely defined
mission to collect intelligence about "subversive activities" which
were sometimes unrelated to law enforcement. Wartime exigencies en-
couraged the unregulated use of intrusive intelligence techniques; and
the FBI began to resist supervision by the Attorney General.

h. 191,6-1963
Cold War fears and dangers nurtured the domestic intelligence pro-
grams of the FBI and militaiy, and they became permanent features
of government. Congress deferred to the executive branch in the
oversight of these programs. The FBI became increasingly isolated
from effective outside control, even from the Attorneys General. The
scope of investigations of "subversion" widened greatly. Under the
cloak of secrecv, the FBI instituted its COINTELPRO operations to
"disrupt" and "neutralize" "subversives". Tlie National Security
Agency, the FBI, and the CIA re-instituted instrusive wartime sur-
veillance techniques in contravention of law.

c. 196^-1976
Intelligence techniques which previously had been concentrated
upon foreign threats and domestic groups said to be under Communist
influence were applied with increasing intensity to a wide range of do-
mestic activity by American citizens. These techniques were utilized
against peaceful civil rights and antiwar protest activity, and there-
after in reaction to civil unrest, often without regard for the conse-
quences to American liberties. The intelligence agencies of the United
States — sometimes abetted by public opinion and often in response to
pressure from administration officials or the Congress— frequently dis-
regarded the law in their conduct of massive surveillance and aggres-
sive counterintelligence operations against American citizens. In the
past few years, some of these activities were curtailed, partly in re-
sponse to the moderation of the domestic crisis; but all too often im-
proper programs were terminated only in response to exposure, the
threat of exposure, or a change in the climate of public opinion, such
as that triggered by the Watergate affair.

B. Establishing a Permanent Domestic Intelligence
Structure: 1936-1945

1. Background: The Stone Standard

The first substantial domestic intellio^ence programs of the federal
government were established during World War I.

The Justice Department's Bureau of Investigation (as the FBI
was then known), military intelligence, other federal investigative
agencies, and the volunteer American Protective League were involved
in these programs.^ In the period immediately following World War
I, the Bureau of Investigation took part in the notorious Palmer Raids
and other activities against persons characterized as "subversive." *

Harlan Fiske Stone, who became Attorney General in 1924, described
the conduct of Justice Department and the Bureau of Investigation
before he took office as "lawless, maintaining many activities which
were without any authority in federal statutes, and engaging in many
practices which were brutal and tyrannical in tlie extreme." ^

Fearing that the investigative activities of the Bureau could invade
])rivacy and inhibit political freedoms. Attorney General Stone
announced :

There is always the posibility that a secret police may be-
come a menace to free government and free institutions,
because it carries with it the possibility of abuses of power
which are not always quickly apprehended or understood.
... It is important that its activities be strictly limited to the
performance of those functions for which it was created and
that its agents themselves be not above the law or beyond its
reach. . . . The Bureau of Investigation is not concerned with
political or other opinions of individuals. It is concerned only
with their conduct and then only with such conduct as is for-
bidden by the laws of the United States. When a police sys-
tem passes beyond these limits, it is dangerous to the proper
administration of justice and to human liberty, which it
should be our first concern to cherish.^

When Stone appointed J. Edgar Hoover as Acting Director of the
Bureau of Investigation, he instructed Hoover to adhere to this
standard :

The activities of the Bureau are to be limited strictly to in-
vestigations of violations of law, under my direction or under

'See Joan Jensen, The Price of Vigilance (Chicago: Rand McNally, 1968).
One FBI official recalled later, "There were probably seven or eight such active
organizations operating at full force dxiring war days and it was not an uncommon
experience for an Agent of this Bureau to call upon an individual in the course
of his investigation, to find out that six or seven other Government agencies had
been around to interview the party about the same matter." (Memorandum of
F. X. O'Donnell, Subject: Operations During World War I, 10/4/38).

* See footnote 1, p. 21.

"Letter from Justice Harlan Fiske Stone to Jack Alexander, 9/21/37, cited in
Alpheus T. Mason, Harlan FisJce Stone: Pillar of the Law (New York, Viking,
19ofi),p. 149.

" New York Times, 5/10/24.

the direction of an Assistant Attorney General regularly con-
ducting the work of the Department of Justice.^

Nevertheless, beginning in the mid-thirties, at White House direction,
the FBI reentered the realm of collecting intelligence about ideas and
associations.

■2. Main Developments of the 1936-191)6 Period

In the years preceding World War II, domestic intelligence activi-
ties were reinstituted, expanded, and institutionalized. Based upon
vague and conflicting orders to investigate the undefined areas of
"subversion" and "potential crimes" related to national security, the
FBI commenced a broad intelligence program. The FBI was author-
ized to preempt the field, although the military engaged in some in-
vestigation of civilians.

The FBI's domestic intelligence jurisdiction went beyond investiga-
tions of crime to include a vague mandate to investigate foreign in-
volvement in American affairs. In the exercise of this jurisdictional
authority, the Bureau began to investigate law abiding domestic
groups and individuals; its program was also open to misuse for
political purposes. The most intrusive intelligence techniques — ini-
tially used to meet wartime exigencies — were based on questionable
statutory interpretation, or lacked any foraial legal authorization.

The executive intentionally kept the issue of domestic intelligence-
gathering away from the Congress until 1939, and thereafter the
Congress appears to have deliberately declined to confront the issue.
The FBI generally complied with the Attorney General's policies,
but began to resist Justice Department review of its activities. On one
occasion, the Bureau appears to have disregarded an Attorney Gen-
eral's policy directive.

However important these developments were in themselves, the en-
during significance of this period is that it opened the institutional
door to greater excesses in later years.

3. Dotnestic Intelligence Authority : Vague and Con-flicting Executive
Orders
The executive orders upon which the Bureau based its intelligence
activity in the decade before World War II were vague and conflict-
ing. By using words like "subversion" — a term which was never
defined — and by permitting the investigation of "potential" crimes,
and matters "not within the specific provisions of prevailing statutes",
the foundation was laid for excessive intelligence gathering about
Americans.

''Stone to Hoover. 5/13/24, quoted in Mason, Harlan Fiskc Sitone, at p. 151.
Although Hoover had served as head of the General Intellijrence Division of the
Justice Department at the time of the "Palmer Raids" and became an Assistant
Director of the Bureau in 1921, he persuaded Attorney General Stone and Roeer
Baldwin of the American Civil I>iberties Union that he had plaved an "unwill-
ing part" in the excesses of the past, and he agreed to disband the Bureau's
"radical division." Baldwin advised Stone, "I think we were wrong in our esti-
mate of his attitude." (Baldwin to Stone. 8/6/2^. ouoted in Donald .Tohnson,
The Challenge to American Freedoms (University of Kentucky Press, 1063). pp.
174-17.5.)

In December 1924, Stone made Hoover Director of the Bureau of Investigation.

a. The Oinginal Roosevelt Orders

In 1934, according to a memorandum by J. Edgar Hoover, Presi-
dent Roosevelt ordered an investigation of "the Nazi movement in
this country." In response, the FBI conducted a one-time investiga-
tion, described by FBI Director Hoover as "a so-called intelligence
investigation." It concentrated on "the Nazi group," with particular
i-eference to "anti-racial" and "anti-American" activities having "any
possible connection with official representatives of the Gei-man gov-
ernment in the United States." ®

Two years later, in August 1936, according to a file memorandum
of Director Hoover, President Roosevelt asked for a more systematic
collection of intelligence about :

subversive activities in the United States, particularly Fas-
cism and Communism.

Hoover indicated further that the President wanted :

a broad picture of the general movement and its activities
as [they] may affect the economic and political life of the
coimtry as a whole.

The President and the FBI Director discussed the means by which
the Bureau might collect "general intelligence information" on this
subject.^ The only record of Attorney General Homer Cummings'
knowledge of, or authorization for, this intelligence assignment is
found in a memorandum from Director Hoover to his principal assist-
ant.i°

h. Orders in 1938-39: The Vagueness of ^'■Subversive Activities'^^

and '•''PotentiaV Crimes

In October 1938, Director Hoover advised President Roosevelt of

the "present purposes and scope" of FBI intelligence investigations,

"together with suggestions for expansion." His memorandum stated

that the FBI was collecting :

^ Memorandum from J. Edgar Hoover to Mr. Cowley, 5/10/34.

* J. Edgar Hoover memorandum to the files, 8/24/36. This memorandum states
that, earlier in the conversation. Director Hoover had told the President :

(i) Communists controlled or planned to take control of the West Coast long-
shoreman's union, the United Mine Workers Union and the Newspaper Guild (and
using those unions would l>e "able at any time to paralyze the country") ;

(ii) "activities . . . inspired by Commvuiists" had recently taken place in the
Government, "particularly in some of the Departments and the National Labor
Relations Board" ; and

(iii) The Communist Internationale had recently issued instructions for all
Communists to "vote for President Roosevelt and against Governor Landon be-
cause of the fact that Governor Landon is opposed to class warfare."

These comments indicate that the Bureau had already begun some intelli-
gence gathering on Communists and activities "inspired" by them prior to any
Presidential order. In addition. Hoover's memorandum referred to prior intelli-
gence collection on domestic right-wing figures Father Charles Coughlin and Gen-
eral Smediey Butler.

^° Hoover stated that Secretary of State Hull "at the President's suggestion, re-
quested of me, the representative of the Department of .Justice, to have investiga-
tion made of the subversive activities in this country, including communism and
fascism." He added that "the Attorney General verbally directed me to proceed
with this investigation." (Memorandum from J. Edgar Hoover to E. A. Tamm,
9/10/36.)

information dealing with various forms of activities of either
a subversive or so-called intelligence type.^^

Despite the references in Director Hoover's 1938 memorandum to
"subversive-type" investigations, an accompanying letter to the Pres-
ident from Attorney General Homer Cummings made no mention of
"subversion" and cited only the President's interest in "the so-called
espionage situation." ^^ Cummings' successor, Attorney General Frank
Murphy, appears to have abandoned the term "subversive activities." ^^
Moreover, when Director Hoover provided Attorney General Frank
Murphy a copy of his 1938 plan, he described it, without mentioning
"subversion," as a program "intended to ascertain the identity of per-
sons engaged in espionage, counterespionage, and sabotage of a nature
not loithin the specific provisioo^s of prevailing statutes.''^ ^* [Emphasis
added.] Murphy thereafter recommended to the President that he
issue an order concentrating "investigation of all espionage, counter-
espionage, and sabotage matters" in the FBI and military intelli-
gence.^^

President Roosevelt agreeed and issued an order which, like
Murphy's letter, made no mention of "subversive" or general intel-
ligence :

It is my desire that the investigation of all espionage, coun-
ter espionage, and sabotage matters be controlled and handled
by the Federal Bureau of Investigation of the Department of
Justice, the Military Intelligence Division of the War De-
partment, and the Office of Naval Intelligence in the Navy
Department. The directors of these three agencies are to
function as a committee to coordinate their activities.

No investigations should be conducted by any investigative
agency of the Government into matters involving actually or
potentially any espionage, counterespionage, or sabotage, ex-

" Memorandum on "domestic intelligence," prepared by J. Edgar Hoover,
enclosed with letter from Attorney General Cummings to Roosevelt, 10/20/38.
Director Hoover met with the President who, according to Hoover's memo-
randum, "approved the plan which I had prepared and which had been sent
to him by the Attorney General." (Memorandum to the files from J. Edgar
Hoover, 11/7/3S.)

" Letter from Attorney General Cummings to the President, 10/20/38.

^' On 2/7/39, the Assistant to the the Attorney General wrote letters to the
Secret Service, the Bureau of Internal Revenue, the Narcotics Bureau, the Cus-
toms Ser\-ice. the Coast Guard, and the Postal Inspection Service stating that the
FBI and military intelligence had "undertaken activities to investigate matters
relating to espionage and subversive activities." (Letter from J. B. Keenan, As-
sistant to the Attorney General, to F. J. Wilson, Chief, Secret Service, 2/7/39.)

A letter from Attorney General Murphy to the Secretary of the Treasury
shortly thereafter also referred to "subverisive activities." (Letter from Attorney
General Murphy to the Secretary of the Treasury, 2/16/39.)

However, a similar letter two days later referred only to matters "involving
espionage, counterespionage, and sabotage," without mentioning "subversive ac-
tivities." (I^ter from Attorney General Murphy to the Secretary of the Treas-
ury, 2/18/39.) This may have reflected a decision by Murphy to cease using "sub-
versive activities" to describe FBI investigations. Tlie record does not clarify the
reason for his deletion of the phrase.

" Memorandum from T. Edgar Hoover to Attorney General Murphy, 3/16/39.
Murphy was aware that the FBI contemplated investigations of subvensive ac-
tivities, since Hoover enclosed his 1938 plan with this memorandum.

^° Letter from Attorney General Murphy to the President, 6/17/39.

cept by the three agencies mentioned above. [Emphasis
added.] ^^

Precisely what the President's reference to "potential" espionage or
sabotage was intended to cover was unclear. Whatever it meant, it was
apparently intended to be consistent with Director Hoover's earlier
description of the FBI program to Attorney General Murphy.^^

Three months later, after the outbreak of Avar in Europe, Director
.Hoover indicated his concern that private citizens might provide
information to the "sabotage squads" which local police departments
were creating rather than to the FBI. Hoover urged the Attorney
General to ask the President to request local officials to give the FBI
all information concerning "espionage, counterespionage, sabotage,
subversive activities, and neutrality regulations." ^^

The President immediately issued a statement which continued the
confusing treatment of the breadth of the FBI's intelligence authority.
On the one hand, the statement began by noting that the FBI had been
instructed to investigate :

matters relating to espionage, sabotage, and violations of the
neutrality regulations.

On the other hand, the President concluded by adding "subversive
activities" to the list of information local law enforcement officials
should relay to the FBI."

c. Orders 19IfO-J^3: The Confusion Continues
President Roosevelt used the term "subversive activities" in a secret
directive to Attomev General Robert Jackson on wiretapping in 1940.
Referrin.of to activities of other nations engaged in "propaganda of so-
called 'fifth columns' " and "preparation for sabotage," he directed
the Attorney General to authorize wiretaps "of persons suspected of
subversive activities a<xainst the Government of the United States,
includin5T susnected snies." The President instructed that such wire-
taps be limited "insofar as possible" to aliens.'" Neither the President

"Confidential Memorandum from the President to Department Heads, 6/26/39.

^' Memorandum from Hoover to Murphy, 3/16/39, enclosing Hoover memoran-
dum on "domestic intelligence," 10/20/38.

^' Memorandum from ,J. Edgar Hoover to Attorney General Murphy, 9/6/39.

" Statement of the President. 9/6/39.

President Roosevelt never formally defined "subversive activities" — a term
whose vagueness has proven a problem throughout the FBI's history. However, a
hint as to his definition is contained in his remarks at a press conference on Sep-
tember 9, 19,39. A national emergency had .iust been declared, and pursuant
thereto, the President had issued an authorization for up to 1.50 extra FBI agents
to handle "additional duties." In explaining that action, he stated he was
concerned about "things that happened" before World War I. specifically "sabo-
tage" and "propaganda by both belligerents" to "sway public opinion. . . . [I]t
is to guard again.st that and the spread by any foreign nation of propaganda in
this nation which would tend to be subversive — I believe that is the word —
of our form of Government." (19,39 Public Papers of Franklin D. Roosevelt,
pp. 49.V4f)6. )

"*• Confidential memorandum from President Roosevelt to Attorney General
.Taekson, ,5/21/40. In May 1941. the Secretary of War and the Secretary of the
Xavv urged "a broadening of the investigative responsibility of the Federal
Bureau of Investigation in the fields of sul)versive control of labor." (Memoran-
dum from the Secretary of War and the Secretary of the Xavy to the Presi-
dent, ,5/29/41.) The President replied that he was sending their letter to the
Attorney General "with my general approval." (IMemorandum from President
Roosevelt to the Secretaries of War and Navy, 6/4/41.)

nor the Attorney General subsequently clarified the scope of the FBI's
authority to investigate "subversive activity."

The confusion as to the breadth of President Koosevelt's authoriza-
tion reappeared in Attorney General Francis Biddle's description of
FBI jurisdiction in 1&42 and in a new Presidential statement in 1943.

Bicldle issued a lengthy order defining the duties of the various parts
of the Justice Department in September 1942. Among other things, the
FBI was charged with a duty to "investigate" criminal offenses against
the United States. In contrast, the FBI was to function as a "clear-
ing house" with respect to "espionage, sabotage, and other subversive
matters." ^^

Four months later, President Roosevelt renewed his public appeal
for cooperation by police and other "patriotic organizations" with the
FBI. In this statement, he described his September 1939 order as grant-
ing "investigative" authority to the FBI for "espionage, sabotage, and
violation of the neutrality regulations." The President did not adopt
Attorney General Biddle's "clearing-house" characterization, nor did
he mention "subversion." ^^

^. The Role of Congress

a. Executive Avoidance of Congress

In 1938, the President, the Attorney General, and the FBI Director
explicitly decided not to seek legislative authorization for the expand-
ing domestic intelligence program.

Attorney General Cummings cautioned that the plan for domestic
intelligence "should be held in the stricest confidence." " Director
Hoover contended that no special legislation should be sought "m
order to avoid criticism or objections which might be raised to such
an expansion by either ill-informed persons or individuals with some
ulterior motive." [Emphasis added.] Hoover thoug'ht it "undesirable
to seek any special legislation which would draw attention to the fact
that it was proposed to develop a special counter-espionage drive of
any great magnitude" because the FBI's intelligence activity was al-
ready "much broader than espionage or counterespionage." ^^

Director Hoover contended that the FBI had authority to engage in
intelligence activity beyond investigating crimes at the request of the

=^ Attorney General's Order No. 3732, 9/25/42, p. 19. But see Delimitation
Agreement between the FBI and Military Intelligence, 2/9/42, at footnote 56.

^ Statement of the President on "Police Cooperation," 1/8/43. A note in the
President's handwriting added that the FBI was to receive information "relat-
ing to espionage and related matters." (Copy in FDR Library.)

^Cummings to Roosevelt, 10/20/38.

" Hoover memorandum, enclosed with letter from Cummings to Roosevelt,
10/20/38. Director Hoover's full point was that :

"In considering the steps to be taken for the expansion of the present structure
of intelligence work, it is believed imperative that it be proceeded with, with the
utmost degree of secrecy in order to avoid criticism or objections which might be
rai.'sed to such an expansion by either ill-informed persons or individuals having
some ulterior motive. The word 'espionage' has long been a word that has been
repugnant to the American people and it is believed that the structure which is
already in existence is much broader than espionage or counterespionage, but
covers in a true sense real intelligence values to the three services interested,
namely, the Navy, the Army, and the civilian branch of the Government— the
Department of Justice. Consequently, it would seem undesirable to seek any spe-
cial leeislation which would draw .attention to the fact that it was proposed to
develop a si)ecial counterespionage drive of any great magnitude."

Attorney General or the Department of State. He relied on an amend-
ment to the FBI Appropriations Act, passed before World War I,
authorizing the Attorney General to appoint officials not only to "de-
tect and prosecute" federal crimes but also to :

conduct such other investigations regarding official matters
under the control of the Department of Justice, or the Depart-
ment of State, as may be directed by the Attorney General.^^

After conflicts with the State Department in 1939, however, the FBI
no longer relied upon this vague statute for its authority to conduct
intelligence investigations, instead relying upon the Executive orders.^®

h. Congress Declines to Confront the Issue

Even though Executive officials originally avoided Congress to
prevent criticism or objections, after the President's proclamation of
emergency in 1939 they began to inform Congress of FBI intelligence
activities. In November 1939, Director Hoover told the House Appro-
priations Committee that the Bureau had set up a General Intelli-
gence Division, "by authority of the President's proclamation." ^^ And
in January 1940, he told the same Committee that the FBI had author-
ity under the President's September 6, 1939 statement to investigate
espionage, sabotage, neutrality violations, and "any other subversive
activities." ^^

There is no evidence that the Appropriations Committee objected
or inquired further into the meaning of that last vague term, although
membei"S did seek assurance that FBI intelligence could be curtailed
when the wartime emergency ended.^®

In 1940, a joint resolution was introduced by New York City Con-
gressman Emmanuel Celler which would have given the FBI broad
jurisdiction to investigate, by wiretapping or other means, or "frus-
trate" any "interference with the national defense" due to certain
specified crimes (sabotage, treason, seditious conspiracy, espi-
onage, and violations of the neutrality laws) or "in any other man-
ner." ^° Although the resolution failed to reach the House floor, it seems
likely that, rather than opposing domestic intelligence investigations,
Congress was simply choosing to avoid the issue of defining the FBI's
intelligence jurisdiction. This view is supported by Congress' passage
in 1940 and 1941 of two new criminal statutes : the Smith Act made
it a crime to advocate the violent overthrow of the Government ; ^^ and
the Voorhis Act required "subversive" organizations advocating the

^28U.S.C. 533(3).

^The conflicts between the FBI and the State Department in 1939 are dis-
cussed at footnote 54.

^ Emergency Supplemental Appropriation Bill, 1940, Hearings before the House
Appropriations Committee, 11/30/39, pp. 303-307.

In fact, the FBI had established a General Intelligence Section in its Investi-
gative Division shortly after the President's 1936 requests. Congress was not
advised of the Burefiu's activities undertaken prior to September 1939, nor
of the President's earlier directives.

^ .lustice Department Appropriation Bill. 1941, Hearings before the House
Ai)propriations Committee, 1/5/40, p. 151. The President's 1939 statement did
not specifically say that the FBI had authority to investigate "subversive activi-
ties."

^1939 Hearings, p. 307; First Deficiency Appropriation Bill, 1941, Hearings
before the House Appropriations Committee, 2/19/41, pp. 188-189.

=" H..T. Res. 571, 76th Cong., 2d Sess. (1940) .

"^ 18 U.S.C. 2385, 2387.

Government's violent overthrow and having foreign ties to register or
be subject to criminal penalties.^^

Although, as indicated, the Executive branch disclosed the fact
that the FBI was doing intelligence work and Congress gen-
erally raised no objection, there was one occasion when an Execu-
tive description of the Bureau's work was less than complete. Follow-
ing Director Hoover's testimony about the establishment of an
Intelligence Division and some public furor over the FBI arrest of
several Communist Party members in Detroit, Senator George Norris
(R. Neb.) asked whether the Bureau was violating Attorney General
Stone's assurance in 1924 that it would conduct only criminal in-
vestigations. Attorney General Jackson replied:

Mr. Hoover is in agreement with me that the principles
which Attorney General Stone laid down in 1924 when the
Federal Bureau of Investigation was reorganized and Mr.
Hoover appointed as Director are sound, and that the useful-
ness of the Bureau depends upon a faithful adherence to these
limitations.

The Federal Bureau of Investigation will confine its activi-
ties to the investigation of violation of Federal statutes, the
collecting of evidence in cases in which the United States is
or may be a party in interest, and the service of process issued
by the courts.^^

The FBI was, in fact, doing much more than that and had informed
the Appropriations Committee of its practice in general terms. Attor-
ney General Jackson himself stated later that the FBI was conducting
"steady surveillance" of persons beyond those who had violated fed-
eral statutes, including persons who were a "likely source" of federal
law violation because they were "sympathetic with the systems or
designs of foreign dictators." ^*

5. Scope of Domestic Intelligence

a. Beyond Criminal Investigations
According to Director Hoover's account of his meeting with Presi-
dent Roosevelt in 1936, the President wanted "a broad picture" of the
impact of Communism and Fascism on American life.^^ Similarly, the
FBI Director described his 1938 plan as "broader than espionage"
and covering "in a true sense real intelligence." ^^ Thus it appears that
one of the first purposes of FBI domestic intelligence was to perform
the "pure intelligence" function of supplying executive oflficials with
information believed of value for making policy decisions. This aspect
of the assignment to investigate "subversion" was entirely unrelated
to the enforcement of federal criminal laws. The second purpose of
FBI domestic intelligence gathering was essentially "preventive,"

""18 U.S.C. 2386.

^Letter from Attorney General Jackson to Senator Norris, 86 Cong. Rec.
5642-5643.

'* Proceedines of the Fedpral-State Conference on Law Enforcement Problems
of National Defense. S/5-6/40.

Several months earlier. At+ornev General .Tackson had warned federal prose-
cutors about the dangers of prosecuting "subversives" because of the lack of
standards and the daneer of overbreadth. (Robert H. .Tackson. "The Federal
Prosecutor." Jourval of the Americav Jvflirature Society, 6/40. p. 18.)

^ Hoover memorandum to the files, 8/24/.S6.

^Hoover memorandum, enclosed with Cummings to Roosevelt, 10/20/38, see
p. 28.

in compliance with the President's June 1939 directive to investigate
"potential" espionage or sabotage.^^ As war moved closer, preventive
intelligence investigations focused on individuals who might be
placed on a Custodial Detention List for possible internment in case
of war.^^

Both pure intelligence about "subversion" and preventive intelli-
gence about "potential" espionage or sabotage involved investigations
based on political affiliations and group membership and association.
The relationship to law enforcement was often remote and speculative;
the Bureau did not focus its intelligence gathering solely on tangible
evidence of preparation for crime.

Directives implementing the general preventive intelligence instruc-
tion to investigate "potential" espionage or sabotage were vague and
sweeping. In 1939, for instance, field offices were told to investigate
persons of German, Italian, and Communist "sympathies" and any
other persons "whose interests may be directed primarily to the inter-
est of some other nation than the United States." FBI offices were
directed to report the names of members of German and Italian so-
cieties, "whether they be of a fraternal character or of some other
nature," and members of any other groups "which might have pro-
nounced Nationalistic tendencies." The Bureau sought lists of
subscribers and officers of German, Italian, and Communist foreign-
language newspapers, as well as of other newspapers with "notorious
Nationalistic sympathies." ^^ The FBI also made confidential inquiries
regarding "various so-called radical and fascist organizations" to
identify their "leading personnel, purposes and aims, and the part
they are likely to play at a time of national crisis." *"

The criteria for investigating persons for inclusion on the Custodial
Detention List was similarly vague. In 1939, the FBI said its list in-
cluded persons with "strong Nazi tendencies" and "strong Communist
tendencies." •*^ FBI field offices were directed in 1940 to gather infor-
mation on individuals who would be considered for the list because
of their "Communistic, Fascist, Nazi, or other nationalistic back-
ground." ^^

h. ''''InfiUratio'nP Investigations
The FBI based its pure intelligence investigations on a theory of
subversive "infiltration" which remained an essential part of the
rationale for domestic intelligence after the war: anyone who hap-
pened to associate with Communists or Fascists or was simply alleged
to have such associations became the subject of FBI intelligence re-
ports.*^ Thus, "subversive" investigations produced intelligence about

^ Confidential memorandum from the President to Department heads, 6/26/39.

"" See pp. 34-3.5.

™ Tlie above-mentioned directives were all contained in a memorandum from
.T. Edsrar Hoover to FBI Field Offices, 9/2/39.

" Memorandum from Clyde Tolson to .7. Edgar Hoover, 10/30/39.

" Internal FBI memorandum of E. A. Tamm. 11/9/39.

"= Memorandum from J. Edgar Hoover to FBI Field Offices. 6/15/40.

" Director Hoover declared in 1940 that advocates of foreign "isms" had "suc-
ceeded in boring into every phase of American life, masquerading behind 'front'
organizations." (Proceedings of the Federal-State Conference on Law Enforce-
ment Problems of National Defense. August 5-6, 1940.) In his best-selling book on
Commimists, Hoover stated, "Infiltration is the method whereby Party members
move into noncommunist organizations for the purpose of exercising influence
for communism. If control is secured, the organization becomes a communist
front." (J. Edgar Hoover, Masters of Deceit (New York: Henry Holt, 1958),
Ch. 16.)

a wide variety of lawful groups and law-abiding citizens. By 1938,
the FBI was investigating alleged subversive infiltration of:

the maritime industry ;

the steel industry;

the coal industry ;

the clothing, garment, and fur industries ;

the automobile industry ;

the newspaper field ;

educational institutions ;

organized labor organizations ;

Negroes ;

youth groups ;

Government affairs; and

the armed forces.*^

This kind of intelligence was transmitted to the White House. For
example, in 1937 the Attorney General sent the President an FBI
report on a proposed pilgrimage to Washington to urge passage of
legislation to benefit American youth. The report stated that the
American Youth Congress, which sponsored the pilgrimage, was
understood to be strongly Communistic.*^ Later reports in 1937 de-
scribed the Communist Party's role in plans by the Workers Alliance
for nationwide demonstrations protesting the plight of the unem-
ployed, as well as the Alliance's plans to lobby Congress in support
of the federal relief program.*^

Some investigations and reports (which went into Justice Depart-
ment and FBI permanent files) covered entirely legal political activi-
ties. For example, one local group checked by the Bureau was called
the League for Fair Play, which furnished "speakers to Rotary and
Kiwanis Clubs and to schools and colleges." The FBI reported in 1941
that:

the organization was formed in 1937, apparently by two
Ministers and a businessman for the purpose of furthering
fair play, tolerance, adherence to the Constitution, democracy,
liberty, justice, understanding and good will among all
creeds, races and classes of the United States.

A synopsis of the report stated, "No indications of Communist
activities." ^'^

In 1944, the FBI prepared an extensive intelligence report on an
active political group, the Independent Voters of Illinois, apparently
because it was considered a target for Communist "infiltration." The
Independent Voters group was reported to have been formed :

for the purpose of developing neighborhood political units
to help in the re-election of President Roosevelt, and the elec-

" Hoover memorandum, enclosed with Cummingrs to Roosevelt, 10/20/38.

^Letter from Attorney General Cummings to the President (and enclosure),
1/30/.37 (FDR Library).

" I^etter from Attorney General Cummings to the President (and enclosure),
8/13/37 (FDR Library).*

^^ Report of New York City field office. 10/22/41. summarized in Justice Denart-
ment memorandum from S. Brodie to Assistant Attorney General Quinn. 10/10/47.

tion of progressive congressmen. Apparently, IVI endorsed
or aided Democrats for the most part, although it was stated
to be "independent." It does not appear that it entered its
own candidates or that it endorsed any Communists. IVI
sought to help elect those candidates who would favor fight-
ing inflation, oppose race and class discrimination, favor
international cooperation, support a ''full-employment" pro-
gram, oppose Facism, etc.^^

Thus, in its search for subversive "influence," the Bureau gathered
extensive information about the lawful activities of left-liberal polit-
ical groups. At the opposite end of the political spectrum, the activities
of numerous right-wing groups like the Christian Front and Christian
Mobilizers (followers of Father Coughlin), the American Destiny
Party, the American Nationalist Party, and even the less extreme
"America First" movement were reported by the FBI.*^

c. Partisan Use

The collection of pure intelligence and preventive intelligence about
"subversives" led to the inclusion in FBI files of political intelligence
about the President's partisan critics. In May 1940, President Roose-
velt's secretary sent the FBI Director hundreds of telegrams received
by the White House. The attached letter stated :

As the telegrams all were more or less in opposition to na-
tional defense, the President thought you might like to look
them over, noting the names and addresses of the senders.^"

Additional telegrams expressing approval of a speech by one of the
President's leading critics, Colonel Charles Lindbergh, were also re-
ferred to the FBI.^^ A domestic intelligence program without clearly
defined boundaries almost invited such action.

d. Centralized Authority: FBI and Military/ Intelligence
The basic policy of President Roosevelt and his four Attorneys Gen-
eral was to centralize civilian authority for domestic intelligence in
the FBI. Consolidation of domestic intelligence was viewed as a means
of protecting civil liberties. Recalling the hysteria of World War I,
Attorney General Frank Murphy declared :

Twenty years ago, inhuman and cruel things were done in
the name of justice ; sometimes vigilantes and others took over
the work. We do not want such things done today, for the
work has now been localized in the FBI.^^

Centralization of authority for domestic intelligence also served the
FBI's bureaucratic interests. Director Hoover complained about

"Report of Chicago field oflBce. 12/29/44. summarized in Justice Department
memorandum from R. Brodie to Assistant Attorney General Quinn, 10/9/47.

" Justice Department memorandum re : Christian Front, 10/28/41.

^ Letter from Stephen Early, Secretary to the President, to J. Edgar Hoover,
5/21/40 (FDR Library).

^'Memorandum from Stephen Early, Secretary to the President, to J. Edgar
Hoover, 6/17/40.

^ New York Times, 10/1/39, p. 38.

3-786 O - 76 - 4

attempts by other agencies to "literally chisel into this type of
work." ^* He exhorted : "We don't want to let it slip away from us." "

Pursuant to President Roosevelt's 1939 directive authorizing the
FBI and military intelligence to conduct all investigations of "poten-
tial" espionage and sabotage, an interagency Delimitation Agreement
in June 1940 assigned most such domestic intelligence work to the
FBI. As revised in February 1942, the Agreement covered "investiga-
tion of all activities coming under the categories of espionage, sub-
version and sabotage." The FBI was responsible for all investigations
"involving civilians in the United States" and for keeping the military
informed of "the names of individuals definitely known to be con-
nected with subversive activities." ^^

The military intelligence agencies were interested in intelligence
about civilian activity. In fact, they requested extensive information
about civilians from the FBI. In JNIay 1939, for instance, the Army G-2
Military Intelligence Division (MID) transmitted a request for tlie
names and locations of "citizens opposed to our participation in war
and conducting anti-war propaganda." ^'^ Despite the Delimitation
Agreement, the MID's Counterintelligence Corps collected intelligence
on civilian "subversive activity" as part of a preventive security pro-
gram using volunteer informers and investigators.'^

6. Control by the Attortiey General: Compliance and Resistance

The basic outlines of the FBI's domestic intelligence program were
approved by Attorney General Cummings in 1938 and Attorney Gen-
eral Murphy in 1939.^*^ Director Hoover also asked Attorney General
Jackson in 1940 for policy guidance concerning the FBI's "suspect list

" Memorandum from .T. Edgar Hoover to Attorney General Murphy, 3/16/39.
The "literally chisel" reference reflects concern with a State Department attempt
to "coordinate" all domestic intelligence. It may explain why, after 1988, the
FBI no longer relied for its intelligence authority on the statutory provision for
FBI investigations of "oflBcial matters under control of . . . the Department of
State." Director Hoover stated that the FBI required State Department author-
ization only where "the subject of a particular investigation enjoys any diplomatic
status."

"Note attached to letter from Col. J. M. Churchill, Army G-2, to Mr. E. A.
Tamm, FBI, 5/16/39.

" Delimitation of Investigative Duties of the Federal Bureau of Investigation,
the Office of Naval Intelligence, and the Military Intelligence Division. 2/9/42.

^^ Memorandum from Colonel Churchill, Counter Intelligence Branch, MID,
to E. A. Tamm, FBI, 5/16/39.

^ Victor J. Johanson, "The Role of the Army in the Civilian Arena, 1920-1970,"
U.S. Army Intelligence Command Study (1971). The scope of wartime Army
intelligence has been summarized as follows :

"It reported on radical labor groups, communists, Nazi sympathizers, and
'semi-radical' groups concerned with civil liberties and pacifism. The latter, well
intentioned but impractical groups as one corps area intelligence officer labeled
them, were playing into the hands of the more extreme and realistic radical ele-
ments. G-2 still believed that it had a right to investigate •'semi-radicals' because
they undermined adherence to the established order by propaganda through
newspapers, periodicals, schools, and churches." (Joan M. Jensen. "Military Sur-
veillance of Civilians, 1917-1967," in Military InteJligencc. Hearings before the
Senate Subcommittee on Constitutional Rights (1974), pp. 174-175.)

^* Letter from Attorney General Cummings to the President, 10/20/38; letter
from Attorney General Murphy to the President, 6/17/39. The confusion as to
whether Attomev General Murphy, Attorney General Jackson and Attorney
General Biddle defined the FBI's duties to cover investigation of "subversive ac-
tivities" is indicated at footnotes 13, 21 and 34.

of individuals whose arrest might be considered necessaiy in the event
the United States becomes involved in war." ^^

The FBI Director initially opposed, however, Attorney General
Jackson's attempt to require more detailed supervision of the FBI's
role in the Custodial Detention Program. To oversee this program and
other's, Jackson created a Neutrality Laws Unit (later renamed the
Special War Policies Unit) in the Justice Department. When the
Unit proposed to review FBI intelligence reports on individuals,
Director Hoover protested that turning over the FBI's confidential
reports would I'isk the possibility of "leaks." He argued that if the
identity of confidential informants became known, it would endanger
their "life and safety" and thus the Department would "abandon"
the "subversives field." ^^

After five months of negotiation, the FBI was ordered to transmit
its "dossiers" to the Justice Department Unit.^^ To satisfy the FBI's
concerns, the Department agreed to take no formal action against an
individual if it "might interfere with sound investigative techniques"
and not to disclose confidential informants without the Bureau's "prior
approval." *^^ Thus, from 1941 to 1943, the Justice Department had the
machinery to oversee at least this aspect of FBI domestic intelligence.^*

In 1943, however, Attorney General Biddle ordered that the Cus-
todial Detention List should be abolished as "impractical, unwise, and
dangerous." His directive stated that there was "no statutory author-
ity or other present justification" for keeping the list. The Attorney
General concluded that the system for classifying "dangerous" persons
was "inherently unreliable;" the evidence used was "inadequate;" and
the standards applied were "defective." ®^ Biddle observed :

the noition that it is possible to make a valid detennination as
to hoAV dangerous a person is in tlie abstract and without
reference to time, environment, and other relevant circum-
stances, is impractical, unwise, and dangerous.

Returning to the basic standard espoused bj^ Attorney General Stone,
Attorney General Biddle declared :

The Department fulfills its proper function by investigating
the activities of persons who may have violated the law. It is
not aided in this work by classifying persons as to dangerous-
ness.^®

•' Memorandum from J. Edgar Hoover to Attorney General Jackson, 10/16/40.

" Memorandum from J. Edgar Hoover to L.M.C. Smith, Chief, Neutrality Law
Unit, 11/28/40.

"^Memorandum from M. F. McGuire, Assistant to the Attorney General, to
J. Edgar Hoover and L. M. C. Smith, 4/21/41.

" Memorandum from M. F. McGuire, Assistant to the Attorney General, to
.J. Edgar Hoover, 4/17/41.

*" The Custodial Detention Program should not be confused with the intern-
ment of Japanese Americans in 1942. The mass detention of Americans solely on
the basis of race was exactly what the Program was designed to prevent, by
making it possible for the government to decide in individual cases whether a
person should be arrested in the event of war. When the Program was imple-
mented after Pearl Harbor, it was limited to dangerous enemy aliens only. FBI
Director Hoover opposed the mass round-up of Japanese Americans.

*' Memorandum from Attorney General Biddle to Assistant Attorney General
Cox and J. Edgar Hoover, Director, FBI, 7/16/43.

*• Memorandum for Attorney General Biddle to Assistant Attorney General Cox
and J. Edgar Hoover, Director, FBI, 7/16/43.

Upon recedpt of tliis order, tlie FBI Diroctor did not in fact abolish
its list. The FBI continued to maintain an index of persons "who
may be dangerous or potentially dangferous to the public safety or
internal security of the United States."' In i^esponse to the Attorney
General's order, the FBI merely changed the name of the list from
Custodial Detention List to Security Index. Instructions to the field
stated that the Security Index should be kept "strictly confidential,"
and that it should iiever be mentioned in FBI repoits or "discussed
with agencies or individuals outside the Bureau" except for military
intelligence agencies.*^'

This incident provides an example of tlie FBI's ability to conduct
domestic intelligence operations in opposition to the policies of an
Attorney General. Despite Attorney General Biddle's order, the "dan-
gerousness" list continued to be kept, and investigations in support of
that list continued to be a significant part of the Bureau's work.

7. Intrusive Techniques: Questionable Authorization

a. Wiretaps: A Strained Statutory Interpretation

In 1940, President Roosevelt authorized Fl^I wiretapping against
"persons suspected of subversive activities against the United States,
including suspected spies," requiring the specific approval of the At-
torney General for each tap and directing that they be limited "insofar
as possible to aliens." ^^

This order was issued in the face of the Federal Communications
Act of 1934, which had prohibited wiretapping.^^ However, the Attor-
ney General interpreted the Act of 1934 so as to permit government
wiretapping. Since the Act made it unlaw^ful to "intercept and di-
vulge" communications, Attorney General Jackson contended that it
did not apply if there was no divulgence outside the Government.
[Emphasis added.] ^° Attorney General Jackson's questionable in-
terpretation was accepted by succeeding Attorneys General (until
1968) but never by the courts.^^

Jackson infonned the Congress of his interpretation. Congress con-
sidered enacting an exception to the 1934 Act, and held hearings in
which Director Hoover said wiretapping was "of considerable im-
portance" because of the "gravity" to "national safety" of such of-

^^ Memorandum from J. Edg^ar Hoover to FBI Field Offices. Ro : Dangerousness
Classification, S/14/4^. This is the only document pertaining to Director Hoover's
decision which appears in the material proA'ided by the FBI to the Select Com-
mittee covering Bureau ix>licies for the "Security Index." The FBI iutei-preted
the Attorney General's order as applying only to "the dangerous classifications
previously made by the . . . Special War Policies Unit" of the Justice Depart-
ment. (The full text of the Attorney General's order and the FBI directive appear
in Hearings, Vol. 6, pp.' 412-415.)

^ Confidential memorandum from President Roosevelt to Attornev General
Jackson. 5/21/40.

®'47 U.S.C. 605. The Supreme Court held that this Act made wiretap-obtained
evidence or the fruits thereof inadmissible in federal criminal ca.ses. Nardone v.
United States, 302 U.S. 379 (1937) ; 308 U.S. 338 (1939) .

'" Letter from Attorney General Jackson to Rep. Hatton Summers. 3/19/41.

"E.g., United States v. Biitenko, 494 F.2d 593 (3d Cir. 1974), eert. denied
sub nom. Iranov v. United States, 419 U.S. 881 (1974). The Court of Appeals held
in this case that warrantless wiretapping could only be justified on a theory of
inherent Presidential power, and questioned the statutory interpretation relied
upon since Attorney General Jackson's time. Until 1967, the Supreme Court did
not rule that wiretapping violated the Fourth Amendment. [Olmstead v. United
States, 275 U.S. 557 (1927) ; Katz v. United States, 389 U.S. 347 (1967).]

fenses as espionage and sabotageJ^ Apparently relying upon Jackson's
statutory interpretation, Congress then dropped tlie matter, leaving
the authorization of wiretaps to Executive discretion, without either
statutory standards or the requirement of a judicial warrant."

The potential for misuse of wiretapping was demonstrated during
this period by several FBI wiretaps approved by the Attorney General
or by the White House. In 1941, Attorney General Biddle approved
a wiretap on the Los Angeles Chamber of Commerce with the caveat :

There is no record of espionage at this time; and, unless
within a month from today there is some evidence connect-
ing the Chamber of Commerce with espionage, I think the
surveillance should be discontinued.'^*

However, in another case Biddle disapproved an FBI request to wire-
tap a Philadelphia bookstore "engaged in the sale of Communist litera-
ture" and frequented by "important Communist leaders" in lO-tl.'^'^

Materials located in Director Hoover's "Official and Confidential''
file indicate that President Koosevelt's aide Harry Hopkins asked the
FBI to wiretap his own home telephone in 1944. Additional reports
from "technical" surveillance of an unidentified target were sent to
Hopkins in May and July 1945, when he served as an aide to Presi-
dent Truman.'*'

In 1945 two Truman White House aides, E. D. McKim and General
H. H. Vaughn, received reports of electronic surveillance of a high
executive official. One of these i-eports included "transcripts of tele-
phone conversations between [the official] and Justice Felix Frank-
furter and between [the official] and Drew Pearson." ''^^

From June 1945 until May 1948, General Vaughn received reports
from electronic surveillance of a former Roosevelt AVhite House aide.
A memorandum by J. Edgar Hoover indicates that Attorney General
Tom Clark "authorized the placing of a technical surveillance" on this
individual and that, according to Clark, President Truman "was par-
ticularly concerned" about the activities of this individual "and his
associates" and wanted "a very thorough investigation" so that "steps
might be taken, if possible, to see that such activities did not interfere
with the proper administration of government." Hoover's memoran-
dum did not indicate what these "activities" were.^'^"

'" Hearings before the House Judiciary Committee, To Autliorize Wiretapping,
77th Cong., 1st Sess. ( 1941 ) , p. 112.

" Congress continued to refrain from setting wiretap standard.? until 1968
wlien the Ominbus Crime Control Act was passed. Tlie Act was limited to crimi-
nal cases and, once again, avoided the issue of intelligence wiretaps. [18 U.S.C.
2511(3).]

'* Memorandum from Attorney General Riddle to J. Edgar Hoover, 11/19/41.
Biddle advi.sed Hoover that wiretaps (or "technical surveillances") would not
be authorized unless there was "information leading to the conclusion that the
activities of any particular individual or group are connected with espionage
or are authorized sources outside of this country."

'" Memorandum from .T. Edgar Hoover to Attorney General Biddle. 10/2/41 ;
memorandum from Attorney General Biddle to .7. Edgar Hoover, 10/22/41.

""' Memorandum from FBI to Select Committee, .3/26/76 and enclosures.

'"' ^Memorandum from I). M. Ladd to Hoover, .5/2.3/45.

""• Hoover memorandum, 11/15/45 ; a memorandum headed "Summaries De-
livered ti) the White House" lists over 175 reports sent to General Vaughn from
this surveillance ; memorandum from FBI to Select Committee, 3/26/76, aniJ
enclosures.

h. Bugging, Mail Opening, and Surreptitious Entry.

Intrusive techniques such as bugging, mail opening and surreptitious
entry were used by the FBI without even tlie kind of formal Presi-
dential authorization and requirement of Attorney General approval
that applied to warrantless wiretapping.

During the war, the FBI began "chamfering" or surreptitious mail
opening, to supplement the overt censorship of international mail
authorized by statute in wartime." The practice of surreptitious en-
try— or breaking-and-entering — was also used by the FBI in war-
time intelligence operations.'* The Bureau continued or resumed the
use of these techniques after the war without explicit outside
authorization.

Furthermore, the installation of microphone surveillance ("bugs"),
either with or without trespass, was exempt from the procedure for
Attorney General approval of wiretaps. Justice Department records
indicate that no Attorney General formally considered the question
of microphone surveillance involving trespass, except on a hypotheti-
cal basis, until 1952.^^

C. Domestic Intelligence i:Sr the Cold War ERA : 1946-1963

1. Main Developments of the 19Jf6-1963 Period

The domestic intelligence programs of the FBI and the military
intelligence agencies, wliich were established under presidential au-
thority before World War II, did not cease with the end of hostilities.
Instead, they set the pattern for decades to come.

Despite Director Hoover's statement that the intelligence structure
could be "discontinued or very materially curtailed" with the termi-
nation of the national emergency, after the war intelligence operations
were neither discontinued nor curtailed.*° Congressional deference to
the executive branch, the broad scope of investigations, the growth of
the FBI's power, and the substantial immunity of the Bureau from
effective outside supervision became increasingly significant features
of domestic intelligence in the United States. New domestic intelligence
functions were added to previous responsibilities. No attempt was

" FBI memorandum from C. E. Hennrich to A. H. Belmont, 9/7/51.

" Memoramlum from the FBI to the Senate Select Committee, 9/23/75.

™A 1944 Justice Department memorandum discussed the "admissibility of
evidence obtained by trash covers and microphone surveillance," in response to
a series of hypothetical questions submitted by the FBI. The memorandum
concluded that evidence so obtained was admissible even if the microphone sur-
veillance involved a trespass. (Memorandum from Alexander Holtzoff, Special
Assistant to the Attorney General, to J. Edgar Hoover, 7/4/44; c.f., memorandum
from Attorney General J. Howard McGrath to J. Edgar Hoover, 2/26/52.) See
footnote 229 for the 1950s consideration of bugs by the Attorney General.

™ In early 1941, Director Hoover had had the following exchange with members
of the Hou.se Appropriations Committee :

"Mr. Ludlow. At the close of the present emergency, when i^eace comes, it
would mean that much of this emergency work necessarily will be discontinued."

"Mr. Hoover. That is correct. ... If the national emergency should terminate,
the structure dealing with national defense can immediately be discontinued or
very materially curtailed according to the wishes of Congress." {First Deficiency
Appropriation Bill, 19Jfl, Hearings before the House Committee on Appropria-
tions, 3/19/41, pp. 188-189. )

made to enact a legislative charter replacing the wartime emergency
orders, as was done in the foreign intelligence field in 1947.

The main developments during the Cold "War era may be summa-
rized as follows :

a. Domestic Intelligence Authority

During this period there was a national consensus regarding the
danger to the United States from Communism; little distinction was
made between the threats posed by the Soviet Union and by Commu-
nists within this country. Domestic intelligence activity was supported
by that consensus, although not specifically authorized by the Congress.

Formal authority for FBI investigations of "subversive activity"
and for the agreements between the FBI and military intelligence was
explicitly granted in executive directives from Presidents Truman
and Eisenhower, the National Security Council, and Attorney Gen-
eral Kennedy. These directives provided no guidance, however, for
conducting or controlling such investigations.

6. &coye of Domestic Intelligence

The breadth of the FBI's investigation of ''subversive infiltration"
continued to produce intelligence reports and massive files on lawful
groups and law-abiding citizens who happened to associate, even
unwittingly, with Communists or with socialists unconnected with the
Soviet Union who used revolutionary rhetoric. At the same time, the
scope of FBI intelligence expanded to cover civil rights protest activ-
ity as well as violent '""Klan-type" and "hate" groups, vocal anticom-
munists, and prominent opponents of racial integration. The vague-
ness of the FBI's investigative mandate and the overbreadth of its
collection programs also placed it in position to supply the "\Aniite
House with numerous items of domestic political intelligence appar-
ently desired by Presidents and their aides.

In response to White House and congressional interest in right-
wing organizations, the Internal Revenue Service began comprehen-
sive investigations of riglit-wing groups in 1961 and later expanded
to left-wing organizations. This effort was directed at identifying
contributions and ascertaining whether tlie organizations were entitled
to maintain their exempt status.

c. Accountability and Control

Pervasive secrecy enabled the FBI and the Justice Department to
disregard as "unworkable" the Emergency Detention Act intended to
set standards for aspects of domestic intelligence. The FBI's independ-
ent position also allowed it to withhold significant information from a
presidential commission and from eveiT Attorney General ; and no
Attorney General inquired fully into the Bureau's operations.

During the same period, apprehensions about having a "security
police" influenced Congress to prohibit the Central Intelligence
Agency from exercising law enforcement poAvers or performing "inter-
nal security functions.'' Nevertheless, in secret and without effective
internal controls, the CIA undertook programs for testing chemical
and biological agents on unwitting Americans, sometimes with tragic
consequences. The CIA also used American private institutions as

"cover" and used intrusive techniques affecting the rights of
Americans.

d. Intrusive Techniques

The CIA and the National Security Agency illegally instituted pro-
grams for the interception of international communications to and
from American citizens, primarily first class mail and cable traffic.

During this period, the FBI also used intrusive intelligence gather-
ing techniques against domestic "subversives" and counterintelligence
targets. Sometimes these techniques were covered by a blanket dele-
gation of authority from the Attorney General, as with microphone
surveillance ; but frequently they were used without outside authoriza-
tion, as with mail openings and surreptitious entry. Only conventional
wiretaps required the Attorney General's approval in each case, but
this method was still misused due to the lack of adequate standards
and procedural safeguards.

e. Domestic Covert Action

In the mid-fifties, the FBI developed the initial COINTELPRO
operations, whicli used aggressive covert actions to disrupt and dis-
credit Communist Party activities. The FBI subsequently expanded
its COINTELPRO activities to discredit peaceful protest groups
whom Communists had infiltrated but did not control, as well as
groups of socialists who used revolutionary rhetoric but had no con-
nections with a hostile foreign power.

Throughout this period, there was a mixture of secrecy and dis-
closure. Executive action was often substituted for legislation, some-
times with the full laiowledge and consent of Congress and on other
occasions without informing Congress or by advising only a select
group of legislators. There is no question that Congress, the courts,
and the public expected the FBI to gather domestic intelligence about
Communists. But the broad scope of FBI investigations, its specific
programs for achieving "pure intelligence" and ''preventive intelli-
gence" objectives, and its use of intrusive techniques and disruptive
counterintelligence measures against domestic "subversives" were not
fully known by anyone outside the Bureau.

2. Dotnestic Intelligence AuthoHty
a. Anti-C ommunist Consensus
During the Cold War era, the strong consensus in favor of govern-
mental action against Communists was reflected in decisions of the
Supreme Court and acts of Congress. In the Korean War period, for
instance, the Supreme Court upheld the conviction of domestic Com-
munist Party leaders under the Smith Act for conspiracy to advocate
violent overthrow of the government. The Court pinned its decision
upon the conspiratorial nature of the Communist Party of the United
States and its ideological links with the Soviet Union at a time of
stress in Soviet-American relations.^^

®^ The Conrt held that the grave and probable danger posed by the Comnuinist
Party justified this restriction on free speech inider the First Amendment :

"The formation by petitioners of such a highly organized conspiracy, with
rigidly disciplined members subject to call when the leaders, these petitioners,
felt that the time had come for action, coupled with the inflammable nature of

Several statutes buttressed the FBI's claim of legitimacy for at least
some aspects of domestic intelligence. Although Congress never di-
rectly authorized Bureau intelligence operations, Congress enacted the
Internal Security Act of 1950 over President Truman's veto. Its two
main provisions were : the Subversives Activities Control Act, requir-
ing the registration of members of communist and communist "front"'
groups ; and the Emergency Detention Act, providing for the intern-
ment in an emergency of pei-sons who might engage in espionage or
sabotage. In this Act, Congress made findings that the Communist
Party was " a disciplined organization" operating in this nation "under
Soviet Union control" with the aim of installing "a Soviet style dic-
tatorship.'' *- Going even further in 1954, Congress passed the Com-
munist Control Act, which provided that the Communist Party was
"not entitled to any of the rights, privileges, and immunities attendant
upon legal bodies created under the jurisdiction of the laws of the
United States." ^^

In 1956, the Supreme Court recognized the existence of FBI intelli-
gence aimed at "Communist seditious activities.'" *^ The basis for Smith
Act prosecutions of "subversive activity"' was narrowed in 1957, how-
ever, when the Court overturned the convictions of second-string
Communist leaders, holding that the government must show advocacy
"of action and not merely abstract doctrine." ^^ In 1961, the Court
sustained the constitutionality under the First Amendment of the re-
quirement that the Communist Party register with the Subversive
Acivities Control Board.®*'

The consensus should not be portrayed as monolithic. President
Truman was concerned about risks to constitutional government posed

world conditions, and the touch-and-go nature of our relations witli countries
with whom petitioners were in the very least ideologically attuned, convince us
that their convictions were justified on this score." [Dennis v. United States, 341
U.S. 494 r)10-.lll (1951).]

^^64 Stat. 987 (1950) The Subversive Activities Control Act's registration pro-
vision was held not to violate the First Amendment in 1961. [Communist Party v.
Suhi'e7-sive Activities Control Board, .367 U.S. 1 (1961).] However, registration
of Communists under the Act was later held to violate the Fifth Amendment
privilege against .self-incrimination. [Albertson v. Subversive Activities Control
Board, 382 U.S. 70 (1965).] The Emergency Detention Act was repealed in 1971.

^ 68 Stat. 775 (1954), .50 U.S.C. 841-844. The constitutionality of the Communist
Control Act of 1954 has never been tested.

** In light of the facts now known, the Supreme Court seems to have overstated
the degree to which Congress had explicitly "charged" the FBI with intelligence
responsibilities :

"Congress has devised an all-embracing program for resistance to the various
forms of totalitarian aggression. ... It has charged the Federal Bureau of
Investigation and the Central Intelligence Agency with responsibility for intelli-
gence concerning Communist seditious activities against our Government, and
has denominated such activities as part of a world conspiracy." [Pennsylvania v.
Nrlsou, 3.50 U.S. 497. 504-505 (19.56).]

This decision held that the federal government had preempted state sedition
laws, citing President Roosevelt's September 1939 statement on FBI authority
and an address by FBI Director Hoover to state law enforcement officials in
August 1940.

"^ Yates V. United States, 354 U.S. 298, 325 (1957).

®\Tustice Douglas, who dissented on Fifth Amendment grounds, agreed with
the majority on the First Amendment issue :

"The Bill of Rights was designed to give fulle.st play to the exchange and dis-
semination of ideas that touch the politics, culture, and other aspects of our life.
When an organization is used by a foreign power to make advances here, qiies-
tions of security are raised beyond the ken of disputation and debate between
the people resident here." [Communist Party v. Subversive Activities Control
Board, 367 U.S. 1, 174 (1961).]

by the zealous anti-Communism in Congress. According to one White
House staff member's notes during the debate over the Internal
Security Act :

The President said that the situation . . . was the worst
it had been since the Alien and Sedition Laws of 1798, that
a lot of people on the Hill should know better but had been
stampeded into running with their tails between their legs.

Truman announced that he would veto the Internal Security Act
"regardless of how politically un])opular it was — election year or
no election year." ®^ But President Truman's veto was overridden by
an overwhelming margin.

h. The Federal Einjjloyee Loyalty-Security Program
(1) Orlghis of the Program. — President Truman established a
federal employee loyalty program in 1947.*^ Its basic features were
retained in the federal employee security program authorized by
President Eisenhower in public Executi^•e Order 10450, which, with
some modifications, still applies toclay.^^

Although it had a much broader reach, the program originated out
of well-founded concern that Soviet intelligence was then using the
Communist Party as a vehicle for the recruitment of espionage
agents.^" President Truman appointed a Temporary Commision on
Employee Loyalty in 1946 to examine the problem, FBI Director
Hoover submitted a memorandum on the types of activities of "sub-
versive or disloyal persons'' in government service which would con-
stitute a "threat" to security. As Hoover saw it, however, the danger
was not limited to espionage or recruitment for espionage. It extended
to "influencing" government policies in favor of "the foreign country
of their ideological choice.'' Consequently, he urged that attention
be given to the associations of government employees with "front"
organizations, including "temporary organizations, 'spontaneous'
campaigns, and pressure movements so frequently used by subversive
groups." ^^

The President's Commission accepted Director Hoover's broad view
of the threat, along with the view endorsed by a Presidential Com-
mission on Civil Rights that there also was a danger from "those who
would subvert our democracy by . . . destroying the civil rights of some
groups.'" ^^ Consequently, the Executive Order included, as an inclica-

" File memorandum of S. J. Spingarn, assistant counsel to the President,
7/22/50. (Spingarn Papers, Harry S. Truman Library.)

** Executive Order 9835, 12 Fed. Reg. 1935 (1947) .

''Executive Order 10450, 18 Fed. Reg. 2489 (1953).

"" A report by a Canadian Royal Commission in June 1946 greatly influenced
United States government policy. The Royal Commission stated that "a number
of young Canadians, public servants and others, who begin with a desire to
advance causes which they consider worthy, have been induced into joining
study groups of the Communist Party. They are persuaded to keep this adherence
secret. They have been led step by step along the ingeneous psychological develop-
ment course . . . until under the influence of sophisticated and unscrupulous
leaders they have been persuaded to engage in illegal activities directed against
the safety and interests of their own society." The Royal Commission recom-
mended additional security measures "to prevent the infiltration into positions
of trust under the Government of persons likely to commit" such acts of espionage.
(The Report of the Royal Commission, 6/27/46, pp. 82-83. 686-689.)

^ Memorandum from the FBI Director to the President's Temporary Commis-
sion on Employee Loyalty, 1/3/47.

"'President's Committee on Civil Rights, To Secure These Rights (1947),
p. 52.

tioii of disloyalty, membership in or association with groups desig-
nated on an ''Attorney General's list" as :

totalitarian, fascist, connnunist, or subversive, or as having
adopted a policy of advocating or approving the commission
of acts of force or violence to deny others their rights under
the Constitution of the United States, or as seeking to alter
the form of government of the United States by unconstitu-
tional means.^^

The Executive Order was used to provide a legal basis for the FBI's
investigation of allegedly "subversive" organizations which might fall
within these categories.'-** Such investigations supplied a body of in-
telligence data against which to check the names of prospective fed-
eral employees.°^

(2) Breadth of the Investigations. — By the mid-1950s, the Bureau
believed that the Connnunist Party was no longer used for Soviet
espionage ; it represented only a "potential" recruiting ground for
spies.^** Thereafter, FBI investigations of Communist organizations
and other groups unconnected to espionage but falling within the
standards of the Attorney General's list frequently became a means
for monitoring the political background of prospective federal em-
ployees by means of the "name check" of Bureau files. These investi-
gations also served the "pure intelligence" function of informing the
Attorney General of the influence and organizational affiliations of so-
called "subversives." ^^

No organizations were formally added to the Attorney General's
list after 1955.^^ However, the FBI's "name check" reports on prospec-
tive employees were never limited to information about listed orga-
nizations. The broad standards for placing a group on the Attorney
General's list were used to evaluate an employee's background, regard-
less of whether or not he was a member of a group on the list.^** If a
"name check'' uncovered information about a prospective employee's
association with a group which might come within those standards, the

^' Executive Order 9835, part I, section 2 ; cf. Executive Order 10450, section
8(a)(5).

** In 1960, for instance, the Justice Department advised the FBI to continue
investigating an organization not on the Attorney General's list in order to secure
"additional information . . . relative to the criteria" of the employee security
order. (Memorandum from Assistant Attorney General J. Walter Yeagley to
J. Edgar Hoover, 5/17/60. )

82 FBI "name checks" are authorized as one of the "national agencies checks"
required by Executive Order 10450, section 3(a).

^ FBI Monograph, "The Menace of Communism in the United State.s Today",
7/29/55, pp. iv-v. See footnote 271.

°' The FBI official in charge of the Internal Security Section of the Intelli-
gency Division in the fifties and early sixties testified that the primary purpose
of FBI investigations of communist "infiltration" was to advise the Attorney
General so that he could determine whether a group should go on the Attorney
General's list. He also testified that investigations for this purpose continue<l
after the Attorney General ceased adding names of groups to the list. (F. J.
Baumgardner testimony, 10/8/75, pp. 48-49. ) See pp. 48-49 for discussion of the
FBI's COMIXFIL program.

** ^lemoranda from the Attorney General to heads of Departments and Agencies,
4/29/53; 7/1.5/53; 9/28/53; 1/22/54. Groups designated prior to that time
included numerous defunct German and Japanese societies. Communist and Com-
munist "front" organizations, the Socialist Workers Party, the Nationalist Party
of Puerto Rico, and several Ku Klux Klan organizations.

"^ Executive Order 10450, section 8(a)(5).

FBI would report the data and attach a "characterization" of the orga-
nization relating to the standards.^""

(3) FBI Control of Loyalty -Security Investigations. — President
Eisenhower's 1953 order specifically designated the FBI as responsible
for "a full field investigation'' whenever a "name check" or a back-
ground investigation by the Civil Service Commission or any other
agency uncovered information indicating a potential security risk.^"^
President Truman had refused to give the Bureau this exclusive power
initially, but he fought a losing battle."^

Director Hoover had objected that President Truman's order did not
give the FBI excusive power and threatened "to withdraw from this
field of investigation rather than to engage in a tug of Avar with the
Civil Service Commission." ^°^ President Truman was apprehensive
about the FBI's growing power. The notes of one presidential aide on a
meeting with the President reflect that Truman felt "very strongly
anti-FBI" on the issue and wanted "to be sure and hold FBI down,
afraid of 'Gestapo.' " "^

Presidential assistant Clark Clifford reviewed the situation and
came down on the side of the FBI as "better qualified" than the Civil
Service Commission. ^°^ But the President insisted on a compromise
which gave Civil Service "discretion" to call on the FBI "if it
wishes." ^"^ Director Hoover protested this "confusion" about the FBI's
jurisdiction. ^°^ When Justice Departm.ent officials warned that Con-
gress would "find flaws" with the compromise. President Truman
noted on a memorandum from Clifford :

J. Edgar will in all probability get this backward looking
Congress to give him what he wants. It's dangerous.^°^

President's Truman's prediction was correct. His budget request of
$16 million for Civil Service and $8.7 million for the FBI to conduct
loyalty investigations was revised by Congress to allocate $7.4 million
to the FBI and only $3 million to Civil Service.^°^ The issue was finally
resolved to the FBI's satisfaction when the President issued a state-
ment declaring that there iwere "to be no exceptions" to the rule that
the FBI would make all loyalty investigations.""

100 rpj^g FBI's field offices were supplied with such "thumb-nail sketches" or
characterizations to supplement the Attorney General's list and the reports of the
House Committee on Un-American Activities. {E.g., SAC Letter No. 60-34,
7/12/60. )

"' Executive Order 104.50, section 8(d).

^°^ The reference to a "full field investigation" where there was "derogatory
information with respect to loyalty" did not, in the Truman order, say who would
conduct the investigation. (Executive Order 9835, part I, section 4.)

"'^ Memoranda from J. Edgar Hoover to Attorney General Tom Clark, 3/19/47
and 3/31/47.

^*^ File memorandum of George M. Elsey, 5/2/47. (Harry S. Truman Library.)

^"^ Memorandum from C'ark Clifford to the President. 5/7/47.

^•^ Memorandum from Clark Clifford to the President, 5/9/47 ; letter from
President Truman to H. B. Mitchell, U.S. Civil Service Commission, 5/9/47.
(Harry S. Truman Library.)

'^^ Memorandum from J. Edgar Hoover to Attorney General Clark, 5/12/47.

"'Memorandum from Clark Clifford to the President, 5/9/47. (Harry S.
Truman Library.)

^"'Eleanor Bontecou, The Federal Loyalty-Security Program (Ithaca : Cornell
University Press, 1953), pp. 33-34.

"° Memorandum from J. R. Steelman, Assistant to the President, to the Attor-
ney General, 11/3/47.

c. Executive Directives : Lack of Guidance and Controls

Two public presidential statements on FBI domestic intelligence au-
thority— by President Truman in 1950 and by President Eisenhower
in 1953 — specifically declared that the FBI was authorized to investi-
gate "subversive activity," electing the broader interpretation of the
conflicting Roosevelt directives. INIoreover, a confidential directive of
the National Security Council in 1949 granted authority to the FBI
and military intelligence for investigation of "subvei*sive activities."
In 1962 President Kennedy issued a confidential order shifting super-
vision of these investigations from the NSC to the Attorney General,
and the NSC's 1949 authorizations were reissued by Attorney General
Kemiedy in 1964.

As with the earlier Roosevelt directives, these statements, orders
and authorizations failed to provide guidance on conducting or con-
trolling "subvereive" investigations.

Under President Truman, the Interdepartmental Intelligence Con-
ference (IIC) ^^^ was formally authorized in 1949 to supervise
coordination between the FBI and the military of "all investigation of
domestic espionage, counterespionage, sabotage, subversion^ and other
related intelligence matters affecting internal security." ^^^ [Emphasis
added.]

The confidential Delimitations Agreement between the FBI and

the military intelligence agencies was also revised in 1949 to require

greater exchange of "information of mutual interest" and to require

the FBI to advise military intelligence of developments concerning

"subversive" groups who were "potential" dangers to the security of
the United States.^13

In 1950, after the outbreak of the Korean war and in the midst
of Congressional consideration of new internal security legislation,
Director Hoover recommended that Attorney General J. Howard
McGrath "^ and the NSC draft a statement which President Truman
issued in July 1950 providing that the FBI :

should take charge of investigative work in matters relating
to espionage, sabotage, subversive activities and related
matters .'^'^'^ [Emphasis added.]

"^ In a March 1949 directive on coordination of internal security President
Truman approved tlie creation of the Interdepartmental Intelligence Conference
("IIC"). Memorandum by J. P. Coyne, Major Chronological Developments on the
Subject of Internal Security, 4/8/49 (Harry S. Truman Library), and NSC
Memorandum 17/4, 3/23/49.

"- NSC Memorandum 17/5, 6/15/49. The National Security Council was estab-
lished by the National Security Act of 1947, which authorized the NSC to advise
the President \\ith respect to "the integration of domestic, foreign, and military
policies" relating to the "national security." (Section 101 of the National Se-
curity Act of 1947.) Under this authority, the NSC then approved a secret charter
for the ICC, composed of the FBI Director (as chairman) and the heads of the
three military intelligence agencies.

"^Delimitation of Investigative Duties and Agreement for Coordination,
2/23/49. A supplementary agreement required FBI and military intelligence
officials in the field to "maintain close personal liaison," particularly to avoid
"duplication in . . . the use of informers." Where there was "doubt" as to whether
another agency was interested in information, it "should be transmitted."
(Supplemental Agreement No. 1 to the Delimitation Agreement, 6/2/49.)

'" Letter from Attorney General :\IcGrath to Charles S. Murphy, Counsel to
the President, 7/11/50.

""' Statement of President Truman, 7/24/50.

Despite concern among his assistants/^^^ President Truman's
statement clearly placed him on the record as endorsing FBI investi-
gations of "subversive activities." The statement said that such in-
vestigations had been authorized initially by President Roosevelt's
"directives" of September 1939 and January 1943. However, those
particular directives had not used this precise language."®

Shortly after President Eisenhower took office in 1953, the FBI
advised the "Wliite House that its "internal security responsibility"
went beyond "statutory" authority. The Bureau attached a copy of the
Truman statement, but not the Roosevelt directive. The FBI again
broadly interpreted the Roosevelt directive by saying that it had au-
thorized "investigative work" related to "subversive activities." "'

In December 1953 President Eisenhower issued a statement reiterat-
ing President Truman's "directive" and extending the FBI's mandate
to investigations under the Atomic Energy Act.^^^

President Kennedy issued no public statement comparable to the
Roosevelt, Truman, and Eisenhower "directives." However, in 1962
he did transfer the Interdepartmental Intelligence Conference to "the
supervision of the Attorney General ;" "^ and in 1964 Attorney General
Robert Kennedy re-issued the IIC charter, citing as authority the
President's 1962 order and retaining the term "subversion." The char-
ter added that it did not "modify'' or "affect" the previous "Presi-
dential Directives" relating to the duties of the FBI, and that the
Delimitations Agreement between the FBI and military intelligence
"shall remain in full force and effect." ^^°

None of the directives, orders, or charters ])rovided any definition
of the broad and loose terms "subversion" or "subversive activities;"
and none of the administrations provided effective controls over the
FBI's investigations in this area.

3. Scope of Domestic Intelligence
a. '■''Subversive Activities''''
The breadth of the FBI's investigations of "subversive activity" led
to massive collection of information on law^ abiding citizens. FBI
domestic intelligence investigations extended beyond Ivnown or sus-
pected Communist Party members. They included other individuals
who regarded the Soviet Union as the "champion of a superior way of
life" and "persons holding important positions who have shown sym-
pathy for Communist objectives and policies." Members of "non-Stal-

"^^ One noted. "This is the most Inscrutable Presidential statement I've seen

in a longr time." Another asljed, "How in H did this get out?" A third

replied, "Don't know — I thought you were handling." Notes initialed D. Bell.
SJS (S. J. Spingarn), and GWE (George W. Elsey), 7/24-25/50 (Elsey Papers,
Harry S. Truman Library). Even before the statement was issued, one of these
aides had warned the President's counsel that the Justice Department was
attempting "an end run." [^Memorandum from G. W. Elsey to Charles S. Murphy,
Counsel to the President, 7/12/50. (Murphv Papers, Harry S. Truman Library.)]

™ See footnotes 19 and 22.

"^ Letter from J. Edgar Hoover to Sherman Adams, Assistant to the President,
1/28/53, and attached memorandum on "FBI Liaison Activities," 1/26/53.

"^ Statement of President Eisenhower, 12/15/53.

"' National Security Action Memorandum 161, Subject : U.S. Internal Security
Programs, 6/9/62.

^** Memorandum from Attorney General Kennedy to J. Edgar Hoover, Chair-
man, Interdepartmental Intelligence Conference, 3/5/64.

inist" revolutionary socialist groups Avere investigated because, even
though they opposed the Soviet regime, the FBI viewed them as re-
garding the Soviet Union "as the center for world revolution." ^^^
Moreover, the FBI's concept of "subversive infiltration" was so broad
that it permitted the investigation for decades of peaceful protest
groups such as the NAACP.

(1) The Number of Inv est i gat ions. — By 1960 the FBI had opened
approximately 432,000 files at headquarters on individuals and groups
in the "subversive" intelligence field. Between 1960 and 1963 an addi-
tional 9,000 such files were opened.^"- An even larger number of in-
vestigative files were maintained at FBI field offices.^^^ Under the
Bureau's filing system, a single file on a group could include references
to hundreds or thousands of group members or other persons associated
with the group in any way ; and such names were indexed so that the
information Avas readily retrievable.

(2) Vague and Sioeeping Standards. — The FBI conducted continu-
ing investigations of persons whose membership in the Communist
Party or in "a revolutionary group" had "not been proven," but who
had "anarchistic or revolutionary beliefs" and had "committed past
acts of violence during strikes, riots, or demonstrations." Persons
not currently engaged in "activity of a subversive nature" were still
investigated if they had engaged in such activity "several years ago"
and there was no "positive indication of disaffection." ^^^

The FBI Manual stated that it was "not possible to formulate any
hard-and-fast standards" for measuring "the dangerousness of in-
dividual members or affiliates of revolutionary organizations." Per-
sons could be investigated if they were "espousing the line" of "rev-
olutionary movements". Anonymous allegations could start an in-
vestigation if they were "sufficiently specific and of sufficient weight."
The Manual added.

Where there is doubt an individual may be a current threat
to the internal security of the nation, the question should
be resolved in the interest of security and investigation
conducted.^^^

The FBI Manual did not define "subversive" groups in terms of
their links to a foreign government. Instead, they were "Marxist
revolutionary-type" organizations "seeking the overthrow of the U.S.
Government." ^^*^ One purpose of investigation was possible prosecu-

"* Memorandum from J. Edgar Hoover to Attorney General Clark, 3/5/46.

^^ Memorandum from the FBI to the Senate Select Committee, 10/28/75. An
indication of the breadth of the investigations is illustrated by the fact that
the number of files far exceeded the Bureau's estimate of the "all time high" in
Communist Party membership which was 80.000 in 1944 and steadily declined
thereafter. (William C. Sullivan testimony, 11/1/75, pp. 33-34.)

^^ Report to the House Committee on the Judiciary bv the Comptroller General
of the United States, 2/24/76, pp. 118-119.

"* Such investigations were conducted because the Communist Party liad issued
instructions that "sleepers" should leave the Party and go "underground," still
maintaining secret linl^s to the Partv. (Memorandum from J. F. Bland to A. H.
Belmont, 7/30/58. )

"Refu.«al to cooperate" with an FBI agent's interview was "taken into con-
sideration along with other facts" in determining whether to continue the in-
vestigation. (Memorandum from J. Edgar Hoover to Deputy Attorney General
Peyton P^ord, 6/28/51.)

^^ 1960 FBI Manual Section 87, p. 5.

^ 1960 FBI Manual Section 87, p. 5.

tion under the Smitli Act. But no prosecutions were initiated under
tlie Act after 1957.^-' The Justice Department advised the FlU in
1956 that such a prosecution required "an actual plan for a violent
revolution." ^-^ The Department's position in 1960 was that "incite-
ment to action in the foreseeable future'- was needed. ^-^ Despite the
strict requirements for prosecution, the FBI continued to investigate
"subversive" organizations "from an intelligence viewpoint" to ap-
praise their "strength"' and "dangerousness." ^^°

(3) COMINFIL.— The FBI's broadest program for collecting intel-
ligence was carried out under the heading COMINFIL, or Communist
infiltration."^ The FBI collected intelligence about Comnnmist "in-
fluence" under the following categories :

Political activities

Legislative activities

Domestic administration issues

Negro question

Youth matters

Women's matters

Farmers' JNIatters

Cultural activities

Veterans' matters

Religion

Education

Industry ^^^

FBI investigations covered "the entire spectrum of the social and
labor movement in the country." ^^^ The purpose — as publicly disclosed
in the Attorney General's Annual Reports — was pure intelligence:
to "fortify" the Government against "subversive pressures,'' "^ or to
"strengthen" the Government against "subA^ersive campaigns." "^

In other words, the COISIINFIL program supplied the Attorney
General and the President with intelligence about a wide range of
groups seeking to influence national policy under the rationale of de-
termining whether Communists were involved."^ The FBI said it was
not concerned with the "legitimate activities" of "nonsubversive
groups," but only with whether Communists were "gaining a dominant

*^ The Supreme Court's last decision upholding a Smith Act conviction was
Scales V. United States, 367 U.S. 203 (1961), which reiterated that there must
he "advocacy of action." See Yates v. United States, 354 U.S. 298 (1957).

^^ Memorandum from Assistant Attornev General Tompkins to Director, FBI,
3/15/56.

^^ Memorandum from Assistant Attornev General Yeagley to Director, FBI,
5/17/60.

"» 1960 FBI Manual-Section 87, p. 5.

"' 1960 FBI Manual Section 87, pp. 83-84.

'"- 1960 FBI Manual Section 87, pp. 5-11.

^■" Annual Report of the Attorney General for Fiscal Year 1955, p. 195.

'^ Annual Report for 1958, p. 338.

'^ Annual Report for 1964, p. 375.

^^ (Examples of such reports to the White House are set forth later, pp. 51-
53.) The Chief of the Internal Security Section of the FBI Intelligence Divi-
sion in 1948-1966 testified that the Bureau "had to he certain" tliat a group's
position did not coincide with the Communist line "just hy accident." The FBI
would not "open a case" until it had "specific infoi-mation" that "the Communists
were there" and were "influencing" the group to "assist the Communist move-
ment." (F. .1. Baumgardner testimony, 10/8/75 p. 47.)

role." ^^'^ Nevertheless, COMINFIL reports inevitably described
"leg-itiinate activities" totally unrelated to the alleged "subversive ac-
tivity." This is vividly demonstrated by the COMINFIL reports on
American's leading civil rights group in this period, the NAACP.^^*
The investigation continued for at least twenty-five years in cities
throughout the nation, although no evidence was ever found to rebut
the observation that the NAACP had a ''strong tendency" to "steer
clear of Connnunist activities." "^

(4) Exaggeration of Comnuinist Infuence. — The FBI and the Jus-
tice Department justified the continuation of COiNlINFIL investiga-
tions, despite the Communist Party's steady decline in the fifties and
early sixities, on the theory that the Party was "seeking to repair its
losses" with the "hope" of being able to "move in" on movements with
"laudable objectives." "°

The FBI reported to the White House in 1961 that the Communist
Party had "attempted" to take advantage of "racial disturbances" in
the South and had "endeavored" to bring "pressure to bear" on gov-
ernment officials "through the press, labor unions, and student groups."
At that time the FBI was investigating "two hundred known or sus-
pected communist front and communist-infiltrated organizations." ^^^
By not stating how effective the "attempts" and "endeavors" of the
Communists were, and by not indicating whether they were becoming
more or less successful, the FBI offered a deficient rationale for its
sweeping intelligence collection policy.

William C. Sullivan, a former head of the FBI Intelligence Division,
has testified that such language was deliberately used to exaggerate
the threat of Communist influence. "Attempts" and "influence" were
"very significant words" in FBI reports, he said. These terms obscured
what he felt to be the more significant criterion — the degree of Com-
munist success. The Bureau "did not discuss this because we would
have to say that they did not hit the target, hardly any." ^^-

A distorted picture of Communist "infiltration" later served to just-
ify the FBI's intensive investigations of the groups involved in protests
against the Vietnam War and the civil rights movement, including Dr.
Martin Luther King, Jr., and the Southern Christian Leadership Con-
ference.

^" Annual Report for 1955, p. 195.

138 YoY more detailed discussion of the FBI investigations of the NAACP and
other civil rights groups see the Report on the Development of FBI Domestic
Intelligence Investigations.

*=* Report of Oklahoma City Field Office, 9/19/41. This report continued:
"Nevertheless, there is a strong movement on the part of the Communists to at-
tempt to dominate this group . . . Consequently, the activities of the NAACP will
be closely observed and scrutinized in the future." [Emphasis added.] This stress
on Communist "attempts" rather than their actual achievements is typical of
COMINFIL reports. The annual reiwrts on the FBI's COMINFIL investigation
of the NAACP indicate that the Communists consistently failed in these "at-
tempts" at the national level, although the Bureau took credit for using covert
tactics to prevent a Communist takeover of a major NAACP chapter. (Letter
from J. Edgar Hoover to Attorney General-elect Robert F. Kennedy. 1/10/61
attached memorandum, subject: Communist Party. T'SA-FBI Counterattack.)

""Annual Report of the Attorney General for Fiscal Year 1959, pp. 247-24S.

""^ Memorandum from .T. Edgar Hoover, Chairman. Interdepartmental Intel-
ligence Conference, to McGeorge Bundy, Special Assistant to the President for
National Security, 7/25/61, enclosing IIC Report, Status of U.S. Internal Security
Programs.

''= William C. Sullivan testimony, 11/1/75, pp. 40-41.

68-786 O - 76 - 5

h. '■'■Racial Matters'''' and '■'■Hate Groups'''

In the 1950s, tlie FBI also developed intelligence programs to inves-
tigate "Eacial Matters" and "hate organizations'' unrelated to "revolu-
tionary-type" subversives. "Hate organizations" were investigated if
they had "allegedly adopted a policy of advocating, condoning, or in-
citing the use of force or violence to deny others their rights under the
Constitution." Like the COINIINFIL program, however, the Bureau
used its "established sources" to monitor the activities of "hate groups"
Avhich did not "qualify" under the "advocacy of violence" standard. ^"^^

In 1963, FBI field offices were instructed to report "the formation
and identities" of "rightist or extremist groups" in the "anticommunist
field." Headquarters approval was needed for investigating "groups
in this field whose activities are not in violation of any statutes." ^^^

Under these programs, the FBI collected and disseminated intelli-
gence about the John Birch Society and its founder, Kobert Welch,
in 1959.^*^ The activities of another right-wing spokesman, Gerald
L. K. Smith, who headed the Christian Nationalist Crusade, were
the subject of FBI reports even after the Justice Department had
concluded that the group had not violated federal law and that there
was no basis for including the group on the "Attorney General's
list." "«

The FBI program for collecting intelligence on "General Racial
Matters" was even broader. It went beyond "race riots" to include
"civil demonstrations" and "similar developments." These "develop-
ments" included :

proposed or actual activities of individuals, officials, commit-
tees, legislatures, organizations, etc., in the racial field.^*^

The FBI's "intelligence function" w^as to advise "appropriate" fed-
eral and local officials of "pertinent information" about "racial inci-
dents." ^*«

A briefing of the Cabinet by Director Hoover in 1956 illustrates
the breadth of collection and dissemination under the racial matters
program. The briefing covered not only incidents of violence and the
"efforts" and "plans" of Communists to "influence" the civil rights
movement, but also the legislative strategy of the NAACP and the
activities of Southern Governors and Congressmen on behalf of groups
opposing integration peacefully."^

"' I960 FBI Manual Section 122, p. 1.

^^ SAC Letter No. 63-27, 6/11/63.

^^'The FBI has denied that it ever conducted a "security-type investigation"
of the Birch Society or Welcli, but states the Boston field office "was instructed
in 1959 to obtain background data" on Welch using public sources. (Memoran-
dum from the FBI to the Senate Select Committee, 2/10/76.) A 1963 internal
FBI memorandum stated that the Bureau "checked into the background of the
Birch Society because of its scurrilous attack on President Eisenhower and
other high Government ofiicials." (Memorandum from F. J. Baumgardner to
W. C. Sullivan, 5/29/63.) Reports were sent to the White House, see footnote 164.

^** Letter from Assistant Attorney General Tompkins to Sherman Adams,
Assistant to the President, 11/22/54; letters from .1. Edgar Hoover to Robert
Cutler, Special Assistant to the President, 10/15/57, and 1/17/58. (Eisenhower
Library.)

"• 1960 FBI Manual Section 122, pp. 5-6.

"" 1960 FBI Manual Section 122, pp. 5-6.

"" "Racial Tensions and C\x\\ Rights," 3/1/56, statement used by the FBI
Director at Cabinet briefing, 3/9/56.

c. FBI Political Intelligence for the White House

Numerous items of political intelligence were supplied by the FBI
to the White House in each of the three administrations during the
Cold War era, apparently satisfying the desires of Presidents and
their staffs.^^o

President Truman and his aides received regular letters from Di-
rector Hoover labeled "Personal and Confidential" containing tidbits
of political intelligence. The lettei-s reported on such subjects as:
inside information about the negotiating position of a non-Commu-
nist labor union; ^^^ the activities of a former Roosevelt aide who was
trying to influence the Truman administration's appointments; ^^" a
report from a "confidential source" that a "scandal" was brcAving which
would be "very embarrassing" to the Democratic administration; ^^^ a
report from a "very confidential source" about a meeting of news-
paper representatives in Chicago to plan publication of stories expos-
ing organized crime and corrupt politicians ; ^^^ the contents of an
in-house communication from lYeicsiceek magazine reporters to their
editors about a story they had obtained from the State Department,^^'*
and criticism of the government's internal security programs by a
former Assistant to the Attorney General."^

Letters discussing Communist "influence" provided a considerable
amount of extraneous information about the legislative process, in-
cluding lobbying activities in support of civil rights legislation ^^' and
the political activities of Senators and Congressmen.^^^

President Eisenhower and his aides received similar tid-bits of po-
litical intelligence, including an advance text of a speech to be deliv-
ered by a prominent labor leader,^^^ reports from Bureau "sources" on
the meetings of an NAACP delegation with Senators Paul Douglas
and Everett Dirksen of Illinois; ^'^" the report of an "informant" on
the role of the United Auto Workers Union at an NAACP confer-
ence,^^^ summaries of data in FBI files on thirteen persons (including
Norman Thomas, Linus Pauling, and Bertrand Russell) who had filed
suit to stop nuclear testing,^*'- a report of a "confidential source" on
plans of jNIrs. Eleanor Roosevelt to hold a reception for the head of

^^° See p. 37 for discussion of White House wiretap requests in 1945-1948.

^^ Letter from J. Edgar Hoover to George E. Allen, Director, Reconstruction
Finance Corporation, 12/13/46. (Harry S. Truman Library.)

^^ Letter from J. Edgar Hoover to Maj. Gen. Harry H. Vaughn, Military Aide
to the President, 2/15/47. (Harry S. Truman Librai'y.)

^^ Letter from Hoover to Vaughn, 6/25/47. (Harry S. Truman Library.)

^^ Letter from J. Edgar Hoover to Matthew J. Connelly, Secretary to the Presi-
dent, 1/27/50. (Harry S. Truman Library.)

^^ Memorandum from J. Edgar Hoover to Attorney General Clark, 4/1/46.
(Harry S. Truman Library.)

^'* Letter from J. Edgar Hoover to Maj. Gen. Harry H. Vaughn, Military Aide
to the Pre.sident, 11/13/47. (Harry S. Truman Library.)

^" Letters from J. Edgar Hoover to Brig. Gen. Harry H. Vaughn, Military Aide
to the President, 1/11/46 and 1/17/46. (Harry S. Truman Library.)

"' Letter from J. Edgar Hoover to George E. Allen, Director, Reconstruction
Finance Corporation, 5/29/49. (Harry S. Truman Library.)

^ letter from J. Edgar Hoover to Dillon Anderson, Special Assistant to the
President, 4/21/55. (Eisenhower Library.)

"" Letter from Hoover to Anderson, 3/6/56. (Eisenhower Library.)

"^ Letter from Hoover to Anderson, 3/5/56. (Eisenhower Library.)

^*" Letter from .T. Edgar Ploover to Dillon Anderson, Special Assistant to the
President, 4/11/58. (Eisenhower Library.)

a civil rights group/^^ and reports on the activities of Robert Welch
and the John Birch Society.^*^'*

The FBI also volunteered to the White House information from its
most '"reliable sources" on purely political or social contacts with for-
eign government officials by a iDeputy Assistant to the President/*'^
Bernard Baruch/'^'^ Supreme Court Justice William O. Douglas/'''
and Mrs. Eleanor Roosevelt.^*'®

Director Hoover sent to the White House a report from a "confiden-
tial informant" on the lobbying activities of a California group called
Women for Legislative Action because its positions "paralleled" the
Communist line."'^

As in the prior administrations, requests also flowed from the Eisen-
hower White House to the FBI.^'° For example, a presidential aide
asked the FBI to check its files on Rev. Carl Mclntyre of the Inter-
national Council of Christian Churches.^'^

The pattern continued during the Kennedy administration. A sum-
mary of material in FBI files on a prominent entertainer was volun-
teered to Attorney General Kennedy because Hoover thought it "may
be of interest." ^^^ Attorney General Kennedy sent to the President an
FBI memorandum on the purely ]:)ersonal life of Dr. ISIartin Luther
King, Jr.^'^ Dii'ector Hoover supplied Attorney General Kennedy with
background information on a woman who told an Italian newspaper
that she had once been engaaed to marry President Kennedv ^'* and on
the husband of a woman who was reported in the press to have stated
that the President's daughter would enroll in a coopei'ative nursery
with which she was connected."^ The FBI Director also passed on

"' Letter from J. Edgar Hoover to Robert Cutler, Special Assistant to the
President, 2/13/58. (Eisenhower Library.) The group was described as the
"successor" to a group cited by the House Un-American Activities Committee
as a "communist front."

^^ Letters from .T. Edgar Hoover to Gordon Gray, Special Assistant to the
President, 9/11/59 and 9/16/59.

^"^ Letter from Hoover to Cutler, 6/6/58. (Eisenhower Library). Tliis involved
contact with a foreign official whose later contacts with U.S. officials were reported
by the FBI under the Kennedy Administration in connection with the "sugar
lobby," see pp. 64-65.

^'"' Letter from J. Edgar Hoover to Dillon Anderson, Special Assistant to the
President, 11/7/55. (Eisenhower Library.)

^°" Letters from J. Edgar Hoover to Robert Cutler, Administrative Assistant
to the President, 4/21/53 and 4/27/53. (Eisenhower Library.)

^"^ Letter from Hoover to Cutler, 10/1/57. (Ei.senhower Library.)

^** Letter from Hoover to Gray, 11/9/59. (Eisenhower Library.) Hoover added
that membership in the group "does not, of itself, connote membership in or
sympathy with the Communist Party."

"° Requests under the Roosevelt and Truman administrations, including wire-
tap requests, are discussed at pp. .33 and 37.

^^ Letter from .1. Edgar Hoover to Thomas E. Stephens, Secretary to the
President, 4/13/54. (Eisenhower Library.)

"^ Memorandum from J. Edgar Hoover to R. F. Kennedy, 2/10/61, "Personal."
(John F. Kennedy Library.)

™ Memorandum from the Attorney General to the President, 8/20/63, attach-
ing memorandum from Hoover to Deputy Attorney General Katzenbach, 8/13/63.
(John F. Kennedy Library.)

"* Memorandum from J. Edgar Hoover to R. F. Kennedy, 2/6/61, "Personal."
(John F. Kennedy Library.)

"^ Memorandum from J. Edgar Hoover to R. F. Kennedy, 2/8/61, "Personal."
(John F. Kennedy Library.)

information from a Bureau "source" regarding plans of a group to
publish allei>ations about the Pi-esident's personal life.^"*'

In 1962 the FBI complied unquestioningly with a request from At-
torney General Kennedy to interview a Steel Company executive and
several reporters who had written stories about the Steel executive.
The interviews were conducted late at night and early in the morning
because, according to the responsible FBI official, the Attorney Gen-
eral indicated the information was needed for a White House meeting
the next day.^"

Throughout the period, the Bureau also disseminated reports to
high executive officials to discredit its critics. The FBI's inside infor-
mation on plans of the Lawyers Guild to denounce Bureau surveil-
lance in 1949 gave the Attorney General the opportunity to prepare a
rebuttal well in advance of the expected criticism. ^'^ AAHien the Knox-
ville Area Human Relations Council charged in 1960 that the FBI was
practicing racial discrimination, the FBI did "name checks'" on mem-
ber of the Council's board of directors and sent the results to the At-
torney General. The name checks dredged up derogatory allegations
from as far back as the late thirties and early forties.^'"

d. IRS Investigations of Political Organizations
The lES program that came to be used against the domestic dissi-
dents of the 1960s was first used against Communists in the 1950s.
As part of its COINTELPRO against the Communist Party, the
FBI arranged for IRS investigations of Pai'ty members, and ob-
tained their tax returns.^^° In its efforts against the Connnunist Party,
the FBI had unlimited access to tax returns : it never told the IRS why
it wanted them, and IRS never attempted to find out.^^^

In 1961, responding to White House and congressional interest in
right-wing organizations, the IRS began comprehensive investiga-
tions of right-wing groups to identify contributors and ascertain
whether or not some of them were entitled to their tax exempt status.^^^
Left-wing groups were later added, in an effort to avoid charges that
such IRS activities were all aimed at one part of the political spectrum.
Both right- and left-wing groups were selected for review and investi-
gation because of their political activity and not because of any infor-
mation that they had violated the tax laws.^^^

While the IRS efforts begun in 1961 to investigate the political
activities of tax exempt organizations were not as extensive as later

""Memorandum from J. Edgar Hoover to R. F. Kennedy, 11/20/63. (John F.
Kennedy Library.)

^" Memorandum from Attorney General Kennedy to the President, 4/12/62 en-
closing memorandum from Director. FBI, to the Attorney General, 4/12/62 ;
testimony of Courtney Evans, former Assistant Director, FBI, 12/l/7r>, p. .39.

"" Letter from Attorney General McGrath to President Truman, 12/7/49 ; letter
from J. Edgar Hoover to Maj. Gen. Harry H. Vaughn, Military Aide to the Presi-
dent, 1/14/50.

^™ Memorandum from J. Edgar Hoover to Attorney General William P. Rogers,
5/2.5/60.

'** Memorandum from A. H. Belmont to L. V. Boardman, 8/28/56, p. 4.

'"^ Leon Green testimony, 9/12/75, pp. 6-8.

^*'' Memorandum, William Loeb, Assistant Commissioner, Compliance to Dem.
J. Barron, Director of Audit, 11/30/61.

^^ Memorandum, Attorney Assistant to Commis.sion to Director, IRS Audit
Division, 4/2/62.

programs in 1969-1973, they were a significant departure by the IRS
from normal enforcement criteria for investigating persons or groups
on the basis of information indicating noncompliance. By directing
tax audits at individuals and groups solely because of their political
beliefs, the Ideological Organizations Audit Project (as the 1961 pro-
gram was known )^^* established a precedent for a far more elaborate
program of targeting "dissidents." ^^^

Jf. AccountdbiUty and Control

During the Cold War period, there were serious weaknesses in the
system of accountability and control of domestic intelligence activity.
On occasion the executive chose not to comply with the will of Congress
with respect to internal security policy ; and the Congressional attempt
to exclude U.S. foreign intelligence agencies from domestic activities
was evaded. Intelligence agencies also conducted covert programs in
violation of laws protecting the rights of Americans. Problems of ac-
countability were compounded by the lack of effective congressional
oversight and the vagueness of executive orders, which allowed intelli-
gence agencies to escape outside scrutiny.

a. The Emergency Detention Act
In 1946, four years before the Emergency Detention Act of 1950
was passed, the FBI advised Attorney General Clark that it had
secretly compiled a security index of "potentially dangerous'' per-
sons. "'^ The Justice Department then made tentative plans for emer-
gency detention based on suspension of the privilege of the writ of
habeas corpus.^^^ Department officials deliberately avoided going to
Congress, advising the FBI in a "blind men:iorandum :"

The present is no time to seek legislation. To ask for it would
only bring on a loud and acrimonious discussion.^^^

In 1950, however. Congress passed the Emergency Detention Act
which established standards and procedures for the detention, in the
event of war, invasion or insurrection "in aid of a foreign enemy," of
any person :

as to whom there is reasonable ground to believe that such
person probably will engage in, or probably will conspire with
others to engage in, acts of espionage or sabotage.

The Act did not authorize the suspension of the privilege of the writ
of habeas corpus, and it provided that detained persons could appeal to
a review board and to the courts. ^^®

Shortly after passage of the Detention Act, according to a Bureau
document. Attorney General J. Howard McGrath told the FBI to

'** IRS referred to it as Tax Political Action Groups Project. It was apparently
labeled as above by the Joint Committee on Internal Revenue Taxation.

^^' See pp. 94—96 for discussion of later IRS programs.

'^ Memorandum from J. Edgar Hoover to Attorney General Clark, 3/8/46. See
footnote 67 for the origins of the Security Index in contravention of Attorney
General Biddle's policy.

^^ Memorandum from Assistant Attorney General T. L. Caudle to Attorney Gen-
eral Clark, 7/11/46.

^^^ Quoted in internal FBI memorandum from D. M. Ladd to J. Edgar Hoover,
1/22/48.

'"* Internal Security Act of 1950, Title II— Emergency Detention, 64 Stat. 987
(1950).

disregard it and to "proceed with the program as previously outlined."
Department officials stated that the Act was "in conflict with" their
plans, and was "unworkable." FBI officials agreed that the statutory
procedures — such as "recourse to the courts" instead of suspension of
habeas corpus — would "destroy" their program.^'"^ ]\Ioreover, the Secu-
rity Index used broader standards to determine "potential danger-
ousness" than those pi-escribed in the statute; and, unlike the Act,
Department plans provided for issuing a Master Search Warrant and
a Master Arrest Warrant. ^^^ Two subsequent Attorneys General
endorsed the decision to ignore the Emergency Detention Act.^^-

h. Withholding Information
Xot only did tlie FBI and the Justice Department jointly keep their
noncompliance with the Detention Act secret from Congress, but the
FBI withheld important aspects of its program from the Attorney
General. FBI personnel had been instructed in 1949 that:

no mention must be made in any investigative report relating
to the classifications of top functionaries and key figures, nor
to the Detcom and Comsab Programs, nor to the Security
Index or the Communist Index. These investigative proce-
dures and administrative aides are confidential and should
not be known to any outside agency.^^^

FBI documents indicate that only the Security Index was made known
to the Justice Dei)artment.

In 1955, the FBI tightened formal standards for the Security Index,
reducing its size from 26,174 to 12,870 by 1958.^^* However, there is no
indication that the FBI told the Department that it kept the names of
persons taken off the Security Index on a Communist Index, because
the Bureau believed such persons remained "potential threats." ^^^"^
The secret Communist Index was renamed the Eeserve Index in 1960
and expanded to include "influential" persons deemed likely to "aid
subversive elements'' in an emergency because of their "subversive as-
sociations and ideology." Such individuals fell under the following
categories :

Professors, teachers, and educators; labor union organizers
and leaders; Avriters, lecturers, newsmen and others in the
mass media field; lawyers, doctors, and scientists; other po-
tentially influential persons on a local or national level ; indi-
viduals who could potentially furnish financial or material
aid.

'*' Memorandum from A. H. Belmont to D. M. Ladd, 10/15/52.

"' Memoi-andum from D. M. Ladd to .7. Edgar Hoover, 11/13/52.

^^- Memorandum from Attorney General James McGranery to J. Edgar Hoover.
11/2.5/52; memorandum from Attorney General Herbert Brownell to J. Edgar
Hoover, 4/27/53.

^^ SAC Letter No. 97, Series 1949, 10/19/49. Field offices gave special attention
to "key figixres" and "top functionaries" of the Communist Party. The "Comsab"
program concentrated on potential Communist saboteurs, and the "Detcom" pro-
gram was the FBI's own "priority arrest" list. The Communist Index was "a com-
prehensive compilation of individuals of interest to the internal security."

^" Memorandum from J. Edgar Hoover to Attorney General Brownell. 3/9/55 ;
memorandum from .1. F. Bland to A. H. Belmont, 7/30/58.

^^*^ Memorandum from A. H. Belmont to L. V. Boardman, 1/14/55.

Persons on the Reserve Index would receive "priority consideration"
for "action'' after detention of Security Index subjects. The breadth
of this list is illustrated by the inclusion of the names of author
Norman Mailer and a professor who merely praised the Soviet Union
to his class.^'*^

In addition to keeping these programs secret, the FBI withheld
information about espionage from the Justice Department on at least
two occasions. In 1946 the FBI had "identified over 100 persons'' whom
it "suspected of being in the Government Communist Underground."
Neither this number nor any names from this list were given to the
Department because Director Hoover feared "leaks," and because the
Bureau conceded in its internal documents that it did "not have
evidence, whether admissible or otherwise, reflecting actual member-
ship in the Communist Party." ^^^ Thus the Bureau's "suspicions" were
not tested by outside review by the Justice Department and the investi-
gations could continue. In 1951 the FBI again withheld from the
Department names of certain espionage subjects "for security reasons,"
since disclosure "would destroy chances of penetration and control." ^^'^

Even the President's Temporary Commission on Employee Loyalty
could not get highly relevant information from the Bureau. FBI As-
sistant Director D. M. Ladd told the Commission in 1946 that there
was a "substantial" amount of Communist "infiltration of the gov-
ernment." But Ladd declined to answer when Commission members
asked for more details of FBI intelligence operations and the infor-
mation which served as the basis for his characterization of the ex-
tent of infiltration. ^^^ The Commission prepared a list of questions for
the FBI and asked that Director Hoover appear in person. Instead,
Attornej^ General Clark made an "informal'' appearance and supplied
a memorandum stating that the number of "subversives" in govern-
ment had "not yet reached serious proportions,'' but that the possibility
of "even one disloyal person" in government service constituted a
"serious threat." ^^^ Thus, the President's Commission chose not to
insist upon making a serious evaluation of FBI intelligence operations
or the extent of the danger.

The record suggests that executive officials were forced to make de-
cisions regarding security policy without full knowledge. They had
to depend on the FBI's estimate of the problem, rather than being
able to make their ovv^n assessment on the basis of complete informa-
tion. It is also apparent that by this time outside officials were some-
times unwilling to oppose Director Hoover or to inquire fully into FBI
operations.^""

c. CIA Domestic Activity
(1) Vague Controls on CIA. — The vagueness of Congress's pro-
hibitions of "internal security functions" by the CIA left room for the

^°° Memorandum from A. H. Belmont to Mr. Parsons, 6/3/60.

^"' Memorandum from D. M. Ladd to J. Edgar Hoover, 9/5/46 ; memorandum
from Hoover to Attorney General Clark, 9/5/46.

^®' Memorandum from A. H. Belmont to D. M. Ladd. 4/17/51.

"* Minutes of the President's Temporary Commission on Employee Loyalty,
1/17/47. (Harry S. Truman Library.)

^M Memorandum from Attorney General Clark to Mr. Vanecli, Chairman, Presi-
dent's Temporary Commission, 2/14/47. (Tiiiman Library.)

"'"' See finding (G) for a full discussion of the problem of FBI accountability.

Agency's subsequent domestic activity. A restriction against "police,
law enforcement or internal security functions" first appeared in
President Truman's order establishing the Central Intelligence Group
in 1946.-°^

General Vandenburg, then Director of Central Intelligence, testified
in 1947 that this restriction was intended to "draw the lines very
sharply between the CIG and the FBI" and to "assure that the Central
Intelligence Group can never become a Gestapo or security police." -°-
Secretary of tlie Navy ,Tames Forrestal testified that the CIA would be
"limited definitely to purposes outside of this country, except the col-
lection of information gathered by other government agencies." The
FBI would be relied upon "for domestic activities." ^°^

In the House floor debate Congressman Holifield stressed that the
work of the CIA :

is strictly in the field of secret foreign intelligence — what is
known as clandestine intelligence. They have no right in the
domestic field to collect information of a clandestine military
nature. They can evaluate it; yes."°^

Consequentlv, the National Security Act of 1947 provided specifically
that the CIA

shall have no police, subpoena, law-enforcement powers, or
internal security functions.^"^

However, the 1947 Act also contained a vague and undefined duty to
protect intelligence "sources and methods" which later was used to
justify domestic activities ranging from electronic surveillance and
break-ins to penetration of protest groups.^"**

(2) Drug Testing and Cover Programs. — In the early 1950s, the
CIA began a program of surreptitiously testing chemical and biologi-
cal materials, which included drug testing on unwitting Americans.
The existence of such a program was kept secret because, as the CIA's
Inspector General wrote in 1957, it was necessary to "protect oper-
ations from exposure" to "the American public" as well as "enemy
forces." Public knowledge of the CIA's "unethical and illicit activ-
ities" was thought likely to have serious "political repercussions." -°^
CIA drug experimentors disregarded instmctions of their superiors
within the Agency and failed to take "reasonable precautions" when

''^ Presidential Directive, Coordination of Federal Foreign Intelligence Activi-
ties, 1/22/46, 11 Fed. Reg. 1337. Fears that a foreign intelligence agency would
intrude into domestic matters went back to 1944, when General William Dono-
van, head of the Office of Strategic Services (the CIA's wartime predecessor)
proposed that OSS be transformed from a wartime basis to a permanent "central
intelligence service." Donovan's plan was leaked to the Chicago Tribune, al-
legedly by FBI Director Hoover, and it was denounced as a "super spy system"
which would "pry into the lives of citizens at home." [Corey Ford, Donovan of
the OSS (Boston: Little, Brown, 1970), pp. 303-304.]

-® Hearings before the Senate Armed Services Committee on S. 758, 80th Cong.
(1947), p. 497.

-'"' Hearings before the House Committee on Expenditures in the Executive
Departments on H.R. 2319, 80th Cong. (1947), p. 127.

'°*93 Cong. Rec. 9430 (1947).

^'^ 50 U.S.C. 403(d) (3).

'"'^ See pp. 102-103.

^"'Inspector General's Report on the Technical Services Division, Central
Intelligence Agency, 1957.

they undertook the test which resulted in the death of Dr. Frank
01sen.-°«

The CIA made extensive use of the Bureau of Narcotics and Dan-
gerous Drugs in conducting its program of drug testing on unwitting
subjects.

Military intelligence also administered drugs to volunteer subjects
who were unaware of the purpose or nature of the tests in which they
were participating.-"^

The CIA's drug research was conducted in part through arrange-
ments with universities, hospitals, and "private research organiza-
tions" in a manner which concealed "from the institution the interests
of the CIA," although "key individuals" were made witting of Agency
sponsorship.^^" There were similar covert relationships with American
private institutions in other CIA intelligence activities.^"

5. Intrusive Techniques

Throughout the cold war period, the intelligence agencies used
covert techniques which invaded personal privacy to execute their
vague, uncontrolled, and overly broad mandate to collect intelligence.
Intelligence techniques were not properly controlled by responsible
authorities; some of the techniques were misused by senior adminis-
tration officials. On the other hand, the nature of the programs —
and, in some cases, their very existence — was often concealed from
those authorities.

a. C onvmunications Interception: CIA and NSA
During the 1950s the Central Intelligence Agency instituted a
major program for opening mail between the United States and the
Soviet Union as it passed through postal facilities in New York
City.-^^ Two other short-tenn CIA projects in the fifties also involved
the opening of international mail within the United States, through
access to Customs Service facilities.-" Moreover, in the late 1940s the
Department of Defense made ai-rangements with several communi-
cations companies to receive international cable traffic, reinstating a
relationship that had existed during World War 11.^^* These pro-
grams violated not only the ban on internal security functions by
foreign intelligence agencies in the 1947 Act, but also specific statutes
protecting the privacy of the mails and forbidding the interception of
communications.-^^

^' Memorandum from the CIA General Counsel to the Inspector General,
1/5/54.

""* U.S. Army Intelligence Center Staff Study : Material Testing Program EA
1729, 10/15/59.

^^ CIA Inspector General's Report, 1963.

-" This issue is examined more fully in the Committee's Report on Foreign
and Military Intelligence Activities.

-^ Memorandum from James Angleton, Chief, Counterintelligence Staff, to
Chief of Operations, 11/21/55 (attachment).

^CIA Memorandum re: Project SETTER, undated (New Orleans) ; Memo-
randum from "Identity #13" to Deputy Director of Security, 10/9/57 (New
Orleans) ; Rockefeller Commission Staff Summary of CIA Office Officer Interview,
3/18/75 (Hawaii).

"^* Robert Andrews, Special Assistant to the General Counsel, Department of
Defense, testimony, 9/23/75, pp. 34-10.

=^^18 U.S.C. 1701-1703 (mail); 47 U.S.C. 605 (Federal Communications Act
of 1934).

AVliile their original purpose was to obtain foreign intelligence, the
programs frequently did not distinguish between the messages of for-
eigners and of Americans.'-^*^ Furthermore, by the late fifties and early
sixties, the CIA and NSA were sharing the "take" with the FBI for
domestic intelligence purposes.^^"

In this period, the CIA opened mail to and from the Soviet Union
largely at random, intercepting letters of Americans unrelated to for-
eign intelligence or counterintelligence.^^* After the FBI learned of
the CIA program, it levied requests in certain categories. Apart from
foreign counterintelligence criteria, the Bureau expressed interest
in letters from citizens professing "pro-Communist sympathies" ^^^
and "data re U.S. peace groups going to Russia." -^°

The secret arrangements with cable companies to obtain copies of in-
ternational traffic were initially authorized by Secretary of Defense
James Forrestal and Attorney General Tom Clark, although it is not
clear that they knew of the interception of American as well as foreign
messages.--^ They developed no formal legal rationale, and their later
successors were never consulted to renew the authorization. ^-'-

The CIA sought no outside authorization before instituting its mail
opening program. Several Post Office officials were misled into believ-
ing that the CIA's request for access to the mail only involved examing
the exterior of the envelopes.-^^ President Kennedy's Postmaster Gen-
eral, J. Edward Day, testified that he told CIA Director Allen Dulles
he did not want to "know anything about" what the CIA was doing.^^*
Beyond undocumented assumptions by (TA officials, there is no evi-
dence tliat the President or the Attorney General was ever informed
about any aspect of CIA mail-opening operations in this period.^^^

-^^ CIA memoTanduui "For the Record" from Thomas B. Abernarhy, S/21/61 ;
Dr. Ix)uis Tordella, former Deputy Director, National Security Agency, testimony
10/21/75, pp. 17-20.

-" High FBI officials decided to use the CIA mail opening program for "our
internal security objectives'' in 1958. They did not want the Bureau to "assume
this coverage" itself because its "sensitive nature" created "inherent dangers"
and due to its "complexity, size, and expense." Instead, the Bureau would hold
CIA "responsible to share their coverage with us." (Memorandum from A. H. Bel-
mont to Mr. Boardman, 1/22/58.) The initial FBI request to XSA involved "com-
mercial and personal communications between persons in Cuba and the United
States." (Memorandum from W. R. Wannall to W. C. Sullivan, Assistant Director,
Domestic Intelligence Division, 5/18/62. )

^^^ Abernathy memorandum, 8/21/61.

^^ Memorandum from W. A. Branigan to W. C. Sullivan (attachment). 8/21/61.

=^ Memorandum from W. A. Branigan to W. C. Sullivan, 2/15/62.

■^ Select Committee Memorandum, Subject : Review of Documents at DOD Re-
garding LP MEDLEY, 9/17/75. ("LP MEDLEY" was the CIA's codename for
this program ; the XSA codename was SHAMROCK.)

"~ Secretary Forrestal's immediate successor, Louis Johnson, renewed the ar-
rangement in 1949. To the knowledge of those interviewed by the Committee, this
was the last instance in which the companies raised any question as tO' the
authority for the arrangements. (Andrews, 9/23/75. pp. 34, 40.)

"^ Richard Helms Testimony, 10/22/75, Hearings, Vol. 4, p. 84. Memorandum
from Richard Helms to Sheffield Edwards, Director of Security, 5/17/54.

"^ J. Edward Day Testimony, 10/22/75, Hearings, Vol. 4. p. 45. However, a
contemporaneous CIA memorandum .stated that "no relevant details" were with-
held from Day when lie was Itriefed in 1961 by CIA officials. (Memorandum from
Richard Helms to Deputy Chief of the Counterintelligence Staff, 2/16/61.)

-'-' Helms, 10/22/75, Hearings, Vol. 4, pp. 87-89.

6. FBI Covert Techniques

( 1 ) Electronic SurveiUance.

{a) The Question of Authority : In 1946 Attorney General Tom
Clark asked President Truman to renew the authorization for war-
rantless wiretapping issued by President Roosevelt in 1940. Clark's
memorandum, however, did not refer to the portion of the Roosevelt
directive which said wiretaps should be limited "insofar as possible
to aliens." It stressed the danger from "subversive activity here at
home," and requested authority to wiretap "in cases vitally affecting
the domestic security," -^^^ The President gave his approval. Truman's
aides later discovered Attorney General Clark's omission and the
President considered, but decided against, returning to the terms of
Roosevelt's authorization.^^^

In 1954 the. Supreme Court denounced the Fourth Amendment
violation by j^olice who placed a microphone in a bedroom in a local
gambling case.--®

Soon thereafter, despite this decision — and despite his i^redecessor's
ruling that trespassory installation of bugs was in the "area" of the
Fourth Amendment — Attorney General Herbert Brownell authorized
the "unrestricted use" in the "national interest" of "trespass in the
installation of microphones." "'^

From 1954 until 1965, when Attorney General Nicholas Katzenbach
reconsidered the i^olicy and imposed stricter regulations,-^" the FBI
had unsupervised discretion to use microphone surveillance and to
conduct surreptitious entries to install microphones. Thus, the safe-
guard of approval by the Attorney General for each wiretap had been
undercut by the FBI's ability to intrude into other, often more inti-
mate conversations by microphone "bugging."

(5) Extensive Bugging: In May 1961, Director Hoover advised
Deputy Attorney General Byron White that the FBI was using "micro-
phone surveillances" involving "trespass" for "intelligence purposes"
in the "internal security field." He called White's attention to the 1954
Brownell memorandum, although he said microphones were used "on
a restricted basis" and cited as examples only "Soviet intelligence
agents and Communist Party leaders." -^^

In fact, the FBI had already used microphone surveillance for
broader coverage than Communists or spies. Indeed, it had "bugged" a
hotel room occupied by a Congressman in February 1961. There is
no evidence that Attorney General Kennedy or Deputy Attorney

^"Letter from Attorney General Clark to President Truman, 7/17/46.

^" Memorandum from G. M. Elsey, Assistant Counsel to the President, to S. J.
Spingarn; memorandum from Elsey to the President, 2/2/50, (Spingarn Papers.
Harry S. Truman Library ) .

"^^ Irvine v. California, 347 U.S. 128 (1954).

^ Memorandum from Attorney General Brownell to J. Edgar Hoover, 5/20/.54.
In 1952 Attorney General J. Howard McGrath refused to authorize microphone
surveillance involving trespass because it was "in the area of the Fourth Amend-
ment." (Memorandum from Attorney General McGrath to J. Edgar Hoover,
2/26/.52. )

^^ See p. 105. (The Chief Counsel to the Select Committee disqualified himself
from participating in Committee deliberations concerning either Mr. Katzenbach
or former Assistant Attorney General Burke Marshall because of a previous
attorney-client relationship witli those two persons.)

-^^ Memorandum from J. Edgar Hoover to Deputy Attorney General Byron
White, 5/4/61.

General White were specifically informed of this surveillance. But
the Attorney General received information which came from the
"bug" and authorized a wiretap of the Congressman's secretary.-^^

Furthermore, FBI records disclose that the FBI conducted war-
rantless microphone surveillances in 1960-1963 directed at a "black
separatist group,*' "black separatist group functionaries'' and a
"(white) racist organization."^^* There may have been others for
purely domestic intelligence purposes.-^^

The FBI maintained no "central file or index" to record all micro-
phone surveillances in this period, and FBI records did not distinguish
"bugs" involving trespass.-^''

(2) ''''Black Bag Johs.''' — There is no indication that any Attorney
General was informed of FBI "black bag" jobs, and a "Do Not File"
procedure was designed to preclude outside discovery of the FBI's
use of the technique.

No permanent records were kept for approvals of "black bag jobs,"
or surreptitious entries conducted for purposes other than installing a
"bug." The FBI has described the procedure for authorization of sur-
reptitious entries as requiring the approval of Director Hoover or his
Assistant Clyde Tolson. The authorizing memorandum was filed in the
Assistant Director's ofKce under a "Do Not File" procedure, and there-

-^ In the course of an investigation, authorized by Attorney General Kennedy,
into lobbying efforts on behalf of a foreign country regarding sugar quota legis-
lation, the FBI determined that Congressman Harold D. Cooley, chairman of tlie
House Agriculture Committee, planned to meet with representatives of a foreign
country in a hotel room. (FBI memorandum, 2/15/61; Memorandum from
\V. R. Wannall to W. C. Sullivan, 12/22/66.)

At the instruction of Director Hoover, the Bureau installed a microphone in
the hotel room to record this meeting. (FBI memorandum, 2/15/61; Memo-
randum from D. E. Moore to A. H. Belmont, 2/16/61.) The results of the meeting
were subsequently disseminated to the Attorney General. (Memorandum from
J. Edgar Hoover to Attorney General Kennedy, 2/18/61. )

A reviw of this case by FBI officials in 1966 concluded that "our files contain
no clear indication that the Attorney General was specifically advised that a
microphone surveillance was being utilized. . ." (Memorandum from AVannall
to Sullivan, 12/21/66.) It was noted, liowever, that on the morning of Febru-
ary 17, 1961 — after the microphone was in place but an hour or two before the
meeting actually occurred — Director Hoover .spoke with Attorney General
Kennedy and, according to Hoover's contemporaneous memorandum, advised
him that the Cooley meeting was to take place that day and that "we are trying
to cover" it. (Memorandum from J. Edgar Hoover to Messrs. Tolson, Parsons,
Mohr, Belmont, and DeLoach, 2/17/61.)

^* According to records compiled by the FBI, there was FBI microphone sur-
veillance of one "black separatist group" in 1960 ; one "black separatist group"
and one "black separatist group functionary" in 1961 ; two "black separatist
grouixs," one "black separatist group functionary," and one "(white) racist
organization" in 1962 ; and two "black separatist groups" and one "black
separatist group functionarv" in 1963. (Memorandum from FBI to Select Com-
mittee. 10/23/75. )

"" The Select Committee has determined that the FBI, on at least one occasion,
maintained no records of the approval of a microphone surveillance authorized
by an Assistant Director. (FBI Memorandum, 1/30/75, Subject: Special Squad
at Democratic National Convention, Atlantic City, New Jersey, 8/22-28/64.)

^" Memorandum from the FBI to the Senate Select Committee, 10/17/75. This
memorandum also states that, on the basis of the recollections of agents and a
review of headquarters files, the FBI has "been able to identify" the following
number of "surreptitious entries for microphone installations" in "internal
security, intelligence, and counterintelligence" investigations: 1960: 49; 1961:
63 ; 1962 : 75 : 1963 : 79 ; and the following number of such entries "in criminal
inve.stigations" (as opposed to intelligence): 1960: 11; 1961: 69; 1962: 106;
1963: 84.

after destroyed. In the field office, the Special Agent in Charge main-
tained a record of approval in his office safe. At the next yearly field
office inspection, an Inspector would review these records to ensure
that the SAC had secured FBI headquarters approval in conducting
surreptitious entires. Upon completion of the review, these records
were destroyecl.-^^

The only internal FBI memorandum found discussing the policy
for surreptitious entries confirms that this was the procedure and
states that "we do not obtain authorization from outside the Bureau"
because the technique was "clearly illegal." The memorandum indi-
cates that "black bag jobs" were used not only "in the espionage field"
but also against "subversive elements" not directly connected to es-
pionage activity. It added that the techniques resulted "on numerous
occasions" in obtaining the "highly secret and closely guarded" mem-
bership and mailing lists of "subversive" groups.^^*

(3) Mail Opening. — The FBI did not seek outside authorization
when it reinstituted mail opening programs in the fifties and early
sixties. Eight programs were conducted for foreign intelligence and
counterespionage purposes, and Bureau officials who supervised these
programs have testified that legal considerations were simply not
raised at the time.-^^

Bej^ond their original purpose, the FBI mail opening programs
produced some information of an essentially domestic nature. For
example, during this period one program supplied "considerable data"
about American citizens who expressed pro-Communist sympathies
or made "anti-U.S. statements." ^*° Some of the mail-opening by-
product regarding Americans was diSvSeminated to other agencies for
law enforcement purposes, with the source disguised.^*^

c. Use of FBI Wiretaps
The authorization for wiretapping issued by President Truman in
19-i6 allowed the Attorney General to approve wiretaps in the investi-
gation of "subversive activity" to protect the "domestic security." ^^^

^^'Memoraiiclum from the FBI to the Senate Select Committee, 9/23/75.

"* Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66. Subject :
"Black Bag" Jobs. Initials on this memorandum indicate that it was prepared
by F. J. Baumgardner, an FBI Intelligence Division Section Chief, and approved
by J. A. Sizoo, principal deputy to Assistant Director W. C. Sullivan. This
memorandum was located in Director Hoover's "Official and Confidential" files,
and it appears that the memorandum was shifted from Hoover's "Personal Files"
shortly Ijefore his death. (Helen Gandy deposition, 11/12/75, pp. 4-6.)

The FBI compiled a list of the "domestic subversive" targets, based "upon
recollections of Special Agents who have knowledge of such activities, and review
of those files identified by recollection as being targets of surreptitious entries."
The list states '''at least fourteen domestic subversive targets were the subject of
at least 238 entries from 1942 to April 1968. In addition, at least three domestic
subversive targets were the subject of numerous entries from October 1952 to
June 1966. . . . One white hate group was the target of an entry in March 1966."
The Bureau admits that this list is "incomplete." (Memorandum from the FBI
to the Senate Select Committee, 9/23/75.)

■^'' DeiK)sition of William R. Branigan, Section Chief, FBI Intelligence Division,
10/9/75. pp. 13, 39, -10. Testimony of Assistant Director W. Raymond Wannall,
FBI Intelligence Di\4sion, 10/24/75, Hearings, vol. 4, pp. 148-49.

-"Memorandum from San Francisco field office to FBI Headquarters, 3/11/60.

-"Memorandum from S. B. Donahoe to W. C. Sullivan. 9/15/61 ; Memorandum
from San Francisco field office to FBI headquarters, 7/28/61.

=" Letter from Attorney General Clark to President Truman, 7/17/46.

A wiretap on an official of the Nation of Islam, originally authorized
by Attorney General Herbert Brownell in 1957, continued thereafter
without re-authorization until 1965.-^-^ Attorney General Robert Ken-
nedy approved FBI requests for wiretaps on an Alabama Klan leader
in 1963 -*'* and on black separatist group leader Malcolm X in 1964. ^*^
Kennedy also authorized wiretap coverage requested by the Warren
Commission in 1964.''**^ Kemiedy's approval of FBI requests for wire-
taps on Dr. Martin Luther King and several of his associates are dis-
cussed in greater detail elsewhere in the Committee's report. ^^^

In addition, Attorney General Kennedy approved wiretaps on four
American citizens during investigations of "classified information
leaks." The taps failed to discover the sources of the alleged "leaks"
and involved procedural irregularities. In 1961 Attorney General
Kennedy told Director Hoover that the President wanted the FBI
to determine who was responsible for an apparent "leak" to Newsweek
reporter Lloyd Norman, author of an article about American mili-
tary plans in Germany.^^^ But the Attorney General was not asked to
approve a wiretap on Norman's residence until after it was installed.

According to contemporaneous Bureau memoranda, wiretaps in
1962 on the residence of New York Times reporter Hanson Baldwin
and his secretaiy to determine the source of an article about Soviet
missile sites were also instituted without prior written approval of
the Attorney General ; and one of them — the tap on the secretary —
Avas instituted without the Attorney General's prior knowledge.^^^
Kennedy's written approval was obtained, however, three days after
the Baldwin tap was installed and four days after the tap on tlie
secretary was installed. '^°

The pattern, including ex post facto approval, was repeated for
Aviretaps of a former FBI agent who disclosed "confidential" Bureau
information in a public forum. The first tap lasted for eight days in
1962, and it was reinstituted in 1963 for an undetermined period.^'^^
Attorney General Kennedy was advised that the FBI desired to place
the initial coverage ; but he was not informed that it had been effected
the day before, and he did not grant written approval until the day

^^ Memorandum from Hoover to Brownell, 12/31/56.

^*' Memorandum from Hoover to Kennedy, 10/9/63.

^^ Memorandum from Hoover to Kennedy, 4/1/64.

^ Memorandum from Hoover to Kennedy, 2/24/64.

"" See Findings C and G and Committee Report on the FBI and Dr. Martin
Luther King. .Tr.

'"^ Memorandum from R. D. Cotter to W. C. Sullivan, 12/15/66. On the .same
day, and without specific authorization from the Attorney General, the FBI
placed a wiretap on Norman's residence. Attorney General Kennedy was
informed of the wiretap two days later, and approved it the following day.
(Memorandum from J. Edgar Hoover to Attorney General Kennedy, 6/29/61.)
The tap continued for four days until Norman went on vacation. (Memorandum
from S. B. Donahoe to W. C. Sullivan, 7/3/61.) At no time did this or any other
aspect of the FBI's investigation produce any evidence that Norman had actu-
ally ohtained classified information. An FBI summary stated : "The majority of
those interviewed thought a competent, well-informed reporter could have writ-
ten the article without having reviewed or received classified informption."
(Memorandum from Cotter to Sullivan, 12/15/66.)

=^' Memorandum from J. Edgar Hoover to Attorney General Kennedy, 7/27/62.

=^'' Memorandum from .T. Edgar Hoover to Attorney General Kennedy, 7/31/62.
The tap on the secretarv lasted three weeks, and the tap on Baldwin a month.
Memoranda from W. R.'wannall to W. C. Sullivan, 8/13/62 and S/28/62.

^'^ Unaddressed memorandum from A. H. Belmont, 1/9/63.

it was terminated.-^- It appears that only oral authorization was
obtained for reinstitiiting the tap in 1963.^^^

In February 1961, Attorney General Kennedy requested the FBI
to initiate an investigation for the purpose of developing :

intelligence data which would provide President Kennedy a
picture of what was behind pressures exerted on behalf of [a
foreign country] regarding sugar quota deliberations in Con-
gress ... in connection with pending sugar legislation.^^*

This investigation lasted approximately nine weeks, and was rein-
stituted for a three-month period in mid-1962.

According to an FBI memorandum, the Attorney General author-
ized the wiretaps in 1961 on the theory that "the administration has
to act if money or gifts are being passed by the [representatives of a
foreign country].*' ^■'^■'"' Specifically, he approved wiretaps on several
American citizens : three officials of the Agriculture Department (resi-
dences only) ; '^® the clerk of the House Committee on Agriculture
who was also secretary to the chairman (residence only) ; -^' and a reg-
istered agent of the foreign country (both residence and business tele-
phones).^^^ After passage of the Administration's own sugar bill in
April 1961, these wiretaps were discontinued.-'^^

The investigation was reinstituted in June 1962, when the Bureau
learned that representatives of the same foreign country again might
be influencing congressional deliberations concerning an amendment
to the sugar quota legislation. -^^° Attorney General Kennedy approved
wiretaps on the office telephone of an attorney believed to be an agent
of the foreign country and, again, on the residence telephone of the
Clerk of the House Agriculture Committee.-*^^ The latter tap continued
for one month, but the former apparently lasted for three months.^^^

^^ Memorandum from J. Edgar Hoover to Attorney General Kennedy, 10/19/62.

^^ Unaddressed memorandum from "hwg" (Director Hoover's secretary was
Helen AV. Gandy), 1/9/63. This memorandum reads: "Mr. Belmont called to say
(Courtney) Evans spoke to tlie Attorney General replacing tlae tech on [former
FBI agent] again, and the Attorney General said by all means do this. Mr. Bel-
mont has instructed New York to do so." (Assistant Director Courtney Evans was
tlie FBI's normal liaison with Attorney General Kennedy.)

^* Memorandum from W. R. Wanall to W. C. Sullivan, 12/22/66. The Sugar
Lobby investigation is also discussed at footnote 233.

^^ Memorandum from A. H. Belmont to Mr. Parsons, 2/14/61.

^ Memorandum from J. Edgar Hoover to Attorney General Kennedy, 2/14/61.

^^^ Memoradum from Hoover to the Attorney General, 2/16/61.

'^^ Memorandum from Hoover to the Attorney General, 2/16/61.

^® According to a memorandum of a meeting between Attorney General Ken-
nedy and Courtney Evans, Kennedy stated tliat "now tlie law was passed lie did
not feel there was justification for continuing this extensive investigation."
(Memorandum from C. A. Evans to Mr. Parsons 4/14/61.) The investigation did
discover possibly unlawful influence was being exerted by representatives of
the foreign country involved, but it did not reveal that money was actually being
passed to any Executive or congressional official. (Memorandum from Wannall
to Sullivan, 12/22/66.)

="» FBI letterhead memoranda, 6/15, IS, 19/62.

^^ Memorandum from J. Edgar Hoover to the Attorney General, 6/26/62.

262 rpjjg vviretap on the House Committee Clerk liad "produced no information
of value." While there is no indication that tlie other wiretaps, including five
directed at foreign targets, produced evidence of actual payoffs, they did reveal
that possibly unlawful influence was again being exerted Ity the foreign gov-
ernment, and internal Bureau permission was obtained to continue tliem for
sixtv days bevond the initial thirty-day period. (Memorandum from W. R. Wan-
nall to W. C. Sullivan, 8/16/62. )

These wiretaps in 1961 and 1962 were arguably related to "for-
eign intelligence" — but not to "subversive activity" unless that term
is interpreted beyond its conventional meaning."*^^ More important,
they generated information which was potentially useful to the Ken-
nedy administration for purely political purposes relating to the
legislative process.-*^^

The wiretap authorized by Attorney General Kennedy on another
high executive official in this period did not relate to political con-
siderations, but to concern about possible disclosure of classified in-
formation to a foreign government. ^*^^ There is no indication that the
wiretap authorized by Attorney General Katzenbach in 1965 on the
editoi- of an anti-communist newsletter, was related in any way to the
book he had written in 1964 alleging personal impropriety by Attor-
ney General Kennedy.^^"

6. DoTnestic Covert Action

In its COINTELPRO operation, the FBI went beyond excessive
information-gathei-ing and dissemination to the use of secret tactics
designed to "disrupt" and "neutralize" domestic intelligence targets.
At the outset, the target was the Communist Party, U.S.A. But,
consistent with the pattern revealed in other domestic intelligence ac-
tivities, the program widened to other targets, increasingly concentrat-
ing on domestic dissenters. The expansion of COINTELPRO began in
the Cold War period and accelerated in the latter part of the 1960s.

a. COINTELPRO: Commuuht Party
The COINTELPRO program, authorized by Director Hoover
againsit the Communist Party in 1956, had its roots in two lines of
Bureau policy going back to the 1940s. The first was the accepted FBI

*^A White House "briefing paper," prepared in February 1961, stated, "It is
thouglit by some informed observers that tlie outcome of the sugar legislation
which comes up for renewal in the U.S. Congress in March 1961 will be all-
important to the future of U.S./ (foreign country) relations." (Memorandum
from Richard M. Bissell, Jr. to McGeorge Bundy, 2/17/61.) Another White House
"briefing memorandum" in June 1962 stated, "The action taken by the House
of Representatives in passing the House Agriculture Committee bill (The Cooley
bill) has created a furor in the (foreign country) . . ." Officials of that country
said that the legislation "would be disa.strous" to its "economy." (Memorandum
from William H. Brubeck to McGeorge Bundy and Myer Feldman, 6/23/62.)
(JFK Library.)

^* See Finding on Political Abuse, pp. 233, 234. The wiretapping of American
citizens in these instances could only serve "intelligence," rather than law en-
forcement i>urposes, since any criminal prosecution (i.e., for bribery) would have
been "tainted" by the warrantless wiretaps. \,Codlon v. United States, 185 F. 2d
629 (1950). 191 F. 2d 749 (19.51).]

^ The circumstances indicating this possibility and the eventual determina-
tion that the allegation was unfounded are set forth in a memorandum from
Director Hoover to Attorney General Kennedy in IdM. (Hoover to Kennedy,
5/4/64 and enclosure. (John F. Kennedy Library) )

^ The FBI requested the wiretap on the editor and an accompanying tap on
a Washington attorney in contact with the editor becau.se of its concern about
pos.sible "leaks" of information about FBI loyalty-security investigations of
government officials. Director Hoover advised that publication of this "classi-
fied information" constituted "a danger to the internal security of the United
States." CMemorandum from Hoover to Katzenbach, 4/19/65.) However, in 1964
Director Hoover had volunteered to Attorney General Kennedy information
about the publication of the book alleging impropriety. The author himself had
supplied information about the book to the FBI. (Memoranda from Hoover to
Attorney General Kennedy, 7/8/64 and 7/15/64.)

68-786 O - 76 - 6

practice of attempting to disrupt "subvei'sive" organiza'tdons. A former
head of the FBI Initelligonce Division has testified :

We were engaged in COINTELPRO tactics, to divide, con-
fuse, weaken, in diverse ways, an organization. We were
engaged in that when I entered the Bureau in 1941.-®^

The memorandum recommending :the institution of COINTELPRO
stated that the Bureau was already seeking to "foster factionalism"
and "cause confusion" within the Communist Party. -®^

The second line of pre-existing Bureau policy involved propaganda
to discredit the Communist Party publicly. For example, in 1946, an
earlier head of the FBI Intelligence Division proposed that efforts be
made to release "educational material" through "available channels"
to influence "public opinion." The "educational" purpose was to under-
mine Communist support among "labor unions," "persons prominent
in religious circles," and "the Liberal elements," and to show "the basi-
cally Russian nature of the Communist Party in this country." ^^^ By
1956, a propaganda effort was underway to bring the Party and its
leaders "into disrepute before the American public." ^^°

The evidence indicates that the FBI did not believe that the Com-
munist Party, when the COINTELPRO program was formalized in
1956, constituted as serious a threat in terms of actual espionage as it
had in the 1940s."^ Nevertiheless, the FBI systematized its covert
action program against the Communist Party in part because the
surfacing of informants in legal proceedings had somewhat limited
the Bureiau's coverage of Party activities 'and also to take advantage of
internal conflicts within the Party.-^^ Covert "disruption" was also
designed to make sure that the Party would not reorganize under a
new label and thus would remain an easier target for prosecution.^^^

^ Testimony of William C. Sullivan, Assistant Director for the Domestic In-
telligence Division (1961-1970) and Assistant to the Director (1970-1971),
11/1/75, pp. 42-^43.

"^ Memorandum from A. H. Belmont to L. V. Boardman, 8/28/56.

^ Memorandum from D. M. Ladd to J. Edgar Hoover, 2/27/46. According to
this memorandum the underlying reason for such Bureau propaganda was to
anticipate and counteract the "flood of propaganda from Leftist and so-called
Liberal sources" which would "be encountered in the event of extensive arrests
of Communists" if war with the Soviet Union broke out.

""" Belmont to Boardman, 8/28/56.

^ A Bureau monograph in mid-1955 "measured" the Communist Party threat
as :

"Influence over the masses, ability to create controversy leading to confusion
and disunity, penetration of specific channels in American life where public
opinion is molded, and espionage and sabotage potential." [Emphasis supplied.]
(Letter from J. Edgar Hoover to Dillon Anderson, Special Assistant to the
President, 7/29/55, and enclosed FBI monograph, "The Menace of Communism
in the United States Today." pp. iv-v. )

The FBI official who served as Director Hoover's liaison with the CIA in the
1950s stated that "the Communist Party provided a pool of talent for the Soviet
[intelligence] services" in the "30s and into the 40s." During that period the
Soviets recruited agents "from the Party" to penetrate "the LT.S. Government"
and "scientific circles." He added, however, that "primarily because of the action
and counter-action taken by the FBI during the late 40s, the Soviet services
changed their tactics and considerably reduced any programs or projects de-
signed to recruit CP members, realizing or assuming that they were getting heavy
attention from the Bureau." (Testimony of former FBI liaison with CIA,
9/22/75, p. 32. )

"' Belmont to Boardman, 8/28/65.

"'Belmont to Boardman, 9/5/56; memorandum from FBI headquarters to
SAC, New York, 9/6/56.

In the years after 1956, the purpose of the Communist Party COIN
TELPRO chano:ed somewhat. Supreme Court decisions substantially
curbed criminal prosecution of Communists.^' ^ Subsequently, the FBI
"rationale" for COINTELPRO was that it had become "impossible
to prosecute Communist Party members'' and some alternative was
needed "to contain the threat." '^''^

h. Early Expansion of COINTELPRO

From 19.56 until 1960, the COINTELPRO program was primarily
aimed at the Communist Party organization. But, in March 1960,
participating FBI field offices were directed to make efforts to pre-
vent Communist "infiltration" of "legitimate mass organizations, such
as Parent-Teacher Associations, civil organizations, and racial and
religious groups." The initial technique was to notify a leader of the
organization, often by "anonymous communications," about the al-
leged Connnunist in its midst.^'*^ In some cases, both the Communist
and the "infiltrated" organization were targeted.

This marked the beginning of the progression from targeting Com-
munist Party members, to those allegedly under Communist "influ-
ence," to persons taking positions supported by the Communists. For
example, in 1964 targets under the Communist Party COINTELPRO
label included a group with some Communist participants urging in-
creased employment of minorities ^'^ and a non-Communist group in
opposition to the House Committee on L'^^n-American Activities.^"^^

In 1961. a COINTELPRO operation was initiated against the So-
cialist AVorkers Party. The originating memorandum said it was not
a "crash" program; and it was never given high priority .^'^ The
SWP's support for "such causes as Castro's Cuba and integration
problems arising in the South" were noted as factors in the FBI's
decision to target the organization. The Bureau also relied upon its
assessment that the SAYP was "not just another socialist group but
follows the revolutionary principles of Marx, Lenin, and Engels as
interpreted by Leon Trotsky" and that it was "in frequent contact
with international Trotsky ite groups stopping short of open and direct
contact with these groups." -*° The SWP had been designated as "sub-
versive" on the "Attorney General's list" since the 1940s.^®^

D. Intelligence and Domestic Dissent: 1964-1976

1. Main Developments of the 1961^-1976 Peinod

Beo-inning in the mid-sixties, the United States experienced a period
of domestic unrest and protest unparalleled in this century. Violence
erupted in the poverty-stricken urban ghettos, and opposition to
American inten'ention in Vietnam produced massive demonstrations.

'" E.g., Yates v. Vnited, States, 354 U.S. 298 (1957).

"^ Deposition of Supervisor, Internal Security Section, FBI Intelligence
Division. 10/16/75. pp. 10, 14.

^^ Memorandum from FBI Headquarters to New York field office, 3/31/60.

^ Memorandum from FBI Headquarters to San Francisco field office. 4/16/64.

^* Memorandum from FBI Headquarters to Cleveland field office, 11/6/64.

"» Forty-five actions were approved by FBI Headquarters iinder the SWP
COINTELPRO from 1961 until it was discontinued in 1969. The SWP program
was then subsumed under the New Left COINTELPRO. see pp. 88-89.

^Memorandum from Director. FBI. to New York field office, 10/12/61.

-"Memorandum from the Attorney General to Heads of Departments and
Agencies, 4/29/53.

A small minority deliberately used violence as a method for achieving
small minority deliberately used violence as a method for achieving
political goals — ranging from the brutal murder and intimidation of
black Americans in parts of the South to the terrorist bombing of of-
fice buildings and government-supported unversity facilities. But
t?iree Presidential commissions found that the larger outbreaks of vio-
lence in the ghettos and on the campuses were most often spontaneous
reactions to events in a climate of social tension and upheaval.^^^

During this period, thousands of young Americans and members of
racial minorities came to believe in civil disobedience as a vehicle for
protest and dissent.

The government could have set an example for the nation's citizens
and prevented spiraling lawlessness by respecting the law as it took
steps to predict or prevent violence. But agencies of the United States,
sometimes abetted by public opinion and government officials, all too
often disregarded the Constitutional rights of American in their con-
duct of domestic intelligence operations.

The most significant developments in domestic intelligence activity
during this period may be summarized as follows :

a. Scope of Domestic Intelligence

FBI intelligence reports on protest activity and domestic dissent
accumulated massive information on lawful activity and law-abiding
citizens for vaguely defined "pure intelligence" and "preventive
intelligence" purposes related only remotely or not at all to law enforce-
ment or the prevention of violence. The FBI exaggerated the extent
of domestic Communist influence, and COMINFIL investigations
improperly included groups with no significant connections to
Communists.

The FBI expanded its use of informers for gathering intelligence
about domestic political groups, sometimes upon the urging of the
Attorney General. No significant limits were placed on the kind of
political or personal information collected by informers, recorded
in FBI files, and often disseminated outside the Bureau.

Army intelligence developed programs for the massive collection of
information about, and surveillance of, civilian political activity in
the United States and sometimes abroad.

In contrast to previous policies for centralizing domestic intelligence
investigations, the Federal Government encouraged local police to
establish intelligence programs both for their own use and to feed
into the Federal intelligence-gathering process. This greatly expanded
the domestic intelligence apparatus, making it harder to control.

The Justice Department established a unit for storing and evaluat-
ing intelligence about civil disorders which was designed to use non-
intelligence agencies as regular sources of information, which, in fact,
drew on military intelligence as well as the FBI, and which trans-
mitted its computer list of citizens to the CIA and the IRS.

&. Domestic Intelligence Authority
Intelligence gathering related to protest activity was generally
increased in response to vague requests by Attorneys General or other

"'"Report of the National Advisory Commission on Civil Disorders (1968), ch.
2 ; Report of the National Commission on the Causes and Prevention of Vio-
lence (1969) ; Report of the President's Commission on Campus Unrest (1970).

officials outside the intelligence agencies; such increases were some-
times ratified retroactively by such officials.

The FBI's exclusive control over civilian domestic intelligence at
the Federal level was consolidated by formal agreements with the
Secret Service regarding protective intelligence and with the Bureau
of Alcohol, Tobacco, and Firearms regarding terrorist bombings.

c. Domestic G overt Action

The FBI developed new covert programs for disrupting and dis-
crediting domestic political groups, using the techniques origi-
nally applied to Communists. The most intensive domestic intelli-
gence investigations, and frequently COINTELPRO operations, were
targeted against persons identified not as criminals or criminal
suspects, but as "rabble rousers," "agitators," "key activists," or "key
black extremists" because of their militant rhetoric and group leader-
ship. The Security Index was revised to include such persons.

Without imposing adequate safeguards against misuse, the Internal
Revenue Service passed tax information to the FBI and CIA, in
some cases in violation of tax regulations. At the urging of the White
House and a Congressional Committee, the IRS established a program
for investigating politically active groups and individuals, which
included auditing their tax returns.

d. Foreign Intelligence and Domestic Dissent

A 1966 agreement concerning "coordination" between the CIA and
the FBI permitted CIA involvement in internal security functions.
Under pressure from the Johnson and Nixon White Houses to deter-
mine whether there was "foreign influence" behind anti-war protests
and black militant activity, the CIA began collecting intelligence about
domestic political groups.

The CIA also conducted operations within the United States imder
overly broad interpretations of its responsibility to protect the
physical security of its facilities and to protect intelligence "sources"
and "methods." These operations included surreptitious entry, recruit-
ment of informers in domestic political groups, and at least one
instance of warrantless wiretapping approved by the Attorney
General.

In the same period, the National Security Agency monitored inter-
national communications of Americans involved in domestic dissent
despite the fact that its mission was supposed to be restricted to
collecting foreign intelligence and monitoring only foreign communi-
cations.

e. Intrusive Techniques

As domestic intelligence operations broadened and focused upon
dissenters, the Government increased the use of many of its most
intrusive surveillance techniques. During the period from 1964 to
1972, the standards and procedures for warrantless electronic surveil-
lance were tightened, but actual practice was sometimes at odds with
the articulated policy. Also during these years, CIA mail opening
expanded at the Bureau's request, and NSA monitoring expanded to
target domestic dissenters. However, the FBI cut back use of certain
techniques under the pressure of Congressional probes and changing
public opinion.

/. Accountability and Control

During this period several sustained domestic intelligence efforts
illustrated deficiencies in the system for controlling intelligence agen-
cies and holding them accountable for their actions.

In 1970, presidential approval was temporarily granted for a plan
for interagency coordination of domestic intelligence activities which
included several illegal programs. Although the approval was sub-
sequently revoked, some of the programs were implemented separate-
ly by various agencies.

Throughout the administrations of Presidents Johnson and Nixon,
the investigative process was misused as a means of acquiring political
intelligence for the White House. At the same time, the Justice De-
partment's Internal Security Division, which should have been a check
against the excesses of domestic intelligence, generally failed to re-
strain such activities. For example, as late as 1971-1973, the FBI con-
tinued to evade the will of Congress, partly with Justice Department
approval, by maintaining a secret "Administrative Index" of suspects
for round-up in case of national emergency.

g. Reconsideration of FBI Authority

Partly in reaction to congressional inquiries, the FBI in the early
1970s began to reconsider the extent of its authority to conduct do-
mestic intelligence activities and requested clarification from the At-
torney General and an executive mandate for intelligence investiga-
tions of "terrorists" and "revolutionaries".

In the absence of any new standards imposed by statute, or by the
Attorney General, the FBI continued to collect domestic intelligence
under sweeping authorizations issued by the Justice Department in
1974 for investigations of "subversives," potential civil disturbances,
and "potential crimes". These authorizations were explicitly based on
broad theories of inherent executive power. Attorney General Edward
H. Levi recently promulgated guidelines which represent the first
significant attempt by the Justice Department to set standards and
limits for FBI domestic intelligence investigations.

2. Scope of Domestic Intelligence

During this period the FBI continued the same broad investigations
of the lawful activities of Americans that were based on the Bureau's
vague mandate to collect intelligence about "subversion."

In addition, the Bureau — joined by CIA, NSA, and military in-
telligence agencies — took on new and equally broad assii»:nments to
investigate "racial matters," the "New Left," "student agitation," and
alleged "foreign influence" on the antiwar movement.

a. Domestic Protest and Dissent: FBI
"We are an intelligence agency," stated a policy directive to all FBI
offices in 1966, "and as such are expected to know what is going on or
is likely to happen." ^^^ Written in the context of demonstrations over
the Vietnam war and civil rights, this order illustrates the general
attitude among Bureau officials and high administration officials who
established intelligence policy : in a country in ferment, the FBI could,
and should, know everything that might someday be useful in some
undefined manner.

SAC letter 67-27, 5/3/66.

(1) Racial Intelligence. — During the 1960s, the FBI, partly on its
own and partly in response to outside requests, developed sweeping
programs for collecting domestic intelligence concerning racial mat-
ters. These programs had roots in the late 1950s.^^* By the early 1960s,
they had grown to the point that the Bureau was gathering intelli-
gence about proposed "civil demonstrations" and the related activities
of "officials, committees, legislatures, organizations, etc.," in the "racial
field." 2«5

In 1965, FBI field offices were directed to supply "complete" infor*
mation (including "postponement or cancellation") :

regarding planned racial activity, such as demonstrations,
rallies, marches, or threatened opposition to activity of this
kind.

Field offices reported their full "coverage" of "meetings" and "any
other pertinent information concerning racial activities." -^^

In late 1966, field offices were instructed to begin preparing semi-
monthly summaries of "existing racial conditions in major urban
areas," relying upon "established sources," and "racial," "criminal,"
and "security informants." These reports were to describe the "general
programs" of all "civil rights organizations" and "black nationalist
organizations," as well as subversive or "hate-type" groups. The infor-
mation to be gathered was to include : "readily available personal back-
ground data" on "leadere and individuals in the civil rights move-
ment" and other "leaders and individuals involved," as well as any
data in Bureau files on "subversive associations" they might have; the
"objectives sought by the minority community;" the community reac-
tion to "minority demands;" and "the number, character, and inten-
sity of the techniques used by the minority community, such as pick-
eting or sit-in demonstrations, to enforce their demands." ^®^

Thus, the FBI was mobilized to used all its available resources to
discover everything it could about "general racial conditions." While
the stated objective was to arrive at an "evaluation" of potential for
violence, the broad sweep of the directives issued to the field resulted
in the collection and filing of vast amounts of information unrelated
to violence.

Some programs concerning "general racial matters" were directed
to concentrate on groups with a "propensity for violence and civil
disorder." ^^^ But even these programs were so overboard in their appli-
cation as to include Dr. Martin Luther King, Jr. and his non-violent
Southern Christian Leadership Conference in the "radical and vio-
lence-prone" "hate group" category. The stated justification, misup-
ported by any facts, was that Dr. King might "abandon his supposed
'obedience' to 'white, liberal doctrines' (nonviolence) and embrace
black nationalism." ^^^

Another leading civil rights group, the Congress of Racial Equality
(CORE), was investigated under the "Racial Matters" Progi-am be-
cause the Bureau concluded that it was moving "away from a legiti-

^* See p. .50.

=^ 1964 FBI Manual Section 122, p. 1.

^ 1965 FBI Manual Section 122, pp. 6-8.

^^FBI Manual Section 122. revised 12/13/66, pp. S-9.

"^ Memorandum from FBI Headquarters to all SACs, 8/25/67.

^ Memorandum from FBI Headquarters to all SACs, 3/4/68.

mate civil rights organization" and "assuming a militant black nation-
alist posture." The FBI reached this conclusion on the grounds that
"some leaders in their public statements" had condoned "violence as
a means of attaining Negro rights." The investigation was intensified,
even though it was recognized there was no information that its mem-
bers "advocate violence" or "participate in actual violence." ^^°

The same overbreadth characterized the FBI's collection of intelli-
gence about "white militant groups." Among the groups investigated
were those "known to sponsor demonstrations against integration and
against the busing of Negro students to white schools." As soon as a
new organization of this sort was formed, the Bureau used its inform-
ants and "established sources" to determine "the aims and purposes of
the organization, its leaders, approximate membership," and other
"background data" bearing upon "the militancy" of the group.'^"*

(2) "A'^^i'fi Leff IiiteUiqence. — The FBI collected intelligence under
its VIDEM (Vietnam Demonstration) and STAG (Student Agita-
tion) Programs on "anti-Government demonstrations and protest ral-
lies" which the Bureau considered "disruptive." Field offices were
warned against "incomplete and nonspecific reporting" which neg-
lected such details as "number of protesters present, identities of orga-
nizations, and identities of speakers and leading: activists." ^^^

The FBI attempted to define the "New Left," but with little success.
The Bureau agent who was in charge of New Left intelligence conceded
that :

It has never been strictly defined, as far as I know It's more

or less an attitude, I would think.

He also stated that the definition was expanded continually.^^^

Field offices were told that the New Left was a "subversive force"
dedicated to destroying our "traditional values." Although it had "no
definable ideology," it was seen as bavins: "strong Marxist, existential-
ist, nihilist and anarchist overtones." Field offices were instructed that
"proper areas of inquiry" regarding the subjects of "New I^ft" in-
vestigations were "public statements, the writings and the leadership
activities" which might establish their "rejection of law and order"
and thus their "potential" threat to security. Such j^ersons would also
be placed on the Security Index (for detention in a time of emergency)
because of these "anarchistic tendencies," even if the Bureau could not
prove "membership in a subversive organization." ^^^

A Bureau memorandum which recommended the use of disruptive
techniques against the "New Left" paid particular attention to one of
its "anarchistic tendencies" :

^ SAC Tetter 68-16, 3/1 2/68, Subject: Congress of Racial Equality.

^» SAC Letter 68-25, 4/30/68.

^SAC Memorandum 1-72; 5/23/72, Subject: Reporting of Protest Dem-
onstrations.

^^ Supervisor, FBI Intelligence Division, deposition, 10/28/75, pp. 7-8.

"'^ SAC Letter 68-21, 4/2/68. This directive did caution that "mere dissent and
oppo«;ition to Governmental policies pursued in a legal constitutional manner"
was "not sufficient to warrant inclusion in the Security Index." Moreover, "anti-
Vietnam or peace group sentiments" were not, in themselves, supposed to "justify
an investigation." The failure of this admonition to achieve its stated objective is
discussed in the findings on "Overbreadth" and "Covert Action to Disrupt."

the New Left has on many occasions viciously and scurrilously
attacked the Director and the Bureau in an attempt to hamper
our investigations and drive us off the college campuses. ^^*

Later instructions to the field stated that the term "New Left" did
not refer to "a definite organization," but to a "loosely-bound, free-
wheeling, college-oriented movement" and to the "more extreme and
militant anti-Vietnam war and antidraft protest organizations." These
instructions directed a "comprehensive study of the whole movement"
for the purpose of assessing its "dangerousness." Quarterly reports
were to be prepared, and "subfiles" opened, under the following
headings :

Organizations ("when organized, objectives, locality which
active, whether part of a national organization")

Membership (and "sympathizers" — use "best available in-
formants and sources")

Finances (including identity of "angels" and funds from
"foreign sources")

Communist Influence

Publications ("describe publications, show circulation and
principal members of editorial staff")

Violence

Eeligion ("support of movement by religious groups or in-
dividuals")

Race Relations

Political Activities ("details relating to position taken on
political matters including efforts to influence public opin-
ion, the electorate and Government bodies")

Ideology

Education ("courses given together with any educational out-
lines and assigned or suggested reading")

Social Reform ("demonstrations aimed at social reform")

Labor ("all activity in the labor field")

Public Appearances of Leaders ("on radio and television"
and "before groups, such as labor, church and minority
groups," including "summary of subject matter discussed")

Factionalism

Security Measures

International Relations ("travel in foreign countries," "at-
tacks on United States foreign policy")

Mass Media ("indications of support of New Left by mass
media")

Through these massive reports, the FBI hoped to discover "the
true nature of the New Left movement." ^^^ Few Bureau progi^ams
better reflect "pure intelligence" objectives which extended far beyond
even the most generous definition of "preventive intelligence." ^^^

** Memorandum from C. D. Brennan to W. C. Sullivan. 5/9/68.

^ Memorandum from FBI Headquarters to all SACs. 10/28/68, and enclosure,
Subject : New Left Movement — Report Outline.

^ A further reason for collecting information on the New Left was put for-
ward by Assistant Director Brennan. head of the FBI Intelligence Division in
1970-1971. Since New Left "leaders'' had "publicly professed" their desire to
overthrow tlie Government, the Bureau should file the names of anyone who
"joined in membership" for "future reference" in case they ever "obtained
a sensitive Government position." (Charles Brennan testimony, 9/25/75, Hear-
ings, Vol. 2, pp. 116-117.)

Apart from the massive general reports required on the "New Left,"
examples of particular investigations included : a stockholders group
planning to protest their corporation's war production at the annual
stockholders meeting ; ^'^ a university professor who was "an active
participant in New Left demonstrations," publicly surrendered his
draft card, and had been arrested in antiwar demonstrations, but not
convicted ; ^^^ and two university instructors who helped support a
student "underground" newspaper whose editorial policy was de-
scribed as "left-of-center, anti-establishment, and opposed [to] the
University administration." ^^^

The FBI also investigated emerging "New Left" groups, such as
"Free Universities" attached to various college campuses, to determine
whether they were connected "in any way" with "subvei*sive groups."
For example, when an article appeared in a newspaper stating that
one "Free LTniversity" was being formed and that it was "anti-institu-
tional," the FBI sought to determine its "origin," the persons respon-
sible for its "formation," and whether they had "subversive back-
grounds." ^°° The resulting report described in detail the formation,
curriculum content, and associates of the group. It was disseminated
to military intelligence and Secret Service field offices and headquar-
ters in Washington as well as to the State Department and the Justice
Department.^"^

h. FBI InfoTTnants

The FBI Manual has never significantly limited informant report-
ing about the lawful political activities or personal lives of American
citizens, except for prohibiting reports about legal defense "plans or
strategy," "employer-employee relationships" connected with labor
unions, and "legitimate campus activities." ^°^ In practice, FBI agents
imposed no other limitations on the informants they handled and, on
occasion, disregarded the prohibitions of the Manual.^°^

(1) Infltration of the Klan. — In mid-1964. Justice Department of-
ficials became increasingly concerned about the spread of Ku Klux
Klan activity and violence in the Deep South. Attorney General Ken-
nedy advised President Johnson that, because of the "unique difficulty"
presented by a situation where "lawless activities" had the "sanction
of local law enforcement agencies," the FBI should apply to the Klan
the same "techniques" used previously "in the infiltration of Commu-
nist groups." ^°*

Former Attorney General Katzenbach, under whose tenure FBI
activities against the Klan expanded, vigorously defended this deci-

^ Memorandum from Minneapolis field oflSce to FBI Headquarters, 4/1/70.

^ Memorandum from FBI Headquarters to Pittsburgh field ofllce, 5/1/70.

^ Memorandum from Mobile field office to FBI Headquarters, 12/9/70.

^Memorandum from FBI Headquarters to Detroit field offices, 2/17/66.

^Memorandum from Detroit field office to FBI Headquarters, 4/15/66.

^ FBI Manual, Section 107.

*** See Findings on use of informants in "Intrusive Techniques," p. 192.

'"* Memorandum from Attorney General Kennedy to the President, June 1964,
quoted in Victor Navasky. Kennedy Justice (New York: Atheneum. ]971), pp.
10.5-106. The President asked former CIA Director Allen Dulles to evaluate the
situation in Mississippi. Upon his return from a survey of the state. Dulles en-
dorsed the Attorney General's recommendation that the FBI be used to "control
the terrorist activities." ("Dulles Requests More FBI Agents for Mississippi,"
New York Times, 6/27/64. )

sion as necessary to "deter violence" by sowing "deep mistrust among
Klan members" and making them aware that they were "under con-
stant observation." ^°^ The FBI Manual did, in fact, advise Bureau
agents against "wholesale investigations" of persons who "mererly at-
tend meetings on a regular basis." ^°^ But FBI intelligence officials
chafed under this restriction and sought expanded informant cover-
age.^"" Subsequently, the Manual was revised in 1967 to require the
field to furnish the "details" of Klan "rallies" and "demonstrations." ^°^
By 1971, the Special Agents in Charge of field offices had the discre-
tion to investigate not only persons with "a potential for violence,"
but also anyone else who in the SAC's "judgment" was an "ex-
tremist." 2°9

(2) ''''Listening Posts''' in the Black Community. — Two special in-
formant programs illustrates the breadth of the Bureau's infiltration
of the black community. In 1970, the FBI used its "established inform-
ants" to determine the "background, aims and purposes, leaders and
Key Activists" in every black student group in the country, "regard-
less of [the group's] past or present involvement in disorders." ^^° Field
offices were instructed to "target informants" against these groups and
to "develop such coverage" where informants were not already avail-
able.3"

In response to Attorney General Clark's instructions regarding
civil disorders intelligence in 1967, the Bureau launched a "ghetto
informant program" which lasted until 1973.^^^ The number of ghetto
informants expanded rapidly : 4,067 in 1969 and 7,402 by 1972.^^^ The
original concept was to establish a "listening post" "* by recruiting a
person "who lives or works in a ghetto area" to provide information re-
garding the "racial situation" and "racial activities." ^^^ Such inform-
ants could include "the proj^rietor of a candy store or barber shop."
As the program developed, liowever, ghetto informants were:

utilized to attend public meetings held by extremists, to iden-
tify extremists passing through or locating in the ghetto area,
to identify purveyors of extremist literature as well as given
specific assignments where appropriate. ^^^

^Testimony of Nicholas deB. Katzenbach 12/3/75. Hearings, Vol. 6, p. 207.

^1965 FBI manual. Section 122, pp. 1-2.

*" FBI Executives conference memorandum, 3/24/66, Subject : Establishment
of a Special Squad Against the Ku Klux Klan.

■^ 1967 FBI manual, Section 122, p. 2.

'"'1971 FBI manual, Section 122, p. 2.

'^° Memorandum from FBI Executive Conference to Mr. Tolson, 10/29/70.

'" Memorandum from FBI Headquarters to all SACs. 11/4/70.

'^ Memorandum from G. C. Moore to William O. Sullivan, 10/11/67. For At-
torney General Clark's order, see pp. 88-84.

^"Memorandum from FBI to Select Committee, 8/20/75 and enclosures.)

*"* Memorandum from G. C. Moore to E. S. Miller, 9/8/72.

"^Memorandum from G. C. Moore to C. D. Brennan. 10/27/70.

^^ Memorandum from Moore to Miller, 9/27/72. This program continued until
1973, when the FBI decided to rely on its regular extremist informants "for 'by-
product' information on civil unrest." The most "productive" ghetto informants
were "converted" into regular informants. (FBI Inspection Division Memoran-
dum, 11/24/72; Memorandum from Director Clarence M. Kelley to all SACs,
7/31/73.)

Material to be furnished by ghetto informants included names of
"Afro- American type book stores" and their "owners, operators and
clientele." ^^^

(3) Infltration of the ''New Leff\— The FBI used its "security"
informant program to report extensively on all activities relating to
opposition to the Vietnam war. Moreover, informants already in groups
considered "subversive" by the FBI also reported on the activities of
other organizations and their members, if the latter were being "infil-
trated" by the former groups.^^^

The agent who handled one informant in an antiwar group believed
to be infiltrated by "subversive groups and/or violent elements"
testified that the informant told him "everything she knew" about
the chapter she joined.^^^ Summaries of her reports indicate that she
!>reported extensively about personal matters and lawful political
activity.^^" This informant estimated that her reports identified as
many as 1,000 people to the FBI over an 18-month period. The vast
majority of these persons were members of peaceful and law-abiding
groups, including the United Church for Christ, which were engaged
in joint social welfare projects with the antiwar group which the
informant had infiltrated.^^^

Other FBI informants reported, for example, on the Women's
Liberation Movement, identifying its members at several mid-western
universities ^^^ and reporting statements made by women concerning
their personal reasons for participating in the women's movement.^^^

Moreover, as in the case of informants in the black community,
efforts were made to greatly increase the number of informants who
could report on antiwar and related groups. In 1969, the Justice
Department specifically asked the FBI to use not only "existing
sources," but also "any other sources you may be able to develop" to
collect information about "serious campus disorders." ^-^ The Bureau
ordered its field offices in 1970 to "make every effort" to obtain
"informant coverage" of every "New Left commune." ^^^ Later that
year, after Director Hoover lifted restrictions against recruiting 18
to 21-year-old informants, field offices were urged to take advantage of
this "tremendous opportunity" to expand coverage of New Left
"collectives, communes, and staffs of their underground news-
papers." ^^®

^"^ Philadelphia Field Office memo 8/12/68, re Racial Informant.

'"' FBI Manual Section 87.

'"Testimony of FBI Special Agent, 11/20/75, p. 55.

'^ Staff review of informant report summaries.

^^ Marv Jo Cook, testimony, 12/2/75. Hearings, Vol. 6. pp. Ill, 119-120.

'"Report of Kansas City Field Otfire, 10/20/70.

'^Memorandum from New York Field OtRce to FBI Headquarters, 5/28/69.

^* Memorandum from Assistant Attorney General J. Walter Yeagley to
J. Edgar Hooyer, 3/3/69. This memorandum stated that the Department was
considering "conducting a grand jury inyestigation" under the antiriot act and
other statutes.

'^Memorandum from FBI Headquarters to all SACs, 4/17/70. This directive
defined a "commune" as "a group of individuals residing in one location who
practice communal living, i.e., they .share income and adhere to the philosophy
of a Marxist-Leninist-Maoist-oriented violent revolution."

^ SAC Letter 70-48, 9/15/70. Tliis directive implemented one provision of the
"Huston Plan," which had been disapproved as a domestic intelligence package.
See pp. 113, 116.

c. ArTTiy Surveillance of Civilian Political Activity

In the early 1960s, after several commitments of troops to control
racial disturbances and enforce court orders in the South, Army
intelligence began collecting information on civilian political activity
in all areas -where it believed civil disorders might occur. The growth
of the Army's domestic intelligence program typifies, once again, the
general tendency of information-gathering operations to continually
broaden their coverage.

Shortly after the Army v^as called upon to quell civil disorders in
Detroit and to cope with an antiwar demonstration at the Pentagon
in 1967, the Army Chief of Staff approved a recommendation for
"continuous counterintelligence investigations" to obtain informa-
tion on "subversive personalities, groups or organizations" and their
"influence on urban populations" in promoting civil disturbances.^^^
The Army's "collection plan" for civil disturbances specifically
targeted as "dissident elements" (without further definition) the
"civil rights movement" and the "anti-Vietnam/anti-draft move-
ments." ^^^ As revised later. Army intelligence-gathering extended
beyond "subversion" and "dissident groups" to "prominent persons"
who were "friendly" with the "leaders of the disturbance" or
"sympathetic with their plans." ^^^

d. Federal Encouragement of Local Police Intelligence

In reaction to civil disorders in 1965-1966, Attorney General Katz-
enbach turned for advice to the newly created President's Commis-
sion on Law Enforcement and Administration of Justice. After hold-
ing a conference with police and National Guard officials, the Presi-
dent's Commission urged police not to react with too much force to dis-
order "in the course of demonstrations," but to make advance plans for
"a true riot situation." This meant that police should establish "pro-
cedures for the acquisition and channeling of intelligence" for the use
of "those who need it." ^^° Former Assistant Attorney General Vinson
recalled the Justice Department's concern that local police did not
have "any useful intelligence or knowledge about ghettos, about black
communities in the big cities." ^"

During the winter of 1967-1968, the Justice Department and the
National Advisory Commission on Civil Disorders reiterated the mes-
sage that local police should establish "intelligence units" to gather
and disseminate information on "potential" civil disorders. These
units would use "undercover police personnel and informants" and
draw on "community leaders, agencies, and organizations in the
ghetto." ^^2 The Commission also urged that these local units be linked

^ See Memorandum for the Record from Milton B. Hyman, OflSce of the
General Counsel, to the Army General Counsel, 1/23/71, in Military Surveil-
lance, Hearings before the Subcommittee on Constitutional Rights, Committee
on the .Judiciary, United States Senate, 93rd Cong., 2nd Sess. (1974), p. 203.

'^^ Federal Data Banks, Computem and the Rill of Rights. Hearings before
the Senate Subcommittee on Constitutional Rights (1971), at pp. 1120-1121.

"""^ Federal Data Banks. Henrinss, at pp. 1123-113S.

'*' President's Commission on Law Enforcement and Administration of Justice,
The Challenge of Crime in a Free Society (1967), pp. 118-119.

^ Fred M. Vinson testimony. 1/27/76, p. 32.

"* Report of the National Advisory Commission on Civil Disorders (1968),
p. 487 (Bantam Books ed.) .

to "a national center and, clearinghouse" in the Justice Department.^^'
One consequence of these recommendations was that the FBI, because
of regular liaison with local police, became a channel and repository
for much of this intelligence data.

Local police intelligence provided a convenient manner for the FBI
to acquire information it wanted while avoiding criticism for using
covert techniques such as developing campus informants. For exam-
ple, in 1969, Director Hoover decided "that additional student in-
formants cannot be developed" by the Bureau.^^* Field offices were
instructed, however, that one way to continue obtaining intelligence
on "situations having a potential for violence" was to develop "in-
depth liaison with local law enforcement agencies." ^^^ Instead of re-
cruiting student informants itself, the FBI would rely on local police
to do so.

These Federal policies contributed to the proliferation of local police
intelligence activities, often without adequate controls. One result was
that still more persons were subjected to investigation who neither
engaged in unlawful activity, nor belonged to groups which might be
violent. For example, a recent state grand jury report on the
Chicago Police Department's "Security Section" described its "close
working relationship" with Federal intelligence agencies, including
Army intelligence and the FBI. The report found that the police
intelligence system produced "inherently inaccurate and distortive
data" which contaminated Federal intelligence. One police officer
testified that he listed "any person" who attended two "public meet-
ings" of a group as a "member." This conclusion was forwarded "as a
fact^'' to the FBI. Subsequently, an agency seeking, "background
information" on that person from the Bureau in an employment
investigation or for other purposes would be told that the individual
was "a member." The grand jury stated :

Since federal agencies accepted data from the Security Sec-
tion without questioning the procedures followed, or methods
used to gain information, the federal government cannot
escape responsibility for the harm done to untold numbers of
innocent persons.^^^

e. The Justice Department'' s Interdivision Information Unit
{IDIU)

Joseph Califano, President Johnson's assistant in 1967, testified
that the Newark and Detroit riots were a "shattering experience" for
Justice Department officials and "for us in the White House." They
were concerned about the "lack of intelligence" about "black groups."
Consequently, "there was a desire to have the Justice Department
have better intelligence, for lack of a better term, about dissident
groups." This desire "precipitated the intelligence unit" established by
Attorney General Ramsey Clark in late 1967. According to Califano,

'" Report of the National Advisory Commission, p. 490.

"* SAC Letter 69-16, 3/11/69. This order "recognized that with the graduation
of senior classes, you will lose a certain percentage of your existing student in-
formant coverage." But this would "not be accepted as an excuse for not devel-
oping the necessary information."

"' SAC Letter 69-44, 8/19/69.

^ "Improper Police Intelligence Activities." A Report by the Extended March
1975 Cook County (Illinois) Grand Jury, 11/10/75.

the President and the White House staff were insisting : "There must
be a way to predict violence. We've got to know more about this." ^^'^
In September 1967 Attorney General Clark asked Assistant Attorney
General John Doar to review the Department's "facilities" for civil
disorders intelligence.^^^ Doar recommended creating a Departmental
"intelligence unit" to analyze FBI information about "certain persons
and groups" (without further definition) in the urban ghettos. He
proposed that its "scope be very broad initially" so as to "measure
the influence of particular groups." Doar recommended that, in addi-
tion to the FBI, agencies who should "funnel information" to the
unit should include :

Community Relations Service

Poverty Programs

Neighborhood Legal Services Program

Labor Department Programs

Intelligence Unit of the Internal Revenue Service

Alcohol, Tobacco, and Firearms Division of the Treasury

Department
Narcotics Bureau (then in the Treasury Department)
Post Office Department

Doar recognized that the Justice Department's Community Relations
Service, designed to conciliate racial conflicts, risked losing its "credi-
bility" and thereby its ability to help prevent riots, but he assured the
Attorney General that the "confidentiality" of its information could
be protected.^^®

A later study for Attorney General Clark added the following
agencies to Doar's list :

President's Commission on Civil Disorders

New Jersey Blue Ribbon Commission (and similar state

agencies)
State Department
Army Intelligence
Office of Economic Opportunity
Department of Housing and Urban Development (surveys

and Model City applications)
Central Intelligence Agency
National Security Agency

This study recommended that FBI reports relating "to the civil dis-
turbance problem" under the headings "black power, new left, pacifist,
pro-Red Chinese, anti- Vietnam war, pro-Castro, etc." be used to de-

^" Joseph Califano testimony, 1/27/76, pp. 6-9. Califano states in retro-
spect that the attempt to "predict violence" was "not a successful undertaking,"
that "advance intelligence about dissident groups" would not "have been of
much help," and that what is "important" is "physical intelligence about
geography, hospitals, power stations, etc." (Califano, 1/27/76, pp. 8. 11-12.)

'^ In 1966, the Justice Department had .started an informal "Summer Project,"
staffed by a handful of law students, to pull together data from the newspapers,
the U.S. Attorneys, and "some Bureau material" for the purpose, according to
former Assistant Attorney General Fred Vinson, Jr., of finding out "what's going
on in the black community." (Vinson, 1/27/76 p. 33.)

*" ^Memorandum from Assistant Attorney General John Doar to Attorney
General Clark, 9/27/67.

velop "a master index on individuals, or organizations, and by
cities." 3^"

Attorney General Clark approved these recommendations and estab-
lished the Interdivision Information Unit (IDIU) for:

reviewing and reducing to quickly retrievable form all infor-
mation that may come to this Department relating to orga-
nizations and individuals who may play a role, whether
purposefully or not, either in instigating or spreading civil
disorders, or in preventing or checking them.^^^

In early instructions, Clark had stated that the Department must
"endeavor to increase" such intelligence from "external sources." ^^^

In fact, according to its first head, the IDIU did use intelligence
from the Army, the Internal Revenue Service, and "other investiga-
tive agencies." Sometimes IDIU information was used to "determine
whether or not" the Community Relations Service should "mediate"
a dispute.^*^ The Unit developed a computer system which could gen-
erate lists of all "members or ajfliliates" of an organization, their loca-
tion and travel, "all incidents" relating to "specific issues", and "all
information" on a "planned specific demonstration" ^^*

By 1970, the IDIU computer was receiving over 42,000 "intelligence
reports" a year relating to "civil disorders and campus disturbances"
from:

the FBI, the U.S. Attorneys, Bureau of Narcotics, Alcohol,
Tobacco, and Firearms Division of the Treasury Department
and other intelligence gathering bodies within the Executive
Branch.^5

IDIU computer tapes, which included 10-12,000 entries on "numer-
ous anti-war activists and other dissidents," were provided to the
Central Intelligence Agency in 1970 by Assistant Attorney General
Jerris Leonard, then the Attorney General's Chief of Staff for Civil
Disturbance and head of the Civil Rights Division.^^^ This list of per-
sons was sent to the Internal Revenue Service where tlie Special
Services staff opened intelligence files on all persons and organiza-
tions listed. Many of them were later investigated or audited, in some
cases merely because they were on the list.

In 1971, the IDIU computer included data on such prominent per-
sons as Rev. Ralph Abernathy, Caesar Chavez, Bosley Crowther

**" Memorandum from Messrs. Maroney, Nugent, McTieman, and Turner to
Attorney General Clark, 12/6/67.

^^ Memorandum from Attorney General Clark to Assistant Attorneys General
John Doar, Fred Vinson, Jr., Roger W. Wilkins, and J. Walter Yeagley, 12/18/67.

^" Memorandum from Attorney General Clark to Kevin T. Maroney, et al.,
11/9/67.

^Testimony of Kevin T. Maroney (Deputy Assistant Attorney General),
1/27/76, pp. ,59-60.

*** Memorandum from Assistant Attorney General Yeagley to Deputy Attorney
General Richard Kleindienst. 2/6/69.

^^ Justice Department memorandum from James T. Devine, 9/10/70, Subject :
Interdivisional Information Unit.

^' Statement of Deputy Attorney General Laurence H. Silberman, Justice
Depnrtment, l/H/75. According to thivS statement, a .Tustice Department inquiry
in 1975 concluded that Leonard "initiated the transaction by requesting the CIA
to check against its ovpn sources whether any of the Individuals on the IDIU
list were engaged in foreign travel, or received foreign assistance or funding."

(former New York Times film critic), Sammy Davis, Jr., Charles
Evers, James Farmer, Seymour Hersh, and Coretta King. Organiza-
tions on which information had been collected included the NAACP,
the Congress of Racial Equality, the Institute for Policy Studies,
VISTA, United Farm Workers of California, and the Urban League.
Ordinary private citizens who were not nationally prominent were also
included. One was described as "a local civil rights worker," another
as a "student at Merritt College and a member of the Peace and
Freedom Party as of mid-68," and another as "a bearded militant who
writes and recites poetry." ^^^

Thus, beginning in 1967-1968, the IDIU was the focal point of a
massive domestic intelligence apparatus established in response to
ghetto riots, militant black rhetoric, antiwar protest, and campus dis-
ruptions. Through IDIU, the Attorney General received the benefits
of information gathered by numerous agencies, without setting limits
to intelligence reporting or providing clear policy guidance. Each
component of the structure — FBI, Army, IDIU, local police, and
many others — set its own generalized standards and priorities, result-
ing in excessive collection of information about law abiding citizens.

/. COMINFIL Investigations: Overhreadth

In the late 1960's the Communist infiltration or association concept
continued to be used as a central basis for FBI intelligence investiga-
tions. In many cases it led to the collection of information on the same
groups and persons who were swept into the investigative net by tlie
vague missions to investigate such subjects as "racial matters" or the
"New Left. As it had from its beginning, the COMINFIL concept pro-
duced investigations of individuals and groups who were not Commu-
nists. Dr. Martin Luther King, Jr. is the best known example.^*^ But
the lawful activities of many other persons were recorded in FBI files
and reports because they associated in some wholly innocent way with
Communists, a term which the Bureau required its agents to "interpret
in its broad sense" to include "splinter" and "offshoot" groups.^*®

During this period, when millions of Americans demonstrated in
favor of civil rights and against the Vietnam war, many law-abiding
citizens and groups came under the scrutiny of intelligence agencies.
Under the COMINFIL program, for example, the Bureau compiled
extensive reports on moderate groups, like the NAACP.^^°

^^ Staff Memorandum for the Subcommittee on Constitutional Rights, United
States SenatP. 9/34/71.

'*® See detailed report on Martin Luther King, Jr.

^ FBI Manual, Section 87.

^The Bureau frequently disseminated reports on the NAACP to military
intelligence because (as one report put it) of the latter's "interest in matters
pertaining to infiltration of the NAACP." (Report from Los Angeles Field Oflace
to FBI Headquarters, 11/5/65.) All the national officers and board members
were listed, and any data in FBI files on their past "association" with "sub-
versives" was included. Most of this information went back to the 1940's. (Re-
port from New York Field Office to FBI Headquarters, 4/15/65.) When changes
occurred in the NAACP's leadership and board, the Bureau once again went back
to its files to dredge up "subversive" associations from the 1940's. (Report
from New York Field Office to FBI Headquarters, 4/15/66.) Chapter member-
ship information was sometimes obtained by "pretext telephone call . . . utilizing
the pretext of being interested in joining that branch of the NAACP." (Memoran-
dum from Los Angels field office to FBI Headquarters, 11/5/65.) As discussed
pre\iously, the Bureau never found that the NAACP had abandoned its consistent
anti-Communist policy. (Seep. 49).

The FBI significantly impaired the democratic decisionmaking
process by its distorted intelligence reporting on Communist infil-
tration of and influence on domestic political activity. In private re-
marks to Presidents and in public statements, the Bureau seriously
exaggerated the extent of Communist influence in both the civil rights
and anti- Vietnam war movements.^^^

S. Domestic Intelligence Authority

During this period there were no formal executive directives out-
lining the scope of authority for domestic intelligence activity of the
sort previously issued by Presidents Koosevelt, Truman, Eisenhower,
and Kennedy.^^^ However, there was a series of high-level requests
for intelligence concerning racial and urban unrest directed to the
FBI and military intelligence agencies. As with the earlier formal
Presidential directives on subjects like "subversion," these instructions
provided no significant guidelines or controls.

a. FBI Intelligence
Since the early 1960s, the Justice Department had been making
sporadic requests for intelligence related to specific racial events.
For example, the FBI was requested to provide a tape recording of
a speech by Governor-elect George Wallace of Alabama in late 1962 ^^^
and for "photographic coverage" of a civil rights demonstration on
the 100th anniversary of the Emancipation Proclamation. ^^^ On its
own initiative, the FBI supplied the Civil Rights Division with in-
formation from a "confidential source" about plans for a demonstra-
tion in Virginia, including background data on its "sponsor" and
the intention to make "a test case." ^^^ The Civil Rights Division pre-
pared regular summaries of information from the Bureau on "dem-
onstrations and other racial matters." ^^®

'^ See examples of the exaggeration of Communist influence set forth in Find-
ings on Political Abuse. Such distortion continues today. An FBI Intelligence
Division Section Chief told the Committee that he could not "think of very
many" major demonstrations in this country in recent years "that were not
caused by" the Communist Party or the Socialist Workers Party. In response
to questioning, the Section Chief listed eleven specific demonstrations since
1965. Three of these turned out to be principally SDS demonstrations, although
some individual Communists did participate in one of them. Six others were
organized by the National (or New) Mobilization Committee, which the Section
Chief stated was subject to Communist anS, Socialist Workers Party "influence."
But the Section Chief admitted that the mobilization Committee "probably"
included a wide spectrum of persons from all elements of American society.
(R. L. Shackleford deposition, 2/13/76, pp. 3-8.) The FBI has not alleged that the
Socialist Workers Party is dominated or controlled by any foreign government.
(Shackelford testimony, 2/6/76, pp. 73-77, 114.)

"^ See Sections B-3 and C-2.

^Memorandum from Director, FBI, to Assistant Attorney General Burke
Marshall (Civil Rights Division), 12/4/62.

"^Memorandum from St. J. B. (St. John Barrett) to Burke Marshall. 6/18/63.

^ Memorandum from J. Edgar Hoover to Attorney General Robert Kennedy,
7/11/63.

^ Memorandum from Carl W. Gabel to Burke Marshall, 7/19/63. This memo-
randum described twenty-one such "racial matters" in ten states, including states
outside the South such as Ohio, New Jersey, Pennsylvania. Indiana, and Nevada.
While some of the items in this and later summaries related to violent or poten-
tially violent protest demonstrations, they went beyond those limits to include
entirely peaceful protest activity and group activities (such as conferences, meet-
ings, leadership changes) unrelated to demonstrations. (Memoranda from Gabel
to Marshall, 7/22 and 7/25, 8/2 and 8/22/63.) The Justice Department's role in
exijanding FBI intelligence operations against the Klan is discussed at pp. .

A formal directive, for a similar purpose, was sent by Attorney Gen-
eral Kennedy to U.S. Attorneys throughout the South in May 1963. It
instructed them to "make a survey" to ascertain "any places where
racial demonstrations are expected within the next 30 days'' and to
make "assessments of situations" in their districts. The FBI was
"asked to cooperate." ^"

President Johnson ordered the FBI to investigate and report on the
origins and extent of the first small-scale Northern ghetto disturbances
in the summer of 1964.^^^ After the FBI submitted a report on the
Watts riot in Los Angeles in 1965, however, Attorney General Kat-
zenbach advised President Johnson that the FBI should investigate
"directly" only the possible "subversive involvement." Katzenbach did
not believe that the FBI should conduct a "general investigation" of
"other aspects of the riot," since these were local law enforcement mat-
ters. The President approved this "limited investigation." ^^^ None-
theless, internal Bureau instructions in 1965 and 1966 went far beyond
this limitation.^*^" By 1967 new Attorney General Ramsey Clark re-
versed the Department's position on such limitations.

After the riots in Newark and Detroit in the summer of 1967,
President Johnson announced that the FBI had "standing instruc-
tions" for investigating riots "to search for evidence on conspiracy." ^^^
This announcement accompanied the creation of a National Advisory
Commission on Civil Disorders to investigate the "basic factors and
causes leading to" the riots, including the "influence" of groups or
persons "dedicated to the incitement or encouragement of violence."
The President ordered the FBI in particular to "provide investigative
information and assistance" to the Com mission. ^^^ Director Hoover
also agreed to investigate "allegations of subversive influence, involve-
ment of out-of-state influences, and the like." ^®^

In September 1967, Attorney General Clark directed the FBI to :

use the maximum resources, investigative and intelligence,
to collect and report all facts bearing upon the question as
to whether there has been or is a scheme or conspiracy by
any group of whatever size, effectiveness or affiliation, to
plan, promote or aggravate riot activity.^®*

M7 Telegram from Attorney General Kennedy to U.S. Attorneys, 5/27/63.

^ The ba.sis for the inquiry was explained in the most general terms : "Keeping
the peace in this country is essentially the responsibility of the state government.
A^Tiere lawless conditions arise, however, with similar characteristics from coast
to coast, the matter is one of national concern even though there is no direct con-
nection between the events and even though no Federal law is violated." (Text
of FBI Report on Recent Racial Disturbances, New York Times, 9/27/64.)

^' Memorandum from Attorney General Katzenbach to President Johnson,
8/17/65.

'" See p. 71.

*^ Remarks of the President, 7/29/67, in Report of the National Advisory Com-
mission on Civil Disorders (1968), p. 537 (Bantam Books ed.)

'*' IDxecutive Order 113a5. 7/29/67.

^^ Memorandum from C. D. DeLoach to Mr. Tolson, 8/1/67, Subject : Director's
Testimony Before National Advisory Commission on Civil Disorders. This mem-
orandum indicates that, following this testimony. Director Hoover ordered his
subordinates to intensify their collection of intelligence about "vociferous rabble-
rousers." The creation thereafter of a "Rabble Rouser Index" is di-scussed at
pp. 89-90.

^ Memorandum from Attorney General Ramsey Clark to .T. Edgar Hoover,
.9/14/67.

Justice Department executives were generally aware of, and in some
cases sought to widen, the scope of FBI intelligence collection. In a
lengthy review of Bureau reports, John Doar, Assistant Attorney
General for the Civil Rights Division, expressed concern that the
FBI had not "taken a broad spectrum approach" to intelligence col-
lection, since it had "focused narrowly" on "traditional subversive
groups" and on persons suspected of "specific statutory violations." ^^^
Reiterating this viewpoint. Attorney General Clark told Director
Hoover that "existing intelligence sources" may not have "regularly
monitored" possible riot conspirators in "the urban ghetto." He added
that it was necessary to conduct a "broad investigation" and that

sources or informants in black nationalist organizations,
SNCC (Student Nonviolent Coordinating Committee) and
other less publicized groups should be developed and ex-
panded to determine the size and purpose of these groups and
their relationship to other groups . . .^^^

Clark described his directive as setting forth "a relatively new area of
investigation and intelligence reporting for the FBI." ^^^

In response to the Attorney GeneraPs instructions, the FBI advised
its field offices of the immediate "need to develop additional penetra-
tive coverage of the militant black nationalist groups and the ghetto
areas." ^®^

h. Army Intelligence
On January 10, 1968, a meeting took place at the White House for
the purpose of "advance planning for summer riots." The White
House memorandum of the meeting reported :

Tlie Army has undertaken its own intelligence study, and has
rated various cities as to their riot potential. They are mak-
ing contingency plans for troop movements, landing sites,
facilities, etc.

It added that the Attorney General and the Deputy Secretary of De-
fense "had agreed to coordinate their efforts." ^^^ The Army General
Counsel's memorandum of the meeting stated that Attorney General
Clark had "stressed the difficulty of the intelligence effort," especially
because there were "only 40 Negro FBI agents" out of the total of
about 6,300. Clark added that "every resource" was needed in "the in-
telligence collection effort," although he asked the Defense Depart-
ment to "screen" its "incoming intelligence" and send "only key items"
to the Justice Department.^^"

^ Memorandum from Assistant Attorney General John Doar to Attorney Gen-
eral Olark, 9/27/67.

^ Memorandum from Clark to Hoover, 9/14/67.

**' Clark to Hoover, 9/14/67. The Department's establishment of a special imit
for intelligence evaluation is discussed at pp. 115-116.

^ SAC Letter 67-72, 10/17/67. The scope of the "ghetto informant program" is
described at pp. 7.5-76.

^ Memorandum from Joseph Calif^no to the President, 1/18/68. Those present
were Attorney General Clark, Deputy Attorney General Warren Christopher,
Deputy Secretary of Defense Paul Nitze, Acting Army General Counsel Robert
Jordan, and Presidential assistants Matthew Nimetz and Califano.

''" Memorandum from the Army General Counsel to the Under Secretary of the
Army, 1/10/68. Former Army Chief of St^ff Hnrold K. Johnson has said that
there were several other meetings at the White House where the Army was urged
to take a greater role in the civil disturbance collection effort. (Staff summary of
Harold K. Johnson interview, 11/18/75.)

There ig no record that at this or any other similar meeting in this
period the Attorney General or White House aides explicitly ordered
the Army to conduct intelligence investigations using infiltration or
other covert surveillance techniques. However, even though Army col-
lection plans which were circulated to the Justice Department and the
FBI ^"^ did not mention techniques of collection, the information they
described could only be obtained by covert surveillance. No objections
were voiced by the Justice Department.

Not until 1969 was there a formal civilian decision specifically
authorizing Army surveillance of civilian political activity. At that
time, Attorney General John Mitchell and Secretary of Defense Mel-
vin Laird considered the matter and over the objections of the Army
General Counsel, decided that the Army would participate in intelli-
gence collection concerning civil disturbances.^"^ The Army's collec-
tion plan was not rescinded until June 1970, after public exposure and
congressional criticism.^^^

c. FBI Interagency Agreements
After the assassination of President Kennedy, the FBI and the
Secret Service negotiated an agreement which recognized that the
Bureau had "general jurisdiction'' over "subversion." The term was
defined, more narrowly than it had been defined by practice in the past,
as "knowingly or wilfully advocat[ing]" overthrow of the Government
by "force or violence" or by "assassination." Except for "temporary"
action to "neutralize" a threat to the President, the Secret Service
agreed to "conduct no investigation" of "members of subversive
groups" without notifying the FBI. The Bureau, on the other hand,
would not investigate individuals "solely" to determine their "danger-
ousness to the President." ^^^

^^ Federal Data Banks, Hearings, at p. 1137. On at least one occasion, Deputy
Attorney General Warren Christopher thanked an Army intelligence oflScer for
spot reports and daily summaries. (Letter from Deputy Assistant General Chris-
topher to Ma.1. Gen. William P. Yarborough, Assistant Chief of Staff for Intelli-
gence, 5/15/68.) The Justice Department's intelligence analysis unit received
"army intelligence reports" during 1968 on persons and groups involved in "racial
agitation." (Memorandum from Assistant Attorney General J. Walter Yeagley to
Deputy Attorney General Richard G. Kleindienst. 2/6/69.)

""^ Memorandum from Secretary of Defense Melvin Laird and Attorney General
John N. Mitchell to the President, 4/1/69. Subject : Interdepartmental Action
Plan for Civil Disturbances. This reflected a failure on the part of the Army
General Counsel to i)ersuade the Justice Department to relieve the Army of
its domestic intelligence-gathering role. (Memorandum from Robert E. Jordan,
Army General Counsel, to the Secretary of the Army, Subject : Review of Civil
Disturbance Intelligence Historv, in Military Surveillance, Hearings, p. 296.)

^^ Letter from Robert E. Lynch, Acting Adjutant General of the Army, to sub-
ordinate commands, 6/9/70, Subject : Collection, Reporting, Processing, and Stor-
age of Civil Disturbance Information.

See discussion of the termination of this program in Section III ["Ter-
minations" Sub-finding under "Accountability and Control"].

^^* Agreement Between the Federal Bureau of Investigation and the Secret
Service Concerning Presidential Protection, 2/3/65. The FBI was to report to
Secret Service information about "subversives, ultra-rightists, racists and
fascists" who expressed "strong or violent anti-U.S. sentiment" or made "state-
ments indicating a propensity for violence and antipathy toward good order and
government."

These reporting standards were modified in 1971 to require the FBI to refer to
Secret Service: "Information concerning civil disturbances, anti-U.S. demon-
strations or incidents or demonstrations against foreign diplomatic establish-

( Continued)

After Congress enacted antibombing legislation in 1970, the FBI was
assigned primary responsibility for investigating "offenses perpetrated
by terrorist/revolutionary groups." ^'^ When these guidelines were
developed, the FBI shifted supervision of bombing cases from its
General Investigative Division to the Intelligence Division because, as
one official put it, the specific criminal investigations were "so inter-
related with the gathering of intelligence in the racial and security
fields that overlap constantly occurs." ^^^

The agreement with Secret Service and the "guidelines" covering
bombing investigations did not give the FBI any additional domestic
intelligence-gathering authority. They simply provided for dissemina-
tion of information to Secret Service and allocated criminal investiga-
tive jurisdiction between the FBI and the Alcohol, Firearms, and
Tobacco Division. Nevertheless, both presupposed that the FBI had
broad authority to investigate "subversives" or "terrorist /revolution-
ary groups."

4. Domestic Covert Action

a. COINTELPRO

The FBI's initiation of COINTELPRO operations against the Ku
Klux Klan, "Black Nationalists" and the "New Left" brought to bear
upon a wide "range of domestic groups the techniques previously devel-
oped to combat Communists and persons who happened to associate
with them.

The start of each program coincided with significant national events.
The Klan program followed the widely-publicized disappearance
in 1964 of three civil rights workers in Mississippi. The "Black Na-
tionalist" program was authorized in the aftermath of the Newark
and Detroit riots in 1967. The "New Left" program developed shortly
after student disruption of the Columbia University campus in the
spring of 1968. While the initiating memoranda approved by Director
Hoover do not refer to these specific events, it is clear that they shaped
the context for the Bureau's decisions.

These programs were not directed at obtaining evidence for use in
possible criminal prosecutions arising out of those events. Rather,
they were secret programs — "under no circumstances" to be "made
known outside the Bureau" "7 — which used unlawful or improper acts
to "disrupt" or "neutralize" the activities of groups and individuals
targeted on the basis of imprecise criteria.

(1) Klan and ''White Hate'' COINTELPRO.— The expansion of
Klan investigations, in response to pressure from President Johnson
and Attorney General Kennedy,"^ was accompanied by an internal

(Continued)

ments ;" and "information concerning persons who may be considered potentially
dangerous to individuals protected by the [Secret Service] because of their . . .
participation in groups engaging in activities inimical to the United States."
With respect to organizations, the FBI reported information on their "officers,''^
"size," "goals," "source of financial support." and other "background data."
(Agreement Between the Federal Bureau of Investigation and the United States
Secret Service Concerning Protective Responsibilities, 11/26/71.)

'^Investigative Guidelines: Title XI, Organized Crime Control Act of 1970,
Regulation of Explosives.

'''FBI Inspection Report, Domestic Intelligence Division, August 17-Septem-
ber 9. 1971. pp. 224-38.

*" Memoranda from FBI headquarters to all SAC's, 9/2/64 ; 8/25/67 ; 5/9/68.

*"" See pp. 74-75.

Bureau decision to shift their supervision from the General Investiga-
tive Division to the Domestic Intelligence Division. One internal FBI
argument for the transfer was that the Intelligence Division was "in
a position to launch a disruptive counterintelligence program" against
the Klan with the "same effectiveness" it had against the Communist
Party.379

Accordingly, in September 1964 a directive was sent to seventeen
field offices instituting a COINTELPRO against the Klan and what
the FBI considered to be other "White Hate" organizations {e.g.,
American Nazi Party, National States Rights Party) "to expose, dis-
rupt, and otherwise neutralize" the activities of the groups, "their
leaders, and adherents." ^^°

During the 1964-1971 period, when the program was in operation,
287 proposals for COINTELPRO actions against Klan and "White
Hate" groups were authorized by FBI headquarters.^^^ Covert tech-
niques used in this COINTELPRO included creating new Klan chap-
ters to be controlled by Bureau informants and sending an anonymous
letter designed to break up a marriage.^®^

(2) ''BUch Nationalist'' COINTELPRO.— Th^ stated strategy of
the "Black Nationalist" COINTELPRO instituted in 1967 was "to
expose, disrupt, misdirect, discredit, or otherwise neutralize" such
groups and their "leadership, spokesmen, members, and supporters."
The larger objectives were to "counter" their "propensity for violence"
and to "frustrate" their efforts to "consolidate their forces" or to "re-
cruit new or youthful adherents." Field offices were instructed to
exploit conflicts within and between groups; to use news media con-
tacts to ridicule and otherwise discredit groups; to prevent "rabble
rousers" from spreading their "philosophy" publicly; and to gather
information on the "unsavory backgrounds" of group leaders.^^^

In March 1968, the program was expanded from twenty-three to
forty-one field offices and the following long-range goals were set
forth :

(1) prevent the "coalition of militant black nationalist
groups;"

(2) prevent the rise of a "messiah" who could "unify and
electrify" the movement, naming specifically Dr. Martin Lu-
ther King, Jr., Stokely Carmichael, and Elijah Muhammed ;

(3) prevent violence by pinpointing "potential trouble-
makers" and "neutralizing" them before they "exercise their
potential for violence;"

(4) prevent groups and leaders from gaining "respectabil-
ity" by discrediting them to the "responsible" Negro com-
munity, the "responsible" white community, "liberals" with

'^'Memorandum from J. H. Gale to Mr. Tolson, 7/30/64 (Gale was Assistant
Director for the Inspection Division).

^ Memorandum from FBI Headquarters to all SACs, 9/2/64.

^ The average of 40 "White Hate" actions per year may be compared to an
average of over 100 per year against the Communist Party from 1956-1971
(totalling 1636). Exhibit 11, Hearings, vol. 6, p. 371.

^^ These techniques and those used against the other target groups referred
to below are discussed in greater detail in the COINTELPRO detailed report
and in the Covert Action section of the Findings. Part III. p. 211.

^ Memorandum from FBI Headquarters to all SAC«, 8/25/67.

"vestiges of sympathy" for militant black nationalists, and
"Negro radicals;" and
(5) "prevent these groups from recruiting young people." ^^*

After the Black Panther Party emerged as a group of national stat-
ure, FBI field offices were instructed to develop "imaginative and
hard-hitting counterintelligence measures aimed at crippling the
BPP." Particular attention was to be given to aggravating conflicts
between the Black Panthers and rival groups in a number of cities
where such conflict had already taken on the character of "gang war-
fare with attendant threats of murder and reprisals." ^^^

During 1967-1971, FBI headquarters approved 379 proposals for
COINTELPRO actions against "black nationalists." ^^'^ These opera-
tions utilized dangerous and unsavory techniques which gave rise to
the risk of death and often disregarded the personal rights and dignity
of the victims.

(3) ''New Left'' COINTELPRO.— The most vaguely defined and
haphazard of the COINT'ELPRO operations was that initiated
against the "New Left" in May 1968. It was justified to the FBI
Director by his subordinates on the basis of the following considera-
tions :

The nation was "undergoing an era of disruption and
violence" which was "caused to a large extent" by individ-
uals "generally connected with the New Left."

Some of these "activists" were urging "revolution" and
calling for "the defeat of the United States in Vietnam."

The problem was not just that they committed "unlawful
acts," but also that they "falsely" alleged police brutality,
and that they "scurrilously attacked the Director and the Bu-
reau" in an attempt to "hamper" FBI investigations and to
"drive us off the college campuses." ^^"^

Consequently, the COINTELPRO was intended to "expose, disrupt,
and otherwise neutralize" the activities of "this group" and "persons
connected with it." ^^^ The lack of any clear definition of "New Left"
meant, as an FBI supervisor testified, that "legitimate" and nonvio-
lent antiwar groups were targeted because they were "lending aid and
comfort" to more disruptive groups.^*®

Further directives issued soon after initiation of the program
urged field offices to "vigorously and enthusiastically" explore "every
avenue of possible embarrassment" of New Left adherents. Agents
were instructed to gather information on the "immorality" and the
"scurrilous and depraved" behavior, "habits, and living conditions"
of the members of targeted frroups.^®" This messasre was reiterated
several months later, when the offices were taken to task for their
failure to remain alert for and seek specific data denicting the "de-
praved nature and m6ral looseness of the New Left" and to "use this

'^* IVTemorandum from FBT Hefidqiiarters to all SACs. 3/4/68.

'*' Mpmorandum from FBI Headquarters to SACs. 11/25/68.

^The average was over 90 per year. (Exhibit 11. Hearings. Vol. 6, p. 371.)

®^ Memorandum from C. D. Brennan to W. C. Sullivan, 5/9/68.

'** C. D. Brennan to W. C. Sullivan, 5/9/68.

^ Supervisor, FBI Intelligence Division, 10/28/75, p. 39.

^ Memorandum from FBI Headquarters to all SACs, 5/23/68.

material in a vigorous and enthusiastic approach to neutralizing
them." 3^^ ^

In July 1968, the field offices were further prodded by FBI head-
quarters to :

(1) prepare leaflets using "the most obnoxious pictures"
of New Left leaders at various universities ;

(2) instigate "personal conflicts or animosities" between
New Left leaders ;

(3) create the impression that leaders are "informants
for the Bureau or other law enforcement agencies" (the
"snitdi jacket" technique) ;

(4) send articles from student or "underground" news-
papers which show "depravity" ("use of narcotics and free
sex") of New Left leaders to university officials, donors,
legislators, and parents ;

(5) have members arrested on marijuana charges;

(6) send anonymous letters about a student's activities to
parents, neighbors, and the parents' employers ;

(7) send anonymous letters about New Left faculty mem-
bers (signed "A Concerned Alumni" or "A Concerned Tax-
payer") to university officials, legislators, Board of Regents,
and the press ;

(8) use "cooperative press contacts;"

(9) exploit the "hostility" between New Left and Old Left
groups;

(10) disrupt New Left coffee houses near military bases
which are attempting to "influence members of the Armed
forces;"

(11) use cartoons, photographs, and anonymous letters to
"ridicule" the New Left ;

(12) use "misinformation" to "confuse and disrupt" New
Left activities, such as by notifying members that events
have been cancelled. ^^-

During the period 1968-1971, 291 COINTELPRO actions
against the "New Left" were approved by headquarters.^^^ Particular
emphasis was placed upon preventing the targeted individuals from
public speaking or teaching and providing "misinformation" to con-
fuse demonstrators.

h. FBI Target Lists

The FBI's most intensive domestic intelligence investigations and
COINTELPRO operations were directed against persons identified,
not as criminals or criminal suspects, but in vague terms such as
"rabble rouser," "agitators," "key activists," or "key black extremists."
The Secruity Index for detention in time of national emergency was
revised to include such persons.

(1) ''RahhJe Pi ouser/ Agitator'' /7?rf6!.7'.— Following a meeting with
the National Advisory Commission on Civil Disorders in August 1967,
Director Hoover ordered his subordinates to intensify collection of

^" Memorandum from FBI Headquarters to all SACs. 10/9/68.
=»' Memorandum from FBI Headquarters to all RACs, 7/6/68.
^"^Approximately 100 per year (Exhibit 11, Hearings, Vol. 6, p. 371.).

intelligence about "vociferous rabble-rousers." ^^^* He also directed
"that an index be compiled of racial agitators and individuals who
haA^e demonstrated a potential for fomenting racial discord." ^^*

The already vague standards for the Rabble Rouser Index were
broadened in November 1967 to cover persons with a "propensity for
fomenting" any disorders affecting the "internal security" — as opposed
to only racial disorders — and to include persons of local as well as
national interest. This included "black nationalists, white suprema-
cists, Puerto Rican nationalists, anti-Vietnam demonstration leaders,
and other extremists." A rabble rouser was defined as :

a person who tries to arouse people to violent action by
appealing to their emotions, prejudices, et cetera; a
demagogue.^^^

In March 1968, the Rabble Rouser Index was renamed the Agitator
Index and field offices were ordered to obtain a photograph of each
person on the Index. ^^'^ However, expanding the size of the Agitator
Index lessened its value as an efficient target list for FBI intelligence
operations. Consequently, the Bureau developed a more refined tool
for this purpose — the Key Activist Program.

(2) '■''Key Activisf Program. — Instructions were issued to ten ma-
jor field offices in January 1968 to designate certain persons as "Key
Activists," who were defined as

individuals in the Students for Democratic Society and the
anti-Vietnam war groups [who] are extremely active and
most vocal in their statements denouncing the United States
and calling for civil disobedience and other forms of unlaw-
ful and disruptive acts.

There Avas to be an "intensive investigation" of each Key Activist,
which might include "high-level informant coverage" and "technical
surveillances and physical surveillances." ^^^

The "New Left" COINTELPRO was designed in part to "neutral-
ize" the Key Activists, who were "the moving forces behind the New
Left." ^^® One of the first techniques employed in this program was to
obtain the Federal income tax returns of Key Activists for use in
disrupting their activities.^"^ In October 1968, the Key Activist Pro-
gram was expanded to virtually all field offices. The field agents were in-
structed to recommend additional persons for the program and to
"consider if the individual was rendered ineffective would it curtail
[disruptive] activity in his area of influence." AVhile the FBI consid-
ered Federal prosecution a "logical" result of these investigations and
"the best deterrent," Key Activists were not selected because they were
suspected of committing or planning to commit any specific Federal
crime. •*°"

^"Memorandum from C. D. DeLoach to Mr. Tolson. 8/1/67. (At the meeting,
a Commission member had asked the Bureau to "identify the numher of militant
Negroes and whites.")

^* Memorandum from C. D. Brennan to W. C. Sullivan, 8/3/67 ; SAC Letter
67-.56, 9/12/67.

^ SAC Letter No. 67-70. 11/28/67.

"^ Memorandum from FBI Headquarters to all SACs. 3/21/68.

'" Memorandum from FBI Headquarters to all SACs, 1/30/68.

^' Memorandum from C. D. Brennan to W. C. Sullivan, 5/9/68.

^ Memorandum from C. D. Brennan to W. C. Sullivan. 5/24/68.

*°" Memorandum from FBI Headquarters to all SACs, 10/24/68.

(3) ^''Key Black Extremist'*'' Program. — A "Key Black Extremist"
target list for concentrated investigation and COINTELPRO actions
was instituted in 1970. Key Black Extremists were defined as

leaders or activists [avIio] are particularly extreme, agitative,
anti-Government, and vocal in their calls for terrorism and
violence. ^"^

Field offices were instructed to place all Key Black Extremists in the
top priority category of the Security Index and in the Black Nation-
alist Photograph Album, which concentrated on "militant black
nationalists'' who traveled extensively. In addition, the following steps
were to be taken :

(1) All aspects of the finances of a KBE must be deter-
mined. Bank accounts must be monitored, . . .

(2) Continuing consideration must be given by each office
to develop means to neutralize the effectiveness of each
KBE. ...

(3) Obtain suitable handwriting specimens. . . .

(4) Particular efforts should be made to obtain records of
and/or reliable witnesses to, inflammatory statements. . . .

(5) Where there appears to be a possible violation of a
statute within the investigative jurisdiction of the Bureau,
[it should be] vigorously investigated. . . .

(6) Particular attention must be paid to travel by a KBE
and every effort made to determine financial arrangements
for such travel. . . .

(7) The Federal income tax returns of all KBEs must be
checked annually. . . .

Reports on all Key Black Extremists were to be submitted every ninety
days, and the field was urged to use "initiative and imagination" to
achieve "the desired results." ■*°^ Once again, the "result" was not
limited to prosecution of crimes and the targets were not chosen
because they were suspected of committing crimes.

(4) Security Index. — The Agitator Index was abolished in 1971
because "extremist subjects" were "adequately followed" through the
Security Index.*°* In contrast to the other indices, the Security Index
was not revieAved by the FBI alone. It had, from the late 1940's, been
largely a joint FBI- Justice Department program based on the De-
partment's plans for emergency detention.*"^ According to FBI mem-
oranda, moreover, President Johnson was directly involved in the
updating of emergency detention plans.*°^

After a large-scale Alarch on the Pentagon against the Vietnam War
in October 1967, President Johnson ordered a comprehensive review
of the government's emergency plans. Attorney General Clark was
appointed chairman of a committee to review the Presidential Emer-
gency Action Documents (PEADs) prepared under the Emergency
Detention Program. One result of this review, in which the FBI took
part, was a decision to bring the Detention Program into line with the

"' Memorandum from G. C. Moore to C. D. Brennan, 12/22/70.
"'Memorandum from FBI Headquarters to all SACs, 12/23/70.
^ Memorandum from C. D. Brennan to W. C. Sullivan, 4/30/68.
"^ See pp. .54-.55.
"^ C. D. Brennan to W. C. Sullivan, 4/30/68.

Emergency Detention Act of 1950, reversing the previous decision to
"disregard" as "unworkable" the procedural requirements of the Act,
which were tighter than the standards which had been applied by FBI
and Justice.*"'^

The Bureau also had to revise its criteria for inclusion of names on
the Security Index, which since 1950 had disregarded the statutory
standards. However, the definition chosen of a "dangerous individual"
was so broad that it enabled the Bureau to add persons not previously
eligible. A "dangerous individual" was defined as a

person as to whom there is reasonable ground to believe that
such person probably will engage in, or probably will conspire
with others to engage in, acts of espionage and sabotage,
including acts of terrorism or assassination and any inter-
ference loith or threat to the survival of and effective opera-
tion of the national, state, and local governments and of the
national defense effort. [Emphasis added.] ^°^

The emphasized language greatly broadened the Security Index stand-
ards. It gave FBI intelligence officials the opportunity to include on
the Security Index "racial militants", "black nationalists", and in-
dividuals associated with the "New Left" who were not affiliated with
the "basic revolutionary organizations" as the Bureau characterized
the Communist Party, which had previously been the focus of the
Security Index.^°^ Once again, the limitations which a statute was
intended to impose were effectively circumvented by the use of elastic
language in a Presidential directive.

Moreover, the Bureau adopted a new "priority" ranking for appre-
hension in case of an emergency. Top priority was now given not only
to leaders of "basic subvereive organizations," but also to "leaders of
anarchistic groups." ^^" It was said to be the "anarchistic tendencies"
of New Left and racial militants that made them a "threat to the
internal security." ^^^

Initially, the justice Department approved informally these changes
in the criteria for "the persons listed for apprehension." ^^^ After
several months of "study," the Justice Department's Office of Legal
Counsel formally approved the new Security Index criteria. This was
the first time since 1955 that the Department had fully considered
the matter, and the previous policy of disregarding the procedures
of the Emergency Detention Act of 1950 was formally abandoned.
If an emergency occurred, the Attorney General would abide by "the
requirement that any person actually detained will be entitled to a
hearing at which time the evidence will have to satisfy the standards
of [the Actl." However, the Office of Lesral Counsel declared that the
Security Index criteria themselves could be — as they were — less precise
than those of the Act because of the "needed flexibility and discretion
at the operating level in order to carry on an effective surveillance

^ See pn. 54-55 and Report on FBI Investigations.

"^ Presidential Emergency Action Document 6, as quoted in Brennan to Sulli-
van. 4/30/68.

*•* Memorandum from C. D. Brennan to W. C. Sullivan. 4/30/68.

"" C. D. Brennan to W. C. Sullivan, 4/30/68.

*** C. D. Brennan to W. C. Sullivan, 4/30/68.

*" Memorandum from J. Edgar Hoover to J. Walter Yeagley, 5/1/68 ; Yeagley
to Hoover, 6/17/68.

program." *^^ Thus, while the plan to ignore Congress' procedural
limitations was abandoned, Congress' substantive standards were dis-
regarded as insufficiently "flexible."

c. Internal Revenue Service Programs

(1) Misuse hy FBI and 01 A. — IRS information was used as an
instrument of domestic intelligence mainly by the FBI. For example,
in 1965, the Bureau obtained the tax returns of Ku Klux Klan mem-
bers in order to develop "discrediting or embarrassing" information
as part of the Bureau's COINTELPRO against the Klan."*
The procedure by which FBI obtained access to tax returns and related
information held by IRS was deemed "illegal" when it was discovered
by the Chief of the IRS Disclosure Branch in 1968."^ The FBI had
not followed the procedures for obtaining returns which required
written application to the IRS Disclosure Branch. Instead the Bureau
had arranged to obtain the returns and information surreptitiously
through contacts inside the IRS Intelligence Division. The procedure
for FBI access was regularized by the IRS after 1968 : a formal request
on behalf of the Bureau was made to the IRS Disclosure Branch, by
the Internal Security Division of the Justice Department.

During this same period, the CIA was obtaining tax returns in a
manner similar to the FBI, although in much smaller numbers. Yet
even after procedures were changed for the FBI's access to tax in-
formation in 1968, the IRS did not re-examine the CIA's practices.*^®
Therefore, CIA continued to receive tax return information without
filing requests as required by the regulations.

Between 1968 and 1974, either directly or through the Internal
Security Division of the Justice Department, the FBI requested at
least 130 tax returns for domestic intelligence purposes. This included
the returns of 46 "New Left activists" and 74 "black extremists," *^^ as
part of Bureau COINTELPRO operations to "neutralize" these indi-
viduals.*^^ These requests were not predicated upon any specific in-
formation suggesting delinquency in fulfilling tax obligations.

Even after a formal request was required before supplying the FBI
with tax returns, the IRS accepted the Justice Department's undocu-

"' Among the criteria specifically approved by the Justice Department which
went beyond the statutory standard of reasonable likelihood of espionage and
sabotage were the expanded references to persons who have "anarchistic or
revolutionary beliefs" and are "likely to seize upon the opportunity presented
by a national emergency" to commit acts which constitute "interference with"
the "effective operation of the national, state and local governments and of the
defense effort." (Assistant Attorney General Frank M. Wozencraft, Office of
Legal (Counsel, to Assistant Attorney General J. Walter Yeagley, Internal
Security Division, 9/9/68.) The standards as approved were transmitted to the
FBI, and its Manual was revised accordingly. (Yeagley to Hoover, 9/19/68;
Hoover to Yeagley, 9/26/68; FBI Manual, Section 87, p. 45, revised 10/14/68.)
The FBI still maintained its Reserve Index, unbeknownst to the Department.

*" One of the express purposes was to use tax information to "expose" the Klan
membens "within the Klan organization [or] publicly by showing income beyond
their means." (Memorandum from F. J. Baumgardner to W. C. Sullivan,
5/10/65. ) Disclosure of tax information "publicly" or "within the Klan organiza-
tion" is prohibited by statute.

*" Memorandum from D. O. Virdin to H. E. Snyder, 5/2/68. Subject : Inspection
of Returns by FBI.

*"' Donald O. Virdin testimony, 9/16/75, pp. 69-73.

"■^ Staff Memorandum : Review of Materials in FBI Administrative File on
"Income Tax Returns Requested."

*" Memorandum from C. D. Brennan to W. C. Sullivan, 12/6/68.

mented assertions that tax information was "necessary" in connection
with an "official matter" involving "internal security." ^^^ Yet in mak-
ing such assertions, the Justice Department's Internal Security Divi-
sion relied entirely on the Bureau's judgment. Thus, while the IRS is
required by the statute to release tax information only where neces-
sary, it in effect delegated its responsibility to the Internal Security
Division which in turn delegated the decision to the FBI. Although
most FBI requests for tax information were for targets of various
COINTELPRO operations, the Justice Department official who made
the requests on behalf of the Bureau said he was never informed of the
existence of COINTELPRO.^='°

Even after 1968, the Bureau sometimes used tax information in
improper or unlawful ways. For example, the Bureau attempted to
use such information to cause IRS to audit a mid- western college pro-
fessor associated with "new left" activities at the time he was planning
to attend the 1968 Democratic Party National Convention in Chicago.
The FBI agent in charge of the operation against the professor ex-
plained its purpose in a memorandum :

if IRS contact with [the Professor] can be arranged within
the next two weeks their demands upon him may be a source
of distraction during the critical period when he is engaged
in meetings and plans for disruption of the Democratic Na-
tional Convention. Any drain upon the time and concentra-
tion which [the Professor], a leading figure in Demcon
planning, can bring to bear upon this activity can only accrue
to the benefit of the Government and general public.'*^^

Among the tax returns which the CIA obtained informally from
IRS in an informal and illegal manner were those of the author of a
book, the publication of which the CIA sought to prevent,*^^ and of
Ramparts magazine which had exposed the CIA's covert use of the
National Student Association.*^^ In the latter case, CIA memoranda
indicate that its officials were unwilling to risk a formal request for
tax information without first learning through informal disclosure
whether the tax returns contained any information that would be
helpful in their effort to deter this "attack on the CIA" and on "the
administration in general." *^*

(2) The Special Serince Staff: IRS Targeting of Ideological
Groups. — In 1969, the IRS established a Special Service Staff to
gather intelligence on a category of taxpayers defined essentially by
political criteria. The SSS attempted to develop tax cases against the
targeted taxpayers and initiated tax fraud investigations against some
who would otherwise never have been investigated.

The SSS originated as a result of pressure from the permanent Sub-
committee on Investigations of the Senate Committee on Government
Operations ^^^ and from President Nixon, acting through Wliite House

"' Leon Green deposition, 9/12/75, pp. 6-8.

^° Statement of .T. W. Yeagley to Senate Select Committee, September 197.5.

*^ Memorandum from Midwest City Field Office to FBI Headquarters. 8/1/68.

*^ CIA memorandum. Subject : BUTANE— Victor Marchetti.

*" CIA memorandum. Subject : IRS Briefing on Ramparts, 2/2/67.

"* CIA memorandum. Subject : IRS Briefing on Ramparts, 2/2/67.

*^ Leon C. Green testimony. 9/12/75, p. 36.

assistants Tom Charles Huston and Dr. Arthur Bums.*^^ According
to the IRS Commissioner's memorandum, Dr. Burns expressed to him
the President's concern

over the fact that tax-exempt funds may be supporting activ-
ist groups engaged in stimulating riots both on the campus
and within our inner cities.*^''

The administration did not supply any facts to support the assertion
that such groups were violating tax laws.

After the SSS was established, the FBI and the Justice Depart-
ment's Interdivisional Information Unit (IDIU) became its largest
sources of names. An Assistant IRS Commissioner requested the FBI
to provide information regarding "various organizations of predomi-
nantly dissident or extremist nature and/or people prominently identi-
fied within those organizations." *-^ The FBI agreed, believing, as
one intelligence official put it, that SSS would "deal a blow" to "dis-
sident elements." ^^^

Among the material received bv SSS from the FBI was a list of
2,800 organizations categorized as "Old Left." "New Left," and "Right
Wing." «o The SSS also received about 10,000 names on IDIU com-
puter printouts.*^^ SSS opened files on all these taxpayers, many of
whom Avere later subjected to tax audits and some to tax fraud investi-
gations. There is no reason to believe that the names listed by the FBI
or the IDILT were selected on the basis of any probable noncompliance
with the tax laws. Rather, these groups and individuals were targeted
because of their political and ideological beliefs and activities.*^^

The SSS, by the time it was disbanded in 1973, had gone over
approximately half of the IDIU index and established files on those
individuals on whom it had no file. Names on the SSS list included
Nobel Prize winner Linus Pauling, Senators Charles Goodell and
Ernest Gruening, Congressman Charles Diggs, journalists Joseph
Alsop and Jimmv Breslin, and attorney Mitchell Rogovin. Organiza-
tions on the SSS list included : political groups ranginar from the John
Birch Society to Common Cause ; religious organizations such as the
B'nai Brith Antidefamation League and the Associated Catholic
Charities ; professional associations such as the American Law Insti-
tute and the Legal Aid Society ; private foundations such as the Car-
negie Foundation; publications ranging from "Playboy" to "Com-
monwealth;" and government institutions including the United
States Civil Rights Commission.*^^

SSS officials have conceded that some cases referred to the field for
tax investiirations would not have qualified for referral but for the
ideological categoiy in which they fell. "VVliile IRS field offices closed
out many cases because of the lack of tax grounds upon which legal

*^ "Investigation of the Special Service Staff of the IRS" by the staff of the
Joint Committee on Internal Revenue Taxation, 6/5/75. pp. 17-18.
*" Memorandum of IRS Commissioner Thrower, 6/16/69.
*^ Memorandum from D. W. Bacon to Director, FBI. 8/8/69.
*^ Memorandum from D. T. Brennan, .Jr.. to W. C. Sullivan, 8/15/69.
^'^ SSS Bi-weeklv Report, 6/15/70.
*^ SSS Bi-weekly Report. 8/29/69.

*^For a discussion of IDTT^ standards, see pp. 7R-81. 122-123.
*" Donald Alexander testimony, 10/2/25, Hearings, Vol. 3, pp. 29-30.

action could be taken, referral from the SSS probably resulted in the
examination of some cases despite the lack of adequate grounds. Inter-
views wtih IRS field personnel confirm that this did occur in several
instances.*^^^

Upon discovering that its functions were not tax-related, new IRS
Commissioner Alexander ordered the Special Service Staff abolished.
He testified:

Mr. Alexander. I ordered the Special Service staff abol-
ished. That order was given on August the 9th, 1973. It was
implemented by manual supplements issued on August the
13th, 1973. We held the files. I ordered the files be held intact—
I'm not going to give any negative assurances to this Com-
mittee— in order that this Committee and other Committees
could review these files to see what was in them, and see what
sort of information was supplied to us on this more than
11,000 individuals and organizations as to whom and which
files were maintained.

I suggested, Mr. Chairman, that at the end of all of these
inquiries, I would like to take those files to the Ellipse and
have the biggest bonfire since 1814.

The Chatrmax. Well, I concur in that judgment. I would
only say this to you ; in a way, it might be a more important
bonfire than the Boston Tea Party when it comes to protect-
ing individual rights of American citizens. I am glad you
feel that way. I am glad you took that action.*^*

5. Foreign Intelligence and Domestic Dissent

In the late 1960's, CIA and NSA, acting in response to presidential
pressure, turned their technological capacity and great resources to-
ward spying on certain Americans. The initial impetus was to deter-
mine whether the antiwar movement — and to a lesser extent the
"black power" movement — were controlled by foreigners. Despite evi-
dence that there was no significant foreign influence, the intelligence
gathering which culminated in CIA's "Operation CHAOS" followed
the general pattern of broadening in scope and intensity. The pro-
cedure for one aspect of these programs was established by an informal
agreement between the CIA and FBI in 1966, which permitted CIA to
engage in "internal security" activities in the United States.

a. Origins of CIA Involvement in ''''Internal Security Func-
tions^^

The National Security Act of 1947 explicitly prohibited the CIA
from exercising "police, subpoena, or law-enforcement powers, or
internal security functions." But the Act did not address the question
of the CIA's authority to conduct clandestine intelligence acti\dty
within the United States for what Secretary Forrestal called "pur-
poses outside of this country." *^^

Under Director Hoover, the FBI interpreted the term "internal
security functions" broadly to encompass almost "anything that CIA

«3« Grepn. 9/12/75, pp. 65-66, 73-74; Statpment of Auditor, San Franeisco Dis-
trict. 7/30/75. p. 1 ; statempnt of Collector. T/Os Angreles District, 8/3/75.

*^ Donald Alexander testimony, 10/2/75, Hearings, Vol. 3, pp. 10-11.

**Hearinp:s before the House Committee on Expenditures in the Executive
Departments, on H.R. 2319, 80th Cong. (1947), p. 127.

might be doing in the United States." *^^ Throughout the 1950's and
into the early 1960's, Director Hoover's position led to jurisdictional
conflicts between the CIA and the FBI.

The Bureau insisted on being informed of the CIA's activity in the
United States so that it could be coordinated with the Bureau. As the
FBI liaison with the CIA in that period recalled, "CIA would take
a<jtion, it would come to our attention and we would have a flap." "^^^

In 1966 the FBI and CIA negotiated an informal agreement to regu-
larize their coordination. This agreement was said to have "led to a
great improvement" and almost eliminated the "flaps." ^^^

Under the agreement, the CIA would "seek concurrence and coordi-
nation of the FBI" before engaging in clandestine activity in the
United States and the FBI would "concur and coordinate if the pro-
posed action does not conflict with any operation, current or planned,
including active investigation of the FBI." ^^^ "WTien an operative
recruited by the CIA abroad arrived in the United States, the FBI
would "be advised" and the two agencies would "confer regarding the
handling of the agent in the United States." The CIA would continue
its "handling" of the agent for "foreign intelligence" purposes. The
FBI would also become involved where there were "internal security
factors," although it was recognized that the CIA might continue to
"handle" the agent in the United States and provide the Bureau with
"information" bearing on "internal security matters." **°

As part of their handling of "internal security factors," CIA opera-
tives were used after 1966 to report on domestic "dissidents" for the
FBI. There were infrequent instances in which, according to the for-
mer FBI liaison with CIA :

CIA had penetrations abroad in radical, revolutionary
organizations and the individual was coming here to attend a
conference, a meeting, and would be associating with leading
dissidents, and the question came up, can he be of any use to
us, can we have access to him during that period.

In most instances, because he was here for a relatively short
period, we would levy the requirement or the request upon the
CIA to find out what was taking place at the meetings to get
his assessment of the individuals that he was meeting, and any
other general intelligence that he could collect from, his asso-
ciations with the people who were of interest to us.**^

The policies embodied in the 1966 agreement and the practice under
it clearly involved the CIA in the performance of "internal security

"* Former FBI Liaison with CIA testimony, 9/22/75, p. 9.

*^ Former FBI liaison with CIA testimony, 9/22/75, pp. 9-11.

*^ Liaison, 9/22/75. p. 11. For a discussion of liaison problems between FBI
and riA in 1970. see pp. 112-113.

*^ Liaison, 9/22/75, p. 52. "Central Intelligence Agency Operations in the
United States," FBI-CIA Memorandum of Understanding, 2/7/66.

*** Liaison, 9/22/75, p. 55.

*" Liaison, 9/22/75, pp. 57-58. These "internal security" aspects of the 1966
FBI-CIA agreement were not the only pre-CHAOS arrangements bringing the
CIA into liaison with the FBI. For example, as early as 1963 the FBI Manual
was revised to state that information concerning "proposed travel abroad" by
domestic "subversives" was to be "furnished by the Bureau to the Department
of State" and the "Central Intelligence Agency :" and fiekl offices were advised
to recommend the "extent of foreign investigation" which was required. (FBI
Manual Section 87, p. 33a, revised 4/15/63.)

B-786 O - 76 - 8

functions." At no time did the Executive branch ask Congress to amend
the 1947 act to modify its ban against CIA exercising "internal secu-
rity functions." Nor was Congress asked to clarify the ambiguity of the
1947 act about the CIA's authority to conduct clandestine foreign
intelligence and counterintelligence activities within the United States,
a matter dealt with even today by Executive Order.*'*^

Moreover, National Security Council Intelligence Directive 5 pro-
vided authority within the Executive Branch for the Director of Cen-
tral Intelligence to coordinate, and for the CIA to conduct, counter-
intelligence activities abroad to protect the United States against not
only espionage and sabotage, but also "subversion." ^^^ However,
NSCID 5 did not purport to give the CIA authority for counter-
intelligence activities in the United States, as provided in the FBI-
CIA agreement of 1966.

h. CIA Intelligence About Domestic Political Groups
In the late 1960s, the CIA increasingly was drawn into collecting
intelligence about domestic political groups, particularly the anti-war
movement, in response to FBI requests and to pressure from Presidents
Johnson and Nixon. A principal assistant to President Johnson testi-
fied that high governmental officials could not believe that

a cause that is so clearly right for the country, as they per-
ceive it, would be so widely attacked if there were not some
[foreign] force behind it.***

The same pressures and beliefs led to CIA investigations of "militant
black nationalists" and radical students.

(1) CIA Response to FBI Requests. — The FBI was the main chan-
nel for mobilizing foreign intelligence resources and techniques
against domestic targets. The FBI regularly notified the CIA that it
wished coverage of Americans overseas.***^ Indeed, the CIA regarded
the mention of a name in any of the thousands of reports sent to it
by the FBI as a standing requirement from the FBI for information
about those persons.*^^ FBI reports flowed to the CIA at a rate of
over 1,000 a month.**^ From 1967 to 1974, the CIA responded with
over 5,000 reports to the FBI. These CIA disseminations included some
reports of information acquired by the CIA in the course of its own
operations, not sought in response to a specific FBI request.**^

The FBI's broad approach to the investigations of foreign influ-
ence which it coordinated with the CIA is shown by a memorandum

"* President Ford's Executive Order 11905, 2/18/76. This order, discussed more
fully in Part IV. Recommendations, in effect reinforces the 1966 FBI-CIA agree-
ment and defines CIA counterintelligence duties abroad to include "foreign sub-
version" directed against the United States.

"^ The National Security Council Intelligence Directives, or NSCIDs, have been
promulgated by the National Security Council to provide the basic organization
and direction of the intelligence agencies.

*" .Joseph Califano testimony, 1/27/76, p. 70.

*^" Richard Ober testimony, 10/30/75, p. 88.

"' Ober, 10/28/75, p. 45.

"® Memorandum from Richard Ober to James Angleton, 6/9/70, p. 9.

*" Letter from Director W. Colby to Vice President Rockefeller, 8/8/75, p. 6 of
attachment.

prepared in the Intelligence Division early in 1969 summarizing its
"coverage of the New Left :"

Foreign influence of the New Left movement offers us a
fertile field to develop valuable intelligence data. To date there
is no real cohesiveness between international New Left groups,
but . . . despite the factionalism and confusion now so preva-
lent, thei^e is great potential for the development of an inter-
national student revolutionary movement. [Emphasis added.]

The memorandum expressed concern that "old line" leftist groups
were

. . . making a determined effort to move into the New Left
movement , . . [and were] influencing the thinking of the
New Left . . . against the police in general and the FBI in
particular, to drive us off the campuses; as well as attacks
against the new administration to degrade President
Nixon.^^^

There was no mention of, or apparent concern for, direct influence or
control of the "New Left" by agents of hostile foreign powers. In-
stead, the stress was almost entirely upon ideological links and sim-
ilarities, and the threat of ideas considered dangerous by the FBI.

The enlistment of both CIA and NSA resources in domestic intel-
ligence is illustrated by the "Black Nationalist" investigations. In
1967, FBI Headquarters instructed field offices that :

. . . penetrative investigations should be initiated at this
time looking toward developing any information regarding
contacts on the part of these individuals with foreign elements
and looking toward developing any additional information
having a bearing upon whether the individual involved is cur-
rently subjected to foreign influence or direction. ...

During your investigative coverage of all militant black
nationalists, be most alert to any foreign travel. Advise the
Bureau promptly of such in order that a'pj)rofirate overseas
investigations may be conducted to establish activities and
contacts abroad. [Emphasis added.] **^

The FBI passed such information to the CIA, which in turn began
to place individual black nationalists on a "watch list" for the inter-
ception of international communications by the National Security
Agency. After 1969, the FBI began submitting names of citizens en-
gaged in domestic protest and violence to the CIA not only for in vest i-
galtion abroad, but also for placement on the "watch list" of the CIx^'s
mail opening project. Similar lists of names went from the FBI to the
National Security Agency, for use on a "watch list" for monitoring
other channels of international communication.

(2) Operati&n- CHAOS.— The CIA did not restrict itself to servic-
ing the FBI's requests. Under White House pressure, the CIA devel-
oped its own program — Operation CHAOS — as an adjunct to the

*** Memorandum from C. D. Brennan to W. C. Sullivan re New Left Move-
ment, 2/3/69.
**» SAC Letter No. 67-66, 11/7/67.

100

CIA's foreign coim:terintellij?ence activities, although CIA officials
recognized from the outset that it had "definite domestic counterin-
telligence aspects." ^^°

Former CIA Director Richard Helms testified that he established
the program in response to President Johnson's persistent interest in
the extent of foreign influence on domestic dissidents. According to
Helms, the President would repeatedly ask, "How are you getting
along with your examination?" and "Have you picked up any more
information on this subject ?" *^^

The fii-st CHAOS instructions to CIA station chiefs in August 1967
described the need for "keeping tabs on radical students and U.S.
Negro expatriates as well as travelers passing through certain select
areas abroad." The originally stated objective was "to find out [the]
extent to which Soviets, Chicoms (Chinese Communists) and Cubans
are exploiting our domestic problems in terms of espionage and sub-
version." *^^

Following the consistent pattern of intelligence acti^dties, those
original instructions gradually broadened without any precision in the
kind of foreign contacts which were to be targeted by CIA operations.
For example :

—President Johnson asked the CIA to conduct a study of
"International Connections of the U.S. Peace Movement" fol-
lowing the October 1967 demonstration at the Pentagon.*^^
In response, CIA headquarters sent a directive to CIA sta-
tions seeking information on "illegal and subvei'sive" connec-
tions between U.S. ac^ti^^sts and "communist, communist
front, or other anti-American and foreign elements abroad.
Such connections might range fix)m casual confactfi based
merely on Tnutual interest to closelv controlled channels for
party directives." [Emphasis added.] ^^*

—In mid-1968, the DDP described CHAOS to CIA stations
as a "high priority program" concerning foreign "contacts"
with the "Radical Left," which was defined as : "radical stu-
dents, antiwar activists, draft resisters and deserters, black
nationalists, anarchists, and assorted 'New Leftists.' " ^^^

— In 1969, President Nixon's A^Hiite House required the
CIA to study foreign commimist support of American protest
groups and stressed that "support" should be "liberally con-
strued" to include "encouragement" by Communist coun-
tries. ^^^

— In the fall of 1969, CIA stations were asked to report on
any foreign support, guidance, or "inspiration" to protest
activities in the United States.^^^

*°° Memorandum from Thomas Karamessines to .Tames Angleton, 8/15/67, p. 1.

*^* Helms, Rockefeller Commission, 4/28/75, pp. 2434-2435.

■^^ CIA Headquarters cable to several field stations, August, 1967, p. 1.

^^ Memorandum from Richard Helms to President .Tohn.son, 11/15/67.

*" VIA Cable from Acting DDP to various field stations, November 1967,
pp. 1-2.

*^ CIA Cable from Thomas Karamessines to various field stations, .Tuly 1968,
p.l.

*^ Memorandum from Tom Huston to the Deput.v Director, CIA, 6/20/69, p. 1.

*^' Cable from CIA headquarters to stations, November 1969.

101

Thus, this attempt to ascertain and evaluate "foreign links" was so
broadly defined that it required much more than background infor-
mation or investigation of a few individuals suspected of being agents
directed by a hostile power. Instead, at a time when there was
considerable international communication and travel by Americans
engaged in protest and dissent, a substantial segment by American
protest groups was encompassed by CIA collection requirements to
investigate foreign "encouragement," "inspiration," "casual contacts"
or "mutual interest." Once again, the use of elastic words in mandates
for intelligence activity resulted in overbroad coverage and collection.

In addition to their intelligence activity directed at Americans
abroad, CHAOS undercover agents, while in the United States in
preparation for overseas assignment or between assignments, provided
substantial information about lawful domestic activities of dissident
American groups, as well as providing leads about possible foreign
ties.^^^ In a few instances, the CIA agents appear to have been encour-
aged to participate in specific protest activity or to obtain particular
domestic information.*^^ The CHAOS program also involved obtain-
ing information about xlmericans from the CIA mail opening project
and other domestic CIA components *^° and from a National Security
Agency international communications intercept program.**'^

CIA officials recognized that the CIA's examination of domestic
groups violated the Agency's mandate and thus accorded it a high
degree of sensitivity. As CIA Director Richard Helms wrote in 1969,
when he transmitted to the White House the CIA's study of "Restless
Youth:"

In an effort to round out our discussion of this subject, we
have included a section on American students. This is an area
not within the charter of this Agency, so I need not emphasize
how extremely sensitive this makes the paper. Should anyone
learn of its existence, it would prove most embarrassing for
all concerned.*^^

The reaction to such admissions of illegality was neither an instruction
to stop the program or an attempt to change the law. Rather, the "White
House continued to ask for more information and continued to urge
the CIA to confirm the theory that American dissidents were under
foreign control.**^^

Director Richard Helms testified that the only manner in which
the CIA could support its conclusion that there was no significant
foreign influence on the domestic dissent, in the face of incredulity
at the White House, was to continually expand the coverage of
CHAOS. Only by being able to demonstrate that it had investigated
all anti-war persons and all contacts between them and any foreign

*^ Charles Marcnles testimony, Rockefeller Commission, 3/10/75. pp. 1538-1547,
1566-1567: Ober, 9/24/75, p. 4(5. (For security reasons, the CHAOS agent case
officer testified as "Charles Marcnles".)

*'" Marcnles Contact Report, 4/17/71 ; Marcnles, Rockefeller Commission, 3/10/
75. pp. 15.56-1 .558.

^ Memorandum from Richard Ober to Chief, CI Project, 2/15/72.

«>' Ober, ]0/.30,75 pp. 16-17.

*^- Letter from Richard Helms to Henry Kissinger, 2/18/69.

*^ Richard Helms deposition. Rockefeller Commission, 4/24/75, p. 223.

102

person could CIA "prove the negative" that none were under foreign
domination.*^*

In 1972, the CIA Inspector General found "general concern" among
the overseas stations "over wliat appeared to constitute a monitoring
of the political views and activities of Americans not known to be, or
suspected of, being involved in espionage." Several stations had "doubts
as to the nature and legitimacy of the program" because requests for
reports on "prominent persons" were based on "nebulous" allegations
of "subversion." ^^^ This led to "a reduction in the intensity of attention
to political dissidents," ^^^ although the program was not terminated
until March 1974.*"

By the end of the CHAOS program, 13,000 different files were accu-
mulated, including more than 7,200 on American citizens. Documents
in these files included the names of more than 300,000 persons and
groups, indexed by computer.*^^ In addition to collecting information
on an excessive number of persons, some of the kinds of information
were wholly irrelevant to the legitimate interests of the CIA or any
other government agency. For example, one CIA agent supplying
information on domestic activities to Operation CHAOS submitted
detailed accounts of the activities of Avomen who were interested in
"women's liberation." *^^

c. CIA Security Operations Within the United States: Pro-
tecting '■^Sources'''' and ''^Methods''''

The National Security Act of 1947 granted the Director of Central
Intelligence a vaguely-worded responsibility for "protecting intelli-
gence sources and methods from unauthorized disclosure." *"° The
legislative history of this provision suggests that it was initially
intended to allay concerns of the military services that the new CIA
would not operate with adequate safeguards to protect the military
intelligence secrets which would be shared with the CIA.*^^ However,
this authority was later read by the CIA to authorize infiltration of
domestic groups in order to protect CIA personnel and facilities from
possibly violent public demonstrations. It was also read to permit
electronic surveillance and surreptitious entry to protect sensitive
information.

The CIA undertook a series of specific security investigations within
the United States, in some cases to find the source of news leaks and
in others to determine whether government employees were involved
in espionage or otherwise constituted "security risks." These investiga-
tions were directed at former CIA employees, employees of other
government agencies, newsmen and other private citizens in this
countrv.*^^ Among the techniques used were physical surveillance,

*" Helms deposition, Rockefeller Commission, 4/24/75, p. 234 ; Ober deposition,
Rockefeller Commission. 3/28/75, pp. 137-138.

**' Memorandum from Inspector General to Executive Director-Comptroller,
11/9/72. p. 1.

**" Memorandum from Executive Director-Comptroller to DDP, 12/20/72.

*" Cable from CTA Director William Colby to Field Stations, March 1974.

"^ Rockefeller Commission Report, p. 23.

*** Aeent 1. Contact Report, Volume II, Agent 1 file.

*'° 50 U.S.C. 403(d)(3).

"^ Lawrence Houston testimony. Rockefeller Commission. 3/17/75, pp. 16.54-
165,5.

*'^ Rockefeller Commission Report, pp. 162-166.

103

mail and tax information coverage, electronic surveillance, and sur-
reptitious entry. Attorney General Robert Kennedy appears to have
authorized CIA wiretapping in one of these investigations. Witli this
exception, however, there is no suggestion that the CIA's security
investigations were specifically approved by the Attorney General.*^^

The CIA Office of Security established two programs directed at
pix)test demonstrations which involved the CIA in domestic affairs
on the theorv that doing so Avas necessary to safeguard CIA facilities
in the United States.*"* Proiect MERRIMACK (1967 to 1973) in-
volved the infiltration by CIA agents of Washington-based peace
groups and Black activist groups. The Stated purpose of the piT)gram
was to obtain early warning of demonstrations and other physical
threats to the CIA. However, the collection requirements were broad-
ened to include general information about the leadership, funding,
activities, and policies of the targeted groups.

Project RESISTANCE (1967 to 1973) was a broad effort to obtain
general background information about radical groups across the coun-
try, particularly on campuses. The CIA justified this program as a
means of predicting violence which might threaten CIA installations,
recruiters, or contractors, and gathering information with which to
evaluate applicants for CIA employment. Much of the reporting by
CIA field offices to headquarter was from open sources such as news-
papers. But additional information was obtained from cooperating
police departments, campus officials, and other local authorities,
some of whom in turn were using collection techniques such as
informants.

These programs illustrated fundamental weaknesses and contra-
dictions in the statutory definition of CIA authority in the 1947 Act.
"N^Hiile the Director of Central Intelligence is charged with responsi-
bility to protect intelligence "sources and methods," the CIA is for-
bidden from exercising law enforcement and police powers and
"internal securitv functions.'' The CIA never went to Congress for
a clarification of this ambiguity, nor did it seek interpretation from
the chief legal officer of the United States — the Attorney General —
except on the rarest of occasions.*^^

"^ According to a "memorandum for the record" sent by CIA General Counsel
Lawrence R. Houston to Deputy Attorney General William P. Rogers in 1954. an
agreement was reached at that time allowing the CIA to investigate on its own
any "actual or probable violation of criminal statutes" involving the CIA's
"covert operations" and to determine for itself, without consulting the .Justice
Department, whether there were "possibilities for prosecution." The Justice
Department would not be informed if the CIA decided that there should be
no prosecution on the ground that it might lead to "revelation of highly classified
information." (Memorandum from Houston to Rogers, 3/1/54, and enclosed
memorandum from Houston to the Director of Central Intellieence, 2/23/54.)

This practice was reviewed and re-confirmed internally within the CIA on at
least two subsequent occasions. (Memorandum from Houston to the Assistant
to the Director, CIA, 1/6/60 ; memorandum from Houston to the Deputy Director
of Centml Intelligence. 6/10/64.) It was not terminated until 1975. (Memo-
randiim from .Tohn S. Warner. CIA Gf^nt-rai Counsel, for the record. 1/31/75.)

*'' These CIA activities. Projects MERRIMACK and RESISTANCE, were de-
scribed in great detail bv the Rockefeller Commission. (Rockefeller Commission
Renort. Cbs. 12 and 13.) "

"" The Rockefeller Commission Report describes ". . . two cases in which tele-
phones of three new.smen were tapped . . . [One] occurred in 1962. apparently
with the knowledge and consent of Attorney General Kennedy." (Rockefeller
Commission Report, p. 164.)

104

d. NSA Monitoring

The National Security Agency was created by Executive Order in
1952 to conduct "signals intelligence," including the interception and
analysis of messages transmitted by electronic means, such as tele-
phone calls and telegrams.^'^ In contrast to the CIA, there has never
been a statutory "charter" for NSA.

The executive directives which authorize NSA's activities prohibit
the agency from monitoring communication between persons within
the United States and communication concerning purely domestic
affairs. The current NSA Director testified :

[The] mission of NSA is directed to foreign intelligence ob-
tained from foreign electrical communications. . . .*^^

However, NSA has interpreted "foreign communications" to include
communication where one terminal is outside the United States. Under
this interpretation, NSA has, for many years, intercepted communica-
tions between the United States and a foreign country even though
the sender or receiver was an American. During the past decade, NSA
increasingly broadened its interpretation of "foreign intelligence"
to include economic and financial matters and "international
terrorism." ^^^

The overall consequence, as in the case of CIA activities such as
Project CHAOS, was to break down the distinction between "foreign"
and "domestic" intelligence. For example, in the 1960s, NSA began
adding to its "watch lists," at the request of various intelligence agen-
cies, the names of Americans suspected of involvement in civil dis-
turbance or drug activity which had some foreign aspects. Second,
Operation Shamrock, which began as an effort to acquire the tele-
grams of certain foreign targets, expanded so that NSA obtained from
at least two cable companies essentially all cables to or from the
United States, including millions of the private communications of
Americans.

6. Intrusive Techniques

As domestic intelligence activity increasingly broadened to cover
domestic dissenters under many different programs, the government
intensified the use of covert techniques which intruded upon individual
privacy.

Informants were used to gather more information about more
Americans, often targeting an individual because of his political views
and "regardless of past or present involvement in disorders." *®^ The
CIA's mail opening program increasingly focused upon domestic
groups, including "protest and peace organizations" which were cov-
ered at the FBI's request.^^* Similarly, NSA — largely in response to
Army, CIA, and FBI pressures — expanded its international intercep-
tion program to include "information on U.S. organizations or indi-
viduals who are engaged in activities which may result in civil

*" Memorandum from President Truman to Secretary of Defense, 10/24/52.

*™ General Lew Allen testimony, 10/29/75, Hearings, Vol. 2, p. 6.

*^" Allen, 10/29/75, Hearings, vol. 2, p. 11. The programs of NSA are discussed
further in the succeeding section, "Intrusive Techniques," p. 183.

"*' Memorandum from FBI Executive Conference to Mr. Tolson, 10/29/70. See
pp. 74-76.

^^ Memorandum from Hoover to Angleton, 3/10/72.

105

disturbances or otherwise subvert the national security of the United
States." *«^

During this period, Director Hoover ordered cutbacks on the FBI's
use of a number of intrusive techniques. Frustration with Hoover's
cutbacks was a substantial contributing factor to the effort in 1970 —
coordinated by White House Aide Tom Charles Huston and strongly
supported by CIA Director Helms, NSA Director Gaylor and
Hoover's Intelligence Division subordinates — to obtain Presidential
authorization for numerous illegal or questionable intelligence
techniques.

a. Warrantless Electromc Surveillance

(1) Executive Branch Restrictions on Electronic Surveillance:
1965-1968. — In March 1965, Attorney General Nicholas deB. Katzen-
bach established a new requirement for the FBI's intelligence opera-
tions : the Bureau had to obtain the written approval of the Attorney
General prior to the implementation of any microphone surveillance.
He also imposed a six month limitation on both wiretaps and micro-
phone surveillances, after which time new requests had to be sub-
mitted for the Attorney General's re-authorization.*^*^

Upon Katzenbach's recommendation, President Johnson issued a
directive in June 1965 forbidding all federal government wiretapping
"except in conjunction with investigations related to national
security." *^^ This standard was reiterated by Attorney General Katzen-
bach, for both wiretapping and microphone surveillances three months
later, and again in July 1966.*®^^

While the procedures were tightened, the broad "national security"
standard still allowed for questionable authorizations of electronic
surveillance. In fact, Katzenbach told Director Hoover that he would
"continue to approve all such requests in the future as I have in the
past." He saw "no need to curtail any such activities in the national
security field." *®®

In line with that policy, Katzenbach approved FBI requests for
wiretaps on the Student Non-Violent Coordinating Committee,*^^
Students for a Democratic Society,*^" the editor of an anti-communist
newsletter,* ^^ a Washington attorney with whom the editor was in
frequent contact,*''^ a Klan official ,*^^ and a leader of the black Revolu-
tionary Action Movement.*^* According to FBI records, Katzenbach
also initialed three memoranda informing him of microphone surveil-
lances of Dr. Martin Luther King, Jr.*^^

'^Memorandum from NSA MINARET Charter, 7/1/69.

**" Memorandum from Hoover to Katzenbach, 3/30/65.

*®^ Memorandum from President Johnson to Heads of Departments, 6/30/65.

**" Memorandum from Katzenbach to Hoover, 9/27/65 ; Supplemental Memo-
randum to the Supreme Court in Black v. United States, July 13, 1966.

Katzenbach also stated to Hoover that while he believed such techniques
could be properly used in cases involving organized crime, he would not approve
any such requests in the immediate future "in liffht of the present atmosphere."

*^ Memorandum from Katzenbach to Hoover, 9/27/65.

** Memorandum from Hoover to Katzenbach, 6/15/65.

**" Memorandum from Hoover to Katzenbach, 5/25/65.

**' Memorandum from Hoover to Katzenbach, 4/19/65, .see footnote 266.

"^ Memorandum from Hoover to Katzenbach, 6/7/65, see footnote 266.

**' Memorandum from Hoover to Katzenbach, 9/28/64.

*** Memorandum from Hoover to Katzenbach, 3/3/65.

"^Memoranda from Hoover to Katzenbach, 5/17/65, 10/19/65, 12/1/65.

106

There were no similar electronic surveillance authorizations by
Attorney General Ramsey Clark in cases involving purely domestic
"national security" considerations.^^*' Clark has stated that his policy
was "to confine the area of approval to international activities directly
related to the military security of the United States/^'^

(2) Omnibus Grime Control Act of 1968. — In response to a 1967
Supreme Court decision that required judicial warrants for the use of
electronic surveillance in criminal cases,*^^ Congress enacted the Omni-
bus Crime Control Act of 1968. This Act established warrant proce-
dures for wiretapping and microphone surveillances, but it included a
provision that neither it nor the Federal Communications Act of 1934
"shall limit the constitutional power of the President." ^^^ Although
Congress did not purport to define the President's power,^°° the Act
suggested five broad categories in which warrantless electronic sur-
veillance might be permitted. The first three categories related to
foreign intelligence and counterintelligence matters :

(1) to protect the nation against actual or potential attack
or other hostile acts of a foreign power;

(2) to obtain foreign intelligence information deemed essen-
tial to the security of the United States; and

(3) to protect national security information against for-
eign intelligence activities.

The last two categories dealt with domestic intelligence interests :

(4) to protect the United States against overthrow of the
government by force or other unlawful means, or

(5) against any other clear and present danger to the struc-
ture or existence of the government.

Thus, although Congress suggested criteria for warrantless electronic
surveillance for intelligence purposes, it left to the courts the task of
defining the scope of the national security exception, if any, to the
warrant requirement.

Between 1969 and 1972, the Nixon administration used these criteria
to justify a number of questionable wiretaps. One New Left organiza-
tion was tapped because, among other factors, its members desired
to "take the radical politics they learned on campus and spread them
among factory workers." ^°^ Four newsmen were wiretapped or bugged
during this period, as were sixteen executive branch officials, one

^**' For example, Clark turned down FBI requests to wiretap the National
Mobilization Committee Office for Demonstrations at the Democratic National
Convention in Chicago in 1968. (Memoranda from Hoover to Clark 3/11/68,
3/22/68, 6/11/68). Clark decided that there was not "an adequate demonstration
of a direct threat to the national security." (Clark to Hoover, 3/12/68) (These
memoranda appear at Hearings, Vol. 6, pp. 740-755.

*®'' Clark has stated that he denied requests "to tap Abba Eban when he was
on a visit to this country, an employee of the United Nations Secretariat, the
Organization of Arab Students in the TT.S.. the Tanzanian Mission to the T^N..
the offif^e of the Agricultural Counselor at the Soviet Embassy and a correspondent
of TASS." [Statement of Former Attorney General Ramsey Clark, Hearings
before the Subcommittee on Administrative Practice and Procedure, Committee
on the Judiciary, TTnited States Sennte (1974).!

*^ Katz V. Umtcd States, 897 U.S. 347 (1967). This case explicitly left open
the question of warrantless electronic surveillance in "situation (s) involving
the national secnritv." (397 U.S., at 358 n. 23.)

''MR U.S.C. 2511(3).

^""See ZJnitPd States v. United States Distriet Court. 407 U.S. 297 (1972).

^^ Memorandum from Hoover to Attorney General Mitchell, 3/16/70.

107

former executive official, and a relative of an executive official." ^°^
There were numerous wiretaps and some microphones used against the
Black Panther Party and similar domestic groups.^"^ Attorney Gen-
eral Jolm Mitchell approved FBI requests for wiretaps on organiza-
tions involved in planning the November 1969 antiwar "March on
Washington," including the moderate Vietnam Moratorium Com-
mittee.^"^^

(3) Supreme Court Restrictions on National Security Electronic
Surveillance : 1972. — ^^The issue of national security electronic surveil-
lance was not addressed by the Supreme Court until 1972, when it held
in the so-called Keith case that the President did not have the "con-
stitutional power" to authorize warrantless electronic surveillance to
protect the security of the nation from "domestic" threats.^"* The Court
still remained silent, however, on the legality of warrantless electronic
surveillance where there was a "significant connection with a foreign
power, its agents or agencies." ^°^ As a result of this decision, the Jus-
tice Department eliminated as criteria for the use of warrantless elec-
tronic surveillance the two categories, described by Congress in the
1968 Act, dealing with domestic intelligence interests.^"^

h. CIA Mail Opening
Although Director Hoover terminated the FBI's own mail opening
programs in 1966, the Bureau's use of the CIA program continued. In
1969, upon the recommendation of the official in charge of the CIA's
CHAOS program, the FBI began submitting names of domestic po-
litical radicals and black militants to the CIA for inclusion on its mail
opening "Watch List." ^"^ By 1972, the FBI's list of targets for CIA
mail opening included :

New Left activists, extremists, and other subversives.

Extremist and New Left organizations.

Protest and peace organizations, such as People's Coalition
for Peace and Justice, National Peace Action Committee, and
Women's Strike for Peace.

Subversive and extremist groups, such as the Black Pan-
thers, White Panthers, Black Nationalists and Liberation
Groups, Students for a Democratic Society, Resist, Revolu-
tionary Union, and other New Left Groups.

^ See Findings C and E. pp. 183 and 225.

^^ For example, at one time in March 1971 the FBI was conducting one micro-
phone surveillance of Black Panther Party leader Huey Newton, seven wire-
taps of Black Panther Party offices including Newton's residence, one wiretap
on another hlack extremist group, one wiretap on .Jewish Defense League head-
quarters, one wiretap on a "New Left extremist group", and two wiretaps on
"New Left extremist activities." (Memorandum from W. R. Wannall to C. D.
Brennan, ,3/29/71, printed in Hearings. Vol. II, pp. 270-271.)

^■^ Memoranda from Hoover to Attorney General Mitchell, 11/5/69 and
11/7/69. This and other aspects of electronic surveillance in this period are
di.scussed in Findings C and E in greater detail, pp. 183 and 225.

^ rnitcd FifaicH v. Uuifed Statesi Dif^trict Court. 407 U.S. 297 (1972).

^Fnifrd f^tnfrs v. United S!tatcf< District Cniirt. 407 U.S.. at 309 (1972).

^^Nlemorandum from William Olson to Elliott Richardson. .Tune 1973. Until
1975. however, the .Justice Department stretched the term "connection with a
foreign power" to include domestic groups, such as the .Jewish Defense League,
whose protest actions against a foreign nation were helieved to threaten the
JT^nited States' relations with that nation. [Zwcihon v. Mitchell, 516 F. 2d 594
(D.r. Cir. 1975).]

^ Memorandum from FBI/CIA Liaison Agent to D. J. Brennan, 1/16/69.

108

Traffic to and from Puerto Rico and the Virgin Islands
showing anti-U.S. or subversive sympathies.^"^

Thus, the mail opening program that began fourteen years earlier as a
means of discovering hostile intelligence efforts in the United States
had expanded to encompass communications of domestic dissidents of
all types.

c. Expansion of NSA Monitoring

Although NSA began to intercept and disseminate the communica-
tions of selected Americans in the early 1960s, the systematic inclu-
sion of a wide range of American names on the "Watch List" did not
occur until 1967.

The Army Chief of Staff for Intelligence requested "any informa-
tion on a continuing basis" that NSA might intercept concerning :

A. Indications that foreign governments or individuals or
organizations acting as agents of foreign governments are
controlling or attempting to control or influence the activities
of U.S. "peace" groups and "Black Power" organizations.

B. Identities of foreign agencies exerting control or influ-
ence on U.S. organizations.

C. Identities of individuals and organizations in U.S. in
contact with agents of foreign governments.

D. Instructions or advice being given to U.S. groups by
agents of foreign governments.^"^

Two years later, NSA issued an internal instruction intended to
ensure the secrecv of the fact that it was monitorins: and disseminat-
ing communications to and from Americans.^" This memorandum
described the ""VVatch List" program in terms which indicated that
it had widened beyond its originally broad mandate. In addition to
describing the program as covering foreigners who "are attempting"
to "influence, coordinate or control" U.S. groups or individuals who
"may foment civil disturbance or otherwise undermine the national
security of the LT.S.," the memorandum indicated that the program
intercepted communications dealing with :

Information on U.S. organizations or indi\nduals who are
engaged in activities which may result in civil disturbances
or otherwise subvert the national security of the U.S.^"

This standard, which was clearly outside the foreign intelligence
mandate of NSA, resulted in sweeping coverage. Communications
such as the following were intercepted, disseminated, and stored in
Government files: discussion of a peace concert; the interest of the
wife of a U.S. Senator in peace causes ; a correspondent's report from
Southeast Asia to his magazine in New York ; an anti-war activist's
request for a speaker in New York.

According to testimony before the Committee, the material which
resulted from the "Watch List" was of little intelligence value ; most

^Routing Slip from J. Edgar Hoover to James Angleton (attachment),
3/10/72.

'<* DOD Cable, Tarborough to Carter, 10/20/67.

"" NSA's name, for example, was to be kept off any of the disseminated
"product."

"^MINARET Charter, 7/1/69.

109

intercepted commimications were of a private or personal nature or
involved rallies and demonstrations that were public knowledge.^^^

d. FBI Cutbacks

The reasons for J. Edgar Hoover's cutback in 1966 on FBI use of
several covert techniques are not clear. Hoover's former assistants
have cited widely divergent factors.

Certainly by the mid-1960s. Hoover was highly sensitive to the
possibility of damage to the FBI from public exposure of its most
intrusive intelligence techniques. This sensitivity was reflected in a
memorandum to Attorney General Katzenbach in September 1965,
where Hoover referred to "the present atmosphere" of "Congressional
and public alarm and opposition to any activity which could in any
way be teraied an invasion of privacy." ^^^ The FBI Director was
particularly concerned about an inquiry by the Subcommittee on
Administrative Practice and Procedure of the Senate Judiciary Com-
mittee chaired by Senator Edward Long.

(1) The Long Suhcommiftee Investigation. — The Senate Subcom-
mittee was primarily investigating electronic surv^eillance and mail
cover. The Bureau was seen as a major subject of the inquiry, al-
though the Internal Revenue Service and other Executive agencies
were also included.

In February 1965, President Johnson asked Attorney General
Katzenbach to coordinate all matters relating to the investigation,
and Katzenbach then met with senior FBI officials to discuss the
problems it raised.^^^ According to a memorandum by A. H. Belmont,
one of the FBI Director's principal assistants, Katzenbach stated
that he planned to see Senator Edward Long, the Subcommittee
chairman, for the purpose of "impressing on him that the committee
would not want to stumble by mistake into an area of extreme inter-
est to the national security." According to Belmont, the Attomey
General added that he "might have to resort to pressure from the
President" and that he did not want the Subcommittee to "under-
mine the restricted and tightly controlled operations of the Bureau."
FBI officials had assured Katzenbach that their activities were, in-
deed, "tightly controlled" and restricted to "important security
matters." ^^^

The following note on the memorandum of this meeting provides
a sign of Director Hoover's attitude at that time :

I don't see what all the excitement is about. I would have no
hesitancy in discontinuing all techniques — ^technical cover-
age, microphones, trash covers, mail covers, etc. "V^Tiile it
mi.qht handicap us I doubt they are as valuable as some

'^'W. R. Wnnnall (TBI Assistant Director for Intelliffence). 10/3/75. p. 13.
"Tlie feeling is tliat there was very little in the way of good product as a result of
our hiving supplied names to NSA."

^Memornndum from Hoover to Katzenhach. O/l-^/GS. This memorandum dealt
specifically with electronic sur^'eillance and did not mention mail openings or
"Black Bag .Tohs." Hoover said the FBI had "discontinuefl" microphone surveil-
lances Chugs), a restriction which xVttorney General Katzenbach said went too
far. (Kntzenhaph to Hoover. 9/27/65.)

"^Memor.nndnm from A. H. Belmont to Mr. Tolson, 2/27/65. Katzenbach testi-
mouv. 12/3/75. Hearings. Vol. 6. p. 204.

^" Memorandum from A. H. Belmont to C. Tolson, 2/27/65.

110

believe and none warrant the FBI being used to justify
them.^^'

Several days later, according to a memorandum of the FBI Director,
the Attorney (ienerai "aavised that he had tallied to benator I^ong,"
and that tlie beiiator "saia lie did not want to get into any national
security area." ^^'^ Katzenbach has conhrmed that he "would have been
concerned" in these circumstances about the Subcommittee s demands
for information about "matters of a national security nature-' and that
he was "declining to provide such information" to Long.^^'^

Again in 196(5, the FBI took steps to, in the words of Bureau of-
ficial Cartha DeLoach, "neutralize" the ''threat of being embarrassed
by the Long Subcommittee." ^-° This time the issue involved war-
rantless electronic surveillance by the FBI, particularly in organized
crime matters. DeLoach and another ranking Bureau official visited
Senator Long to urge that he issue a statement that "the FBI had
never participated in uncontrolled usage of wiretaps or microphones
and that FBI usage of such devices had been completely justified in all
instances." ^^^ The Bureau prepared such a statement for Senator
Long to release as his own, which apparently was not used."- At
another meeting with DeLoach, Senator Long agreed to make "a
commitment that he would in no way embarrass the FBI." When the
Subcommittee's Chief Counsel asked if a Bureau spokesman could
appear and "make a simple statement," DeLoach replied that this
would "open a Pandora's box, in so far as our enemies in the press
were concerned." Senator Long then stated that he would call no
FBI witnesses.^2^

(2) Director Hoover'' 8 Restrictions. — The Director subsequently
issued instructions that the number of warrantless wiretaps installed
at any one time be cut in half. One of his subordinates speculated
that this was done out of a concern that the Subcommittee's "inquiry
might get into the use of that technique by the FBI." "*

In July 1966, after hundreds of FBI "black bag job" operations
had been approved over many years. Director Hoover decided to
eliminate warrantless surreptitious entries for purposes other than
microphone installations.^^s jj^ response to an Intelligence Division
analysis that such break-ins were an "invaluable technique," although
"clearly illegal," Hoover stated that "no more such techniques must
be used." "^ Bureau subordinates took Hoover's "no more such tech-

"■^ Hoover Note on Belmont Memorandum to Tolson, 2/27/65.

^® Memorandum from Hoover to Tolson, et al., 3/2/65.

*"• Katzenbach testimony. 12/3/75, Hearings, Vol. 6, pp. 205-206.

^'"' Memorandum from DeLoach to Tolson, 1/21/66.

^'^ Memorandum from DeLoach to Tols-^n. 1/10/66.

^ Memorandum from M. A. Jones to Robert Wick, 1/11/66.

"^ Memorandum from DeLoach to Tolson, 1/21/66.

^C. D. Brennan deposition. 9/23/75, p. 42.

^According to FBI records and the recollections of Bureau agents, the fol-
lowing number of microphone surveillances involving "surreptitious entry" were
installed in "internal secvirity. intelligence, and coimterintelligence" investiga-
tions : 1964 : 80 : 1965 : 59 : 1966 : 4 : 1967 : 0 : 1968 : 9 : 1969 : S : 1970 : 15 : 1971 : 6
1972 : 22 : 1973 : 18 : 1974 : 9 : 1975 : 13. The similar figures for "criminal investiga
tions" (including installations authorized bv judicial warrant after 1968) are
1964 : 83 : 1965 : 41 ; 1966 : 0 ; 1967 : 0 : 1968 : 0 : 1969 : 3 : 1970 : 8 : 1971 : 7 : 1972
19- 1973: 27; 1974: 22; 1975: 11. (Memorandum from FBI to Select Committee
10/17/75.)

"'Hoover note on memorandum from Sullivan to DeLoach, 7/19/66. This
memorandum cited as a "prime example" of the utilitv of a "black bag jobs" a
break-in to steal records of three high-ranking Klan oflBcials relating to finances

Ill

niques" language as an injunction against the Bureau's mail opening
program as well.^-^ Apparently, a termination order was issued to
field offices by telephone. FBI mail-opening was suspended, al-
though the Bureau continued to seek information from CIA's illegal
mail-opening program until its suspension in 1973.

A year and a half before Hoover's cutbacks on wire-tapping, "black
bag jobs," and mail-opening, he prohibited the FBI's use of other
covert techniques such as mail covers and trash covers.^^^

FBI intelligence officials persisted in requesting authority for "black
bag" techniques. In 1967 Director Hoover ordered that "no such rec-
ommendations should be submitted." ^-^ At about this time. Attorney
General Ramsey Clark was asked to approve a "breaking and enter-
ing" operation and declined to do so.^^° There was an apparently un-
authorized surreptitious entry directed at a "domestic subversive tar-
get" as late as April, 1968.^^^ A proposal from the field to resume mail
opening for foreign counterintelligence purposes was turned down by
FBI officials in 1970.^^2

7. Accountahility and Control

a. Tlie Huston Plan: A Domestic Intelligence Network

In 1970, pressures from the TNHiite House and from within the in-
telligence community led to the formulation of a plan for coordination
and expansion of domestic intelligence activity. The so-called "Huston
Plan" called for Presidential authorization of illegal intelligence tech-
niques, expanded domestic intelligence collection, and centralized eval-
uation of domestic intelligence. President Nixon approved the plan and
then, five days later, revoked his approval. Despite the revocation of
official approval, many major aspects of the plan were implemented,
and some techniques which the intelligence community asked for
permission to implement had already been underway.

In 1970, there was an intensification of the social tension in America
that had provided the impetus in the 1960s for ever- widening domestic
intelligence operations. The spring invasion of Cambodia by United
States forces triggered the most extensive campus demonstrations and
student "strikes" in the history of the war in Southeast Asia. Domestic
strife heightened even further when four students were killed by Na-

and membership which "we have been using most effectively to disrupt the
organization."

^^"Wannall, 10/13/75, pp. 45-46. There is to this day no formal order pro-
hibiting FBI mail-opening, although Assistant Director Wannall contended that
general FBI ^Manual instructions now applicable forbid any unlawful technique.

^^ These techniques were not prohibited by law. Their use was banned in all
cases, including serious criminal investigations and foreign counterintelligence
matters. (Memorandum from W. C. Sullivan to A. H. Belmont. 9/30/64.) Mail
covers, which may be used to identify from their exteriors certain letters which
can then be opened with a .iudicial warrant, were reinstituted with Justice De-
partment approval in 1971. (^Memorandum from Hoover to Mitchell, 7/27/71;
Memorandum from Assistant Attorney General Will Wilson to Hoover, 9/31/71.)

^^ Memorandum from Hoover to Tolson and DeLoach, 1/6/67.

^^ "Once Mr. Hoover, apparently at the request of the National Security Agency,
sought approval to break and enter into a foreign mission at the United Nations
to procure cryptographic materials to facilitate decoding of intercepted trans-
missions. The request was presented with some urgency, rejected and presented
again on perhaps several occasions. It was never approved and constituted the
only request of that kind." [Statement of former Attorney General Ramsey Clark,
Hearings before the Senate Judiciary Subcommittee on Administrative Practice
and Procedure. (1974).!

°^ Memorandum from FBI to Senate Select Committee, 2/23/75.

^* Memorandum from W. A. Branigan to W. C. Sullivan, 3/31/70.

112

tional Guardsmen at Kent State University. Within one twenty-four
hour period, there were 400 bomb threats in New York City alone. To
respond, White House Chief of Staff, H. K. Haldeman, assigned prin-
cipal responsibility for domestic intelligence planning to staff assist-
ant Tom Charles Huston.^^s

Since June 1969, Huston had been in touch with the head of the
FBI Domestic Intelligence Division, Assistant Director William C.
Sullivan. Huston initially contacted Sullivan on President Nixon's be-
half to request "all information possibly relating to foreign influences
and financing of the New Left." ^^^ Huston also made similar requests
to CIA, NSA, and the Defense Intelligence Agency. The quality of
the data provided by these agencies, especially the FBI, had failed to
satisfy Huston and Presidential assistant John Ehrlichman.^^^ There-
after, Huston's continued discussions with Assistant Director Sulli-
van convinced him that the restraints imposed upon domestic intelli-
gence techniques by Director Hoover impeded the collection of im-
portant information about dissident activity. ^^^

(1) Intelligence Commumty Pressures. — The interest of the White
House in better intelligence about domestic protest activity coincided
with growing dissatisfaction among the foreign intelligence agencies
with the FBI Director's restrictions on their performance of foreign
intelligence functions in America.^^^

The CIA's concerns crystallized in March 1970 when — as a result
of a "flap" over the CIA's refusal to disclose information to the
FBI— Hoover issued an order that "direct liaison" at FBI head-
quarters with CIA "be terminated" and that "any contact with CIA
in the future" was to take place "by letter only." ^^^ This order did
not bar interagencj^ communication ; secure telephones were installed
and working-level contacts continued. But the position of FBI
"liaison agent" with CIA was eliminated.^^^

CIA Director Helms subsequently attempted to reopen the question
of FBI cooperation with CIA requests for installing electronic
surveillances and covering mail.^*° Hoover replied that he agreed with
Helms that there should be expanded "exchange of information be-
tween our agencies concerning New Left and racial extremist mat-
ters." However, he refused the request for aid with electronic sur-
veillance and mail coverage. Hoover cited the "widespread concern

^ Memorandum from John R. Brown to H. R. Haldeman, 4/30/70.

^ Memorandum from Sullivan to DeLoach, 6/20/69 ; Memorandum from Hus-
ton to Hoover. 6/20/69.

^ Tom Charles Huston testimony, 5/23/75, p. 19.

^ Huston. 5/23/75, pp. 23, 28.

^ Helms deposition, 9/10/75, p. 3 ; Bennett deposition, 8/5/75, p. 12 ; Gayler
deposition, 6/19/75, pp. 6-7. As early as 1963, the FBI Director had successfully
opposed a proposal to the President's Foreign Intelligence Advisory Board by
CIA Director John McCone for expanded domestic wiretapping for foreign
intelligence purposes. (Memorandum from W. C. Sullivan to C. D. DeLoach.
3/7/70). In 1969. CIA Director Richard Helms was told by the Bureau, when he
asked it to institute electronic surveillance on behalf of the CIA, that he should
"refer such reqiiests directly to Attorney General for approval." (Memorandum
from Sullivan to DeLoach, 3/30/70.) The administrators of NSA also failed to
persuade Director Hoover to lift his restraints on foreign intelligence electronic
surveillance. (Staff summary of Louis Tordella interview, 6/16/75.)

^ Note bv Hoover on letter from Helms to Hoover. 2/26/70.

^^ Former FBI Liaison with CIA testimony. 9/22/7.5. p. 3.

""Memorandum from Sullivan to DeLoach, 3/30/70, pp. 1-2, 4.

113

by the American public regarding; the possible misuse of this type of
coverage." Their use in "domestic investigations'" posed legal problems
not encountered "in similar operations abroad." Hoover added, "The
FBI's eifectiveness has always depended in large measure on our
capacity to retain the full confidence of the American people." ^^^

(2) The Interagency Committee Report. — In the following months,
Tom Charles Huston arranged a meeting between President Nixon
and the directors of the FBI, CIA, NSA, and DIA on June 5, 1970.^^-
The President's emphasis was upon improved coordination among the
agencies to strengthen their capabilities to collect intelligence about
"revolutionary activism" and "the support — ideological and other-
wise— of foreign powers" for these activities. The talking paper
prepared by Huston for the President to read at the meeting declared,
"We are now confronted wnth a new and grave crisis in our country —
one which we know too little about.^^^

From this meeting emanated the Special Report of the Interagency
Committee on Intelligence (Ad Hoc), prepared jointly by representa-
tives of the FBI, CIA, NSA, and DIA, and submitted to the President
a month later.^^^ The report presented the President a series of options,
and Huston recommended that the President approve the following :

(1) "coverage by NSA of the communications of U.S.
citizens using international facilities;"

(2) "intensification" of "electronic surveillances and pene-
trations" directed at individuals and groups "who pose a
major threat to the internal security" and at "foreign na-
tionals" in the United States "of interest to the intelligence
community ;"

(3) removal of restrictions on "legal" mail coverage and
relaxation of "restrictions on covert coverage" [mail open-
ing] on "selected targets of priority foreign intelligence and
internal security interest;"

(4) modification of "present restrictions" on "surreptitious
entry" to allow "procurement of vitally needed foreign cryp-
tographic material" and "to permit selective use" against
"high priority internal security targets;"

(5) relaxation of "present restrictions" on the "develop-
ment of campus sources" to permit "expanded coverage of
violence-prone and student-related groups;'

(6) "increased" coverage by CIA "of American students
(and others) traveling or living abroad;" *

(7) appointment of a "permanent committee consisting of
the FBI, CIA, NSA, DIA, and the military counterintelli-
gence agencies" to evaluate "domestic intelligence" and to
"carry out the other objectives specified in the report." ^*^

Huston also raised and dismissed questions about the legality of
two collection techniques in particular. "Covert [mail opening] cov-

°" Memorandum from Hoovpr to Helms, 3/31/70.

^ Huston deposition, 5/23/75, p. 32.

^ Presidential Talking Paper, 6/5/70, from the Nixon Papers.

"^ The report was written by the Research Section of the FBI Domestic Intel-
ligence Division on the basis of committee decisions and FBI Director Hoover's
revisions (Staff Summary of Richard Cotter interview, 9/15/75.)

^ The seven recommendations were made in an attachment to a memorandum
from Huston to Haldeman, 7/70.

68-786 O - 76 - 9

114

erage is illegal, and there are serious risks involved," he wrote. "How-
ever, the advantages to be derived from its use outweigh the risks," ^*^
As for surreptitious entry, Huston advised:

Use of this technique is clearly illegal : it amounts to burglary.
It is also highly risky and could result in great embarrass-
ment if exposed. However, it is also the most fruitful tool
and can produce the type of intelligence which cannot be ob-
tained in any other fashion." ^*^

Huston testified that his recommendations "reflected what I under-
stood to be the consensus of the working group" of intelligence
officials on the interagency committee.^*^

Just over a week later, the FBI, CIA, NSA, and DIA were advised
by Huston that "the President has . . . made the following decisions" —
to adopt all of Huston's recommendations.^*^ Henceforth, with Presi-
dential authority, the intelligence community could intercept the
international communications of Americans ; eavesdrop electronically
on anyone deemed a "threat to the internal security ;" read the mail of
American citizens; break into the homes of anyone regarded as a
security threat ; and monitor the activities of student political groups
at home and abroad.

There is no indication that the President was informed at this time
that NSA was already covering the international communications of
Americans and had been doing so for domestic intelligence purposes
since at least 1967. Nor is there any indication that he was told that the
CIA was opening the mail of Americans and sharing the contents with
the FBI and the military for domestic intelligence purposes. In effect,
the "Huston plan" supplied Presidential authority for operations pre-
viously undertaken in secret without such authorization. For instance,
the plan gave FBI Assistant Director Sullivan the "support" from
"responsible quarters" which he had believed necessary to resume the
"black bag jobs"' and mail-opening programs Director Hoover had
terminated in 1966.^^°

Nevertheless, the FBI Director was not satisfied with Huston's
memorandum concerning the authorization of the plan.^^^ Hoover
went immediately to Attorney General Mitchell, who had not known
of the prior deliberations or the President's "decisions." ^^^ In a memo-
randum, Director Hoover said he would implement the plan, but only
with the explicit approval of the Attorney General or the President :

^*^ Memorandum from Huston to Haldeman, 7/70.

^" Memorandum from Huston to Haldeman. 7/70. In using the word "bur-
glary," Huston said he sought to "escalate the rhetoric ... to make it as
bold as possible." He thought that, as a staff man, he should give the President
"the worst possible interpretation of what the recommendation would result
in." (Huston deposition. 5/22/75, p. 69.)

"^ Huston deposition. 5/22/75. p. 8.

^^^ Memorandum from Tom Charles Huston to Tntelligence Directors, 7/23/70.

"™ Memorandum from Sullivan to DeLoach, 4/14/70.

^ An assistant to the head of the Defense Intelligence Agency recalls agreeing
with his superior that the memorandum from Huston to the intelligence directors
showed that the White House had "passed that one down about as low as they
could go" and that the absence of signatures by the President or his top aides
indicated "what a hot potato it was." (Staff summary of James Stillwell inter-
view, 5/21/75.)

^'' Mitchell testimony, 10/24/75, Hearings, Vol. 4, p. 122.

115

Despite my clear-cut and specific opposition to the lifting of
the various investigative restraints referred to above and to
the creation of a permanent interagency committee on do-
mestic intelligence, the FBI is prepared to implement the
instructions of the White House at your direction. Of course,
we would continue to seek your specific authorization, where
appropriate, to utilize the various sensitive investigative
techniques involved in individual cases.^^^

CIA Director Helms shortly thereafter indicated his support for the
plan to the Attorney General, telling him "we had put our backs into
this exercise." ^^* Nonetheless, Mitchell advised the President to with-
draw his approval."^ Huston was told to rescind his memorandum,
and the White House Situation Room dispatched a message requesting
its return.^^*'

(3) Implementation. — The President's withdrawal of approval for
the "Huston plan" did not, in fact, result in the termination of either
the NSA program for covering the communications of Americans or
the CIA mail-opening program. These programs continued without
the formal authorization which had been hoped for.^^'' The directors
of the CIA and NSA also continued to explore means of expanding
their involvement in, and access to, domestic intelligence.^^^ A new
group, the Intelligence Evaluation Committee (lEC), was created by
Attorney General Mitchell within the Justice Department to consider
such expansion.^^^ NSA, CIA, Army counterintelligence, and the FBI

^°' Memorandum from Hoover to Mitchell, 7/25/70.

*" Helms memorandum for the record, 7/28/70.

'=' Mitchell. 10/24/75, Hearings, Vol. 4, p. 123.

^^^ Huston deposition, 5/23/75, p. 56 ; staff summary of David McManus inter-
view, 7/1/75.

^' Director Helms thinks he told Attorney General Mitchell about the CIA
mail program. Helms also believes President Nixon may have known tahout the
program although Helms did not personally inform him. (Helms, 10/22/75,
Hearings, Vol. 4, pp. 88-89.) Mitchell denied that Helms told him of a CIA mail-
opening program and testified that the President had no knowledge of the
program, "at least not as of the time we discusvsed the Huston Plan." (Mitchell,
9/24/75, Hearings, Vol. 4, pp. 120, 138.)

°°^ In March 1971, NSA Director Noel Gayler and CIA Director Helms met with
Attorney General Mitchell and Director Hoover. According to Hoover's memo-
randum of the meeting, it had been arranged by Helms to discuss "a broadening
of operations, particularly of the very confidential type in covering intelligence
botli domestic and foreign." Hoover was again "not enthusiastic" because of
"the hazards involved." Mitchell asked Helms and Gayler to prepare "an in-depth
examination" of the collection methods they desired. (Memorandum for the files
by J. Edgar Hoover, 4/12/71.) It was less than two months after this meeting
that, according to a CIA memorandum, Director Helms briefed Mitchell on the
mail program. (CIA memorandum for the record, 6/3/71.) Even before this meet-
ing, NSA Director Gayler sent a memorandum to Attorney General Mitchell and
Defense Secretary Melvin Laird describing "NSA's Contribution to Domestic
Intelligence." This memorandum refers to a disctission with both Mitchell and
Laird on how NSA could assist with "intelligence bearing on domestic problems."
The memorandum mentioned the monitoring of foreign siipport for subversive
activities, as well as for drug trafficking, although it did not discuss specifically
the NSA "Watch List" of Americans. (Memorandum from NSA Director Noel
Gayler to the Secretary of Defense and the Attorney General. .lanuary 26, 1971.)
NSA official Benson Buffham recorded that he personally showed this memo-
randum to Mitcliell and had been told by the Military Assistant to Secretary
Laird that the Secretary had read and agreed with it. (Memorandum for the
record by Benson K. Buffham. 2/3/71.)

^^ Memorandum from Assistant Attorney General Robert Mardian to Attorney
General Mitchell, 12/4/70.

116

each sent representatives to the lEC. NSA Director Gayler provided
the lEC with a statement of NSA's capabilities and procedures for
supplying domestic intelligence.^^" Although the lEC merely evalu-
ated raw intelligence data, over 90 percent of which came to it
through the FBI, it had access to domestic intelligence from NSA
coverage and the CIA's mail-opening and CHAOS programs, which
was channeled to the FBI.^''^

Two of the specific recommendations in the "Huston Plan" were
thereafter implemented by the FBI — the lowering of the age limit
for campus informants from 21 to 18 and the resumption of "legal mail
covers." ^^^ Two men who had participated in developing the "Huston
Plan" were promoted to positions of greater influence within the
Bureau.^^^ More important the Bureau greatly intensified its domestic
intelligence investigations in the fall of 1970 without using "clearly
illegal" techniques. The Key Black Extremist Program was inaugu-
rated and field offices were instructed to open approximately 10,500
new investigations, including investigations of all black student groups
"regardless of their present or past involvement in disorders." All
members of "militant New Left campus organizations" were also to be
investigated even if they were not "known to be violence prone." The
objective of these investigations was "to identify potential" as well as
"actual extremists." ^^*

The chief of the Domestic Intelligence Division in 1970 said the
"Huston Plan" had "nothing to do" with the FBI's expanded intelli-
gence activities. Rather, both the "Huston Plan" and the Bureau inten-
sification represented the same effort by FBI intelligence officials "to
recommend the types of action and programs which they thought
necessary to cope with the problem." ^^^ Brennan admits that "the FBI
was getting a tremendous amount of pressure from the White House,"
although he attributes this pressure to demands from "a vast majority
of the American people" who wanted to know "why something wasn't
being done" about violence and disruption in the country,^^^

&. Political Intelligence

The FBI practice of supplying political information to the Wliite
House and, on occasion, responding to White House requests for
such information was established before 1964. However, under the
administrations of President Lyndon Johnson and Richard Nixon,
this practice grew to unprecedented dimensions.^^^

(1) Name Check Requests. — White House aides serving under Presi-
dents Johnson and Nixon made numerous requests for "name checks"

'"° Memorandnm from Gayler to Laird and Mil-ohell. 1/26/71.

^ For a discussion of the FBI as "consumer," see pp. 107-109.

662 rjij-,^ resumption of mail covers Is discussed above at footnote 528. FBI
field offices were instructed that thev could recruit 18-21 year-old informers in
September 1970. (SAC Letter No. 70^8, 9/1.5/70.) See. p. 76.

683 rpj^^ \\enA of the FBI Domestic Intelligence Division, WiUiam C. Sullivan,
was promoted to be Assistant to the Director for all investi.2:ative and intelli-
gence activities. His successor in charge of the Domestic Intelligence Division
was Charles D. Brennan.

^* Executives Conference to Tolson, 10/29/70 ; Memorandum from FBI Head-
quarters to all SACs, 11/4/70.

'^ Brennan deposition, 9/23/75, pp. 29-31.

"' Brennan testimony. 9/25/75, Heirings. Vol. 2, p. 108.

^'The involvement of the Central Intelligence Agency in improper activities
for the White House is described in the Rockefeller Commission Report, Ch. 14.

117

of FBI files to elicit all Bureau information on particular critics of
each administration. Johnson aides requested such reports on critics
of the escalating war in Vietnam.^*^* President Johnson's assistants
also requested name checks on members of the Senate staff of Presi-
•dential candidate Barry Goldwater in 1964,^^^ on Justice and Treasury
Department officials responsible for a phase of the criminal investi-
gation of Johnson's former aide Bobby Baker,^''^^ on the authors of
books critical of the Warren Commission report,"" and on prominent
newsmen.^^^ President Nixon's aides asked for similar name checks
on another newsman, the Chainnan of Americans for Democratic
Action, and the producer of a film critical of the President.^"^

According to a memorandum by Director Hoover, Vice President
Spiro Agnew received ammunition from Bureau files that could be
used in "destroying [the] credibility" of Southern Christian Lead-
ership Conference leader Reverend Ralph Abemathy.^'^^

(2) Democratic National Convention^ Atlantic City^ 1964. — On
August 22, 1964, at the request of the White House, the FBI sent
a "special squad" to the Democratic National Convention site in
Atlantic City, New Jersey. The squad was assigned to assist the
Secret Service in protecting President Lyndon Johnson and to ensure
that the convention itself Avould not be marred by civil disruption.

But it went beyond these functions to report political intelligence
to the Wliite House. Approximately 30 Special Agents, headed by
Assistant Director Cartha DeLoach, "were able to keep the White
House fully apprised of all major developments during the Con-
vention's course" by means of "informant coverage, by use of various
confidential techniques, by infiltration of key groups through use of
undercover agents, and through utilization of agents using appro-
priate cover as reporters." ^''^ Among these "confidential techniques"
were : a wiretap on the hotel room occupied by Dr. Martin Luther
King, Jr., and microphone surveillance of a storefront serving as head-
quarters for the Student Nonviolent Coordinating. Committee and
another civil rights organization.^^^

^ Letter from J. Edgar Hoover to Marvin Watson, 6/4/65.

^'^ Memorandum from Hoover to Moyers, 10/27/64. cited in FBI summary
memorandum, subject : Senator Barry Goldwater, 1/31/75.

^^* Memorandum from DeLoach to Tolson, 1/17/67.

^'° Memorandum from Hoover to Marvin Watson, 11/8/66.

^^ See Finding on Political Abuse, p. 225.

""Tetter from .T. Edgar Hoover to .Tohn D. Ehrlichman. 10/6/69; Hou.se
Judiciary Committee Hearings, Statement of Information (1974), Book VII,
p. 1111 ; Book VIIT, p. 18.3. Director Hoover volunteered information from
Bureau files to the .Johnson White House on the -author of a play satirizing the
President. (Memorandinn from Hoover to Watson. 1/9/67.)

'^" Memorandum from Hoover to Tolson. rt al., .5/18/70. Agnew admits having
received such information, but denies having asked for it. (Staff sximmary of
Sp'T-o Agnew interview. 10/15/75.)

"* Memorandum from C. D. DeLoach to Mr. Mohr. 8/29/64.

"^ DeLoach memorandum. 8/29/64 : Cartha DeLoach testimony, 12/3/75, Hear-
ings. Vol. 6, p. 177. A 1975 FBI Inspection Report has speculated that the
SNCC bug may have been planted because the Bureau had information in 1964
that "an apparent member of the Communist Party, FSA, was engaging in
considprnble activity, much in a leadership capacity in the Student Nonviolent
Coordinating Committee." (FBI summary memorandum. 1/30/75.) It is unclear,
however, whether this bug was even approved internally by FBI Headquarter.s,
as ordinarily required by Bureau procedures. DeLoach stated in a contempo-
raneous memorandum that the microphone surveillance of SNCC was instituted

(Continued)

118

Neither of the electronic surveillances at Atlantic City were spe-
cifically authorized by the Attorney General. At that time, Justice
Department procedures did not require the written approval of the
Attorney General for bugs such as the one directed against SNCC in
Atlantic City. Bureau officials apparently believed that the wiretap
on King was justified as an extension of Robert Kennedy's October 10,
1963, approval for surveillance of King at his then-current address
in Atlanta, Georgia, or at any future address to which he might
move.^^^ The only recorded reason for instituting the wiretap on Dr.
King in Atlantic City, however, was set forth in an internal memo-
randum prepared shortly before the Convention :

Martin Luther King, Jr., head of the Southern Christian
Leadership Conference (SCLC), an organization set up to
promote integration which we are investigating to deter-
mine the extent of Communist Party (CP) influence on King
and the SCLC, plans to attend and possibly may indulge in
a hunger fast as a means of protest.^^^

Walter Jenkins, an Administrative Assistant to President Johnson
who was the recipient of information developed by the Bureau, stated
that he was unaware that any of the intelligence was obtained by
wiretapping or bugging.^^^ DeLoach, moreover, has testified that he
is uncertain whether he ever informed Jenkins of these sources.^^^

Walter Jenkins, and presumably President Johnson, received a
significant volume of information from the electronic surveillance
at Atlantic City, much of it purely political and only tangentially re-
lated to possible civil disturbances. The most important single issue
for President Johnson at the Atlantic City Convention was the seat-
ing challenge of the Mississippi Freedom Democratic Party to the
regular Mississippi delegation.^^° From the electronic surveillances
of King and SNCC, the White House was able to obtain the most
intimate details of the plans of individuals supporting the MFDP's
challenge unrelated to the possibility of violent demonstrations.

Jenkins received a steady stream of reports on political strategy
in the struggle to seat the MFDP delegation and other political plans
and discussions by the civil rights groups under surveillance.^^^ More-
over, the 1975 Inspection Eeport stated that "several Congressmen,

(Continued)

"with Bureau approval." (Memorandum from DeLoach to Mohr, 8/29/64.) But
the Inspection Report concluded that "a thorough review of Bureau records fails
to locate any memorandum containing [internal] authorization for same." (FBI
summary memorandum, 1/30/75.)

^■'^ Mr. DeLoach cited the fact that in the summer of 1964 "there was an on-
going electronic surveillance on Dr. Martin Luther King ... as authorized by
Attorney General Kennedy." (Cartha DeLoach testimony. 11/26/75, p. 110) The
Inspection Report noted that the Special Agent in Charge of the Newark office
was instructed to institute the wiretap on the ground that "the Burenu had au-
thority from the Attorney General to cover any residences which King may
use with a technical installation." (FBI summary memorandum 1/30/75, Sub-
ject: "Special Squad at Democratic National Convention, Atlantic City, New
Jersey, August 22-28, 1964.")

^" Memorandum from W. C. Sullivan to A. H. Belmont, 8/21/64.

^'* Staff summarv of Walter Jenkins interview, 12/1/75.

™ DeLoach. 11/26/75. p. 114.

^^" Theodore White, Mnkinrf of the President 196J, (New York : Atheninm. 1965),
pp. 277-280. Walter Jenkins also confirmed this characterization. (Staff sum-
mary of .Jenkins interview, 12/1/75).

^ Memorandum from DeLoach to Mohr, 8/29/64,

119

Senators, and Governors of States" were overheard on the King tap.^^^
According to both Cartha DeLoach and Waher Jenkins, the Bu-
reau's coverage in Atlantic City was not designed to serve political
ends. DeLoach testified :

I was sent there to provide information . . , which could
reflect on the orderly progress of the convention and the
danger to distinguished individuals, and particularly the
danger to the President of the United States, as exempli-
fied by the many, many references [to possible civil disturb-
ances] in the memoranda furnished Mr, Jenkins. . . .^^^

Jenkins has stated that the mandate of the FBI's special unit did not
encompass the gathering of political intelligence and speculated that
the dissemination of any such intelligence was due to the inability of
Bureau agents to distinguish dissident activities which represented
a genuine potential for violence.^®* Jenkins did not believe the White
House ever used the incidental political intelligence that was received.
However, a document located at the Lyndon B. Johnson Presidential
Library suggests that at least one political use was made of Mr. De-
Loach's reports. ^^^

Thus, although it may have been implemented to prevent violence at
the Convention site, the Bureau's coverage in Atlantic City — ^which
included two electronic surveillances — undeniably provided useful po-
litical intelligence to the President as well.^^''

(3) By-Product of Foreign Intelligence Coverage. — Through the
FBI's coverage of certain foreign officials in Washington, D.C., the
Bureau was able to comply with President Johnson's request for re-
ports of the contacts between members of Congress and foreign officials
opposed to his Vietnam policy. According to a summary memorandum
prepared by the FBI :

On March 14, 1966, then President Lyndon B. Johnson in-
formed Mr. DeLoach [Cartha DeLoach, Assistant Director
of the FBI] . . . that the FBI should constantly keep abreast
of the actions of [certain foreign officials] in making contact
with Senators and Congressmen and an}^ citizen of a prom-
inent nature. The President stated he strongly felt that much
of the protest concerning his Vietnam policy, particularly
the hearings in the Senate, had been generated by [certain
foreign officials] .^^^

'" Memorandum from H. N. Bassett to Mr. Callahan, 1/29/75.

^' DeLoach, 11/26/75, p. 139.

^^ Staff summary of Jenkins interview, 1/21/75.

''^ Exhibit 68-2, Hearings, Vol. VI, p. 71.3.

588 ppj memoranda indicate that in 1968 Vice President Hubert Humphrey's
Executive Assistant. Bill Connell, asked the Bureau to send a "special team" to
the forthcomine: Democratic National Convention, since President Johnson "al-
legedly told the Vice President that the FBI had been of great service to him and
he had been given considerable information on a timely basis throughout the
entire convention." (Memorandum from DeLoach to Tolson, S/7/68). After talk-
ing with Connell. Director Hoover advised the HAC in Chicago that the Bureau
was "not going to get into anything political but anything of extreme action or
violence contemplated we want to let Connell know." (Memorandum from Hoover
to Tolson, et al., 8/15/68.) Democratic Party Treasurer John Criswell made a
similar request, stating that Postmaster General Man-in Watson "had informed
him of rhe great service performed b.v the FBI during the last Democratic Con-
vention." (Memorandum from DeLoach to Tolson, 8/22/68.)

SS7 pgj summary memorandum, 2/3/75,

120

As a result of the President's request, the FBI prepared a chronolog-
ical summary — apparently based in part on existinjj electronic surveil-
lances— of the contacts of each Senator, Representative, or legislative
staff member who communicated with selected foreign officials during
the period July 1, 1964, to March 17, 1966. This 67-page summary was
transmitted to the White House on March 21, 1966, with a note that
certain foreign officials were "making more contacts" with four named
Senators "than with other United States legislator." ^^^ A second sum-
mary, prepared on further contacts between Congressmen and foreign
officials, was transmitted to the AVhite House on May 13, 1966. From
then until the end of the Johnson Administration in January 1969,
biweekly additions to the second summary were regularly disseminated
to the White House.^^^

This practice was reinstituted during the Nixon Administration.
On July 27, 1970, Larry Higby, Assistant to H. R. Haldeman, in-
formed the Bureau that Haldeman "Avanted any information pos-
sessed by the FBI relating to contacts between [certain foreign offi-
cials] and Members of Congress and its staff." Two days later, the
Bureau provided the White House with a statistical compilation of
such contacts from January 1, 1967, to the present. Unlike the case of
the information provided to the Johnson Wliite House, however, there
is no indication in related Bureau records that President Nixon or his
aides were concerned about critics of the President's policy. The Bu-
reau's reports did not identify individual Senators; they provided
overall statistics and two examples of foreign recruitment attempts
(with names removed ).^^°

In at least one instance the FBI, at the request of the President and
with the approval of the Attorney General, instituted an electronic
surveillance of a foreign target for the express purpose of intercept-
ing telephone conversations of an American citizen. An FBI memo-
randum states that shortly before the 1968 Presidential election, Pres-
ident Johnson became suspicious that the South Vietnamese were
trying to sabotage his peace negotiations in the hope that Presidential
candidate Nixon would win the election and then take a harder line
toward North Vietnam. To determine the validity of this suspicion,
the White House instructed the FBI to institute physical surveillance
of Mrs. Anna Chennault, a prominent Republican, as well as electronic
surveillance directed against a South Vietnamese target.^^^

The electronic surveillance was authorized by Attorney General
Ramsey Clark on October 29, 1968, installed the same day, and con-
tinued until January 6, 1969.^^^ Thus, a "foreign" electronic surveil-
lance was instituted to target indirectly an American citizen who could
not be legitimately surveilled directly. Also as part of this investiga-
tion. President Johnson personally ordered a check of the long distance
toll call records of Vice Presidential candidate Spiro Agnew.^^^

588 p-pj summary memorandum, 2/3/75.

B8» pgj summary memorandum, 2/3/75.

590 pgj f^in^mary memorandum, 2/3/75. See Findings on Political Abuse.

6»i PR! summary memorandum, 2/1/75.

^^ Memorandum from Director, FBI to Attorney General, 10/2J^/6S ; memo-
randum from Director. FBI to Attorney General, 10/30/68 ; memorandum from
Director, FBI to Attorney General. 3/27/69.

Attorney General Clark testified that he was unaware of any surveillance of
Mrs. Chennault, (Clark, 12/3/75. Hearings, Vol. 6, pp. 251-252.)

^^ See Findings on Political Abuse, p. 225.

121

(4) The SurveiUcmce of Joseph Kraft {1969) . — There is no substan-
tial indication of any genuine national security rationale for the elec-
tronic surveillance overseas of columnist Joseph Kraft in 1969. John
Erlichman testified before the Senate AVatergate Committee that the
national security was involved, but did not elaborate further.^^*

Beyond this general claim, however, there is little evidence that any
national security issue was involved in the case. Former Deputy Attor-
ney General and Acting FBI Director William Ruckelshaus testified
that after reviewing the matter he "could never see any national se-
curity justification" for the surveillance of Kraft. Ruckelshaus stated
that the Administration's "justification"' for bugging Kraft's hotel
room was that he was "asking questions of some members of the North
Vietnamese Government." Ruckelshaus believed that this was not an
adequate national security justification for placing "any kind of sur-
veillance on an American citizen or newsman.'' ^^^ Mr. Kraft agreed
that he was in contact with North Vietnamese officials while he was
abroad in 1969, but noted that this was a common practice among
journalists and that "at the time" he never knowingly published any
classified information.^^*^

The documentary record also reveals no national security justifica-
tion for the FBI's electronic surveillance of Mr. Kraft overseas.
The one memorandum which referred to "Possible Leaks of Informa-
tion" by Kraft does not indicate that there clearly was a leak of na-
tional security significance or that Mr. Kraft was responsible for such
a leak if it occur red. ^^' Furthermore, the hotel room bug did not pro-
duce any evidence that Kraft received or published any classified
information. ^^^

®* John Ehrlichman testimony. Senate Watergate Committee, 7/24/73. p. 2535.
According to tlie transcriiit of the Wliite House tapes, President Nixon stated to
John Dean on April 16, 1973 :

"What I mean is I thinlv in the case of the Kraft stuff what the FBI did, they
were both fine. I have checlced the facts. Tliere were some done through private
sources. Most of it was done tlirough the Bureau after we got — Hoover didn't
want to do Kraft. What it involved apparently. .John, was this : the leaks from
the NSC [National Security Council]. They were in Kraft and others columns
and we were trying to plug the leaks and we had to get it done and finally we
turned it over to Hoover. And then when the hullabaloo developed we just
knocked it off altogether. . . ." (Submission of Recorded Presidential Conversa-
tions to the Committee on the Judiciary of the House of Representatives by
President Richnrd Nixon, 4/30/74.) The President's statement was made in the
context of 'coaching' John Dean on what to say to the Watergate Grand Jury.

^ William Ruckleshaus testimony before the Subcommittee on Administrative
Practice and Procedure, 5/9/74, p. 320.

^ Kraft testified that Henry Kissinger, then the President's Special Adviser
for National Security, informed him that he had no knowledge of either the wire-
tap or the hotel room bug. Kraft also stated that former Attorney General Elliot
Richardson indicated to him that ''there was no justification for these activities."
(Joseph Kraft testimony. Senate Subcommittee on Administrative Practice and
Prof'Pdure, 5/10/74, p. 381.)

'"" Letter from W. C. Sullivan to Mr. Hoover. 7/12/69.

^ While the summaries sent to Hoover by Sullivan did show that Kraft con-
tacted North Vietnamese oflHcials (Letter from Sullivan to Hoover. 7/12/69). the
Bureau did not discover any improprieties or indi.scretions on his part. When
RnckeLshaus was asked if his review of these summaries revealed to him that
Kraft engaged in any conduct while abroad that posed a danger to the national
securitv. he replied: "Absolutely not." (Ruckelshaus testimony before the Sub-
committee on Administrative Practice and Procedure, 5/9/74, p. 320. )

122

Similarly, there is no evidence of a national security justification
for the physical surveillance and proposed electronic surveillance of
Kraft in the fall of 1969. A Bureau memorandum suggests that the
Attorney General requested some type of coverage of Kraft,^^^ but the
record reveals no purpose for this coverage. The physical surveillance
was discontinued after five weeks because it had '"not been produc-
tive." Apparently, the Attorney General himself was unconvinced
that a genuine national security justification supported the Kraft
surveillance : he refused to authorize the requested wiretap, and it was
consequently never implemented.''"^

(5) TJie "i'z" Wiretaps. — The relative ease with which high admin-
istration officials could select improper intelligence targets was demon-
strated by the "17" wiretaps on Executive officials and newsmen in-
stalled between 1969-1971 under the rationale of determining the
source of leaks of sensitive information.*'""^ In three cases no national
security claim was even advanced. Wliile national security issues were
at least arguably involved in the initiation of the other taps, the pro-
gram continued in two instances against persons who left the govern-
ment and took positions as advisors to Senator Edmund Muskie, then
the leading Democratic Presidential prospect.^"^

The records of these wiretaps were kept separate from the FBI's
regular electronic surveillance files; ^"^ their duration in many cases
went beyond the period then required for re-authorization by the At-
torney General ; and in some cases the Attorney General did not au-
thorize the tap until after it had begun.*'"^ In 1971, the records were
removed from the FBI's possession and sent to the AMiite House..

Thus, misuse of the FBI had progressed by 1971 from the regular
receipt by the "WHiite House of political "tid-bits" and occasional re-
quests for name checks of Bureau files to the use of a full array of
intelligence operations to serve the political interests of the admin-
istration. The final irony was that the Nixon administration came to
distrust Director Hoover's reliability and, consequently, to develop a
White House-based covert intelligence operation.^"*

c. The Justice Department'' s Internal Security Division
FBI intelligence reports flowed consistently to the Justice Depart-
ment, especially to the IDIU established by Attorney General Clark
in 1967 and to the Internal Security Division. Before 1971, the Justice
Department provided little guidance to the FBI on tlie proper scope
of domestic intelligence investigations.^"^ For example, in response to
a Bureau inquiry in 1964 about whether a group's activities came
"within the criteria" of the employee security program or were "in

^° Memorandum from W. C. Sullivan to Mr. DeLoach. 11/4/69.

*" Memorandum from Sullivan to DeLoach. 12/11/69.

eooa -p^j. (jiscussion of dissemination of political intelligence from the "17" wire-
taps, see Finding on Political Abuse, p. 225.

^ Sen. Edmund Muskie testimony, Senate Foreign Relations Committee,
9/10/78 Executive Spssian, pp. .^0-51.

*°^ Memorandum from W. C. Sullivan to C. D. DeLoach, 5/11/69.

'""Report of the House .Tudiciarv Committee. S/20/74. pp. 146-1.54.

'°*The creation of the "plumbers" unit in the White House led inexorably to
Watergate. See Report of the House Judiciary Committee, 8/20/74, pp. 157-162,
166-170.

^^ An example of a generalized Departmental instruction is Attorney General
Clark's order of September 1967 (see p. 79) regarding civil disorders.

123

violation of any other federal statute," ^^ the Internal Security Divi-
sion replied that there Avas "insufficient evidence" for prosecution and
that the group's leaders were "becoming more cautious in their ut-
terances." '^'^' Nevertheless, the FBI continued for years to investigate
the group with the knowledge and approval of the Division.

(1) The "iVeto" Internal Security Division. — AVhen Kobert Mardian
was appointed Assistant Attorney General in late 1970, the Internal
Security Division assumed a more active posture. In fact, one of the
alternatives to implementation of the "Huston Plan" suggested to
Attorney General John Mitchell by White House aide John Dean
was the invigoration of the Division.^°* This included Mardian's es-
tablishment of the lEC to prepare domestic intelligence estimates.
Equally significant, however, was Mardian's preparation of a new
Executive Order on federal employee security. The new order assigned
to the moribund Subversive Activities Control Board the function of
designating groups for what had been the "Attorney General's
list." ^°^ This attempt to assign broad new functions by Executive fiat
to a Board with limited statutory responsibilities clearly disregarded
the desires of the Congress.*'^"

According to Mardian, there was a "problem" because the list had
"not been updated for 17 years." He expected that the revitalized
SACB would "deal specifically with the revolutionary /terrorist or-
ganizations which have recently become a part of our history." ®^^

Assistant Attorney General IMardian's views coincided with those
of FBI Assistant Director Brennan, who had seen a need to compile
massive data on the "New Left" for future employee security pur-
poses.^^^ Since FBI intelligence investigations were based in part on
the standards for the "Attorney General's list." the new Executive
Order substantially redefined and expanded FBI authority. The new
order included groups who advocated the use of force to deny individ-
ual rights under the "laws of anv State" or to overthrow the govern-
ment of "any State or subdivision thereof." ^^^ The new order also
continued to use the term "subversive," although it was theoretically
more restrictive than the previous standard for the Attorney Gen-
eral's list because it required "unlawful" advocacy.

^"^ Memorandum from FBI Director to Yeagley, 1/31/64.

^"^ Memorandum from Yeagley to FBI Director, 3/3/64. Tliere was no reau-
thorization of the continuing inve.^itigation between 1966 and 1974.

^ Memorandum from Dean to Mitchell, 9/18/70.

^•^ Executive Order 11605. 7/71.

"°By 1971. the SACB had the limited function of making findings that spe-
cific individuals and groups were Communist. Its registration of Communist had
been declared imconstitutional. [Alhertson v. Subversive Activities Control Board,
382 U.S. 70 n96o).l

*" Robert C. Mardian, address before the Atomic Energy Commission Security
Conference, Washington, D.C. 10/27/71. Mardian added that the "problem" was
that, without an updated, formal list of subversive organizations, federal agen-
cies were required "to individually evaluate information regarding membership
in allegedly subversive organizations based on raw data furnished by the Fed-
eral Bureau of Investigation or other governmental sources."

"^ Brennan testimony, 9/25/7.5. Hearings, Vol. 2, 116-117.

*^^ Executive Order 11605. 7/71. By contrast, the prior order had been limited
to groups seeking forcible violation of rights "under the Constitution of the
United States" or seeking "to alter the form of government of the United States
by unconstitutional means." Executive Order 10450 (1953).

124

Mardian made it clear that, under the order, the FBI was to provide
intelligence to the Subversive Activities Control Board :

We have a new brand of radical in this country and we are
trying to address ourselves to the new situation. With the in-
vestigative effort of the FBI, we hope to present petitions
to the Board in accordance with requirement of the Execu-
tive Order.^^*

FBI intelligence officials learned that the Internal Security Division
intended to "initiate proceedings against the Black Panther Party,
Progressive Labor Party, Young Socialist Alliance, and Ku Klux
Klan." They also noted: "The language of Executive Order 11605
is very broad and generall}^ coincides with the basis for our investiga-
tion of extremist groups." "^ Mardian had, in effect, provided a new
and wider "charter" for FBI domestic intelligence.^^^

(2) The Sullivan-Mardian Relationship. — in 1971, Director Hoover
expressed growing concern over the close relationship developing
between his FBI subordinates in the Domestic Intelligence Division
and the Internal Security Division under Mardian. For example, when
FBI intelligence officials met with Mardian's principal deputy,
A. William Olsen, to discuss "proposed changes in procedure" for the
Attorney General's authorization of electronic surveillance. Hoover
reiterated instructions that Bureau officials be "very careful in our
dealings" with Mardian. Moreover, to have a source of legal advice
independent of the Justice Department, the FBI Director created a
new position of Assistant Director for Legal Counsel and required that
he attend "at any time officials of the Department are being contacted
on any policy consideration which affects the Bureau." ^^^

In the summer of 1971, AVilliam C. Sullivan openly challenged FBI
Director Hoover, possibly counting on Mardian and Attorney General
Mitchell to back him up and oust Hoover.^^^ Sullivan charged in one
memorandum to Hoover that other Bureau officials lacked "objectiv-
ity" and "independent thinking" and that "they said what they did
because they thought this was what the Director wanted them to
say." 619

Shortly thereafter, Director Hoover appointed W. jNIark Felt, for-
merly Assistant Director for the Inspection Division, to a newly cre-
ated position as SulliA^an's superior. Apparently realizing that he was
on his way out, Sullivan gave Assistant Attorney General Mardian the
FBI's documents recording the authorization for, and dissemination

'^^ Hearings on the appropriation for the Department of Justice before the
House Subcommittee on Appropriations, 92nd Cong., 2nd Sess., (1972), p. ^IX

'^^ Inspection Report, FBI Domestic Intelligence Division, August 17-Sep-
tember9. 1971.

"* Tlie hostile Congressional reaction to this Order, which shifted duties by
Executive fiat to a Board created by statute for other purposes, led to the death
of the SACB when no appropriation was granted in 1972.

®^' FBI Executives Conference Memorandum. 6/2/71. The first Assistant Direc-
tor for Legal Counsel was Dwight Dalbey, who had for years been in charge of
the legal training of Bureau agents. Dalbey's elevation early in 1971, and Hoover's
requirement that he review all legal aspects of FBI policy, including intelligence
matters, was a major change in Bureau procedure. (Memorandum from Hoover to
All Bureau OflScials and Supervisors, 3/8/71. )

^* FBI Summary of Interview with Robert Mardian, 5/10/73, pp. 1-3.

°^* Memorandum from Sullivan to Hoover, 6/16/71.

125

of, information from the "17" wiretaps placed on Executive officials
and newsmen in 1969-1971. The absence of these materials was not dis-
covered by other FBI officials nntil after Sullivan was forced to resign
in September 1971. ^'-^ Mardian eventually took part in the transfer of
these records to the White House.*^^^

Thus, the Attorney General's principal assistant for internal secu-
rity collaborated with a ranking FBI official to conceal vital records,
ultimately to be secreted away in the White House. This provides a
striking example of the manner in which channels of legitimate author-
ity Avithin the Executive Branch can be abused.

d. The FBFs Secret '•'■Achmmsfrafive Iiulex'''
In the fall of 1971, the FBI confronted the prospect of the first seri-
ous Congressional curtailment of domestic intelligence investiga-
tions— repeal of the Emergency Detention Act of 1950 — and set a
course of evasion of the will of Congress which continued, partly with
Justice Department approval, until 1973.

An FBI Inspection Report viewed the prospect of the repeal with-
out great alarm. In the event the Act was repealed, the FBI intended
to continue as before under "the Government's inherent right to pro-
tect itself internally." ^" After the repeal took place. Bureau officials
elaborated the following rationale for keeping the Security Index of
"potentially dangerous subversives :"

Should this country come under attack from hostile forces,
foreign or domestic^ there is nothing to preclude the President
from going before a joint session of Congress and requesting
necessary authority to apprehend and detain those Avho would
constitute a menace to national defense. At this point, it
would be absolutely essential to have an immediate list, such
as the SI, for use in making such apprehensions.^^^ [Em-
phasis added,]

Thus, FBI officials hoped there would be a way to circumvent the
repeal "in which the essence of the Security Index and emergency
detention of dangerous individuals could be utilized under Presiden-
tial powers." ^'*

Assistant Director Dwight Dalbey, the FBI's Legal Counsel, recom-
mended writing to the Attorney General for "a reassessment" in order
to "protect" the Bureau in case "some spokesman of the extreme left"
claimed that repeal of the Detention Act eliminated FBI authority
for domestic intelligence activity. Dalbey agreed that, since the Act
"could easily be put back in force should an emergency convince Con-

«=" Memorandum from T. J. Smith to E. S. Miller. 5/13/73. pp. 1. 8.

^^FBI Summary of Interview with Robert Mardian, 5/10/73, pp. 2-3. The
Watergate Special Prosecutor investigated these events, and did not find siiflS-
cient evidence of criminal conduct to bring an indictment. However, they occurred
at the time of intense White House pressure to develop a criminal prosecution
against Daniel Ellsberg over the Pentagon Papers mattei*. The dismissal of
charges against Ellsberg in 1973 was largely due to the belated discovery of the
fact that Ellsberg had been overheard on a wiretap indi.r*ated in these records,
which were withheld from the court, preventing its determination of the perti-
nency of the material to the Ellsberg case.

^ Inspection Report, Domestic Intelligence Division. S/17-9/9/71, p. 98.

*^ Memorandum from R. D. Cotter to E. S. Miller, 9/21/71.

^* Memorandum from Cotter to Miller, 9/17/71.

126

gress of its need," the Bureau should "have on hand the necessary
action information pertaining to individuals." ^^^ Thereupon, a letter
was sent to Attorney General Mitchell proposing that the Bureau be
allowed to "maintain an administrative index" of individuals Avho
"pose a threat to the internal security of the country." Such an index
would be an aid to the Bureau in discharging its "investigative re-
sponsibility." However, the letter made no reference to the theory pre-
vailing within the FBI that the new "administrative index" would
serve as the basis for a revived detention program in some future
emergency.*^^^^

Thus, when the Attorney General replied that the repeal of the Act
did not prohibit the FBI from compiling an "administrative index"
to make "readily retrievable" the "results of its investigations," he did
not deal with the question of whether the index would also serve as a
round-up list for a future emergency. The Attorney General also stated
that the Department did not "desire a copy" of the new index, abdicat-
ing even the minimal supervisory role performed previously by the
Internal Security Division in its review of the names on the Security
Index,^^^ FBI officials realized that they were "now in a position to
make a sole determination as to which individuals should be included
in an index of subversive individuals." ^"

There were two major consequences of the new system. First, the
new "administrative index" (ADEX) was expanded to include an
elastic category : "the new breed of subvei*sive." ^^^ Second, the pre-
vious Eeserve Index, which had never been disclosed to the Justice
Department, was incorporated into the ADEX. It included "teachers,
writers, lawyers, etc." who did not actively participate in subversive
activity "but who were nevertheless influential in espousing their
respective philosophies." It was estimated that the total case load under
the ADEX would be "in excess of 23,000." ^^^

One of the FBI standards for placing someone on the ADEX list
demonstrates the vast breadth of the list and the assumption that it
could be used as the basis for detention in an emergency :

An individual who, although not a member of or participant
in activities of revolutionary organizations or considered an
activist in affiliated fronts, has exhibited a revolutionary
ideology and is likely to seize upon the opportunity presented

'^Memorandum from D. J. Dalbey to C. Tolson, 9/24/71.

•^" Memorandum from Hoover to Mitchell, 9/30/71.

'^"Memorandum from Mitchell to Hoover, 10/22/71.

"^ Memorandum from T. J. Smith to E. S. Miller, 11/11/71. It was noted that in
the past the Department had "frequently removed individuals" from the Security
Index because of its strict "legal interpretation."

'^^ This new breed was described as follows :

"He may adhere to the old-line revolutionary concepts but he is unaffiliated
with any organization. He may belong to or follow one New Left-type group today
and another tomorrow. He may simply belong to the loosely knit group of revolu-
tionaries who have no particular political philosophy but who continuously plot
the overthrow of our Government. He is the nihilist who seeks only to destroy
America."

"On the other hand, he may be one of the revolutionary black extremists who,
while perhaps influerced by groups such as the Black Panther Party, is also
unaffiliated either permanently or temporarily with any black organization but
with a seething hatred of the white establishment wiU assassinate, explode, or
otherwise destroy white America." (T. J. Smith to E. S. Miller, 11/11/71.)

*" Memorandum from T. J. Smith to E. S. Miller, 11/11/71.

127

by national eTnergency to commit acts of espionage or sabo-
tage, including acts of terrorism, assassination or any inte?'-
ference with or threat to the survival and effective operation
of the national, state, and local governments and of the defense
efforts. [Emphasis added.] *^^°

These criteria were supplied to the Justice Department in 1972, and
the Attorney General did not question the fact that the ADEX was
more than an administrative aid for conducting investigations, as
he had previously been told.*^^^

A Bureau memorandum indicates that "representatives of the De-
partment" in fact agreed with the view that there might be "cir-
cumstances" where it would be necessary "to quickly identify persons
who were a threat to the national security" and that the President
could then go to Congress "for emergency legislation permitting ap-
prehension and detention." ^^^

Thus, although the Attorney General did not formally authorize
the ADEX as a continuation of the previous detention list, there was
informal Departmental knowledge that the FBI would proceed on that
basis. One FBI official later recognized that the ADEX could be
"interpreted as a means to circumvent repeal of the Emergency
Detention Act." ^^^

8. Reconsideration of FBI Authority

In February 1971, the Subcommittee on Constitutional Rights of
the Senate Judiciary Committee began a series of hearings on federal
data banks and the Bill of Rights which marked a crucial turning point
in the development of domestic intelligence policy. The Subcommittee,
chaired by Senator Sam J. Ervin of North Carolina, reflected growing
concern among Americans for the protection of "the privacy of the
individual against the 'information power' of government." ^^*

Largely in response to this first serious Congressional inquiry into
domestic intelligence policy, the Army curtailed its extensive surveil-
lance of civilian political activity. The Senate inquiry also led, after
Director Hoover's death in 1972, to reconsideration by the FBI of the
legal basis for its domestic intelligence activities and eventually to a
request to the Attorney General for clarification of its authority.^^^

^^^ Memorandum from FBI Headquarters to all SACs, 11/15/71.

"^^ Memorandum from Hoover to Mitchell, 2/10/72 ; cf. memorandum from
Hoover to Mitchell, 9/30/71 for the previous statement.

^ Memorandum from T. J. Smith to E. S. Miller, 8/29/72.

*^ Memorandum from Domestic Intelligence Division. Position Paper : Scope
of Authorit.v, .Jurisdiction and Responsibility in Domestic Intelligence Investiga-
tions. 7/31/72.

'^Federal Data Banks, Hearings, Opening Statement of Senator Ervin, Febru-
ary 23, 1971, p. 1. Senator Ervin declared that a major objective of the inquiry was
to look into "programs for taking official note of law-abiding people who are active
politically or who participate in community activities on social and political
issues." The problem, as Senator Ervin saw it, was that there were citizens
who felt "intimidated" by these programs and were "fearful aliout exercising their
rights under the First Amendment to sign petitions, or to speak and write freely
on current issues of Government policy." The ranking minority meml)er of the
Subcommittee. Senator Roman Hruska. endorsed the need for a "penetrating and
searching" inquiry. (Hearings, pp. 4, 7.)

"'^ Also during March 1971. an FBI office in Media, Pennsylvania was broken
into ; a substantial number of documents were removed and soon began to appear
in the pres.s. One of these was captioned COIXTELPRO. The Bureau reacted
by ordering its field offices to "discontinue" COINTELPRO operations "for

(Continued)

128

a. Developments in 1&7^-1971^

There is no indication that FBI "guidelines" material or the FBI
Manual provisions themselves were submitted to, or requested by, the
Justice Department prior to 1972. '^^^ Indeed, when Deputy Attorney
General Richard Kleindienst testified in February 1972 at the hear-
ings on his nomination to be Attorney General, he stated that he was
"not sure" what guidelines were used by the FBI. Kleindienst also
stated that he believed FBI investigations were "restricted to criminal
conduct or the likelihood of criminal conduct." ^^' Director Hoover
noted on a newspaper report of the testimony, "Prepare succinst memo
to him on our guidelines." ^^^

After Hoover's death in 1972, a sharp split developed within the
Domestic Intelligence Division over whether or not the Bureau should
continue to rely on the various Executive Orders as a basis for its
authority.®^^

Acting Director Gray postponed making any formal decisions on
this matter; he did not formally request advice from the Attorney
General. *^^° Meanwhile, the Domestic Intelligence Division proceeded

(Continued)

security reasons because of their sensitivity." It was suggested, liowever, that
"counter-intelligence action" would be considered "in exceptional instances" so
long as there were "tight procedures to insure absolute secrecy." (Memorandum
from Brennan to Sullivan, 4/27/71 ; Memorandum from FBI Headquarters to all
SAC'S. 4/28/71.) For actions taken thereafter, see COINTELPRO report.

•"^ After repeal of the Emergency Detention Act in the fall of 1971, the FBI's
Assistant Director for Legal Counsel recommended that the Bureau's request
for .approval of its new ADEX also include a more general request for re-afl5rma-
tion of FBI domestic intelligence authority to investigate "subversive activity."
(Memorandum from D. J. Dalbey to Mr. Tolson, 9/24/71.) The letter to the Attor-
ney General reviewed the line of "Presidential directives" from 1939 to 195.S.
(Memorandum from Hoover to Mitchell, 9/30/71.) The Attorney General replied
with a general endorsement of FBI authority to investigate "subversive activ-
itie.s." (Memorandum from Mitchell to Hoover, 10/22/71.)

*"' Richard Kleindienst testimony. Senate Judiciary Committee, 2/24/72. p. (54

^^FBI routing slip attached to Washington Post article. 2/24/72. The FBI's
summary of its "guidelines," submitted to the Attorney General stated that its
investigations were partly based on criminal statutes, but that "subversive activ-
ity . . . often does not clearly involve a specific .section of a specific statute."
Tlius. investigations were also based on the 1939 Roosevelt directives which were
said to have been "reiterated and broadened by subsequent Directives." (Attach-
ment to Hoover memorandum to Kleindienst, 2/25/72. ) (Emphasis added. )

639rpjjp i)ackground for this development may be summarized as follows: In
May 1972, FBI intelligence officials prepared a "position paper" for Acting Direc-
tor L. Patrick Gray. This paper merely recited the various Presidential directives.
Executive Orders, delimitation agreements, and general authorizations from the
Attorney General, with no attempt at analysis. (FBI Domestic Intelligence Divi-
sion. Position Paper: Investigations of Subversion. 5/19/72.) Assistant Director
E. S. Miller, head of the Domestic Intelligence Division, withdrew this paper at a
conference with Gray and other top Bureau otficials ; Miller then initiated work
on a more extensive position paper, which was completed in July. It concluded
that domestic intelligence investigations could practicably be based on the "con-
cept" that their purpose was "to prevent a violation of ,a statute." The paper also
indicated that the ADEX would be revi.sed so that it could not lie "interpreted as
a means to circumvent repeal of the Emersrency Detention Act." (FBI Domestic
Intelligence Division : Position Paper : Scope of FBI Authority, 7/31/72 : T. J.
Smith to E. S. Miller. 8/1/72.)

'"" Gray did order that the Bureau should indicate its "jurisdictional authority''
to investigate in every case, "liy citing the pertinent provision of the U.S. Code,
or other .authority." and al.so that the Bureau should "indicate whether or not
an investigation was directed by DJ (Department of Justice), or we opened it
without any request from DJ." In the latter case, the Bureau was to "cite our
reasons." (FBI routing slip, 8/27/72.)

129

on its own to revise the pertinent Manual sections and the ADEX
standards."^*^ The list was to be trimmed to those who were "an actual
danger now," reducing the number of persons on the ADEX by two-
thirds."^

A revision of the FBI Manual was completed by May 1973. It was
described as "a major step" away from "heavy reliance upon Presiden-
tial Directives" to an approach "based on existing Federal statutes.^^^
Although field offices were instructed to "close" investigations not
meeting the new criteria, headquarters did not want "a massive review
on crash basis" of all existing cases.''"

After a series of regional conferences with field office supervisors,
the standards were revised to allow greater flexibility.''^^ For the first
time in FBI history, a copy of the Manual section for "domestic sub-
versive investigations" was sent to the Attorney General.^*®

After Clarence M. Kelley was confirmed as FBI Director, he au-
thorized a request for guidance from Attorney General Elliot Rich-
ardson.*'*'' Kelley advised that it "would be folly" to limit the Bureau

°" One official observed that there were "some individuals now included in
ADEX even though they do not realistically pose a threat to the national secu-
rity." He added that this would leave the Bureau "in a vulnerable position if our
guidelines were to be scrutinized by interested Congressional Committees." (Mem-
orandum from T. J. Smith to E. S. Miller, 8/29/72.)

"*- Memorandum from Smith to Miller. S/29/72. The anticipated reduction was
from 15.2.59 (the current figure) to 4,786 (the top two priority categories). The
Justice Department was advised of this change. (Memorandum from Gray to
Kleindienst, 9/18/72. )

''*^ Draft copies were distributed to the field for suggestions. (E. S. Miller to
Mr. Felt, 5/22/73. )

^^ Memorandum from FBI Headquarters to all SAC's, 6/7/73. The memorandum
to the field stated, looking back on past Bureau policy, that since the FBI's au-
thority to investigate "subversive elements" had never been "seriously challenged
until recently," Bureau personnel (and "the general public") had accepted "the
FBI's right to handle internal security matters and investigate subversive activ-
ities without reference to specific statutes." But the "rationale" based on "Presi-
dential Directives" was no longer "adequate."

The field was advised that the "chief statutes" upon which the new criteria
were l)ased were those dealing with rebellion or insurrection (18 U.S.C. 2583),
seditious conspiracy (18 U.S.C. 2584) and advocating overthrow of the govern-
ment (18 U.S.C. 2528). The ADEX was to be "strictly an administrative device"
and should play no part "in investigative decisions or policies." The revision also
eliminated "overemphasis" on the Communist Party.

"« For example, the field oflices saw the need to undertake "preliminary in-
quiries" before it was known "whether a statutory basis for investigation exists."
This specifically applied where a person had "contact with known subversive
groups or subjects," but the Bureau did not know "the purpose of the contact."
Tliese preliminary investigations could go on for at least 90 days, to determine
whether "a statutory basis for a full investigation exists." Moreover, at the urging
of the field supervisors, the period for a preliminary investigation of an allegedly
"subversive organization" was expanded from 45 to 90 days. (Memorandum from
FBI Headquarters to all 'SACs, 8/8/73. )

"*" This was apparently "in connection with" a request made earlier by Senator
Edward M. Kennedy, who had requested to see this section at the time of the
confirmation hearings for Attorney General Kleindienst in 1972. (Kleindienst,
Senate .Judiciary Committee, 2/24/72, p. 64 ; memorandum from Kelley to Rich-
ardson, 8/7/7.3.)

®*^ In a memorandum to the Attorney General. Director Kelle.v cited Senator
Sam .T. Ervin's view that the FBI should be prohibited by statute "from inve.sti-
gating any person without the individual's consent, unless the Government has
reason to believe that the person has committed a crime or is about to commit
a crime." Kelley then summarized the position paper prepared by the Domestic

(Continued)

68-786 O - 76 - 10

130

to investigations only when a crime "has been committed," since the
government had to "defend itself against revolutionary and terrorist
efforts to destroy it." Consequently, he urged that the President exer-
cise his "inherent Executive power to expand by further defining the
FBI's investigative authority to enable it to develop advance informa-
tion" about the plans of "terrorists and revolutionaries who seek to
overthrow or destroy the Government." *^*^ [Emphasis added.]

Director Kelley's request initiated a process of reconsideration of
FBI intelligence authority by the Attorney General. ''^^

The general study of FBI authority was superceded in December
1973 when Acting Attorney General Robert Bork, in consultation with
Attorney General-designate William Saxbe, e:ave higher priority to a
Departmental inquiry into the FBI's COINTELPRO practices. Re-
sponsibility for this inquiry was assigned to a committee headed by
Assistant Attorney General Henry Peterson.^^°

Even at this stage, the Bureau resisted efforts by the Department to
look too deeply into its operations. Dii-ector Kelley advised the Acting
Attorney General that the Department should exclude from its review
the FBI's "extremely sensitive foreign intelligence collection tech-
niques." ^^^

(Continued)

Intelligence Division and the Bureau's current policy of attempting to rely on
statutory authority. However, he observed that the statutes upon which the
FBI was relying were either "designed for the Civil War era. not the Twentieth
Century" (the rebellion and insurrection laws) or had been "reduced to a fragile
shell by the Supreme Court" (the Smith Act dealing with advocacy of over-
throw). Moreover, it was difficult to fit into the statutory framework groups
"such as the Ku Klux Klan, which do not seek to overthrow the Government,
but nevertheless are totalitarian in nature and seek to deprive constitutionally
guaranteed rights."

Kelley stated that, while the FBI had "statutory authority," it still needed
"a definite requirement from the President as to the nature and type of intelli-
gence data he requires in the pursuit of his responsibilities based on our statutory
authority." (Emphasis added.) While the statutes gave "authority," an Execu-
tive Order "would define our national security objectives." The FBI Director
added :

"It would appear that the President would rather spell out his own renuire-
ments in an Executive Order instead of having Congress tell him what the FBI
might do to help him fulfill his obligations and responsibilities as President."

^^ :\Iemorandum from Kelley to Richardson, 8/7/73.

®*'' Even before Kelley's request. Deputy Attorney General-Designate WiHiam
Ruckelshaus (who had served for two months as Acting FBI Director between
Gray and Kelley), sent a list of questions to the Bureau to begin "an in-dopth
examination of some of the problems fa cine: the Bureau in the future." (Memo-
randum from Ruckelshaus to Kelley, 7/20/7.3.) The Ruckelshaus study was
interrupted by his departure in the "Saturdav Night Massacre" of October 1973.

*"" Mpmorandum from Bork to Kelley, 12/.5/73.

"^^ These techniques were handled within the Bureau "on a strictly need-to-
know basis" and Kelley believed that they should not be included in a study
"which win be beyond the control of the FBI." (Memorandum from Kelley to
Bork. 12/11/73.)

One Bureau memorandum to the Petersen committee even suggested that the
Attorney General did not have authority over the FBI's foreign connterintelli-
gence operations, s'nce the Biireau was accountable in this area d1»-ectjv to the
TTnited State*; Intellie-ence Board and the National Security Council. (Petersen
Committee Report, pp. .34-3.5.) The Petersen Committee shnrplv rejected this
view, especiallv because the ad hoc equivalent of the TT.S. Tntellisrence Board
had approved the discredited "Huston plan" in 1070. Thp Committee declared:
"There can be no donbt that in the area of foreign counterintelligence, as in all
its othpv functions, the FBI is subject to the power and authority of the Attorney
General." (Petersen Committee Report, p. 35.)

131

As a result, the Petersen committee's review of COINTELPRO did
not consider anything more than a brief FBI-prepared summary of
foreign counterintelligence opei-ations.**^- Moreover, the inquiry into
domestic COINTELPRO cases was based mainly on short summaries
of each incident compiled by FBI agents, with Department attorneys
making only spot-checks of the underlying files to assure the accuracy
of the summaries. Thus, the inquiry was unable to consider the
complete story of COINTELPRO as reflected in the actual memoranda
discussing the reasons for adopting particular tactics and the means
by which they were implemented.*'^^

Thus, at the same time that the Bureau Avas seeking guidance and
clarification of its authority, vestiges remained of its past resistance
to outside scrutiny and its desire to rely on Executive authority, rather
than statute, for the definition of its intelligence activities.

h. Recent Domestic Intelligence Authority

In the absence of any new standards imposed by statute, or by the
Attorney General, the FBI continued to collect domestic intelligence
under sweeping authorizations issued by the Justice Department in
1974 for investigations of "subversives," potential civil disturbances,
and "potential crimes." These authorizations were explicitly based on
conceptions of inherent Executive power, broader in theory than the
FBI's own claim in 1973 that its authority could be found in the
criminal statues. Attorney General Levi has recently promulgated
guidelines which stand as the first significant attempt by the Justice
Department to set standards and limits for FBI domestic intelligence
investigations.''^^

(1) Executive Order lOIfSO^ As Amended .—The Federal employee
security program continued to serve as a basis for FBI domestic intel-
ligence investigations. An internal Bureau memorandum stated that
the Justice Department's instruction regarding the program :

specifically requires the FBI to check the names of all civil
applicants and incumbents of the Executive Branch against
our records. In order to meet this responsibility FBIHQ
records must contain identities of all persons connected with
subversive or extremist activities, together with necessary
identifying information.*'^^

FBI field offices were instructed in mid-1974 to report to Bureau
headquarters such data as the following :

Identities of subversive and/or extremist groups or move-
ments (including front groups) with which subject has been
identified, period of membership, positions held, and a sum-
mary of the type and extent of subversive or extremist activi-
ties engaged in by subject (e.g., attendance at meetings or

«=- FBI ^Ipmorandnm. "Overall Recommendations — Counterintelligence
Activity," Appendix to Petersen Committee Report.

^ Henry Petersen Testimony, 12/8/75, Hearings, Vol. 6, pp. 270-71.

""' Attorney General's Guidelines : "Domestic Security Investigations," "Re-
porting on Civil Disorders and Demonstrations Involving a Federal Interest,"
and "White House Personnel Security and Background Investigations."

*"" Memorandum from A. R. Fulton to Mr. Wannall. 7/10/74. See pp. 42-44 for
discussion of the initiation of the program.

132

other functions, fimdraising or recruiting activities on behalf
of the organization, contributions, etc.) .^^^

In June 1974, President Nixon formally abolished the "Attorney
General's list," upon the recommendation of Attorney General Saxbe.
However, the President's order retained a revised definition of the
types of organizations, apsocintion winch wonld still be considered in
evaluating prospective federal employees.^^^ The Justice Department
instructed the FBI that it should "detect organizations with a poten-
tial" for falling within the terms of the order and investigate "indi-
viduals who are active either as members of or as affiliates of" such
organizations. The Department instructions added:

It is not necessary that a crime occur before the investiga-
tion is initiated, but only that a reasonable evaluation of the
available information suggests that the activities of the orga-
nization may fall within the prescription of the Order. . . .

It is not possihle to set definite ^mrameters covenng the
init'fat'wn of investigations of potential organizations falling
within the Order but once the investigation reaches a stage
that offers a basis for determining that the activities are legal
in nature, then the investigation should cease, but if the
investigation suggests a detennination that the organization
is engaged in illegal activities or potentially illegal activities
it should continue. [Emphasis added.]

The Department applied "the same yardstick" to investigations of
individuals "when information is received suggesting their involve-
ment." ^^^

(2) Civil Dif^orders Intelligence. — The Justice Department also
instnicted the FBI in 1974 that it should not, as the Bureau had sug-
gested, limit its civil disturbance reporting "to those particular situ-
ations which are of such a serious nature that Federal military
personnel may be called upon for assistance." The Department advised
that this suggested "guideline" was "not practical" since it "would
place the burden on the Bureau" to make an initial decision as to
"whether military personnel mav uHimatelv be needed." and this
responsibility rested "legally" with the President. Instead, the FBI
was ordered to "continue" to report on

^ Memorandum from FBI Headquarters to all SACs, 8/16/74.

^' Executive Order 11785, 6/4/74. The new standard : "Knowing member-
ship with tlie specific intent of furthering the aims of. or adherence to and active
participation in, anv foreign or domrstic ornranization, association, movement,
group, or combination of persons (hereinafter referred to as organizations)
whicli unlawfull.v adi:ocaies or practices tlie commission of acts of force or
violence to prevent others from exercising tlieir rights under the Constitution or
laws of the United States or of any state, or which seelvs to overthrow the Govern-
ment of the Ignited States or atiy State or subdivisions thereof by unlawful
menus." [Emphasis added.]

^^ Memorandum from Glen E. Pommerening, Assistant Attorney General for
Administration, to Kelley, 11/17/74.

With respect to one organization, the Department advised the Bureau that
"despite the abolition" of the Attorney General's list, the groiip "would still
come within the criteria" of the employee security program if it "may have
eneaged in activities" of the sort i^roscribed by the revised executive order.
(Memorandum from Henry E. Petersen to Clarence Kelley, 11/13/74.)

133

all significant incidents of civil unrest and should not be
restricted to situations where, in the judgment of the Bureau,
military pereonnel eventually may be used.^^°

Moreover, under this authority the Bureau was also ordered to
"continue" reporting on

all disturbances where there are indications that extremist or-
ganizations such as the Communist Party, Ku Klux Klan, or
Black Panther Party are believed to be involved in efforts
to instigate or exploit them.

The instnictions specifically declared that the Bureau "should make
timely reports of significant disturbances, even when no specific viola-
tion of Federal law is indicated.-' This was to be done, at least in part,
through "liaison" with local law enforcement agencies. '''^^

Even after the Justice Department's IDIU dismantled its com-
puterized data bank, its basic functions continued to be performed
by a Civil Disturbance Unit in the office of the Deputy Attorney Gen-
eral, and the FBI was under instructions to disseminate its civil dis-
turbance reports to that Unit.''*^^

FBI officials considered these instructions "significant" because they
gave it "an official, written mandate from the Department." The
Department's desires were viewed as "consistent with what we have
already been doing for the past several years," although the Bureau
Manual was rewritten to "incorporate into it excerpts from the
Department's letter." °^^

(3) ^'"PotentiaV Crhnes. — The FBI recently abolished completely
the administrative index (ADEX) of persons considered "dangerous
now." However, the Justice Department has advanced a theory to
sup]3ort broad power for the Executive Branch in investigating groups
which represent a "potential threat to the public safety" or which have
a "potential" for violating specific statutes. For example, the Depart-
ment advised the FBI that the General Crimes Section of the Criminal
Di^'ision had "recommended continued investigation" of one group on
the basis of "potential violations" of the antiriot statutes.*^*^^ These same

^ "On the other hand," the instructions stated ambiguously, "the FBI should
not report every minor local disturbance where there is no apparent interest to
the President, the Attorney General or other Government officials and agencies."
(Memorandum from Petersen to Kelley, 10/22/74.)

*" Memorandum from Petersen to Kelley, 10/22/74. The FBI was expected to
"be aware of disturbances and patterns of disorder," although it is not to report
"each and every relatively insignificant incident of a strictly local nature."

"'- Memorandum from Petersen to Kelley, 10/22/74. Frank Nyland testimony,
1/27/76, pp. 46-58.

**^ Memorandum from J. G. Deegan to W. R. Wannall, 10/30/74. From a
legal viewpoint, the Justice Department's instructors dealing with the col-
lection of intelligence on potential civil disturbances were significant because
they relied for authority on : (1) the President's powers under Article IV, section
4 of the Constitution to protect the states, upon application of the legislature or
the executive, against "domestic violence;" (2) the statute (10 U.S.C. 331. et
seq.) authorizing the use of troops; and (3) the Presidential directive of 1969
desigmting the Attorney General as chief civilian officer to coordinate the
Government's response to civil disturbances. (Memorandum from Petersen to
Kellev, 10/22/74 ; Memorandum from Melvin Laird and John Mitchell to the
President, 4/1/69.)

^''IS U.S.C. 2101-2102.

134

instructions added that there need not be a "potential" for violation
of any specific statute.^^*'

(4) CJaim of Inherent Executwe Poioer. — The Department's theory
of executive power was set forth in 1974 testimony before the House
Internal Security Committee. According to Deputy Assistant Attorney
General Kevin Maroney, "the primary basis" for FBI domestic intel-
ligence authority rests in "the constitutional powers and responsibili-
ties vested in the President under Article II of the Constitution."
These powers were specified as : the President's duty imdertakon in his
oath of office to "preserve, protect, and defend the Constitution of the
United States;" ''^ the Chief Executive's duty to "take Care that the
Laws be faithfully executed :" '^^^ the President's responsibilities as
Commander-in-Chief of the military; and his "power to conduct our
foreign relations." ^^^

The chairman of the Internal Security Committee, Rep. Richard H.
Ichord, stated at that time that, except in limited areas, tlie Congiess
"has not directly imposed upon the FBI clearly defined duties in the
acquisition, use, or dissemination of domestic or internal security
intelligence." ®^°

Subsequently, the FBI Intelligence Division revised its 1972-1973
position on its legal authority, and in a paper completed in 1975 it
returned to the view "that the intelligence-gathering activities of the
FBI have had as their basis the intention of the President to delegate

^ Memorandum from Petersen to Kelley, 11/13/74. This memorandum added :

"[Wjithout a broad range of intelligence information, the President and the
departments and agencies of the Executive Branch could not properly and ade-
quately protect our nation's security and enforce the numerous statutes pertain-
ing thereto . . . [T]he Department, and in particular the Attorney General,
must continue to be informed of those organizations that engage in violence which
represent a potential threat to the puWie safety.'" [Emphasis added.]

*®''The opinion of the Supreme Court in the United States v. United States
Distriet Court, 407 U.S. 297 (1972) — the domestic security wiretapping case —
stated, "Implicit in that duty is the power to protect our Government against
those who would subvert or overthrow it by unlawful means.!'

™' A 19th century Supreme Court opinion was cited as having interpreted the
word "laws" hroadl.v to encompass not only statutes enacted by Congress, but
also "the rights, duties, and obligations growing out of the Constitution itself,
our international relations and all the protection implied liy the nature of Gov-
ernment under the Constitution." [Tn Re Neagle, 135 U.S. 1 (1890).]

689 The latter power w^as said to relate "more particularly to the Executive's
power to conduct foreign intelligence activities here and abroad." (Kevin Maroney
testimony, "Domestic Intelligence Operations :for Internal Security Purposes,"
Hearings before the House Committee on Internal Security, 93d Cong., 2d Sess.
(1974), pp. .3.332-3335.) Mr. Maroney added:

"We recognize the complexity and difficulty of adequately spelling out the
FBI's authority and responsibility to conduct domestic intelligence-type investi-
gations. The concept national security is admittedly a broad one, while the term
subversive activities is even more difficult to define."

Mr. Marone.v also cited the following from the Supreme Court's opinion in the
domestic security wiretapping case : "The gathering of security intelligence is
often long-range and involves the interrelation of various sources and t.vpes of
information. The exact targets of such surveillance may be more difficult to
identify . . . Often, too. the empha.=:is of domestic intelligence gathering- is on
the prevention of unlawful activity or the enhancement of the Government's pre-
paredness for some possible future crisis or emergenc.v. Thus, the focus of
domestic surveillance ma.v be less precise than that directed against more con-
ventional types of crime." [United States v. United States District Court, 407
U.S. 297, 322 (1972).]

*™ House Committee on Internal Security Hearings, 1974, pp. 3330-3331.

135

his Constitutional authority," as well as the statutes "pertaining to the
national security." '^''^

The Attorney General has continued to assert the claim of inherent
executive power to conduct warrantless electronic surveillance of
American citizens, although this power has been exercised sparingly.®"
The Justice Department has also claimed that this inherent executive
power permits warrantless surreptitious entries.*^^^ However, the Exec-
utive Branch has recently joined a bipartisan group of Senators and
Representatives in sponsoring a legislative proposal requiring judicial
warrants for all electronic surveillance by the FBI.

(5) Attoimey General Levi's Guidelines. — During 1975, the Con-
gress and the Executive Branch began major eft'orts to review the
field of domestic intelligence. A Presidential commission headed by
Vice President Rockefeller inquired into the CIA's improper sur-
veillance of Americans.'^'^ Attorney General Edward H. Levi estab-
lished a committee in the Justice Department to develop "guidelines"
for the FBI,*''^ and the Justice Department began to work on draft
legislation to require warrants for national security electronic sur-
veillance.®''^

These efforts have begun to bear fruit in recent months. President
Ford has issued an Executive Order regulating foreign intelligence
activities ; ®" Attorney General Levi has promulgated several sets of
"guidelines" for the FBI.*^'^ And the administration has endorsed a
specific bill to establish a warrant procedure for all national security
wiretaps and bugs in the United States.^"^

"•^ W. Raymond Wannall, Assistant Director for tlie Intelligence Division.
Memorandum on the "Basis for FBI National Security Intelligence Investiga-
tions," 2/13/75.

•^"^ After several recent transformations, the policy of the Attorney General
was estahlished as authorizing warrantless surveillance "only when it is shown
that its suhjects are the active, conscious agents of foreign powers;" and this
standard "is applied with particular stringency where the subjects are American
citizens or permanent resident aliens." (.Justice Department memorandum from
Ron Carr, Special Assistant to the Attorney General, to Mike Shaheen, Counsel
on Professional Re.sponsibility, 2/26/76. )

®" In May 1975, for the first time in American history, the Department of
.Justice publicly asserted the power of the Executive Branch to conduct warrant-
less surreptitious entries unconnected with the use of electronic surveillance. This
occurred in a letter to the United States Court of Appeals for the District of Co-
lumbia concerning an appeal by .John Ehrlichman. Ehrlichman was appealing a
conviction arising from the break-in at the office of Daniel EUsberg's psychiatrist
after publication of the "Pentagon Papers" in 1971.

The Justice Department's position was that "warrantless searches involving
physical entries into private premises" can be "lawful under the Fourth Amend-
ment." if they are "very carefully controlled :"

"There must be solid reason to believe that foreign espionage or intelligence is
involved. In addition, the intrusion into any zone of expected privacy must be
kept to the minimum and there must l>e personal authorization by the President
or the Attorney General." (Letter from John C. Kenney, Acting Assistant Attorney
General, to Hugh E. Cline. Clerk of the United States Court of Appeals for the
Distrir-t of Columbia, 5/9/7.5.)

'"^ Rockefeller Commission Report.

«^ Levi. 12/11/75. Hearings. Vol. 6. pp. 316-317.

*•• Levi. 11/6/75. Hearings, Vol. 5, p. 90.

*" Executive Order 11509. 2/1S/76.

'" Attorney General's Guidelines. "Domestic Security Investigations". "White-
house Personnel Security and Background Investigations", and "Reporting on
Civil Disorders and Demonstrations Im-olving a Federal Interest", 3/10/76.

*"' S. 3197, introduced 3/23/76.

136

These Executive initiatives are a major step forward in creating
safeguards and establishing standards, but they are incomplete with-
out legislation.''^'^ Among the issues left open by the President's
Executive Order, for example, are: (1) the definition of the term
"foreign subversion" used to characterize the counter-intelligence
responsibilities of the CIA and the FBI; and (2) clarification of the
vague provisions in the National Security Act of 1947 relating to the
authority of the Director of Central Intelligence to protect "sources"
and "methods;" and (3) amplification of the 1947 Act's prohibition
against the CIA's exercise of "law enforcement powers" or "internal
security functions."

Although they represent only a partial answer to the need for per-
manent restraints, the initiatives of the Executive Branch demon-
strate a willingness to seriously consider the need for legislative
action. The Attorney General has recognized that Executive "guide-
lines" are not enough to regulate and authorize FBI intelligence
activities.*^^^ The Committee's conclusions and recommendations in
Part IV of this report indicate the areas most in need of legislative
attention.

*'° The major questions posed by the President's Executive Order and the
Attorney General's guidelines for the FBI are discussed in the recommendation
section of this report, as are the problems with the national security electronic
surveillance bill.

'" Levi Testimony, 12/11/75, Hearings, Vol. 6, p. 345.

III. FINDINGS

The Committee makes seven major findings. Eacli finding is accom-
panied by snbfindings and by an elaboration wliich draws upon the
evidentiary record set forth in our historical narrative (Part II here-
in) and in the thirteen detailed reports which will be published as sup-
plements to this volume. We have sought to analyze in our findings
characteristics shared by intelligence programs, practices which in-
volved abuses, and general problems in the system which led to those
abuses.

The findings treat the following themes that run through the facts
revealed by our investigation of domestic intelligence activity: (A)
Violating and Ignoring the Law; (B) Overbreadth of Domestic In-
telligence Activity ; (C) Excessive Use of Intrusive Techniques ; (D)
Using Covert Action to Disrupt and Discredit Domestic Groups;
(E) Political Abuse of Intelligence Information; (F) Inadequate
Controls on Dissemination and Retention; (G) Deficiencies in Con-
trol and Accountability.

Viewed separately, each finding demonstrates a serious problem in
the conduct and control of domestic intelligence operations. Taken
together, they make a compelling case for the necessity of change.
Our recommendations (in Part IV) flow from this analysis and pro-
pose changes which the Committee believes to be appropriate in light
of the record.

A. VIOLATING AND IGNORING THE LAW
Major Finding

The Committee finds that the domestic activities of the intelligence
community at times violated specific statutory prohibitions and
infringed the constitutional rights of American citizens.^ The legal
questions involved in intelligence programs were often not considered.
On other occasions, they were intentionally disregarded in the be-
lief that because the programs served the "national security" the law
did not apply. While intelligence officers on occasion failed to disclose
to their superiors programs which were illegal or of questionable le-
gality, the Committee finds that. the most serious breaches of duty
were those of senior officials, who were responsible for controlling
intelligence activities and generally failed to assure compliance with
the law.

Subfindings

(a) In its attempt to implement instructions to protect the security
of the United States, the intelligence connnunity engaged in some ac-

^ This section discusses the legal issues raised by particular programs and ac-
tivities only : a rliscussion of the aggregate effect upon constitutional rights of all
domestic surveillance practices is at p. 290 of the Conclusions section.

(137)

138

tivities which violated statutory law and the constitutional rights of
American citizens.

(b) Legal issues were often overlooked by many of the intelligence
officers who directed these operations. Some held a pragmatic view of
intelligence activities that did not regularly attach sufficient signifi-
cance to questions of legality. The question raised was usually not
whether a particular program Avas legal or ethical, but whether it
worked.

(c) On some occasions when agency officials did assume, or were told,
that a program was illegal, they still permitted it to continue. They
justified their conduct in some cases on the ground that the failure of
"the enemy" to play by the rules granted them the right to do likewise,
and in other cases on the ground that the "national security" per-
mitted programs that would otherwise be illegal.

(d) Internal recognition of the illegality or the questionable le-
gality of many of these activities frequently led to a tightening of se-
curity rather than to their termination. Partly to avoid exposure and a
public "flap," knowledge of these programs was tightly held within
the agencies, special filing procedures were used, and "cover stories"
were devised.

(e) On occasion, intelligence agencies failed to disclose candidly
their programs and practices to their own General Counsels, and to
Attorneys General, Presidents, and Congress.

(f) The internal inspection mechanisms of the CIA and the FBI
did not keep — and, in the case of the FBI, were not designed to keep —
the activities of those agencies within legal bounds. Their primary
concern was efficiency, not legality or propriety.

(g) Wlien senior administration officials with a duty to control
domestic intelligence activities knew, or had a basis for suspecting,
that questionable activities had occurred, they often responded with
silence or approval. In certain cases, they were presented with a par-
tial description of a program but did not ask for details, thereby
abdicating their responsibility. In other cases, they were fully aware
of the nature of the practice and implicitly or explicitly approved it.

Elaboration of findings

The elaboration which follows details the general finding of the
Committee that inattention to — and disregard of — legal issues was
an all too common occurrence in the intelligence community. While
this section focuses on the actions and attitudes of intelligence officials
and certain high policy officials, i\\& Committee recognizes that a
pattern of lawless activity does not result from the deeds of a single
stratum of the government or of a few individuals alone. The imj^le-
mentation and continuation of illegal and questionable programs
would not have been possible witliout the cooperation or tacit approval
of people at all levels within and above the intelligence community,
through many successive administrations.

The agents in the field, for their part, rarely questioned the orders
they received. Their often uncertain knowledge of the law, coupled
with the natural desire to please one's superiors and with simple
bureaucratic momentum, clearly contributed to their willingness to
participate in illec:al and questionable ]:)rograms. The absence of any
prosecutions for law^ violations by intelligence agents inevitably af-

139

fected their attitudes as well. Under pressure from above to accom-
plish their assigned tasks, and without the realistic threat of prosecu-
tion to remind them of their legal obligations, it is understandable
that these agents frequently acted without concern for issues of law
and at times assumed that normal legal restraints and prohibitions
did not apply to their activities.

Significantly, those officials at the highest levels of government,
who had a duty to control the activities of the intelligence community,
sometimes set in motion the very forces that permitted lawlessness to
occur — even if every act committed by intelligence agencies was not
known to them. By demanding results without carefully limiting the
means by which the results were achieved; by over-emphasizing the
threats to national security without ensuring sensitivity to the rights
of American citizens ; and by propounding concepts such as the right
of the "sovereign" to break the law, ultimate responsibility for the
consequent climate of permissiveness should be placed at their door.^

Suhfinding (a)

In its attempt to implement instructions to protect the security of
the United States, the intelligence community engaged in some acti\d-
ties which violated statutory law and the constitutional rights of
American citizens.

From 1940 to 1973, the CIA and the FBI engaged in twelve covert
mail opening programs in violation of Sections 1701-1703 of Title 18
of the United States Code which prohibit the obstruction, intercep-
tion, or opening of mail. Both of these agencies also engaged in war-
rantless "surreptitious entries'' — break-ins — against American citizens
within the United States in apparent violation of state laws prohibit-
ing trespass and burglary. Section 605 of the Federal Communications
Act of 1934 was violated by NSA's program for obtaining millions
of telegrams of Americans unrelated to foreign targets and by the
Army Security Agency's interception of domestic radio communi-
cations.

All of these activities, as well as the FBI's use of electronic surveil-
lance without a substantial national security predicate, also infringed
the rights of countless Americans under the Fourth Amendment
protection "aaainst unreasonable searches and seizures."

The abusive techniques used by the FBI in COINTELPRO from
1956 to 1971 included violations of both federal and state statutes pro-
hibiting mail fraud, wire fraud, incitement to violence, sending
obscene material through the mail, and extortion. More fundamentally,
the harassment of innocent citizens engaged in lawful forms of polit-
ical expression did serious injury to the First Amendment guarantee
of freedom of speech and the right of the people to assemble peaceabl}"
and to petition tlie government for a redress of grievances. The
Bureau's maintenance of the Security Index, which targeted thousands
of American citizens for detention in the event of national emergency,
clearly overstepped the permissible l30unds established by Congress
in the Emergency Detention Act of 1950 and represented, in contra-
vention of the Act, a potential general suspension of the privilege

' Thp accountability of senior administration oflBcials is noted here to place
the details which follow in their proper context, and is developed at greater
length in Finding G, p. 265.

140

of the writ of habeas corpus secured by Article I, Section 9, of the
Constitution.

A distressing- number of the programs and techniques developed
by the intelligence community involved transgressions against human
decency that were no less serious than any technical violations of law.
Some of the most fundamental values of this society were threatened by
activities such as the smear campaign against Dr. Martin Luther
King, Jr., the testing of dangerous drugs on unsuspecting American
citizens, the dissemination of information about the sex lives, drinking
habits, and marital problems of electronic surveillance targets, and
the COINTELPRO attempts to turn dissident organizations against
one another and to destroy marriages.

SkI) finding (b)

Legal issues were often overlooked by many of the intelligence
officers who directed these operations. Some held a pragmatic view
of intelligence activities that did not regularly attach sufficient sig-
nificance to questions of legality. The question raised was usually not
whether a particular program was legal or ethical, but whether it
worked.

Legal issues were clearly not a primary consideration — if they were
a consideration at all — in many of the programs and techniques of
the intelligence community. When the former head of the FBI's Ra-
cial Intelligence Section was asked whether anvbody in the FBI at
any time during the 15-year course of COINTELPBO discussed its
constitutionality or legal autl^ority, for example, he replied : "No, we
never gave it a thought." '' This attitude is echoed by other Bureau
officials in connection with other programs. The former Section Chief
of one of the FBI's Counterintelligence sections, and the former
Assistant Director of the Bureau's Domestic Intelligence Division
both testified that legal considerations were simply not raised in policy
decisions concerning the FBI's mail opening programs.^ Similarly,
when the FBI was presented with the opportunity to assume responsi-
bility for the CIA's New York mail opening operation, legal factors
played no role in the Bureau's refusal ; rather, the opportunity was
declined simply because of the attendant expense, manpower require-
ments, and security problems.^

One of the most abusive of all FBI programs was its attempt to
discredit Dr. Martin Luther King, Jr. Yet fonner FBI Assistant
Director William C. Sullivan testified that he "never heard anyone
raise the question of legality or constitutionality, never." ^

Former Director of Central Intelligence Richard Helms testified
publicly that he never seriouslv questioned the legal status of the
twenty-year CIA New York mail opening project because he assumed
his predecessor, Allen Dulles, had "made his legal peace with [it]." '^

' Georffe C. Moore testimony. 11/3/75. p. 83.

*Bramgan testimony, 10/9/75, pp. 13, 139, 140; Wannall testimony, 10/24/75,
Hearings. Vol. 4, p. 149.

^ Branigan, 10/9/75, p. 89.

* William C. Sullivan testimony, 11/1/7,5, pp. 49, 50.

"^ Rioharcl Helms, 10/22/75. Hearings. Vol. 4, p. 94. This testimony is partially
contradicted, however, hy the fact that in 1970 Helms signed the HxLSton Report,
in which "covert mail coverage" — defined as mail opening — was specifically
described as illegal. (Special Report, .Tune 1970, p. 30.)

141

". . . [F]rom time to time," he said, "the Agency got useful informa-
tion out of it," ^ so he permitted it to continue throughout his seven-
year tenure as Director.

The Huston Plan that was prepared for President Richard Nixon
in June 1970 constituted a virtual charter for the use of intrusive and
illegal techniques against American dissidents as well as foreign
agents. Its principal author has testified, however, that during the
drafting sessions with representatives of the FBI, CIA, NSA, and
Defense Intelligence Agency, no one ever objected to any of the rec-
ommendations on the grounds that they involved illegal acts, nor was
the legality or constitutionality of any of the recommendations ever
discussed.^

William C. Sullivan, who participated in the drafting of the Huston
Plan and sein^ed on the United States Intelligence Board and as FBI
Assistant Director for Intelligence for 10 years, stated that in his
entire experience in the intelligence community he never heard legal
issues raised at all :

We never gave any thought to this realm of reasoning, be-
cause we were just naturally pragmatists. The one thing we
were concerned about was this: Will this course of action
work, will it get us what we want, will we reach the ob-
jective that we desire to reach? As far as legality is con-
cerned, morals, or ethics, [it] was never raised by myself or
anybody else ... I think this suggests really in government
that we are amoral. In government — I am not speaking for
everybody — the general atmosphere is one of amorality.^°

Subfinding [c)

On some occasions when agency officials did assume, or were told,
that a program was illegal, they still permitted it to continue. They
justified their conduct in some cases on the ground that the failure of
"the enemy" to play by the rules granted them the right to do likewise,
and in other cases on the ground that the "national security" permitted
programs that would otherwise be illegal.

Even when agency officials recognized certain programs or tech-
niques to be illegal, they sometimes advocated their implementation
or permitted them to continue nonetheless.

This point is illustrated by a passage in a 1954 memorandum from
an FBI Assistant Director to J. Edgar Hoover, which recommended
that an electronic listening device be planted in the hotel room of a
suspected Communist sympathizer: "Although such an installation
will not be legal, it is believed that the intelligence information to be
obtained will make such an installation necessary and desirable." ^^
Hoover approved the installation.^^

More than a decade later, a memorandum was sent to Director
Hoover which described the current FBI policy and procedures for
"black bag jobs" (warrantless break-ins for purposes other than micro-
phono installation) . This memorandum read in part :

^ Helms, 10/22/7.5. Hearings. Vol. 4, p. 103.

' Huston. 9/23/75. Hearings. Vol. 2, p. 21.

-" Sullivan. 11/1/75, pp. 92, 93.

" Alpmorandum from Mr. Boardman to the Director, FBI, 4/30/54.

" Ibid.

142

Such a technique involves trespass and is clearly illegal;
therefore, it would be impossible to obtain any legal sanction
for it. Despite this, "black bag" jobs have been used because
they represent an invaluable technique in combatting sub-
versive activities . . . aimed directly at undermining and de-
stroying our nation.^^

In other words, breaking the law, was seen as useful in combating
those who threatened the legal fabric of society. Although Hoover
terminated the general use of "black bag jobs" in July 1966, they were
employed on a large scale before that time and have been used in
isolated instances since then.

Another example of disregard for the law is found in a 1969 memo-
randum from William C. Sullivan to Director Hoover. In June of
that year, Sullivan was requested by the Director, apparently at the
urging of White House officials to travel to France for the purpose of
electronically monitoring the convei-sations of journalist Joseph
Kraft." With the cooperation of local authorities, Sullivan was able
to have a microphone installed in Kraft's hotel room, and informed
Hoover of his success. "Parenthetically," he wrote in his letter to the
Director, "I might add that such a cover is regarded as illegal." ^^

The attitude that legal standards and issues of privacy can be over-
ridden by other factors is further reflected in a memorandum written
by Richard Helms in connection wnth the testing of dangerous drugs
on unsuspecting American citizens in 1963. Mr. Helms wrote the
Deputy Director of Central Intelligence:

While I share your uneasiness and distaste for any program
which tends to intrude on an individual's private and legal
prerogatives, I believe it is necessary that the Agency main-
tain a central role in this activity, keep current on enemy
capabilities in the manipulation of hmiian behavior, and
maintain an offensive capability. I, therefore, recommend
your approval for continuation of this testimony pro-
gram . . .^^^

The history of the CIA's New York mail opening program is re-
plete with examples of conscious contravention of the law. The origi-
nal proposal for large-scale mail opening in 1955, for instance, ex-
plicitly recognized that "[tjhere is no overt, authorized or legal cen-
sorship or monitoring of first class mails which enter, depart or
transit the United States at the present time." " A 1962 memorandum
on the project noted that its exposure could "give rise to grave charges
of criminal misuse of the mails by Government agencies" and that
"existing Federal statutes preclude the concoction of any legal excuse
for the violation . . ." ^^ And again in 1963, a CIA officer wrote :
"Tliere is no legal basis for monitoring postal communications in the
ITnited States except during time of war or national emergency . . ." ^*

" Memorandum from W. C. Sullivan to C. D. DeLoacli, 7/19/66.

" Report of the House Judiciary Committee, 8/20/74, p. 150.

^" Memorandum from William C. Sullivan to J. Ed^^ar Hoover, 6/30/69.

^■"'' Memorandum from Richard Helms to the Deputy Director of Central Intelli-
gence, 12/17/63.

^^ Blind memorandum, 11/7/55.

^' ^Memorandum from Deputy Chief, Counterintelligence Staff, to Director, Of-
fice of Security, 2/1/62.

"' Memorandum from Chief, Cl/Project to Chief, Division, 9/26/63.

143

Both the former Chief of the Counterintelligence Staff and the former
Director of Security — who were in charge of the New York project — ■
testified that they believed it to be illegal.^'' One Inspector General who
reviewed the project in 1969 also flatly stated: "[0]f course, we
knew that this was illegal. . . . [EJverybody knew that it was
[illegal]. . . ."-°

In spite of the general recognition of its illegality, the New York
mail opening project continued for a total of 20 years and was not
terminated until 1973, when the Watergate-created political climate
had increased the risks of exposure.-^

With the full knowledge of J. Edgar Hoover, moreover, the FBI
continued to receive the fruits of this project for three years after the
FBI Director informed the President of the United States that "the
FBI is opposed to implementing any covert mail coverage because it is
clearly illegal . . .'" - The Bureau's own mail opening programs had
been terminated in 1966, but it continued intentionally and knowingly
to benefit from the illegal acts of the CIA until 1973.

The Huston Plan is another disturbing reminder of the fact that
intelligence programs and techniques may be advocated and author-
ized with the kiiowledge that they are illegal. At least two of the
options that were presented to President Nixon were described as
unlawful on the face of the Report. Of "covert mail coverage" (mail
opening) it was written that "[t]his coverage, not having the sanction
of law, runs the risk of any illicit act magnified by the involvement of
a Government agency." ^^ The Report also noted that surreptitious
entry "involves illegal entry and trespass." ^* Thus, the intelligence
community presented the nation's highest executive official with the
option of approving courses of action described as illegal. The fact
that President Nixon did authorize them, even if only for five days, is
more disquieting still. -^

When President Nixon eventually revoked his approval of the Hus-
ton Plan, the intelligence community nevertheless proceded to initiate
some programs suggested in the Plan. Intelligence agencies also con-
tinued to employ techniques recommended in the Plan, such as mail
opening which had been used previously without pi-esidential ap-
proval.-*^

^* Angleton, 9/24/75, Hearings, Vol. 2, p. 61 ; Howard Osborn, deposition,
8/28/75, p. 90.

'" Gordon Stewart, 9/30/75, p. 28.

^^ See e.g., Howard Osborn deposition, 8/28/75. p. 89.

^^ Special Report, June 1970, p. 31.

"■^ Special Report, June 1970, p. 30.

"* Special Report, June 1970, p. 32.

" President Nixon stated that he approved these activities in part because they
"had been found to be effective." (Response of Richard M. Nixon to Senate Select
Committee Interrogatory 19, 3/9/76, p. 13.)

^' For a description of the techniques which continued or were subsequently
instituted, see pp. 115-116.

A memorandum from John Dean to John Mitchell suggests that, after Presi-
dent Nixon's revocation of approval for the Huston Plan, the White House itself
supported the continued pursuit of some of the objectives of the Huston Plan.
Through an interagency unit known as the Intelligence Evaluation Committee.
(Memorandum from John Dean to the Attorney General, 9/18/70.) In this
memorandum. Dean suggested the creation of such a unit for "both operational
and evaluation purposes." He wrote in part :

"[T]he unit can serve to make appropriate recommendations for the type of
intelligence that should be immediately pursued by the various agencies. In

(Continued)

144

The recent history of Army intelligence provides an additional ex-
ample of continuing an activity described as illegal. Beginning in
1967, the Army Security Agency monitored the radio communications
of amateur radio operators in this country to determine if dissident
elements planned disruptive activity at particular demonstrations and
events. Because Army officials questioned whether such monitoring
was legal under Section 605 of the Federal Communications Act of
1934, they requested a legal opinion from the Federal Communications
Commission. At a meeting held in August 1968, the FCC advised the
Army that such monitoring was illegal imder the Act. FCC repre-
sentatives also stated that the matter had been raised with Attorney
General Ramsey Clark and that he had disapproved the program.^^
The FCC agreed, however, to submit a written reply to the Army,
stating onlv that it could not "provide a positive answer to the Army's
proposal." ^^

Despite havino- been toVl that their monitoring activity was illegal,
and that the Attorney General himself disapproved it, the Army
Security Agency continued to monitor the radio communications of
American citizens for another two years.^^

Several factors may explain the intelligence community's frequent
disregard of le.Qfal issues.

Some intelligence officials expressed the view that the legal and
ethical restraints that applied to the rest of society simplv did not
apply to intelligence activities. This concept is reflected in a 1959
memorandum on the Armv's covert drug testing ])rogram : "In intelli-
gence, the stakes involved and the interest of national security may
permit a more tolernnt interpretation of moral-ethical values . . ." ^°

As William C. Sullivan also pointed out. many intelligence officers
had been imbued with a "war psychologv." "Legality was not ques-
tioned," he said, "it was not an issue." " In war, one simply did what

(Continiied)

regard to this . . . point, I believe we agreed that it would be inappropriate to
have any blanket removal of restrictions : rather, the most appropriate pro-
cedure would be to decide on the type of intelMgence we need, based on an
assessment of the recommendations of this unit, and then to proceed to remove
the restraints as necessary to obtain such intelligence." (Dean memorandum,
9/18/70.)

" Memomndum for the record by Army Assistant Chief of Staff for Intelli-
gence, S/16/68; Staff summary of So] T indenbaum (former Executive Assistant
to the Attorney General ) interview, 5/8/75.

^Memorandum for the record by Army Assistant Chief of Staff for Intelli-
gence. 8/16/68.

^The Army's general domestic surypjllau'^e pvogr.im provides an example of
evasion of a departmental order which had been issued out of concern with
legal issues. The practice of collecting vast amovmts of information on American
citizens was terminated in 1971, when new Department of Defense restrictions
came into effect calling for the destruction of all files on "unaffiliated" persons
and organizations. Rather than destroying the files, however, several Army
intelligence units simply turned their intelligence files on dis^sident indi-<'idual
and groups over to local police authorities : and one Air Forf'e counterintelligence
unit in San Diego hecan to create new files the next year. (Hearings be^'ore Sub-
committee on Constitutional Rights, rnmmittee ou tb<^ .Tudi^iary, T^.S. Senate.
n2nd Congress, 1st session, 1971, u. 1297: "Ex-FBI Aid Accused in Police Spy
Heannrrs " Chimnn Trihvvf. 6/21/75. p. 3.)

'° TTSAINTC Staff Study : Material Testing Program EA 1729. 10/1.5/59.

^ Sullivan attributes much of this attitude to the molding influence of World
War II upon young intelligence agents who later rose to positions of influence in

145

one was "expected to do as a soldier." ^^ "It was my assumption," said
one FBI official connected with the Bureau's mail opening programs,
"that what we were doing was justified by what we had to do." ^^
Since the "enemy" did not play by the rules, moreover, intelligence
officials often believed they could not afford to do so either."*

One FBI intelligence officer appeared to attribute the disregard of
the law in the Bureau's COINTELPRO operations to simple restless-
ness on the part of "action-oriented" FBI agents. George C. Moore,
the Racial Intelligence Section Chief, testified that :

. . . the FBI's counterintelligence program came up because
if you have anything in the FBI, you have an action-oriented
group of people who see something happening and want to do
something to take its place.^^

Others in the intelligence community have contended that ques-
tionable and illegal acts were justified by a law higher than the
United States Code or the Constitution. An FBI Counterintelligence
Section Chief, for example, stated the following reason for believing
in the necessity of techniques such as mail opening:

The greater good, the national security, this is correct. This
is what I believed in. Why I thought these programs were
good, it was that the national security required this, this is
correct.^''

Similarly, when intelligence officials secured the cooperation of tele-
graph company executives for Project SHAMROCK, in which NSA
received millions of copies of international telegraph messages with-
out the sender's knowledge, they assured the executives that they would
not be subjected to criminal liability because the project was "in the
highest interests of the nation." ^^

the intelligence community. (Sullivan, 11/1/75, pp. M-95.) Disregard of the
"niceties of law," he stated, continued after the war had ended :

"Along came the Cold War. We pursued the same course in the Korean War,
and the Cold War continued, then the Vietnam War. We never freed ourselves
from that psychology that we were indoctrinated with, right after Pearl Harbor,
you see. I think this accounts for the fact that nobody seemed to be concerned
about raising the question is this lawful, is this legal, is this ethical? It was just
like a soldier in the battlefield. When he shot down an enemy he did not ask
himself is this legal or lawful, is it ethical? It is what he was expected to do
as a soldier."

"We did what we were expected to do. It became part of our thinking, a part
of our personality." ( Sullivan. 11/1 /75. pp. 95, 96. )

Unfortunately, it made too little difference whether the "enemy" was a foreign
spy, a civil rights leader, or a Vietnam protester.

^- RulMvan, 11/1/75, p. 96.

=' Branigan, 10/9/75. p. 41.

^' Staff summary of William C. Sullivan interview, 6/10/75.

^ Moore deposition, 11/3/75. p. 79.

®^ Branigan deposition, 1/9/75, p. 41. Richard Helms referred to another kind
of "greater good" when asked to speculate about the possible motivation of a
CIA scientist who did not heed President Nixon's directive to destroy all biologi-
cal and chemical toxins. Noting that the scientist might have "had thoughts
about immunization ... or treatment of disease where [the toxin he had devel-
oped! might be useful," Helms said that the retention of (this biological agent
could be explained as "yielding to that human impulse of the greater good."
(Pich.ird Helms testimony. 9/15/7.5, p. 96.)

'^Robert Andrews testimony 9/23/75, p. 34: See NSA Report: "SHAMROCK."
By cooperating with the Government in SHAMROCK, executives of three com-
panies chose to ignore tiie advice of their respective legal counsels who had recom-

( Continued)

68-786 O - 76 - 11

146

Perhaps the most novel reason for advocating illegal action was
proffered by Tom Charles Huston. Huston explained that he believed
the real threat to internal security was potential repression by right-
wing forces within the United States. He argued that the "New Left"
was capable of producing a climate of fear that would bring forth
every repressive demagogue in the country. Huston believed that the
intelligence professionals, if given the chance, could protect the people
from the latent forces of repression by monitoring the New Left,
including by illegal means.^^ Illegal action directed against the New
Left, in other words, should be used by the Government to forestall
potential repression by the Right.

In attempting to explain why illegal activities were advocated
and defended, the impact of the attitudes and actions of government
officials in supervisory positions — Presidents, Cabinet officers, and
Congressmen — should not be discounted. Their occasional endorsement
of such activities, as well as the atmosphere of permissiveness created
by their emphasis on national security and their demands for results,
clearly contributed to the notion that strict adherence to the law was
unimportant. So, too, did the concept, propounded by some senior
officials, that a "sovereign" president may authorize violations of the
law.

A^^iatever the reasons, however, it is clear that a number of intelli-
gence officers acted in knowing contravention of the law.

Subfinding (d)

Internal recognition of the illegality or questionable legality of
many of these activities frequently led to a tightening of security
rather than to their termination. Partly to avoid exposure and a public
"flap," knowledge of these programs was tightly held within the agen-
cies, special filing procedures were used, and "cover stories" were
devised.

"When intelligence agencies realized that certain programs and tech-
niques were of questionable legality, they frequently took special
security precautions to avoid public exposure, criticism, and embarrass-
ment. The CIA's study of student unrest throughout the world in the
late 1960s, for example, included a section on student dissent in the
United States, an area that was clearly outside the Agency's statutory
charter. DCI's Hichard Helms urged the President's national secu-
ritv advisor, Henry Kissinger, to treat it with extreme sensivity in
light of the acknowledged jurisdictional violation :

"Herewith is a sun^'ev of student dissidence world-wide as re-
quested by the President. In an effort to round out our discus-
sion of this subject, we have included a section on American
students. This is an area not within the charter of this Agency,
so I need not emphasize how extremely sensitive this makes
the paper. Should anyone learn of its existence, it would prove
most embarrassing for all concerned." *°

Concern for the FBI's public imasfe prompted security measures
which protected numerous questionable activities. For example, in

(Continued)

mended ag'ainst participation because they considered the program to be in
violation of the law and FCC regulations. Olemorandnm for the record, Armed
Forces Security Agency. Subject: SHAMROCK Operation. ,S/25/50.)

^Tom Charles Huston deposition, 5/22/75, p. 43; Staff Summary of Tom
Charles Huston interview, 5/22/75.

*" Letter from Richard Helms to Henry Kissinger, 2/18/69.

147

approving or denying COINTELPRO proposals, many of which were
clearly illegal, a main consideration was preventing "eanbarrassment
to the Bureau."*^ A characteristic caution to FBI agents appears in
the letter which initiated the COINTELPEO against "Black
Nationalists" :

You are also cautioned that the nature of this new endeavor
is such that under no circumstances should the existence of
the program be made known outside the Bureau and appro-
priate w^thin-ofRce security should be afforded to sensitive
operations and techniques considered under the program.

Examples of attention to such security are that anonymous letters had
to be written on commercially purchased stationery ; newsmen had to
be so completely trustworthy that they were guaranteed not to reveal
the Bureau's interest; and inquiries of law enforcement officials had to
be made under the pretext of a criminal investigation.

A similar preoccupation with security measures for improper activ-
ities affected both the NSA and the Army Security Agency.

XSA's guidelines for its watch list activity provided that NSA's
name should not be on any of the disseminated watch list material
involving Americans. The aim was to "restrict the knowledge that
such information is being collected and processed" by NSA.*^

The Army Security Agency's radio monitoring acti\"ity, which con-
tinued even after the Anny was told that the FCC and the Attorney
General regarded it as illegal, also had to be conducted in secrecy if a
public outcry was to be avoided. When Army officials decided to per-
mit radio monitoiing in connection with the military's Civil Dis-
turbance Collection Plan, their instruction provided that all ASA
personnel had to be "disguised" either in civilian clothes or as members
of regular military units."**

The perceived illegality- — and consequent "flap potential" — of the
CIA's New York mail opening project led Agency officials to for-
mulate a drastic strategy to follow in the event of public exposure.
A review of the project by the Inspector General's Office in the early
1960s concluded that it would be desirable to fabricate a "cover story."
A formal recommendation was therefore made that "[a]n emergency
plan and cover story be prepared for the possibility that the operation
might be blown." *^ In response to this recommendation, the Deputy
Chief of the Counterintelligence Staff agreed that "a 'flap' Avill put
us 'out of business' immediately and may give rise to grave charges
of criminal misuse of the mails by government agencies," but he
argued :

^^ See COINTELPRO Report : Sec. V, "Outside the Bureau" memorandum ; from
FBI Headquarters to all SAC's, 8/25/67.

^ Buffliam, 9/12/75, p. 20 ; MINARET Charter, 7/1/69.

At other times, however, NSA's special security measures were applied to
protect documents which concerned far more than NSA. Thus, at Richard Helms
suggestion, Huston Plan working papers and documents were all stamped with
legends designed to protect NSA's lawful communications activity, although only
a small iwrtion of the documents actually concerned NSA. (Unaddressed memo-
randum, Subject : "Interagency Committee on Intelligence, Working Subcom-
mittee, Minutes of the First Meeting," 6/10/70. )

** Department of Army Message to Subordinate Commands, 3/31/68.

*^ CIA memorandum. Subject : In.spector General's Survey of the Office of
Security, Annex II, undated.

148

Since no good purpose can be served by an official admission
of the violation, and existing Federal statutes preclude the
concoction of any legal excuse for the violation, it must be
recognized that no cover story is available to any Govern-
ment Agency. Therefore, it is important that all Federal law
enforcement and US Intelligence Agencies vigorously deny
any association, direct or indirect, with any such activity as
charged, . . . Unless the charge is supported by the presenta-
tion of interior items from the Project, it should be I'elatively
easy to "hush up" the entire affair, or to explain that it consists
of legal mail cover activities conducted by the Post Office at
the request of authorized Federal agencies. Under the most
unfavorable circumstances ... it might be necessary after the
matter has cooled off during an extended period of investi-
gation, to find a scapegoat to blame for unauthorized tamper-
ing with the mails. Such cases by their veiy nature do not
have much appeal to the imagination of the public, and this
would be an effective way to resolve the initial charge of
censorship of the mails.**'

This strategy of complete denial and transferring blame to a scape-
goat was approved by the Director of Security in February 1962.*^

Another extreme example of a security measure that was adopted be-
cause of the threat that illegal activity might be exposed was the out-
right destruction of files.

The FBI developed a special filing system — or, more accurately, a
destruction system — for memoranda written about illegal techniques,
such as break-ins,*' and highly questionable operations, such as the mi-
crophone surveillance of Joseph Kraft.^'' Under this system — which
was referred to as the "DO XOT FILE" procedure — authorizing doc-
uments and other memoranda were filed in special safes at headquarters
and field offices until the next annual inspection by the Inspection Di-
vision, at which time they were to be systematically destroyed.^"

*^ Memorandum from Deputy Chief, CI Staff, to Director Office of Security,
2/1/62.

" Memorandum from Sheffield Edwards, Director of Security, to Deputy Di-
rector for Support. 2/21/62.

*' Memorandum from W. C. Sullivan to C. D. DeLoach. 7/19/66. The same docu-
ment that describes the application of the "DO NOT FILE'' procedure to "black
bag jobs" also notes that before a break-in could be approved within the FBI, the
Special Agent in Charge of the field office had to assure headquarters that it
could be accomplished without "embarrassment to the Bureau." (Sullivan memo-
randum, 7/19/66.)

An isolated instance of file destruction apparently occurred in the Los Angeles
office of the Internal Revenue Ser\-ice in December 1974. at a time when Con-
gressional investigation of the intelligence agencies was imminent. TWs office had
collected large amounts of essentially political information regarding black mil-
itants and political activists. In violation of internal document destruction pro-
cedures the files were destroyed prior to their proposed review by IRS author-
ities. See IRS Report ; Sec. IV. "The Information Gathering and Retrieval Sy.s-
tem" ; Staff Summary of interview with Chief, IRS Division, Los Angeles, 8/1/75.

*^ For example, letters from W. C. Sullivan to J. Edgar Hoover, 6/30/69. 7/2/69,
7/3/69, 7/7/69. These letters were sent to Hoover from Paris, where Sullivan
coordinated the Kraft surveillance. All of them bear the notation "DO NOT
FILE."

^ Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66.

149

Sub-finding {e)

On occasion, intelligence agencies failed to disclose candidly pro-
grams and practices to their own General Counsels, and to Attorney
Generals, Presidents, and Congress.

[1) Concealment from Executive Branch Officials

Intelligence officers frequently concealed or misrepresented illegal
activities to their own General Counsel and superiors within and out-
side the agencies in order to protect these activities from exposure.

For example, during the entire 20-year history of the CIA's mail
opening project, the Agency's General Counsel was never informed of
its existence. According to one Agency official, this knoAvledge was
purposefully kept from him. Former Inspector General Gordon SteAv-
art testified :

Well, I am sure that it was held back from [the General
Counsel] on purpose. An operation of this sort in the CIA is
rmi — if it is closely held, it is run by those people immediately
concerned, and to the extent that it is really possible, accord-
ing to the practices that we had in the fifties and sixties, those
persons not immediately concerned were supposed to be
ignorant of it.^^

The evidence also indicates that two Directors of Central Intelli-
gence under whom the New York mail operations continued — John
McCone and Admiral Raborn — were never informed of its existence.^''
In 1954, Postmaster General Arthur Summerfield was informed that
the CIA operated a mail cover project in New York, but he was not
told that the Agency opened or intended to open any mail.^"* In 1965, the
CIA briefly considered informing Postmaster General John A. Gro-
nouski about the project when its existence was felt to be jeopardized
by a congressional subcommittee that was investigating the use of mail
covers and other investigative techniques by federal agencies. Accord-
ing to an internal memorandum, however, the idea was quickly re-
jected "in view of various statements by Gronouski before this sub-
committee." ^* Since Gronouski had agreed with the subcommittee that
tighter administrative controls on mail covers were necessary and gen-
erally supported the principle of the sanctity of the mail, it is reason-
able to infer that CIA officials assumed he would not be sympathetic
to the technique of mail opening.'"

"^ Gordon Stewart, 9/30/75, p. 29.

^ McCone, 10/9/75, pp. 3-4 ; Angleton, 9/17/75, p. 20 ; Osbom, 10/21/75 ; Hear-
ing:s, Vol. 4, p. 38.

^^ Memorandum from Richard Helms to Director of Security, 5/17/74 ; Helms,
10/22/75, Hearings, Vol. 4, p. 84. By the CIA's own account, moreover, at most
only three Cabinet-level officials may have been told about the mail opening as-
pects of this project. Each of these three — Postmasters General J. Edward Day
and Winton M. Blount, and Attorney General John Mitchell — dispute the Agen-
cy's claim. (Dav, 10/22/75, Hearings, Vol. 4, p. 45; Blount, 10/22/75, Hearings,
Vol. 4, p. 47 ; Mitchell, 10/2/75, pp. 13-14.)

" Blind memorandum from "CIA Officer," 4/23/65.

^Ibid. Mr. Gronouski testified as follows about the CIA's successful attempt
to keep knowledge of the New York project from him :

"When this news [about CIA mail opening] broke [in 1975), I thought it was
incredible that a person in a top position of responsibility in Government in an
agency should have something of this sort that is very illegal going on wathin
his own agency and did not know about it. It is not that I did not try to know
about these things. I think it is incumbent upon anybody at the top office to try
to know everything that goes on in his organization." (Gronouski, 10/22/75,
Hearings, Vol. 4 p. 44. )

150

The only claim that any President may have known about the proj-
ect was made by Richard Helms, who testified that "there was a pos-
sibility" that he "mentioned" it to President Lyndon Johnson in 1967
or 1968.^*^ No documentary evidence is available that either supports or
refutes this statement. During the preparation of the Huston Plan,
neither CIA nor FBI representatives informed Tom Charles Huston,
President Nixon's representative, that the mail opening project
existed. The final interagency report on the Pluston Plan signed by
Richard Helms and J. Edgar Hoover, was sent to the President with
the statement, contrary to fact, that all mail opening programs by
federal agencies had been discontinued.^^

In connection with another CIA mail opening project, middle- level
Agency officials apparently did not even tell their own superiors with-
in the CIA that they intended to open mail, as opposed to merely in-
specting envelope exteriors. The ranking officials testified that they
approved the project believing it to be a mail cover progi'am only.-^^
No Cabinet officials or President knew of this project and the approval
of the Deputy Chief Postal Inspector (for what he also believed to
be a mail cover operation) was secured through conscious deception.^^
, A pattern of concealment was repeated by the FBI in their mail
opening programs. There is no claim by the Bureau that any Post-
master General, Attorney General, or President was ever advised of
the true nature and scope of its mail projects. One FBI official testified
that it was an unofficial Bureau policy not to inform postal officials
with whom they dealt of the actual intention of FBI agents in receiv-
ing the mail, and there is no indication that this policy was ever
violated.*^" At one point in 1965, Assistant Director Alan Belmont and
Inspector Donald Moore apparently infonned Attorney General
Nicholas deB. Katzenbach that FBI agents received custody of the
mail in connection with espionage cases on some occasions."^ But
Moore testified that the Attorney General was not told that mail was
actually opened, "\^^len asked if he felt any need to hold back from
Katzenbach the fact of mail openings as opposed to the fact that Bu-
reau agents received direct access to the mail, Moore replied :

It is perhaps difficult to answer. Perhaps I could liken it
to ... a defector in place in the KGB. You don't want to tell
anybody his name, the location, the title, or anything like
that. Not that you don't trust them completely, but the fact

^ Helms, 10/23/75, pp. 28, 30-31.

"^ Special Report, p. 29. Richard Helms testified as follows about this inaccu-
rate statement :

". . . the only explanation I have for it was that this applied entirely to the
FBI and had nothing to do with the CIA, that we never advertised to this Com-
mittee or told this Committee that this mail operation was going on, and there
was no intention of attesting to a lie. ..."

"And if I signed this thing, then maybe I didn't read it carefully enough."

"There was no intention to mislead or lie to the President." (Helms, 10/22/75,
Hearings Vol. 4, p. 95).

^ Howard Osborn. 8/28/75, pp. 58, 59 ; Thomas Karamessines. 10/8/75, p. 12 ;
Richard Helms, 9/10/75, p. 127.

"^^ For example, Chief, Security Support Division memorandum, 12/24/74;
Memorandum from C/TSD/CCG/CRB to the file, 3/26/69 ; memorandum from
C/TSD/CCG/CRB to the file, 9/15/69.

* Donald E. Moore, 10/1/75, p. 79.

" Moore, 10/1/75, p. 31 ; Katzenbach, 12/3/75, Hearings, vol. 6, pp. 204, 205.

151

is that any time one additional person becomes aware of it,
there is a potential for the information to ... go further.*'-

Another Bureau agent speculated that the Attorney General was
not told because mail opening "was not legal, as far as I knew." "^^

Similarly, there is no indication that the FBI ever informed any
Attorney General about its use of "black bag jobs" (illegal break-ins
for purposes other than microphone installations) ; the full scope of
its activities in COINTELPRO ; or its submission of names for inclu-
sion on either the CIA's "Watch List" for mail opening or, before 1973,
on the NSA's "Watch List" for electronic monitoring of international
communications.*^*

After J. Edgar Hoover disregarded Attorney General Biddle's
19-13 order to terminate the Custodial Detention List by merely chang-
ing its name to the Security Index moreover, Bureau headquarters
instructed the field officers that the new list should be kept "strictly
confidential" and that it should never be mentioned in FBI reports or
"discussed with agencies or individuals outside the Bureau" except for
military intelligence agencies. For several years thereafter, the Attor-
ney General and the Justice Department were not informed of the
FBI's decision. ^^

An incident which occurred in 1967 in connection with the Bureau's
COINTELPRO operations is particularly illustrative of the lengths to
which intelligence agencies would go to protect illegal programs from
scrutiny by executive branch officers outside the intelligence com-
munity. As one phase of its disruption of the United Klaus of America,
the Bureau sent a letter to Klan officers purportedly prepared by the
highly secret "National Intelligence Committee" (NIC) of the Klan.^''
The fake letter purported to fire the North Carolina Grand Dragon
for personal misconduct and misfeasance in office, and to suspend
Imperial Wizard Robert Shelton for his failure to remove the Grand
Dragon. Shelton complained to the FBI and the Post Office about
this apparent violation of the mail fraud statutes — without realizing
that the Bureau had in fact sent the letter. ''' The Bureau, after
solemnly assuring Shelton that his complaint was not within the
FBI's jurisdiction, approached the Chief Postal Inspector's office in
Washington to determine what action the Post Office planned to take
regarding Shelton's allegation. The FBI was advised that the matter
had been referred to the Justice Department's Criminal Division.*'^
At no time did the Bureau inform either the Post Office or the Justice
Department that FBI agents had authored the letter. When no investi-
gation was deemed to be warranted by the Criminal Division, FBI
Headquarters directed the Bureau's Charlotte, North Carolina office
to prepare a second phony NIC letter to send to Klan officials.*^^ This

'' Moore 10/1/75, p. 48. See Mail Report : See. IV, "Nature and Value of the
Product Received."

"^ FBI agent testimony, 10/10/75, p. 30.

" See NSA Report : Sec. II, "Summary of NSA Watch List Activity."

*■'" Memorandum from J. Edgar Hoover to FBI Field Offices, 8/14/43.

""Memorandum from Atlanta Field Office to FBI Headquarters, 6/7/67.

"■ Memorandum from Birmingham Field Office to FBI Headquarters, 6/14/67.

** Postal officials told Bureau liaison that since Shelton's allegations "api>ear
to involve an internal struggle for control of Ku Klux Klan activities in North
(^arolina and since the evidence of mail fraud was somewhat tenuous in nature,
the Post Office did not contemplate any investigation." ( Memorandum from Spe-
cial Agent to D. J. Brennan. 7/11/67.) Had the FBI informed the Post Office
that Bureau agents had written the letter, it would have been apparent that
Shelton's allegations were not based on an "internal struggle" within the KKK.

"^ Memorandum from FBI Headquarters to Charlotte Field Office, 8/21/67.

152

letter was not mailed, however, because the Charlotte office proposed
and implemented a different idea — the formation of an FBI-controlled
alternative Klan organization, which eventually attracted 250
membersJ°

The Huston Plan itself was prepared without the knowledge of the
Attorney General. Neither the Attorney General nor anyone in his
office was invited to the drafting sessions at Langley or consulted dur-
ing the proceedings. Huston testified that it never occurred to him
to confer with the Attorney General before making the recommen-
dations in the Report, in part because the plan was seen as an in-
telligence matter to be handled by the intelligence agency directors.^^

Similarly, the CIA's General Counsel was not included or consulted
in the formulation of the Huston Plan. As James Angleton testified,
"the custom and usage was not to deal with the General Counsel, as a
rule, until there were some troubles. He was not a part of the process
of project approval." ''^

(ii) Concealinent from Congress

At times, knowledge of illegal programs and techniques has been
concealed from Congress as well as executive branch officials. On two
occasions, for example, officials of the Anny Security Agency ordered
its units — in apparent violation of that Agency's jurisdiction — to con-
duct general searches of the radio spectrum without regard to the
source or subject matter of the transmissions. ASA did not report these
incidents to ranking Army officials, even when specifically asked to do
so as part of the Army's preparation for the hearings of the Senate
Subcommittee on Constitutional Rights in 1971.'*

Events surrounding the 1965 and 1966 investigation by Senator Ed-
ward Long of JNIissouri into federal agencies' use of mail covers and
other investigative techniques clearly showed the desire on the part of
CIA and FBI officials to protect their programs from congressional
review.^5 Fearing that the New York mail opening i^rogram might be
discoA^ered by this subcommittee, the CIA considered suspending the
operation until the investigation had been completed. An internal
CIA memorandum dated April 23, 1965, reads in part :

Mr. Karamessines [Assistant Deputy Director for Plans]
felt that the dangers inherent in Long's subcommittee activi-

•" Memorandum from Charlotte Field Office to FBI Headquarters 8/22/67.

'"■ Huston, 9/23/75. Hearings, Vol. 2, p. 24.

When J. Edgar Hoover informed Attorney General John Mitchell about the
Report on July 27, 1970, Mitchell objected to its proposals and influenced the
President to withdraw his original approval.

According to John Mitchell, he believed that the proposals "were inimical to
the best interests of the country and certainly should not be something that the
President of the United States should be approving." (John Mitchell testimony,
10/24/75, Hearings, Vol. 4, p. 23.)

■'^ James Angleton, 9/24/75, Hearings, Vol. 2, p. 77.

''^ See Military Surveillance Report : Sec. I, "Improper Surveillance of Private
Citizens by the Military" ; Inspector General Report, Department of the Army,
1/3/72.

" The Johnson Administration itself attempted to restrict the Long Subcom-
mittee's investigation into national security matters, although there is no indica-
tion that this attempt was motivated by a desire to protect illegal activities.
(E.g., Memorandum from A. H. Belmont to Mr. Tolson. 2/27/65; memorandum
from J. Edgar Hoover to Messrs. Tolson, Belmont, Gale, Rosen, Sullivan, and
DeLoach, 3/2/65.)

153

ties to the security of the Project's operations in New York
should be thoroughly studied in order that a determination
can be made as to whether these operations should be partially
or fully suspended until the subcommittee's investigations are
completed^*'

When it was learned that Chief Postal Ins])ector Henry Montague
had been contacted about the Long investigation and believed that it
would "soon cool off", however, it was decided to continue the opera-
tion without suspension.^^

The FBI was also concerned that the subcommittee might expose its
mail opening programs. Bureau memoranda indicate that the FBI in-
tended to ''warn the Long Committee away from those areas which
would be injurious to the national defense." "^ J. Edgar Hoover per-
sonally contacted the Chairman of the Senate Judiciary Committee,'"
and urged him "to see Long not later than Wednesday morning to cau-
tion him that [the Chief Counsel] must not go into the kind of ques-
tion he made of Chief Inspector Montague of the Post Office Depart-
ment" ®° — questioning that had threatened to reveal the FBI's mail
project the previous week.®^

AtHien the Long subcommittee began to investigate electronic sur-
veillance practices several months later, Bureau officials convinced
Senator Edward Long that there was no need to pursue such an in-
vestigation since, they said, the FBI's operations were tightly con-
trolled and properly implemented.^^ According to Bureau documents,
FBI agents wrote a press release for the Senator from Missouri, with
his approval, that stated his subcommittee had

conducted exhaustive research into the activities, procedures,
and techniques of this agency [and] based upon careful study
. . . we are fully satisfied that the FBI has not participated in
highhanded or uncontrolled usage of wiretaps, microphones,
or other electronic equipment.®^

Not only was this release written by the FBI itself, it was misleading.
The "exhaustive research" apparently consisted of a ninety-minute
briefing by FBI officials describing their electronic surveillance prac-
tices; neither the Senator nor the public learned of the instances of
improper electronic surveillances that had been conducted by the
FBL^* ^Alien Senator Edward Long later asked certain FBI officials
to testify about the Bureau's electronic surveillance policy before the
Subcommittee, they refused, arguing : ". . . to put an FBI witness on the

'" Blind memorandum from "CIA Officer," 4/23/65.

" Ibid.

^* Memorandum from A. H. Belmont to Mr. Tolson, 2/27/65.

■^ Memorandum from J. Edgar Hoover to Messrs. Tolson, Belmont, Gale, Rosen,
Sullivan, and DeLoach, 3/1/65.

*° Memorandum from J. Edgar Hoover to Messrs. Tolson, Belmont, Gale, Rosen,
Sullivan, and DeLoach 3/1/65.

^^ Mail Report Part lY, Sec. VII, "Concern with Exposure." At the time of his
testimony before the Long Subcommittee. Chief Postal Inspector Montague knew
of ongoing FBI projects in which Bureau agents received custody of the mail,
but he was apparently unaware that these projects involved mail openings.

^- For example. Memorandum from C. D. DeLoach to Mr. Tolson, 1/10/66.

^ Memorandum from M. A. Jones to Mr. Wick, Attachmen't, 1/11/66.
^ See pp. 62-65, 105, 205-206 for a description of some of these improper
surveillances.

154

stand would be an attempt to open a Pandora's box, insofar as our

enemies in the press were concerned " ®^

After the press release had been delivered to Senator Long and
the refusal to testify had been accepted, one FBI official wrote to the
Associate Director that while some problems still existed, "we have
neutralized the threat of being embarrassed by the Long Subcom-
mittee . . ." ^®

Suh-finding (/)

The internal inspection mechanisms of the CIA and the FBI did
not keep — and, in the case of the FBI, were not designed to keep — the
activities of those agencies within legal bounds. Their primary concern
was efficiency, not legality or propriety.

The internal inspection mechanisms of the CIA and the FBI were
ineffective in ensuring that the activities of these agencies were kept
within legal bounds. This failure was sometimes due to structural
deficiencies which kept knowledge of questionable programs tightly
compai-tmented and shielded from those who could evaluate their
legality.

As noted above, for example, the CIA's General Counsel was not
informed about either the New York mail opening project or CIA's
participation in the Huston Plan deliberations. The role of the CIA's
General Counsel was essentially a passive one; he did not initiate
inquiries but responded to requests from other Agency components.
As James Angleton stated, the General Counsel was not a part of
the normal project approval process and generally was not consulted
until "something was going wrong." ^^

AVlien the General Counsel was consulted, he often exerted a posi-
tive influence on the conduct of CIA activities. For example, the CIA
stopped monitoring telephone calls to and from Latin America after
the General Counsel issued an opinion describing the telephone inter-
cepts as illegal.®^ But internal CIA regulations have never required
employees who know of illegal, improper, or questionable activities
to report them to the General Counsel; rather, employes with such
knoAvledge are instructed to inform either the Director of Central
Intelligence or the Inspector General. The Director and the Inspector
General may refer the matter to the General Counsel but until recently
they were not obligated to do so.^®^ As Richard Helms stated, "Some-
times we did [consult the General Counsel] ; sometimes we did not. I
think the record on that is rather spotty, quite frankly." ^^

Indeed, the record suggests that those programs that were most
questionable — such as the New York mail opening project and Project
CHAOS — were not referred to the General Counsel because they were

^ Memorandum from C. D. DeLoaeh to Mr. Tolson, 1/21/66.

^ DeLoaeh memorandum, 1/21/66. This incident also illustrates that Congress
has at times permitted itself to be "neutralized." The general reluctance of
Congress to discharge its responsibilities toward intelligence agencies is dis-
cussed at pp. 277-281.

" James Angleton. 9/17/75. p. 48.

^' Memorandum from Lawrence Houston to Acting Chief, Division D, 1/29/73.

***" Proposed regulations drafted in response to Executive Order 11905 ( March
1976) require the Inspector General to refer "all legal matters" to the Office of
General Counsel. (Draft Reg. HR 1-3.)

"' Helms deposition, 9/10/75, p. 59.

155

considered extremely sensitive.^" Even when questionable activities
were called to the attention of the General Counsel, moreover, the in-
ternal Agency regulations did not guarantee him unrestricted access
to all relevant information. Thus, the General Counsel was not in a
position to conduct a complete evaluation of the propriety of par-
ticular programs.

Part of the failure of internal inspection to terminate improper pro-
grams and practices may be attributed to the fact that the primary
focus of the CIA'S Office of the Inspector General and the FBI's In-
spection Division has been on efficiency and effectiveness rather than
on propriety.

The CIA's Inspector General is charged with the responsibility,
among other matters, of inxestigating activities which might be con-
strued as "illegal, improper, and outside the CIA's legislative
charter."' ^^ In at least one case, the Inspector General did force the
suspension of a suspect, activity: the surreptitious administration of
LSD to unwitting, non- volunteer, human subjects which was sus-
pended in 1963.^2 An earlier Inspector General's review of the larger,
more general program for the testing of behavorial control agents,
however, had labeled that program "unethical and illegal" and it none-
theless continued for another seven years.^^ In general, as the Rocke-
feller Connnission pointed out, "the focus of the Inspector General
component reviews was on operational effectiveness. Examination of
the legality or propriety of CIA activities was not normally a primary
concern." ^^ Two separate reviews of the Xew York mail opening proj-
ects by the Inspector General's office, for example, considered issues
of administration and security at length but did not even mention
legal considerations.^^

Internal inspection at the FBI has traditionally not encompassed
legal or ethical questions at all. According to W. Mark Felt, the As-
sistant FBI Direci.'or in charge of the Inspection Division from 1964 to
1971, his job was to ensure that Bureau pi-ogranis were being operated
efficiently, not constitutionally: "There was no instruction to me," he
stated, "nor do I believe there is any instruction in the Inspector's
manuals, that inspectors should be on the alert to see that constitu-
tional values are being protected." ^^ He could not recall any program
which was terminated because it might have been violating someone's
civil rights.^^

'"Gordon Stewart deposition, 4/30/75, p. 29; Rockeller Commission Report,
p. 146 ; Report on tlie OflSces of tlie General Counsel and Inspector General : The
General Counsel's Responsibilities, 9/30/75, p. 29.

"' Regulation HR 7-la (6) .

"^ Memorandum for the Record by J. S. Earman, Inspector General, 11/29/63 ;
Memorandum from Helms to DCI, 11/9/64.

*" 1957 I.G. Inspection of the Technical Services Division.

^ Rockefeller Commission Report, 6/6/75, p. 89.

*" :Memorandum from L. K. White, Deputy Director for Supiwrt, to Acting In-
spector General. Attachment, 3/9/62; blind memorandum, undated (1969). The
Inspector General under whose auspices the -second review was conducted stated
"[0]f course we knew that this was illegal." but he believed that it was "un-
necessary" to raise the matter of its illegality with Director Helms "since every-
body knew that it was [illegal] and it didn't seem . . . that I would be telling
Mr. Helms anything that he didn't know." (Gordon Stewart, 9/30/75, p. 32.)
p. 32. )

°' W. Mark Felt testimony, 2/3/75, p. 65.

*' Felt, 2/3/75, p. 57.

156

A number of quesitionable FBI pix)grams were apparently never in-
spected. Felt could recall no inspection, for instance, of either the FBI
mail opening programs or the Bureau's participation in the CIA's
New York mail opening project.^^ Even when improper programs
were inspected, the Inspection Division did not attempt to exercise
oversight in the sense of looking for wrongdoing. Its responsibility
was simply to ensure that FBI policy, as defined by J. Edgar Hoover
was effectively implemented and not to question the propriety of the
policy.^" Thus, Felt testified that if, in the course of an inspection of a
field office, he discovered a microphone surveillance on Martin Luther
King, Jr., the only questions he would ask were whether it had been
appix)ved by the Director and whether the procedures had been prop-
erly followed.^°°

When Felt was asked whether the Inspection Division con-
ducted any investigation into the propriety of COINTELPRO, the
following exchange ensued :

Mr. Felt. Not into the propriety.

Q. So in the case of COINTELPRO, as in the case of
NSA interceptions, your job as Inspector was to determine
whether the program was being pursued effectively as op-
posed to whether it was proper ?

Mr. Felt. Rig'ht, with this exception, that in any of these
situations, Counterintelligence Program or whatever, it very
frequently happened that the inspectors, in reviewing the
files, would direct that a certain investigation be discontinued,
that iit was not productive, or that there was some reason that
it be discontinued.

But I don't recall any cases being discontinued in the
Counterintelligence program. ^"^

As a result of this role definition, the Inspection Division became an
active participant in some of the most questionable FBI programs For
example, it was responsible for reviewing on an annual basis all memo-
randa relating to illegal break-ins prior to their destiiiction mider the
"DO NOT FILE" procedure.

Imprx>per programs and techniques in the FBI were protected not
only by the Inspection Division's percepitdon of its function, but also
by the maxim that FBI agents should never "embarrass the Bureau."
This standard, which served as a shield to outside scrutiny, was
explicitly reflected in the FBI Manual :

Any investigation necessary to develop complete essential
facts regarding any allegation against Bureau employees
must be instituted promptly, and every logical lead which
will establish the true facts should be completely I'un out
unless such actio7i would eTuban^ass the Bureau . . , in which
event the Bureau will weigh the facts, along with the recom-
mendations of the division head. [Emphasis added.] ^"^

"« Felt, 2/3/75, pp. 54, 55.

■^ Felt, 2/3/75, pp. 59-60.

'~ Felt, 2/3/75, p. 60.

^"^ Felt, 2/3/75, pp. 56, 57.

^"^ When, asked about this Manual provision. Attorney General Edward Levi
stated :

"I do believe . . . some further explanation is in order. First, the Bureau in-
forms me that the provision has not been intei-preted to mean that an investiga-

157

Such an instruction, coupled with the Inspection Division's inatten-
tion to the hiw, could only inhibit or prevent the termination and ex-
posure of illegal practices.

Sub finding (g)

AVhen senior administration officials with a duty to control domestic
intelligence activities knew, or had a basis for suspecting, that ques-
tionable activities had occurred, they often responded w^ith silence or
approval. In certain cases, they Avere presented with a partial descrip-
tion of a program but did not ask for details, thereby abdicating their
responsibility. In other cases, they were fully aware of the nature of
the practice and implicitly or explicitly approved it.

On several occasions, senior administration officials with a duty to
control domestic intelligence activities were supplied with partial
details about questionable or illegal programs but they did not ask
for additional information and the programs continued.

Sometimes the failure to probe further stemmed from the admin-
istration official's assumption that an intelligence agency would not
engage in lawless conduct. Former Chief Postal Inspector Henry
Montague, for example, was aware that the FBI received custody
of the mail in connection with several of its mail opening programs —
indeed, he had approved such custody in one case — but he testified
that he believed these were mail cover operations only."^ Montague
stated that he did not ask FBI officials if the Bureau opened mail
because he :

never thought that would be necessary. ... I trusted them
the same as I would another [Postal] Inspector. I would
never feel that I would have to tell a Postal person that you
cannot open mail. By the same token, I would not consider
it necessary to emphasize it to any great degree with the

FBJ104

A former FBI official has also testified, as noted above, that he
informed Attorney General Katzenbach about selected aspects of the
FBI mail opening programs. This official did not tell Katzenbach
that mail was actually opened, but he testified that he "pointed out
[to the Attorney General] that we do receive mail from the Post
Office in certain sensitive areas." "^ While Katzenbach stated that he
never knew mail was opened or that the FBI gained access to mail
on a regular basis in large-scale operations,^°^ the former Attorney

tion should not take place and that 'any interpretation that an investigation
would not be instituted because of the possibility of embarrassment to the Bureau
was never intended and, in fact, has never been the policy of this Bureau.' I am
told that 'what was intended to be conveyed was that in such eventuality FBI
Headquarters desired to be advised of the matter before investigation is in-
stituted so that Headquarters would be on notice and could direct the inquiry,
if necessary.' "

"Second, the manual provision dates back to March 30, 1955."

"Third, I am informed by the Bureau that 'immediate steps are being taken to
remove that phraseology from our Manual of Rules and Regulations.' "

(Letter from Attorney General Levi to Senator Richard Schweiker, 11/10/75.)

'■^ Henry Montague testimony, 10/2/75, pp. 55, 71.

'« Henry Montague, 10/2/75, pp. 15-16.

'°° Donald Moore, 10/1/75, p. 31.

"^ Nicholas Katzenbach. 10/11/75, p. 35.

158

General acknowledged that he did learn that "in some cases the out-
side of mail might have been examined or even photographed by
persons other than Post Office employees"."' However, neither at this
time nor at any other time did the Justice Department make any
inquiry to determine the full scope of the FBI mail operations.

Similarly, former Attorneys General Nicholas Katzenbach and Kam-
sey Clark testified that they w^ere familiar with the FBI's efforts to
disrupt the Ku Klux Klan through regular investigative techniques
but said they were unaware of the offensive tactics that occurred
in COINTELPRO. Katzenbach said he did not believe it neces-
sary to explore possible irregularities since "[i]t never occurred to
me that the Bureau would engage in the sort of sustained improper
activity which it apparently did." "®

Both Robert Kennedy and Nicholas Katzenbach were also aware of
some aspects of the FBI's investigation of Dr. Martin Luther King,
Jr., yet neither ascertained the full details of the Bureau's campaign to
discredit the civil rights leader. Kennedy intensified the original "com-
munist influence" investigation in October 1963 by authorizing wire-
taps on King's home and office telephones."^ Kennedy requested that
an evaluation of the results be submitted to him in thirty days in
order to determine whether or not to maintain the taps, but the evalua-
tion was never delivered to him and he did not insist on it."° Since
he never ordered the termination of the wiretap, the Bureau could,
and did, install additional wiretaps on King by invoking the original
authorization."^ According to Bureau memoranda apparently ini-
tialled by Attorney General Katzenbach, Katzenbach received after
the fact notification in 1965 that three bugs had been planted in
Dr. King's hotel rooms."^ A transmittal memorandum written by

^'" Katzenbach statemenit^ 12/3/75, Hearings, Vol. 6, p. 205.

^°^ Katzenbach testimony, 12/3/75, Hearings, Vol. 6, p. 207 ; Ramsey Clark,
12/3/75 ; Hearings, Vol. 6 p. 235 ; Katzenbach's and Clark's knowledge of disrup-
tive operations is discussed at greater length in Finding G : "Deficiences in Con-
trol and Accountability" p. 265.

^°® Memorandum from J. Edgar Hoover to the Attorney General, 10/7/63;
memorandum from J. Edgar Hoover to the Attorney General. 10/18/63.

""Memorandum from C. A. Evans to Mr. Belmont 10/21/63.

In May 1961, Robert Kennedy also became aware of the CIA's use of organized
crime figures in connection with "clandestine efforts" against the Cuban govern-
ment. (Memorandum from J. Edgar Hoover to the Attorney General, 5/22/61.)
But he did not instruct the CIA to terminate its involvement with underworld
figures either at that time or in May 1962, when he learned at a briefing by CIA
ofiicials that an assassination attempt had occurred. According to the CIA's Gen-
eral Coimsel, who participated in the 1962 briefing, Kennedy only said, ". . . if we
were going to get involved with Mafia personnel again he wanted to be informed
first." (Lawrence Houston deposition, 6/2/75, p. 14.)

The CIA's use of underworld figures clearly posed problems for the FBI's on-
going investigation of organized crime in the United States, which had in large
part been initiated by Attorney General Kennedy himself. (Senate Select Com-
mittee, "Alleged Assassination Plots Involving Foreign Leaders," pp. 125-129.)

"' The FBI instituted additional wiretaps on King on four separate occasions
between 1964 and 1965. Since Justice Department policy before March 1965
imposed no limit on the duration of wiretaps and they were approved by the
Attorney General, the Bureau claimed that the King taps were justified as a con-
tinuation of the tap originally authorized by Kennedy in October 1963. (For ex-
ample, memorandum from FBI Headquarters to Atlanta Field Office. 4/19/65 :
Martin Luther King Report : Sec. IC, "Wiret-ap Surveillance of Dr. King and the
SCLC."

"" Katzenbach's initials appear on memoranda addressed to the Attorney Gen-
eral advising him of these bugs, but he cannot recall seeing or initialing them.

159

Katzenbach also indicates that he may have instructed the FBI to
be "very cautious" in conducting these surveillances."^ There is no
indication, however, that he requested further details about any of
them or prohibited the FBI from future use of this technique against
Dr. King.

While there is no evidence that the full extent of the FBI's campaign
to discredit Dr. King was authorized by or known to anyone outside
of the Bureau, there is evidence that officials responsible for supervis-
ing the FBI received indications that some such efforts were being
undertaken. For example, former Attorney General Katzenbach and
former Assistant Attorney General Burke Marshall both testified
that in late 1964 they learned that the Bureau had offered tape record-
ings of Dr. King to certain newsmen in Washington, D.C. They fur-
ther stated that they informed President Johnson of the FBI's
offers."* The Committee has discovered no evidence, however, that the
President or Justice Depai'tment officials made any further effort to
halt the discrediting campaign at this time or at any other time; in-
deed, the Bureau's campaign continued for several years after this
incident.

On some occasions, administration officials did not request further
details about intelligence programs because they simply did not want
to know. Former Postmaster General J. Edward Day testified that
when Allen Dulles and Richard Helms spoke to him about a CIA
project in 1961, he interrupted them before they could tell him the
purpose of their visit (which Helms said was to say mail was being-
opened). Day stated :

. . . Mr. Dulles, after some preliminary visiting and so on,
said that he wanted to tell me something very secret, and I
said, "Do I have to know about it ?"' And he said, "No.''

I said, "My experience is that where there is something that
is very secret, it is likely to leak out, and anybody that knew
about it is likely to be suspected of having been part of leak-
ing it out, so I would rather not know anything about it."

What additional things were said in connection with him
building up to that, I don't know. But I am sure . . . that I
was not told anything about opening mail." "^

By his ow^n account, therefore, Mr. Day did not learn the true nature
of this project because he "would rather not know anything about it."
Although rarely expressed in such unequivocal terms, this attitude
appears to have been all too common among senior government
officials.

(Memoranda from J. Edgar Hoover to the Attorney General, 5/17/65, 10/19/65,
12/1/65: Katzenbach, 12/1/75. Hearings, Vol. 6, p. 211, p. 46.) He stated, how-
ever, that if he had read these dociiments, he would have "done somethmg about
it." (Katzenbach, Hearings, Vol. 6. p. 230.)

"' xV transmittal slip, which the FBI claims had been attached to the 12/1/65
memorandum, notes that "these are particularly delicate surveillances" and
that "we should be very cautious in terms of the non-FBI people who may from
time to time necessarily be involved in some aspect of installation." (Memo-
randiun from Xichola.s Katzenbach to .T. Edgar Hoover, 12/10/65.) This mes-
sage is signed by Katzenbach, but he testified that he is unsure it related to
the King surveillances. (Katzenbach, 12/3/75. Hearings, Vol. 6, p. 229.)

"' Katzenbach, 12/3/75, Hearings, Vol. 6, p. 210 ; Burke Marshall testimony,
3/3/76, pp. 39-43.

'" J. Edward Day testimony, 10/22/75, Hearings, Vol. 4. p. 45.

160

Even when administration officials were fully apprised of the illegal
or questionable nature of certain programs and techniques, they some-
times permitted them to continue. An example of acquiescence is pre-
sented in the case of William Cotter, a former Chief Postal Inspector
who knew that the CIA opened mail in connection with its New York
project but took no direct action to terminate the project for a period
of four years. ^^^ Cotter had learned of this project in his capacity as a
CIA official in the mid-1950's and he knew that it was continuing when
he was sworn in as Chief Postal Inspector in April 1969.^^^ Be-
cause the primary responsibility of his position was to insure the
sanctity of the mails, he was understandably "very, very uncomfort-
able with [knowledge of the New York] project," ^^^ but he felt con-
strained by the letter and spirit of the secrecy oath which he had signed
when he left the CIA in 1969 "attesting to the fact that I vrould not
divulge secret information that came into my possession during the
time that I was with the CIA." ^^^ Cotter stated : "After coming from
eighteen years in the CIA, I was hypersensitive, perhaps, to the pro-
tection of what I believed to be a most sensitive project . . ." ^-° For
several years, he placed the dictate of the secrecy oath above that of
the law he was charged with enforcing.

Former White House adviser John Ehrlichman also stated that he
learned of a program of intercepting mail between the United States
and Communist countries "because I had seen reports that cited those
kinds of sources in connection with this, the bombings, the dissident
activities." ^^^ Yet he cannot recall any White House inquiry that was
made into such a program nor can he recall raising the matter with the
President.^^-

When President Nixon learned of the illegal techniques that were
recommended in the Huston Plan, he initially endorsed, rather than
disavowed them. The former President stated that "[t]o the extent
that I reviewed the Special Report of Interagency Committee on In-
telligence, I would have been informed that certain recommendations
or decisions set forth in that report were, or might be construed to be,
illegal." ^"^ He nonetheless approved them, in part because they repre-
sented an efficient method of intelligence collection. As President Nixon
explained, "[M]y approval was based largely on the fact that the pro-
cedures were consistent with those employed by prior administrations
and had been found to be effective by the intelligence agencies." ^^^

Mr. Nixon also apparently relied on the theory that a "sovereign"
President can authorize the violation of criminal laws in the name of
"national security" when the President, in his sole discretion, deems it
appropriate. He recently stated :

"' In 1973, however, Mr. Cotter was instrumental in effecting the termination
of the CIA's New York project. ( Cotter, 8/7/75, p. 45. )

'" Cotter, 8/7/75, p. 45.

"* Ibid.

"' Cotter 10/22/75, Hearings, Vol. 4, p. 74.

^-° Ibid.

^^^ John Erlichman testimony. President's Commission on CIA Activities
Within the United States, 4/17/75, p. 98.

^^ Erlichman testimony. President's Commission on CIA Activities Within the
United States, 4/17/75, p. 98.

^ Answer of Richard M. Nixon to Senate Select Committee Interrogatory 23,
3/9/76, p. 13.

"* Answer of Richard M. Nixon to Senate Select Committee Interrogatory 19,
3/9/76, p. 13.

161

It is quite obvious that there are certain inherently govern-
mental actions which if undertaken by the sovereign in protec-
tion of the interest of the nation's security are lawful but
which if undertaken by private persons are not. . . .

. . . [I]t is naive to attempt to categorize activities a Presi-
dent might authorize as "legal" or "illegar" without refer-
ence to the circumstances under which he concludes that the
activity is necessary. . . .

In short, there have been — and will be in the future — cir-
cumstances in which Presidents may lawfully authorize ac-
tions in the interests of the security of this country, which if
undertaken by other persons, or even by the President under
different circumstances, would be illegal. ^^^

As the former President described this doctrine, it could apply not
only to actions taken openly, which are subject to later challenge by
Congress and the courts, but also to actions such as those recommended
in the Huston Plan, which are covertly endorsed and implemented.
The dangers inherent in this theory are clear, for it permits a Presi-
dent to create exceptions to normal legal restraints and prohibitions,
without review by a neutral authority and without objective stand-
ards to guide him.^^^ The Huston Plan itself serves as a reminder of
these dangers.

Significantly, President Nixon's revocation of approval for the
Huston Plan was based on the possibility of "media criticism" if the
use of these techniques was revealed. The former President stated :

Mr. Mitchell informed me that it was Director Hoover's opin-
ion that initiating a program which would permit several
government intelligence agencies to utilize the investigative
techniques outlined in the Committee's report- would signifi-
cantly increase the possibility of their public disclosure. Mr.
Mitchell explained to me that Mr. Hoover believed that al-
though each of the intelligence gathering methods outlined in
the Committee's recommendations had been utilized by one or
more previous Administrations, their sensitivity would likely
generate media criticism if they were employed. Mr. Mitchell
further informed me that it was his opinion that the risk of
disclosure of the possible illegal actions, such as unauthorized
entry into foreign embassies to install a microphone transmit-
ter, w^as greater than the possible benefit to be derived. Based
upon this conversation with Attorney General Mitchell, I de-
cided to revoke the approval originally extended to the Com-
mittee's recommendations.^^^

In more than one instance, administration officials outside the in-
telligence community have specifically requested intelligence agencies
to undertake questionable actions. NSA's program of monitoring tele-
phonic conmiunications between New^ York City and a city in South
America, for example, was undertaken at the specific request of the
Bureau of Narcotics and Dangerous Drugs, a law enforcement agency,

^^ Answer of Richard M. Nixon to Senate Select Committee Interrogatory 34,
3/9/76, pp. 16-17.

^ President Ford has recently rejected this doctrine of Presidential power.

^" Answer of Richard M. Nixon to Senate Select Committee Interrogatory 17,
3/9/76, pp. 11-12.

68-786 O - 76 - 12

162

BNDD officials had been concerned abont drug deals that were appar-
ently arranged in calls from public telephones in New York to South
America, but they felt that they could not legally wiretap these tele-
phone booths.^^^ in order to avoid tapping a limited number of phones
in New York, BNDD submitted the names of 450 American citizens
for inclusion in NSA's Watch List, and requested NSA to monitor a
communications link between New York and South America Avhich
necessitated the interception of thousands of international telephone
calls.129

The legal limitations on domestic wiretapping apparently did not
concern certain officials in the "White House or Attorneys General who
requested the FBI to do their bidding. In some instances, they specif-
ically requested the FBI to institute wiretaps on American citizens
with no substantial national security predicate for doing so."*'

On occasion, Attorneys General have also encouraged the FBI to
circumvent the will of both Congress and the Supreme Court. As noted
above, after Congress passed the Emergency Detention Act of 1950 to
regulate the FBI program for listing people to be detained in case of
war or other emergency. Justice Department officials concluded that
its procedural safeguards and substantive standards were "unwork-
able". Attorney General J. Howard McGrath instnicted the FBI to
disregard the statute and "proceed with the [Security Index] program
as previously outlined." "^ Two subsequent Attorneys General — James
McGranery and Herbert Brownell — endorsed the decision to ignore
the Emergency Detention Act.^^^

In 1954, the Supreme Court denounced the use of microphone sur-
veillances by local police in criminal cases ; ^^^ the fact that a micro-
phone had been installed in a defendant's bedroom particularly out-
raged the court. Within weeks of this decision, however. Attorney
General Herbert Brownell reversed the existing Justice Department
policy prohibiting trespassory microphone installations by the FBI,
and p-ave the Bureau sweeping new authority to engage in bugging for
intelligence purposes — even when it meant planting microphones in
bedrooms.^^* Brownell wrote J. Edgar Hoover :

Obviously, the installation of a microphone in a bedroom or
in some comparably intimate location should be avoided
whenever possible. It may appear, however, that important
intelligence or evidence relating to matters connected with the
national security can only be obtained by the installation of a
microphone in such a location. . . .

... I recognize that for the FBI to fulfill its important in-
telligence function, considerations of internal security and the
national safety are paramount and, therefore, may compel the
unrestricted use of this technique in the national interest.^^^

"' Milton Iredell, 9/18/75, p. 99.

^° Memorandum from IngersoU to Gayler, 4/10/70.

^^ See Findings, "Political Abuse" and "Intrusive Techniques" for examples.

^^ Memorandum from A. H. Belmont to D. M. Ladd, 10/15/52.

"^ Memorandum from Attorney General James McGranery to J. Edgar Hoover.
11/25/52 : memorandum from Attorney General Herbert Brownell to J. Edgar
Hoover, 4/27/53.

^^^ Irvine v. California, 347 U.S. 128 (1954).

'^ Memorandum from the Attorney General to the Director, FBI, 5/20/54.

""Memorandum from the Attorney General to the Director, FBI, 5/20/54.

163

Brownell did not even require the Bureau to seek the Attorney Gen-
eral's prior approval for microphone installations in particular
cases.^^*^ In the face of the Irvine decision, therefore, he gave the FBI
authority to bug whomever it wished wherever it wished in cases that
the Bureau — and not the Attorney General — determined were "in the
national interest."

In short, disregard of the law by intelligence officers was seldom
corrected, and sometimes encouraged or facilitated, by officials out-
side the agencies. "Whether by inaction or direct participation, these
administration officials contributed to the perception that legal re-
straints did not apply to intelligence activities.

'^ Ibid.

B. THE OVERBREADTH OF DOMESTIC INTELLIGENCE

ACTIVITY

Major Finding

The Committee finds that domestic intelligence activity has been
overbroad in that (1) many Americans and domestic groups have been
subjected to investigation who were not suspected of criminal activity
and (2) the intelligence agencies have regularly collected information
about personal and political activities irrelevant to any legitimate gov-
ernmental interest.

Subjindings

(a) Large numbers of law-abiding Americans and lawful domestic
groups have been subjected to extensive intelligence investigation and
surveillance,

(b) The absence of precise standards for intelligence investigations
of Americans contributed to overbreadth. Congress did not enact stat-
utes precisely delineating the authority of the intelligence agencies or
defining the" purpose and scope of domestic intelligence acti^-ity. The
executive branch abandoned the standard set by Attorney General
Stone — that the government's concern was not with political opinions
but with "such conduct as is forbidden by the laws of the United
States." Intelligence agencies' superiors issued over-inclusive direc-
tives to investigate "subversion" (a term that was never defined in
presidential directives) and "potential" rather than actual or likely
criminal conduct, as well as to collect general intelligence on law-
ful political and social dissent.

(c) The intelligence agencies themselves used imprecise and over-
inclusive criteria in their conduct of intelligence investigations. Intel-
ligence investigations extended beyond "subversive'' or violent targets
to additional groups and individuals subiect to minimal "subversive
influence" or having little or no "potentiar" for violence.

(d) Intelligence agencies pursued a "vacuum cleaner" approach to
intelligence collection — drawing in all available information about
groups and individuals, including their lawful political activity and
details of their personal lives.

(e) Intelligence investigations in many cases continued for exces-
sively long periods of time, resulting in sustained gOA-ernmental moni-
toring of political activity in the absence of any indication of criminal
conduct or "subversion."

Elahoration of Findings

The central problem posed by domestic intelligence activity has been
its departure from the standards of the law. This departure from law
has meant not only the violation of constitutional prohibitions and
explicit statutes, but also the adoption of criteria unrelated to the law
as the basis for extensive investigations of Americans.

(165)

166

In 1917-192-i, the federal government, often assisted by the private
vigilante American Protective League, conducted sweeping investiga-
tions of dissenters, war i^rotesters, labor organizers, and alleged "'anar-
chists-' and '"revolutionaries." These investigations led to mass "arrests
of thousands of persons in the 1920 '"Palmer raids.*' Reacting to these
and other abuses of investigative power, Attorney General Harlan
Fiske Stone in 1924 confined the Bureau of Investigation in the Jus-
tice Department to the investigation of federal crimes. Attorney Gen-
eral Stone articulated a clear and workable standard :

The Bureau of Investigation is not concerned with political
or other opinions of individuals. It is concerned only with
their conduct and then only such conduct as is forbidden by
the laws of the United States.^

Nevertheless, his restriction lasted for little more than a decade.

In the micl-1930s the FBI resumed domestic intelligence functions,
carrying out President Roosevelt's vague order to investigate "sub-
versive activities." The President and the Attorney General author-
ized FBI and military intelligence investigations of conduct explicitly
recognized as '"not within the specific provisions of prevailing stat-
utes." As a result, ideas and associations, rather than suspicion of
criminal offenses, once again became the focus of federal investigations.

The scope of domestic intelligence investigations consistently wid-
ened in the decades after the 1930s, reaching its greatest extent in the
late 1960s and early 1970s.

Domestic intelligence investigations were permitted under criteria
which more nearly resembled political or social labels than standards
for governmental action. Rather than Attorne}' General Stone's stand-
ard of investigating "only such conduct as is forbidden by the laws of
the United States," domestic intelligence used such labels as the fol-
lowing to target intelligence investigations :

— "rightist" or "extremist'' groups in the "anticommunist
field

— persons with "anarchistic or revolutionary beliefs" or
who were "espousing the line of revolutionary movements"

— "general racial matters"

— "hate organizations''

— "rabble rousers"

— "key activists"

— "black nationalists"

— "white supremacists"

— "agitators"

— "kej- black extremists"

These broad and imprecise labels reflect the ill-defined mission of
domestic intelligence, which resulted from recurring demands for
progressively wider investigations of Americans. Without the firm

^ New York Times, 5/10/24. Attorney General Stone implemented this policy by
issuing a directive to Acting Director J. Edgar Hoover of the Bureau of Inves-
tigation : "The activities of the Bureau are to be limited strictly to investigations
of violations of law. under my direction or under the direction of an Assistant
Attorney General regularly conducting the work of the Department of .Justice. "
(Memorandum from Attorney General Stone to J. Edgar Hoover, n/13/24. cited
in Alpheus Thomas Mason. Harlan Fiske Stone: Pillar of the Law [New York:
Viking Press, 1956), p. 151.]

167

guidance provided by law, intelligence activities intruded into areas
of American life which are protected from governmental inquiry by
the constitutional guarantees of personal privacy and free speech and
assembly.

Subfinding {a)

Large numbers of law-abiding Americans and lawful domestic
groups have been subjected to extensive intelligence investigation and
surveillance.

Some domestic intelligence activity has focused on specific illegal
conduct or on instances where there was tangible evidence that illegal
conduct was likely to occur. But domestic intelligence has gone far
beyond such matters in collecting massive amounts of data on Amer-
icans. For example :

FBI Domestic Intelligence. — The FBI has compiled at its head-
quarters over 480,000 files on its "subversion'' investigations and over
33,000 files on its "extremism'' investigations.- During the twenty
years from 1955 to 1975, the FBI conducted 710,000 investigations of
"subversive matters" and 190,000 investigatioiis of "extremist mat-
ters." ^ The targets for FBI intelligence collection have included :

— the Women's Liberation Movement ;

— the conservative Christian Front and Christian Mobiliz-
ers of Father Couglilin ;

— the conservative American Christian Action Council of
Rev. Carl Mclntyre ;

— a wide variety of university, church and political groups
opposed to the Vietnam war ;

— those in the non-violent civil rights movement, such as
Martin Luther King's Southern Christian Leadership Coun-
cil, the National Association for the Advancement of Colored
People (NAACP), and the Council on Racial Equality
(CORE).

ArTYiy Surveill'ttnce of Civilians. — The Army's nationwide intel-
ligence surveillance program created files on some 100,000 Americans
and an equally large number of domestic organizations, encompassing
virtually every group seeking peaceful change in the LTnited States
including :

— the John Birch Society ;

— Young Americans for Freedom ;

— the National Organization of Women ;

—the NAACP;

— the Urban League ;

— ^the Anti-Defamation League of B'nai B'irth ; and

Business Executives to End the War in Vietnam.*

CIA's CHAOS Progrmn.— The CIA's extensive CHAOS pro-
gram— which compiled intelligence on domestic groups and individ-
uals protesting the Vietnam war and racial conditions — amassed some

^ Memorandum from FBI to Select Committee, 10/6/75.

^ Memorandum from FBI to Select Committee, Re : Investigative Matters, re-
ceived 11/12/75. These statistics include as separate "matters" investigative
leads pursued by different FBI oflBces in the same case.

* Senate Judiciary Subcommittee on Con.stitutional Rights, "Federal Data
Banks, Computers, and Bill of Rights," 1971, p. 264.

168

10,000 intelligence files on American citizens and groups and indexed
300,000 names of Americans in CIA computer records.^

IB/S Selective Tax I nv est t gat ions of Dissenters. — Between 1969 and
1973, the Internal Revenue Service, through a secret "Special Service
Staff" (SSS), targeted more than 10,000 individuals and groups for
tax examinations because of their political activity.*' The FBI and the
Internal Security Division of the Justice Department gave SSS lists
of taxpayers deemed to be "activists'' or "ideological organizations;"
the FBI, in providing SSS with a list of over 2,000 groups and in-
dividuals classified as "Right Wing," "New Left," and "Old Left,"
expressed its hope that SSS tax examinations would "deal a blow to
dissident elements." '' A smaller though more intensive selective en-
forcement program, the "Ideological Organization Project," was es-
tablished in November 1961 in response to White House criticism of
"right-wing extremist" groups.* On the basis of such political criteria,
18 organizations were selected for special audit although there was no
evidence of tax violation.^ In 1964, the IRS proposed to expand its
program to make "10,000 examinations of [tax] exempt organizations
of all types including the extremist groups." ^° Although this program
never fully materialized, the "Ideological Organizations Project" can
be viewed as a precursor to SSS.

CIA and FBI Mail Opening. — The 12 mail opening programs con-
ducted by the CIA and FBI between 1940 and 1973 resulted in the
illegal opening of hundreds of thousands of first-class letters. In the
1960s and early 1970s, the international correspondence of large num-
bers of Americans who challenged the condition of racial minorities
or who opposed the war in Vietnam was specifically targeted for mail
opening by both the CIA and FBI.

The overbreadth of the longest CIA mail opening program — the 20
year (1953-1973) program in New York City — is shown by the fact
that of the more than 28 million letters screened by the CIA, the ex-
teriors of 2.7 million were photographed and 214,820 letters were
opened. ^^ This is further shown by the fact that American groups
and individuals placed on the Watch List for the project included :

— The Federation of American Scientists ;

— authors such as John Steinbeck and Edward Albee;

— numerous American peace groups such as the American
Friends Service Committee and Women's Strike for Peace;
and

— businesses, such as Praeger Publishers. ^^

By one CIA estimate, random selection accounted for 75 percent of
the 200,000 letters opened, including letters to or from American
political figures, such as Richard Nixon, while a presidential candidate
in 1968, and Senators Frank Church and Edward Kennedy.^^

^ See CHAOS Report : Sec. II D, "Operation of the CHAOS Program and Re-
lated CIA Projects."

"See IRS Report: Part II, Sec. II, "Special Service Staff."

' Memorandum from D. J. Brennan to W. C. Sullivan, 8/15/69.

* Memorandum from William Loeb to Dean Barron, 11/30/61.

* Memorandum from Mitchell Rogovin to Dean Barron, 12/20/61.
"Memorandum from Commissioner, IRS to Myer Feldman, 7/11/63.

" See Mail Report : Part I, "Domestic CIA and FBI Mail Opening Programs."
"See Mail Report: Part II, Sec. II B(l), "Selection Criteria."
"See Mail Report: Part II, Sec. II B(l), "Selection Criteria."

169

NjSA's Watch List and SHAMROCK Programs.— Th^ National
Security Agency's SHAMROCK program, by which copies of mil-
lions of telegrams sent to, from, or through the United States were
obtained between 1947 and 1973, involved the use of a Watch List
from 1967-1973. The watch list included groups and individuals se-
lected by the FBI for its domestic intelligence investigations and by
the CIA for its Operation CHAOS program. In addition, the SHAM-
ROCK Program resulted in NSA's obtaining not only telegrams to
and from certain foreign targets, but countless telegrams between
Americans in the United States and American or foreign parties
abroad."

In short, virtually every element of our society has been subjected to
excessive government-ordered intelligence inquiries. Opposition to gov-
ernment policy or the expression of controversial views was frequently
considered sufficient for collecting data on Americans.

The committee finds that this extreme breadth of intelligence activ-
ity is inconsistent with the principles of our Constitution which pro-
tect the rights of speech, political activity, and privacy against un-
justified governmental intrusion.

Subfinding (h)

The absence of precise standards for intelligence investigations of
Americans contributed to overbreadth. Congress did not enact statutes
precisely delineating the authority of the intelligence agencies or
defining the purpose and scope of domestic intelligence activity. The
Executive branch abandoned the standard set by Attorney General
Stone — that the government's concern was not with politicial opinions
but with "such conduct as is forbidden by the laws of the United
States." Intelligence agencies' superiors issued overinclusive directives
to investigate "subversion'' (a term that was never defined in presi-
dential directives) and "potential" rather than actual or likely crim-
inal conduct, as well as to collect general intelligence on lawful
political and social dissent.

Congress has never set out a specific statutory charter for FBI
domestic intelligence activity delineating the standards for opening
intelligence investigations or defining the purpose and scoi:)e of do-
mestic intelligence activity. ^^

Nor have the charters for foreign intelligence agencies — the Cen-
tral Intelligence Agency and the National Security Agency — articu-
lated adequate standards to insure that those agencies did not be-
come involved in domestic intelligence activity. While the 1947 Na-
tional Security Act provided that the CIA shall have no "police,
subpoena, law enforcement powers or internal security functions," ^®

^* See "National Security Agency Surveillance Affecting Americans", NSA
Report : Sec. II A, "Summary of XSA Watch List Activity".

^ The FBI's statutory authority provides that the Attorney General may ap-
point oflScials: "(1) to detect and prosecute crimes against the United States;
(2) to assist in the protection of the President; and (3) to conduct such in-
vestigations regarding oflScial matters under the control of the Department of
Justice and the Department of State as may be directed by the Attorney Gen-
eral." (28 U.S.C. .533.)

Attorney General Edward H. Levi told the Select Committee "that the statu-
tory basis for the operations of the Bureau cannot be said to be fully satisfac-
torv." (Edward H. Levi testimony, 12/11/75, Hearings, Vol. 6, p. 313.)

"50 U.S.C. 403 (d)(3).

170

the Act was silent concerning whether the CIA was authorized to
target Americans abroad or to gather intelligence in the United States
on Americans or foreign nationals in comiection with its foreign in-
telligence responsibilities. By classified presidential directive, the CIA
was authorized to conduct counterintelligence operations abroad and
to maintain central counterintelligence files for the intelligence com-
munity.^^ Counterintelligence activity was defined in the directive to
include protection of the nation against "subversion," a term which,
as in the directives authorizing FBI domestic intelligence activity, was
not defined.

In the absence of specific standards for CIA activity and given the
susceptibility of the term "subversion" to broad interpretation, the
CIA conducted Operation CHAOS — a large scale intelligence pro-
gram involving the gathering of data on thousands of Americans and
domestic groups to determine if they had "'subversive connections" —
and illegally opened the mail of hundreds of thousands of Americans.

Moreover, the Act does not define the scope of the authority granted
to CIA's Director to protect intelligence "sources and methods." ^^
This authority has been broadly interpreted to permit surveillance of
present and former CIA employees in the United States as well as
domestic groups thought to be a threat to CIA installations in the
United States.

No Statute at all deals with the National Security Agency. That
Agency — one of the largest of the intelligence agencies — was created
by Executive Order in 1952. Although NSA's mission is to obtain
foreign intelligence from "foreign" commmiications, this has been
interpreted to permit NSA to. intercept communications where one
terminal — the sender or receiver — was in the United States. Conse-
quently when an American has used telephone or telegraph facilities
between this country and overseas, his message has been subject to
interception by NSA. NSA obtained copies of millions of private
telegrams sent from, to or through the United States in its SHAM-
ROCK program and complied with requests to target the international
communications of specific Americans through the use of a watch list.

In addition to the failure of Congress to enact precise statutory
standards, members of Congress have put pressure on the intelligence
agencies for the collection of domestic intelligence without adequate
regard to constitutional interests.^^ Moreover, Congress has passed
statutes, such as the Smith Act, which, although not directly authoriz-
ing domestic intelligence collection, had the effect of contributing to
the excessive collection of intelligence about Americans.

Three functional policies, established by the Executive branch and
acquiesced in by Congress, were the basis for the overbreadth of in-
telligence investigations directed at Americans. These policies cen-
tered on (1) so-called "subversion investigations" of attempts by
hostile foreign governments and their agents in this country to in-
fluence the course of American life; (2) the investigation of persons
and groups thought to have a "potential" for violating tlie law or
committing violence; and (3) the collection of general intelligence
on political and social movements in the interest of ])redicting and
controlling civil disturbances.

" National Security Intelligence Directive No. 5.

'^50 U.S.C. 403 (d) (3).

" See Finding on Deficiencies in Control and Accountability, pp. 277-279.

171

Each of these policies grew out of a legitimate concern. Nazi Ger-
many, Japan and the Soviet Union mounted intelligence efforts in
this country before World War II ; and Soviet operations continued
after the war. In the 1960s and early 1970s, racist groups used force to
deprive Americans of their civil rights, some American dissidents
engaged in violence as a form of political protest, and there were
large-scale protest demonstrations and major civil disorders in cities
stenuning from minority frustrations.

The Committee recognizes that the government had a responsibility
to act in the face of the very real dangers presented by these develop-
ments. But appropriate restraints, controls, and prohibitions on in-
telligence collection were not devised ; distinctions between legitimate
targets of investigations and innocent citizens were forgotten; and the
Government's actions were never examined for their effects on the con-
stitutional rights of Americans, either when programs originated or
as they continued over the years.

The policies of investigating Americans thought to have a "po-
tential" for violence and the collection of general intelligence on po-
litical and social movements inevitably resulted in the surveillance of
American citizens and domestic groups engaged in lawful political
activity. ''Subversive" was never defined in the presidential directives
from Presidents Koosevelt to Kennedy authorizing FBI domestic
intelligence activity. Consequently, "subvereive'" investigations did not
focus solely on the activities of hostile foreign governments in this
country. Rather, they targeted Americans Avho dissented from admin-
istration positions or whose political positions were thought to re-
semble those of '"subversive"' groups. An example of the ultimate re-
sult of accepting the concept of "subversive" investigations is the
Johnson "\Miite House instruction to the FBI to monitor public hear-
ings on Vietnam policy and compare the extent to whicli Senators'
views "followed the Communist Party line." ^°

Similarly, investigations of those thought to have the "potential"
for violating laws or committing violence and the collection of general
intelligence to prepare for civil disturbances resulted in the surveil-
lance of Americans where there was not reasonable suspicion to believe
crime or violence were likely to occur. Broad categories of American
society — ^^conservatives, liberals, blacks, women, young people and
churches — were targeted for intelligence collection.

Domestic intelligence expanded to cover widespread political pro-
test movements in the late 1960s and early 1970s. For example, in
September 1967, Attorney General Ramsev Clark called for a "new
area of investigation and intelligence reporting" by the FBI regarding
the possibility of "an organized pattern of violence" by groups in the
"urban ghetto.'" He instructed FBI Director Hoover:

. . . we must make certain that every attempt is being made
to get all information bearing upon these problems ; to take
every step possible to determine whether the rioting is pre-
planned or organized. . . . As a part of the broad investigation
which must be conducted . . . sources or informants in black
nationalist organizations, SNCC and other less publicized
groups should be developed and expanded to de^tennine the

FBI summary memorandum, 1/31/75.

172

size and purpose of these groups and their relationship to
other groups.^ ^

Such instructions did not limit investigation to facts pointing to par-
ticular criminal or violent activity but called for intensive intelligence
surveillance of a broad category of black groups (and their connec-
tions with other groups) to determine their "size and purpose."

Similarly, the Army's broad domestic surveillance program re-
flected administration pressure on the Army for information on groups
and individuals involved in domestic dissent,^^ ^g ^ former Assistant
Secretary of Defense testified, the Army's sweeping collection plan
"reflected the all-encompassing and uninhibited demand for informa-
tion directed at the Department of the Army." ^^

Presidents Johnson and Nixon subjected the CIA to intensive
pressure to find foreign influence on the domestic peace movements,
resulting in the establishment of Operation CHAOS.-* Wlien the
Nixon Administration called for an intensification of CIA's effort,
the CIA was instructed to broaden its targeting criteria and
strengthen its collection efforts. CIA was told that "foreign Communist
support" should be "liberally construed." ^^ The White House stated
further that "it appears our present intelligence collection capabilities
in this area may be inadequate" and implied that any gaps in CIA's
collection program resulting from "inadequate resources or a low
priority of attention" should be corrected.^®

In short, having abandoned Attorney General Stone's standard
that restricted Government investigations to "conduct and then only
such conduct as is forbidden by the laws of the United States," the
Government's far-reaching domestic intelligence policies inevitably
produced investigations and surveillance of large numbers of law-
abiding Americans.

Sub-finding (c)

The intelligence agencies themselves used imprecise and over-inclu-
sive criteria in their conduct of intelligence investigations. Intelligence
investigations extended beyond "subversive" or violent targets to
additional groups and individuals subject to minimal "subversive in-
fluence" or having little or no "potential" for violence.

Having been given vague directions by their superiors and sub-
jected to substantial pressure to report on a broad range of matters,
the intelligence agencies themselves often established overinclusive
targeting criteria. The criteria followed in the major domestic intel-
ligence programs conducted in the 1960s and 1970s illustrate the
breadth of intelligence targeting:

^'■General, Racial Matters^\ — The FBI gathered intelligence about
proposed "civil demonstrations" and related activities of "officials,
committees, legislatures, organizations, etc." in the "racial field." ^^

^ Memorandum from Ramsey Clark to J. Edgar Hoover, 9/14/67.

°^ See Military Surveillance Report : Sec. II C.

^Robert F. Froehkle testimony, Senate Judiciary Subcommittee on Constitu-
tional Rights, 1971, cited hereinafter as 1911 Hearings.

" See pp. 99-101.

"^ Memorandum from Tom Charles Huston to Deputy Director of CIA, 6/20/69.
p. 1.

=* Memorandum from Tom Charles Huston to Deputy Director of CIA, 6/20/69,
p. 1.

"^ 1964 FBI Manual Section 122, p. 1.

173

FBI Field Offices were directed to report the "general programs"
of all "civil rights organizations" and "readily available personal
background data" on leaders and individuals "in the civil rights
movement," as well as any "subversive association" that might be
recorded in Field Office files.^* In addition, the FBI reported "the
objectives sought by the minority community." ^^

These broad criteria were also reflected in the FBI's targeting of
"white militant groups" in the reporting of racial matters. Those who
were "known to sponsor demonstrations against integration and
against the busing of Negro students to white schools" were to be
investigated.^"

'''•New Leff'' IntelUgeiice. — In conducting a "comprehensive study of
the whole New Left movement" (rather than investigating particular
violations of law) , the FBI defined its intelligence target as a "loosely-
bound, free-wheeling, college-oriented movement." ^^ Organizations to
be investigated were those who fit criteria phrased as the "more extreme
and militant anti-Vietnam war and antidraft organizations." ^-

The use of such imprecise criteria resulted in investigations of such
matters as (1) two university instructors who helped support a student
newspaper whose editorial policy was described by the FBI as "left-
of-center, antiestablishment, and opposed to the University Admin-
istration"; ^^ (2) a dissident stockholder's group planning to protest
a large corporation's war production at the annual stockholder's meet-
ing; ^* and (3) "Free Univei-sities" attached to college campuses,
whether or not there were facts indicating any actual or potential
violation of law.^^

'"'"Rahh'le Rouser'^ Index. — Beginning in August 1967, the FBI con-
ducted intensive intelligence investigations of individuals identified
as "rabble rousers.'' The program was begun after a member of the
National Advisoiy Commission on Civil Disorders asked the FBI at
a meeting of the Commission "to identify the number of militant
Negroes and Whites." ^^ This vague reference was subsequently used
by the FBI as the basis for instructions implementing a broad new
program: persons were to be investigated and placed on the "rabble
rouser" index who were "racial agitators who have demonstrated a
potential for fomenting racial discord." ^'

Ultimately, a "rabble rouser" was defined as :

A person who tries to arouse people to violent action by
appealing to their emotions, prejudices, et cetera; a
demagogue.^®

Thus, rather than collecting information on those who had or were
likely to commit criminal or violent acts, a major intelligence program
was launched to identify "demagogues."

^ FBI Manual, Section 122, revised 12/13/66, p. 8-9.
^' FBI Manual, Section 122, revised 12/13/66, p. 8-9.
™ SAC Letter, 68-25, 4/30/68.

"' Memorandum from FBI Headquarters to all SACs, 10/28/68.
"^ Memorandum from FBI Headquarters to all SACs 10/28/68.
*' Memorandum from Mobile Field Office to FBI Headquarters. 12/9/70.
^* Memorandum from FBI Headquarters to Minneapolis Field Office, 4/23/70.
^ Memorandum from Detroit Field Office to FBI Headquarters, 4/15/66.
"" Memorandum from Cartha Del^ach to Clyde Tolson. 8/1/67.
'^ Memorandum from Charles Brennan to William Sullivan, 8/3/67 ; SAC Letter
67-56, 9/12/67.

^ SAC Letter No. 67-70, 11/28/67.

174

Army Domestic Surveillance of '"'' Dissidents.'''' — Extremely broad
criteria were used in the Army's nationwide surveillance program
conducted in the late 1960s. Such general terms as "the civil rights
movement" and the "anti-Vietnam/anti-draft movements" were used
to indicate targets for investigation.^^ In collecting information on
these "movements" and on the "cause of civil disturbances," Army
intelligence was to investigate "instigators," "group participants,"
and "subversive elements" — all undefined.

Under later revisions, the Army collection plan extended even be-
yond "subversion" and "dissident groups" to "prominent persons"
who were "friendly" with the "leaders of the distur'bance" or "sjnu-
pathetic with their plans." ^°

These imprecise crtieria led to the creation of intelligence files on
nearly 100,000 Americans, including Dr. Martin Luther King, Major
General Edwin Walker, Julian Bond, Joan Baez, Dr. Benjamin
Spock, Rev. William Sloane Coffin, Congressman Abner Mikva, Sen-
ator Adlai Stevenson III,*^ as well as clergymen, teachers, journalists,
editors, attorneys, industrialists, a laborer, a construction worker, rail-
road engineers, a postal clerk, a taxi driver, a chiropractor, a doctor, a
chemist, an economist, a historian, a playwright, an accountant, an
entertainer, professors, a radio announcer, athletes, business executives
and authors — all of whom became subjects of Army files simply because
of their participation in political protests or their association with
those who were engaged in such political activity.*^

The IRS Computerized Intelligence Index. — In 1973, IRS estab-
lished a central computer index — the "Intelligence Gathering and
Retrieval System" — for general intelligence data, much of it unrelated
to tax law enforcement. More than 465,000 Americans were indexed in
the IRS computer system, including J. Edgar Hoover and the IRS
Commissioner, as well as thousands of others also not suspected of tax
violation. Names in newspaper articles and other published sources
were indexed wholesale into the IRS computer. Under the system, in-
telligence gathering preceded any specific allegation of a violation,
and i^ossible "future value" was the sole criterion for inclusion of
information into the Intelligence Gathering and Retrieval System.

CI A'' 8 Operation CHAOS. — In seeking to fulfill Wliite House re-
quests for evidence of foreign influence on domestic dissent, the CIA
gave broad instructions to its overseas stations. These directives called
for reporting on the "Radical Left" which included, according to the
CIA, "radical students, antiwar activitists, draft resisters and desert-
ers, black nationalists, anarchists, and assorted 'New Leftists'." *^
CIA built its huge CHAOS data base on the assumption that to know
whether there was significant foreign involvement in a domestic grouj)
"one has to know whether each and every one of these persons has any
connection to foreigners." ** CIA instructed its stations that even
"casual contacts based merely on mutual interest" between Americans
opposed to the Vietnam war and "foreign elements" were deemed to

^ 1911 Hearings, pp. 1120-1121.

'" 1911 Hearings, pp. 1123-1138.

*J Stein testimony, 1911 Hearings, p. 266.

^^ "Military Surveillance of Civilian Politics," Senate Judiciary Subcommittee
on Constitutional Rights Report, 1973, p. 57, cited hereafter as 1913 Report.

^ Book Cable from Thomas Karamessines to various European Stations, June
1968.

■"Richard Ober testimony, Rockefeller Commission, 3/28/75, pp. 88-89.

175

"casual contacts based merely on mutual interest" between Americans
opposed to the Vietnam war and "foreign elements" were deemed to
constitute "subversive connections." '^^ Similarly, CIA's request to NSA
for materials on persons targeted by the NSA Watch List called for
all information regardless of how innocuous it may seem." **^

The Committee's investigation has shown that the absence of precise
statutory standards and the use of overbroad criteria for domestic
intelligence activity rcvsulted in the extension of intelligence investiga-
tions beyond their oiiginal "subversive" or violent targets. Intelligence
investigations extended to those thought to be subject to "subversive
influence." INIoreover, those thought to have a "potential" for violence
were also targeted and, in some cases, investigations extended even
to those engaged in wholly non-violent lawful political expression.

FBI ''COMINF/r\Investigafwns.— Vnd&Y the FBI's COMINFIL
("communist infiltration") program, large njumbers of groups and
individuals engaged in lawful political activity have been subjected
to informant coverage and intelligence scin^itiny. Although COMIN
FIL investigations were supposed to focus on the Communist Party's
alleged efforts to penetrate domestic groups, in practice the target
often became the domestic groups themselves.

FBI COMINFIL investigations reached into domestic groups in
virtually every area of American political life. The FBI conducted
COMIXFIL investigations in such areas as "religion." "education,"
"veterans' mattere," "women's matters," "Negro question,'' and "cul-
tural activities." *" The "entire spectrum of the social and labor move-
ment" was covered.'**

The overbreadth that results from the practice of investigating
groups for indications of communist influence or infiltration is illus-
trated by the following FBI COMIN FIL intelligence investigations:

N A AOP.— An intensive 25 year long surveillance of the NAACP
was conducted, ostensibly to determine whether there was Communist
infiltration of the NAACP. This surveillance, however, produced
detailed intelligence reports on NAACP activities wholly unrelated
to any alleged communist "attempts" to infiltrate the NAACP,
and despite the fact that no evidence was ever found to contradict the
FBI's initial finding that the NAACP was opposed to communism.*^^

Northern Virginia Citizens Concerned About the ABM. — In 1969,
the FBI conducted an intelligence investigation and used informants
to report on a meeting held in a ])ublic high school auditorium at which
the merits of the Anti-Ballistic Missile System were debated by,
among others, Department of Defense officials. The investigation was
apparently opened because a communist newspaper had commented
on the fact that the meeting was to be held.*^

National Conference on Amnesty for Vietnam Veterans. — In 1974,
FBT informants reported on a national conference sponsored by

^ Cal)le from CIA Headquarters to field stations, November 1967, pp. 1-2.

** Memorandum from Richard Ober to NSA, 9/14/71.

" 1960 FBI Manual, Section 87, pp. 5-11.

" Annual Report of the Attorney General for Fiscal Year 1955. p. 195.

*** See History of Domestic Intelligence, Report, Part II at note 139.

"James Adams testimony, 11/19/75, Hearings. Vol. 6. pp. 137-138. FBI docu-
ments indicate that another factor in the opening of the investigation was the
role of the wife of a Communist in assisting in publicity work for the meeting.
(Memorandum from Washington Field Office to FBI Headquarters. 5/28/69:
memorandum from Alexandria Field Office to FBI Headquarters. 6/3/69) See
Findings 6(a), p. 10. for the broad dissemination of reports that resulted from
this inquiry.

176

church and civil liberties groups to support amnesty for Vietnam vet-
erans. The investigation was based on a two-step "infiltration" theory.
Other informants had reported that the A^ietnam Veterans Against
the War (which was itself the subject of an intelligence investigation
because it was thought to be subject to communist or foreign influence)
mighty try to "control" the conference.°° Although the conference was
thus twice removed from the original target, it was nevertheless sub-
jected to informant surveillance.

FBI intelligence investigations to find whether groups are sub-
ject to communist or "subversive" influence result in the collection
of information on groups and individuals engaged in wholly legiti-
mate activity. Eeports on the NAACP were not limited to alleged com-
munist infiltration. Similarly, the investigation of the National Am-
nesty Conference produced reports describing the topics discussed at
the conference and the organization of a steering committee which
would include families of men killed in Vietnam and congressional
staff aicles.^^ The reports on the meeting concerning the AB^I system
covered the past and present residence of the person who applied to
rent the high school auditorium, and plans for a future meeting, in-
cluding the names of prominent political figures who planned to
attend.^2

The trigger for COMINFIL-type investigations — that subversive
"attempts" to infiltrate groups were a substantial threat — was great-
ly exaggerated. According to the testimony of FBI officials, the
mention in a communist newspaper of the citizens' meeting to de-
bate the ABM was sufficient to produce intelligence coverage of that
meeting.^^ A large public teach-in on Vietnam, including representa-
tives of Catholic, Episcopal, Methodist and Unitarian churches, as
well as a number of spokesmen for antiwar groups, was investigated
because a Communist Party official had "urged" party membei's to
attend and one speaker representing the W. E. B. DuBois Club was
identified as a communist.'^'* The FBI surveillance of the teach-in re-
sulted in a 41 -page intelligence report based on coverage by 13 in-
formants and sources.^^ And the FBI's investigation of all Free Uni-
versities near colleges and universities was undertaken because "sev-
eral" allegedly had been formed by the Communist Party "and other
subversive groups." ^^

Similarly, the FBI's broad COMIXFIL investigations of the civil
rights movement in the South were based on the FBI's conclusion that
the Communist Party had '''• attemyted/'' to take advantage of racial un-
rest and had '"'' endeavored'''' to pressure U.S. Government officials
"through the press, labor unions and student groups." " [Emphasis

'•''' Raymond W. Wannall testimony, 12/2/75, Hearings, Vol. 6, p. 139.

" Memorandum from Louisville Field Office to FBI Headquarters, 11/21/74.

^ Memoranda from Alexandria Field Office to FBI Headquarters, 6/5/69.

'' Adams, 11/19/75, Hearings, Vol. 6, p. 138.

°^ Memorandum from Philadelphia Field Office to FBI Headquarters, 3/2/66.

^ Memorandum from Philadelphia Field Office to FBI Headquarters. 3/2/66.

°\ Memorandum from FBI Headquarters to Detroit Field Office, 2/17/66.

"' Memorandum from .1. Edgar Hoover, Chairman, Interdepartmental Intelli-
gence Conference, to McGeorge Bundy, Special Assistant to the President for Na-
tional Security. 7/25/61, enclosing IIC Report. Status of U.S. Internal Secu-
rity Programs. See Findings on Political Abuse, p. 225 for discussion on the larger
impact of such FBI terminology.

177

supplied.] No mention was made of the general failure of these
"attempts."

The Committee finds that COMINFIL investigations have been
based on an exaggerated notion of the threat posed by "subversives"
and foreign influence on American political expression. There has been
an unjustified belief that Americans need informants and government
surveillance to protect them from "subversive" influence in their
unions, churches, schools, parties and political efforts.

Investigations of Wholly Non-Violent Political Expression. — Do-
mestic intelligence investigations have extended from those who com-
mit or are likely to commit violent acts to those thought to have a "po-
tential" for violence, and then to those engaged in purely peaceful
political expression. This characteristic was graphically described by
the White House official who coordinated the intelligence agencies'
recommendations for "expanded" (and illegal) coverage in 1970. He
testified that intelligence investigations risked moving

from the kid with a bomb to the kid with a picket sign, and
from the kid Avith the picket sign to the kid with the bumper
sticker of the opposing candidate. And you just keep going
down the line.^^

AVithout precjise standards to restrict their scope, intelligence inves-
tigations did move beyond those who committed or were likely to
commit criminal or violent acts. For example :

— Dr. Martin Luther King, Jr., was targeted for the FBI's COIN
TELPRO operations against "Black Nationalist-Hate Groups" on the
theory, without factual justification, that Dr. King might "abandon"
his adherence to nonviolence.^^

— The intensive FBI investigation of the Women's Liberation
Movement w-as similarly predicated on the theory that the activities
of women in that JMovement might lead to demonstrations and
violence. "^^

— ^The FBI investigations of Black Student L iiions proceeded from
the concern of the FBI and its superiors over violence in the cities. Yet
the FBI opened intelligence investigations on "every Black Student
Union and similar group regardless of their jyast or jwesent involve-
ment in cZ/so/rZe/'s." ^^ [Emphasis added.]

— The nationwide Army Intelligence surveillance of civilians was
conducted in connection with civil disorders. However, the Army col-
lection plan focused not merely on those likely to commit A'iolence but
was "so comprehensive . . . that any category of information related
even remcitely to people or organizations actiAc in a community in
which the potential for violence was present would fall within their
scope." *'-

The Committee finds that such intelligence surveillance of groups
and individuals has greatly exceeded the legitimate interest of the
government in law enforcement and the prevention of violence. Where
unsupported determinations as to "potential" behavior are the basis for

^'^ Tom Charles Huston testimony, 9/23/7.5, Hearings, Vol. 2, p. 45.
59 Memorandum from FBI Headquarters to all SAC's, 3/4/68.
''"Memorandum from New York Field OflSce to FBI Headquarters, 5/28/69.
(Hearings, Vol. 6, Exhibit .54.)
"^ Memorandum from Executives Conference to Tolson, 10/29/70.
^ Froehlke, 1911 Hearings, p. 384.

68-786 O - 76 - 13

178

surveillance of groups and individuals, no one is safe from the
inquisitive eye of the intelligence agency.

Sub fundings (d)

Intelligence agencies pursued a "vacuum cleaner" approach to in-
telligence collection — drawing in all available information about
groups and individuals, including their lawful political activity and
details of their personal lives.

Intelligence agencies collect an excessive amomit of information by
pursuing a "vacuum cleaner" approach that draws in all available
information, including lawful political activity, personal matters,
and trivia. Even where the theory of the investigation is that the sub-
ject is likely to be engaged in criminal or violent activity, the over-
broad approach to intelligence collection intrudes into personal matters
unrelated to such criminal or violent activity.

FBI officials conceded to the Committee that in conducting broad
intelligence investigations to determine the "real purpose" of an or-
ganization, they sometimes gathered "too much information." ^^

The FBI's intelligence investigation of the "New Left," for example,
was directed towards a "comprehensive study of the whole movement"
and produced intensive monitoring of such subjects as "support of
movement by religious groups or individuals," "demonstrations aimed
at social reform," "indications of support by mass media," "all activity
in the labor field," and "efforts to influence public opinion, the elec-
torate and Government bodies." '^*

Similar overbreadth characterized the FBI's collection of intelli-
gence on "white militant groups." In 1968 FBI field offices were in-
structed not to gather information solely on actual or potential
violations of law or violence, but to use informants to determine the
"aims and purposes of the organization, its leaders, approximate
membership" and other "background data" relating to the group's
"militancy." ^^ In 1971 the criteria for investigating individuals were
widened. Special Agents in Charge of FBI field offices were instructed
to investigate not only persons with "a potential for violence," but
also anyone else "who in judgment of SAC should be subject of investi-
gation due to extremist activities." ^^

Even in searching for indications of potential violence in black
urban areas or in collecting information about violence-prone Ku
Klux Klan chapters, there was marked overbreadth. In black urban
areas, for example, FBI agents were instructed to have their inform-
ants obtain the names of "Afro- American type bookstores" and their
"owners, operators and clientele." *^^ The activities of civil rights and
black groups as well as details of the personal lives of Klan members,
were reported on by an FBI intelligence informant in the Ku Klux
Klan.*'"'* Under this approach, the average citizen who merely attends
a meeting, signs a petition, is placed on a mailing list, or visits a book
store, is subject to being recorded in intelligence files.

A striking example of informant reporting on all the}^ touch was
provided by an FBI informant in an antiwar group with only 55

*'^ Adams, 12/2/75, Hearings, Vol. 6, p. 135.

'* Memorandum from FBI Headquarters to all SACs, 10/28/68.

"' SAC Letter 68-25, 4/30/68.

'" 1971 Manual. Section 122.

^'' Memorandum from Philadelphia Field Office to FBI Headquarters, 8/12/68.

^'* Rowe, 12/2/75, Hearings, Vol. 6. p. 116.

179

regulai' members and some 250 persons who gave occasional support.
The informant estimated she reported nearly 1,000 names to the FBI
in an 18-month period — 60-70 percent of whom were members of other
groups (such as the United Church of Christ and the American Civil
Liberties Union) which were engaging in peaceful, lawful political
activity together with the antiwar group or who were on the group's
mailing list.^^ Similarly in the intelligence investigation of the
Women's Liberation Movement, informants reported the identities
of individual women attending meetings (as well as reporting such
matters as the fact that women at meetings had stated '"how they felt
oppressed, sexually or otherwise.") .^^

Such collection of "intelligence" unrelated to specific criminal or
violent activity constitutes a serious misuse of governmental power.
In reaching into the private lives of individuals and monitoring their
lawful political activity — ^matters irrelevant to any proper govern-
mental interest — domestic intelligence collection has been unreasonably
broad.

Subfrnding (e)

Intelligence investigations in many cases continued for excessively
long periods of time, resulting in sustained governmental monitoring
of political activity in the absence of any indication of criminal con-
duct or "subversion."

One of the most disturbing aspects of domestic intelligence inves-
tigations found by the Committee was their excessive length. Intel-
ligence investigations often continued, despite the absence of facts in-
dicating an individual or group is violating or is likely to violate the
law, resulting in long-term government monitoring of lawful political
activity. The following are examples :

(i) The FBI InteJligem-e Investigation of the NAACP {19Ifl-
1966). — The investigation of the NAACP began in 1941 and continued
for at least 25 years. Initiated according to one FBI report as an
investigation of protests by 15 black mess attendants about racial
discrimination in the Navy,^° the investigation expanded to encompass
XAACP chapters in cities across the nation. Although the ostensible
purpose of this investigation was to determine if there Avas "Com-
munist infiltration" of the NAACP, the investigation constituted a
long-term monitoring of the N AACP's wholly lawful political activity
by FBI informants. Thus :

—The FBI New York Field Office submitted a 137-page report to
FBI headquarters describing the national office of the NAACP, its
national convention, its growth and membership, its officers and di-
rectors, and its stand against Communism.' ^

—An FBI informant in Seattle obtained a list of NAACP branch
officers and reported on a meeting where signatures were gathered on a
"petition directed to President Eisenhower" and plans for two mem-
bers to go to Washington, D.C., for a "Prayer Pilgrimage." " -

'^ Mary .To Cook testimony, 12/2/75. Hearings, Vol. 6, pp. 112, 120.

*^ Memorandum from Kansas City Field Office, 10/20/70 ; memorandum New
York Field Office, o/28/69 ; memorandum from Baltimore Field Office, .5/11/70 to
FBI Headquarters. CIA agents in the United States also reiwrted on Women's
Liberation activities in the course of their preparation for overseas duty in
Operation CHAOS. (Agent 1. Contact Report. Vol. II, Agent 1 file.)

™ Memorandum from Washington Field Office to FBI headquarters, 3/11/41.

■^Memorandum from New York Field Office to FBI Headquarters, 2/12/57.

'^Memorandum from Seattle Field Office to FBI Headquarters, 6/1/57.

180

— In 1966, the New York Field Office reported the names of all
NAACP national officers and board members, and summarized their
political associations as far back as the 1940s.^^

— As late as 1966, the FBI was obtaining NAACP chapter member-
ship figTires by "pretext telephone call . . . utilizing the pretext of being
interested in joining that branch of the NAACP." '^

— Based on the reports of FBI informants, the FBI submitted a
detailed report of a 1956 NAACP-sponsored Leadership Conference on
Civil Rights and described plans for a Conference delegation to visit
Senators Paul Douglas, Herbert Lehman, Wayne Morse, Hubert
Humphrey, and John Bricker."^ Later reports covered what transpired
at several of these meetings with Senators.'*' Most significantly, all
these reports were sent to the White House. "^

(ii) The FBI Intelligence Investigation of the Socialist Worker's
Party (1940 to date).— The FBI has investigated the Socialist Work-
ers Party (SWP) from 1940 to the present day on the basis of that
Party's revolutionary rhetoric and alleged international links. Never-
theless, FBI officials testified that the SWP has not been responsible for
any violent acts nor has it urged actions constituting an indictable
incitement to violence." ^^

FBI informants have been reporting the political positions taken
by the SWP with respect to such issues as the "Vietnam War," "racial
matters," "U.S. involvement in Angola," "food prices," and any SWP
efforts to support a non-SWP candidate for political office.'^

Moreover, to enable the FBI to develop "background information"
on SWP leaders, informants have been reporting certain personal
aspects of their lives, such as marital status. '^^ The informants also
have been reporting on SWP cooperation with other groups who are
not the subject of separate intelligence investigations.^"

(iii) The Effort to Prove Negatives. — Intelligence investigations
and programs have also continued for excessively long periods in ef-
forts to prove negatives. CIA's Operation CHAOS began in 1967.
From that year until the program's termination in 1974,^^ the CIA
repeatedly reached formal conclusions that there was negligible for-
eign influence on domestic protest activity. In 1967, the CIA concluded
that Communist front groups did not control student organizations
and that there were no significant links with foreign radicals ; ^^ in
1968, the CTA concluded that U.S. student protest was essentially
homegrown and not stimulated by an international conspiracy ; ®^ and
in 1971 the CIA found "there is no evidence that foreign governments,
organizations, or intelligence services now control LLS. New Left

''^Memorandum from New York Field Office to FBI Headquarters. 4/15/65.

''* Memorandum from Los Angeles Field Office to FBI Headquarters, 4/15/66.

'' Memorandum from Hoover to Anderson, 3/5/56.

^* Memorandum from Hoover to Anderson, 3/6/56.

" See Findings on "Political Abuse."

'^^ Robert Shackelford testimony, 2/2/76 ; pp. 89-90.

'" Shackelford, 2/2/76, p. 89.

'" Shackelford, 2/2/76 ; p. 90.

^ Shackleford, 2/2/76. p. 92.

^ See Findings, "Deficiencies in Control and Accountability", p. 265.

*^ CIA memorandum, "Student Dissent and Its Techniques in the U.S.", 1/5/68.

**CIA Report, "Restless Youth," Conclusions, p. 1, 9/4/68.

181

Movements . . . the U.S. Nevv Left is basically self-sufficient and moves
under its own impetus." **

The result of these repeated findings was not the termination of
chaos's surveillance of Americans, but its redoublinir. Presidents
Johnson and Nixon pressured the CIA to intensify its intelligence ef-
fort to find evidence of foreign direction of the U.S. peace movement.
As Director Helms testified :

When a President keeps asking if there is any information,
"how are you getting along with your examination,'' "have
you picked up any more information on this subject," it isn't
a direct order to do something, but it seems to me it behooves
the Director of Central Intelligence to find some way to im-
prove his performance, or improve his Agency's perform-
ance.^^

In an effort to prove its negative finding to a skeptical White House —
and to test its validity each succeeding year — CIA expanded its pro-
gram, increasing its coverage of Americans overseas and building
an ever larger "data base" on domestic political activity. Intelligence
was exchanged with the FBI, NSA, and other agencies, and even-
tually CIA agents Avho had infiltrated domestic organizations for
other purposes supplied general information on the groups' activi-
ties.*^ Thus, the intelligence mission became one of continued surveil-
lance to prove a negative, wdth no thought to terminating the pro-
gram in the face of the negative findings.

As in the CHAOS operation, FBI intelligence investigations have
often continued even in the absence of any evidence of "subversive"
activities merely because the subjects of the investigation have not
demonstrated their innocence to the FBI's satisfaction. The long-
term investigations of the NAACP and the Socialist Workere Party
described above are typical examples.

A striking illustration of FBI practice is provided by the intelli-
gence investigation of an advisor of Dr. ]Martin Luther King, Jr. The
advisor was investigated on the theory that he might be a commu-
nist "sympathizer." The Bureau's New York office concluded he was
not.*^ Using a theory of "guilty until proven innocent," FBI head-
quarters directed that the investigation continue :

The Bureau does not agree with the expressed belief of the
New York office that [ ]^^ is not sympathetic to the

Party cause. While thei'e may not be any evidence that [ ]
is a Communist neither is there any substantial evidence that
he is anti-Communist.®^

^ CIA Report, "Definition and Assessment of Existing Internal Security
Threat— Foreign," 1/5/71, pp. 1-3.

^^ Richard Helms testimony, Rockfeller Commission, 4/28/75. pp. 2434-2435.
Helms further testified : "President .Tohnson was after this all the time . . . this
was something that came up almost daily and weekly." Helms, Rockefeller Com-
mission, 1/13/75, pp. 163-164.

* See CHAOS Report : Section II D, "Oiierations of the CHAOS Program and
Related CIA Projects," and II E. "1969 Expansion of CHAOS."

*' Memorandum from New York Field Office to FBI Headquarters, 4/14/64.

^ Name deleted by Committee to protect privacy.

^ Memorandum from FBI Headquarters to New York Field Office, 4/24/64.

182

Where citizens must demonstrate not simply that they have no
connection with an intelligence target, but must exhibit "substantial
evidence" that they are in opposition to the target, intelligence in-
vestigations are indeed open-ended.

C. EXCESSIVE USE OF INTRUSIVE TECHNIQUES

Major Finding

The intelligenc© community has employed surreptitious collection
tecliniques — mail opening, surreptitious entries, informants, and
"traditional" and highly sophisticated forms of electronic sum'eil-
lance — to achieve its overly broad intelligence targeting and collec-
tion objectiA-es. Although there are circumstances where these tech-
niques, if properly controlled, are legal and appropriate, the Committee
finds that their very nature makes them a threat to the personal
privacy and Constitutionally protected activities of both the targets
and of persons who communicate with or associate with the targets.
The dangers inherent in the use of these techniques have been com-
pounded by the lack of adequate standards limiting their use and by
the absence of review by neutral authorities outside the intelligence
agencies. As a consequence, these techniques have collected enormous
amounts of personal and political information serving no legitimate
governmental interest.

Suh findings

(a) Given the highly intrusive nature of these techniques/ the legal
standards and procedures regulating their use have been insufficient.
There have been no statutory controls on the use of informants; there
have been gaps and exceptions in the law of electronic surveil-
lance; and the legal prohibitions against warrantless mail opening and
surreptitious entries have been ignored.

(b) In addition to providing the means by which the Government
can collect too much information about too many people, certain
techniques have their own peculiar dangers :

(i) Informants have provoked and participated in violence and
other illegal activities in order to maintain their cover, and they have
obtained membership lists and other private documents.

(ii) Scientific and technological advances have rendered traditional
controls on electronic surveillance obsolete and have made it more
difficult to limit intrusions. Because of the nature of wiretaps, micro-
phones and other sophisticated electronic techniques, it has not always
been possible to restrict the monitoring of communications to the per-
sons being investigated,

^ The techniques noted here do not constitute an exhaustive list of the sur-
reptitious means by whicli intelligence agencies have collected information. The
FBI, for example, has obtained a great deal of financial information about Amer-
ican ciitzens from tax returns filed with the Internal Revenue Service. (See IRS
Report: Sec. I. "IRS Disclosures to FBI and CIA.") This section, however, is
limited to problems raised by electronic surveillance, mail opening, surreptitious
entries informants and electronic surveillances.

(183)

184

security," "domestic security," "subversive activities," and "foreign
intelligence" have led to unjustified use of these techniques.

Elaboration of Findings

The preceding section described how the absence of rigorous stand-
ards for opening, controlling, and terminating investigations sub-
jected many diverse elements of this society to scrutiny by intelligence
agencies, without their being suspected of violating any law. Once an
investigation was opened, almost any item of information about a
target's personal behavior or political views was considered worth
collecting.

Extremely intrusive techniques — such as those listed above — have
often been used to accomplish those overly broad targeting and collec-
tion objectives.

The paid and directed informant has been the most extensively used
technique in FBI domestic intelligence investigations. Informants
were used in 83% of the domestic intelligence investigations analyzed
in a recent study by the General Accounting Office.^^ As of June 30,
1975, the FBI was using a total of 1,500 domestic intelligence infor-
mants,^ In 1972 there were over 7,000 informants in the ghetto infor-
mant program alone. In fiscal year 1976, the Bureau has budgeted more
than $7,4 million for its domestic intelligence informant program,
more than twice the amount allocated for its organized crime infor-
mant program.^

Wiretaps and microphones have also been a significant means of
gathering intelligence. Until 1972, the FBI directed these electronic
techniques against scores of American citizens and domestic organiza-
tions during investigations of such matters as domestic "subversive"
activities and leaks of classified information. The Bureau continues to
use these techniques against foreign targets in the United States.

The most extensive use of electronic surveillance has been by the
National Security Agency. NSA has electronically monitored (with-
out wiretapping in the traditional sense) international communication
links since its inception in 1952 ; because of its sophisticated technol-
ogy, it is capable of intercepting and recording an enormous number
of communications between the United States and foreign countries.*

All mail opening programs have now been terminated, but a total
of twelve such operations were conducted by the CIA and the FBI in
ten American cities between 1940 and 1973.^ Four of these were oper-
ated by the CIA, whose most massive project involved the opening of
more than 215,000 letters between the TTnited States and the Soviet
Union over a twenty-year period. The FBI conducted eight mail open-
ing programs, three of which included opening mail sent between two
points in the United States. The longest FBI mail opening program

" Report to the House Committee on the Judiciary, by the Comptroller General
of the United States, "FBI Domestic Intelligence Operations — ^^Their purpose and
scope : Issues that Need to be Resolved," 2/24/76, p. 96.

'^ FBI memorandum to the Select Committee. 11/28/75.

'Memorandum, FBI Overall Intelligence Program FY 1977 Compared to FY
1976 undated. The cost of the intelligence informant program comprises payments
to informants for services and expense as well as the costs of FBI personnel,
support and overhead.

* See NSA Report : Sec. I, "Introduction and Summary."

° See Mail Opening Reports : Sec. I, "Summary and Principal Conclusions."

185

lasted, with one period of suspension, for approximately twenty-six
years.

The FBI has also conducted hundreds of warrantless surreptitious
entries — break-ins — durino- the past twenty-five years. Often these
entries were conducted to install electronic listening devices; at other
times they involved physical searches for information. The widespread
use of warrantless surreptitious entries against both foreign and do-
mestic targets was termiriated by the Bureau in 1966 but the FBI has
occasionally made such entries against foreign targets in more recent
years.

All of these techniques have been turned against American citizens
as well as against certain foreign targets. On the theory that the
executive's responsibility in the area of "national security" and "for-
eign intelligence" justified their use without the need of judicial super-
vision, the intelligence couununity believed it was free to direct these
techniques against individuals and organizations whom it believed
threatened the country's security. The standards governing the use of
these techniques have been imprecise and susceptible to expansive inter-
pretation and in the absence of any judicial check on the application of
these vague standards to particular cases, it was relatively easy for
intelligence agencies and their superiors to extend them to many cases
where they were clearly inappropriate. Lax internal controls on the
use of some of these techniques compounded the problem.

These intrusive techni({ues by their very nature invaded tlie private
comunmications and activities both of the individuals they were di-
rected against and of the persons with whom the targets communicated
or associated. Conse(piently, they provided the means by whicli all
types of information — including personal and political information
totally unrelated to any legitimate governmental objective — were col-
lected and in some cases disseminated to the highest levels of the
government.

Suhfindmg {a)

Given the highly intrusive nature of these techniques, the legal
standards and procedures regulating their use have been insufficient.
There have been no statutory controls on the use of informants; there
have been gaps and exceptions in the law of electronic surveillance; and
the legal prohibitions agaiiist warrantless mail opening and surrepti-
tious entries have been ignored.

1. The Absence of Statutory Restraints on the Use of Infornutnts

There are no statutes or published regulations governing the use of
informants.*' Consequently, the FBI is free to use informants, guided
only by its own internal directives which can be changed at any time by
FBI officials without approval from outside the Bureau."

"Title 28 of the United States Code provides only that appropriations for the
Department of .Justice are available for payment of informants. 28 U.S.C. § .524.

" The Attorney General has announced that he will issue guidelines on the use
of informants in the near future, and our recommendations provide standards for
informant control and prohibitions on informant activity. (See pp. .328.) In
addition, the Attorney General's recently promulgated guidelines on "Domestic
Security Investigations" limit the use of informants at 'rhe early stages of such
inquiries and provide for review by the .Justice Department of the initiation of
"full investigations" in which new informants may be recruited.

186

Apart from court decisions precluding the use of informants to
entrap persons into criminal activity, there are few judicial opinions
dealing with informants and most of those concern criminal rather
than intelligence informants.* The United States Suj^reme Couit has
never ruled on whether the use of intelligence informants in the
contexts revealed by the Committee's investigation offend Firsit
Amendment rights of freedom of expression and association.''

In the absence of regulation through statute, published regidation,
or court decision, the FBI has used informants to report on virtually
every aspect of a targeted group or individual's activity, including
lawful political expression, political meetings, the identities of group
members and their associates, the "thoughts and feelings, intentions
and ambitions,-' of members,^" and personal matters irrelevant to any
legitimate governmental interest. Informants have also been used by
the FBI to obtain the confidential records and documents of a group."

Informants could be used in any intelligence investigation. FBI
directives have not limited informant reporting to actual or likely
violence or other violations of law.^- Xor has any determination been
made concerning whether the substantial intrusion represented by
informant coverage is justified by the government's interest in ob-
taining information, or whether less intrusive means would adequately
serve the government's interest. There has also been no requirement
that the decisions of FBI officials to use informants be reviewed by
anyone outside the FBI. In short, intelligence informant coverage
has not been subject to the standards which govern the use of other
intrusive techniques such as electronic surveillance, even thoTigh in-
formants can produce a far broader range of information.

2. Gaps and Exceptions in the Laio of Electrmiic Surveillance

Congress and the Supreme Court have both addressed the legal
issues raised by electronic surveillance, but the law has been riddled
with gaps and exceptions. The Executive branch has been able to
apply vague standards for the use of this technique to particular cases

^ In a criminal case involving charges of jury bribery. United States v. Hoffa.
385 U.S. 293 (1966), the Supreme Court ruled that an informant's testimony
concerning conversations of a defendant could not be considered the product of a
warrantless search in violation of the Fourth Amendment on the ground the
defendant had consented to the presence of the informant. In another criminal
case, Lciois v. Vnited States, 385 U.S. 206 (1966), the Court stated that "in
the detection of many types of crimes, the Government is entitled to use decoys
and to conceal the identity of its agents."

® In a more recent case, the California Supreme Court held that secret
surveillance of classes and group meetings at a university through the use of
undercover agents was "likely to pose a sul)stantial restraint upon the exercise
of First Amendment rights." White v. Davis, 533 Pac. Rep. 2d, 223 (1975)
Citing a number of U.S. Supreme Court opinions, the California Supreme Court
.stated in its unanimous decision :

"In view of this significant potential chilling effect, the challenged surveil-
lance activities can only be sustained if [the Oovernment] can demonstrate a
'compelling' state interest which justifies the resultant deterrence of First
Amendment rights and which cannot be served by alternative means less instru-
sive on fundamental rights." 533 Pac. Rep. 2d. at 232

" Garv Rowe testimonv. 12/2/75 Hearings, Vol. 6, pp. 111. 118.

" Cook. 12/2/75. Hearings, Vol. 6. p. 111.

^ The FBI Manual of Instructions proscribes only reporting of privileged
communications between an attorney and client, legal "defense plans or strateg.v,"
"employer-employee relationships" (where an informant is connected with a
labor union), and "legitimate institution or campus activities" at schools. (FBI
Manual Section 107.)

187

as it has seen fit. and, in the case of NSA monitoring, the standards
and procednres for the use of electronic surveillance were not applied
at all.

"\yiien the Supreme Court first considered wiretapping, it held that
the warrantless use of this technique was constitutional because the
Fourth Amendment's warrant requirement applied only to physical
trespass and did not extend to the seizure of conversation. This
decision, the 1928 case of Ohnstead v. United States, involved a crim-
inal prosecution, and left federal agencies free to engage in the
unrestricted use of wiretaps in both criminal and intelligence investi-
gations.^^

Six years later, Congress enacted the Federal Communications Act
of 1934, which made it a crime for "any person," without authorization,
to intercept and divulge or publish the contents of wire and radio
communications. The Supreme Court subsequently construed this sec-
tion to apply to federal agents as well as to ordinary citizens, and held
that evidence obtained directly or indirectly from the interception of
wire and radio communications was not admissible in court." But
Congress acquiesed in the Justice Department's position that these
cases prohibited only the divulgence of contents of wire communica-
tions outside the executive branch, ^^ and Government wiretapping for
intelligence purposes other than prosecution continued.

On the ground that neither the 1934 Act nor the Supreme Court
decisions on wiretapping were meant to apply to "grave matters in-
volving the defense of the nation,"' President Franklin Roosevelt
authorized Attorney General Jackson in 1940 to approve wiretaps
on "persons suspected of subversive activities against the Govern-
ment of the United States, including suspected spies."^*' In the absence
of any guidance from Congress or the Court for another quarter
century, the executive branch first broadened this standard in 1946
to permit wiretapping in "cases vitally affecting the domestic security
or where human life is in jeopardy,'' " and then modified it in 1965
to allow wiretapping in "investigations related to the national se-
curity." ^* Internal Justice Department policy required the prior
approA-al of the Attorney General before the FBI could institute wire-
taps in particular cases,^^ but until the mid-1960"s there was no require-

" Olmstead v. United States, 277 U.S. 438 (1928) .

".Yorf/o/ie v. United States. 302 U.S. 397 (1937) ; 308 U.S. 338 (1939).

" For example, letter from Attorney General Jackson to Rep. Hatton Summer.s,
3/19/41 ; See Electronic Surveillance Report : Sec. II.

^® Memorandum from President Roosevelt to the Attorney General 5/21/40.

" Letter from Attorney General Tom C. Clark to President Truman, 7/17/46.

" Directive from President .Johnson to Heads of Agencies, 6/30/65.

" President Roosevelt's 1940 order directed the Attorney General to approve
wiretaps "after investigation of the need in each case." (Memorandum from
President Roosevelt to Attorney General Jackson, 5/21/40.) However, Attorney
General Francis Biddle recalled that Attorney General Jackson "turned it over
to Edgar Hoover without himself passing on each case" in 1940 and 1941, Riddle's
practice beginning in 1941 conformed to the President's order. (Francis Biddle,
In Brief Authority (Garden City: Doubleday, 1962), p. 167.)

Since 1965, explicit written authorization has been required. (Directive of
President Johnson 6/30/65.) This requirement however, has often been dis-
regarded. In violation of this requirement, for example, no written authorizations
were obtained from the Attorney General — ^or from any one else — for a series
of four wiretaps implemented in 1971 and 1972 on Yeoman Charles Radford, two
of his friends, and his father-in-law. See Electronics Surveillance Report ; Sec. VI.

(Continued)

188

ment of periodic reapproval by the Attorney General.^" In the absence
of any instruction to terminate them, some wiretaps remained in effect
for years.^^

In 1967, the Supreme Court reversed its holding in the Olmstead
case and decided that the Fourth Amendment's warrant requirement
did apply to electronic surveillances.-- It expressly declined, however,
to extend this holding to cases involving the "national security." ^-*
Congress followed suit the next year in the Omnibus Crime Control
Act of 1968, which established a warrant procedure for electronic sur-
veillance in criminal cases but included a provision that neither it nor
the Federal Communications Act of 1934 "shall limit the constitutional
power of the President." -^ Although Congress did not purport to
define the President's power, the Act referred to five broad categories
which thereafter served as the Justice Department's criteria for war-
rantless electronic surveillance. The first three categories related to
foreign intelligence and counterintelligence matters :

(1) to protect the Nation against actual or potential attack or
other hostile acts of a foreign power ;

C^) to obtain foreign intelligence information deemed essential
to the security of the United States ; and

(3) to protect the national security information against for-
eign intelligence activities.

The last two categories dealt with domestic intelligence interests :

(4) to protect the United States against overthrow of the gov-
ernment by force or other unlawful means, or

(5) against any other clear and present danger to the structure
or existence of the government.

In 1972, the Supreme Court held in United States v. United States
District Court^^^^ that the President did not have the constitutional
power to authorize warrantless electronic surveillances to protect the

(Continued)

The first and third of these taps were implemented at the oral instruction of
Attorney General John Mitchell. (Memorandum from T. J. Smith E. S. Miller,
2/26/73.) The remaining taps were implemented at the oral request of David
Young, and assistant to John Ehrlichman at the White House, who merely in-
formed the Bureau that the requests originated with Ehrlichman and had the
Attorney General's concurrence. (Memorandum from T. J. Smith to E. S. Miller.
6/14/73.

^° Attorney General Nicholas Katzenbach instituted this requirement in March
1965. (Memorandum from J. Edgar Hoover to the Attorney General, 3/3/65.)

^ The FBI maintained one wiretap on an official of the Nation of Lslam that
had originally been authorized by Attorney General Brownell in 1957 for seven
years until 1964 without any subsequent re-authorization. (Memorandum from
J. Edgar Hoover to the Attorney General, 12/31/65, initialed "Approved : HB,
1/2/57.")

As Nicholas Katzenbach testified : "The custom was not to put a time limit
on a tap, or any wiretap authorization. Indeed, I think the Bureau would have
felt free in 1965 to put a tap on a phone authorized by Attorney General Jackson
before World War II." (Nicholas Katzenbach testimony, 11/12/75, p. 87.)

- Katz V. llnUcd States, 389 U.S. 347 (1967).

"" The Court wrote : "Whether safeguards other than prior authorization by
a magistrate would satisfy the Fourth Amendment in a situation involving the
national security is a question not presented bv this case." 389 U.S. at 358 n. 23.

^'ISU.S.C. 2511 (3).

=«M07U.S. 297 (1972)

189

nation from domestic threats.^* The Court pointedly refrained, how-
ever, from any "judgment on the scope of the Presidents' surveillance
power with respect to the activities of foreign powers, within or with-
out this country." ^^ Only "the domestic aspects of national security"
came within the ambit of the Court's decision.^*'

To conform with the holding in this case, the Justice Department
thereafter limited warrantless wire tapping to cases involving a "sig-
nificant comiection with a foreign power, its agents or agencies.^^

At no time, however, were the Justice Department's standards and
procedures ever applied to NSA's electronic monitoring system and its
"watch listing'' of American citizens.^® From the early 1960's until 1973,
NSA compiled a list of individuals and organizations, including 1200
American citizens and domestic groups, whose communications were
segregated from the mass of communications intercepted by the
Agency, transcribed, and frequently disseminated to other agencies
for intelligence purposes.^^

The Americans on this list, many of whom were active in the anti-
war and civil rights movements, were placed there by the FBI, CIA,
Secret Service, Defense Department, and NSA itself without prior
judicial warrant or even the prior approval of the Attorney General.
In 1970, NSA began to monitor telephone communications links be-
tween the United States and South America at the request of the
Bureau of Narcotics and Dangerous Drugs (BNDD) to obtain infor-
mation about international drug trafficking. BNDD subsequently
submitted the names of 450 American citizens for inclusion on the

^ At the same time, the Court recognized that "domestic security surveillance"
may involve different policy and practical considerations apart from the surveil-
lance of 'ordinary crime,' 407 U.S. at 321, and thus did not hold that "the same
type of standards and procedures prescribed by Title III [of the 1968 Act] are
necessarily applicable to this case." (407 U.S. at 321.) The Court noted:

"Given the potential distinctions between Title III criminal surveillances and
those involving the domestic security, Congress may wish to consider protective
standards for the latter which differ from tho.se already prescribed for specified
crime in Title III. Different standards may be compatible with the Fourt Amend-
ment." (407 U.S. at 321.)

^407 U.S. at 307.

^'407 U.S. at 320. United States v. United States District Court remains the
only Supreme Court case dealing with the issue of warrantless electronic sur-
veillance for intelligence purposes. Three federal circuit courts have considered
this issue since 1972, however. The Third Circuit and the Fifth Circuit both held
that the President may constitutionally authoi'ize warrantless electronic surveil-
lance for foreign counterespionage and foreign intelligence purposes. [United
States V. Buteiiko, 494 F.2d 593 (3d Cir. 1974), cert, denied sub nom. Ivanov v.
United States, 419 U.S. 881 (1974) ; and United States v. Broum, 484 F.2d 418
(5th Cir., 1973), cert, denied 415 U.S. 960 (1974).] The District of Columbia Cir-
cuit held unconstitutional the warrantless electronic surveillance of the Jewish
Defense League, a domestic organization whose activities allegedly affected
U.S. Soviet relations but which was neither the agent of nor in collaboration
with a foreign power. [Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir., 1975)
{en banc).]

^ Testimony of Deputy Assistant Attorney General Kevin Maroney, Hearings
before the Senate Subcommittee on Administrative Practice and Procedures,
6/29/72, p. 10. This language paralled that of the Court in United States v.
United States District Court, 407 U.S. at 309 n. 8.

^ Although Attorney General John Mitchell and Justice Department officials on
the Intelligence Evaluation Committee apparently learned that NSA was making
a contribution to domestic intelligence in 1971, there is no indication that the
FBI told them of its submission of names of Americans for inclusion on a NSA
"watch list." When Assistant Attorney General Henry Petei'sen learned of these
practices in 1973, Attorney General Elliott Richardson ordered that they be
terminated. (See Report on NSA: Sec. I, "Introduction and Summary.")

^ See NSA Report : Sec. I, "Introduction and Summary."

190

Watch List, again without warrant or the approval of the Attorney
General.^"

The legal standards and procedures regulating the use of micro-
phone surveillance have traditionally been even more lax than those
regulating the use of wiretapping. The first major Supreme Court
decision on microphone surveillance was Goldman v. United States^
316 U.S. 129 (1942), which held that such surveillance in a criminal
case was constitutional when the installation did not involve a trespass.
Citing this case, Attorney General McGrath prohibited the trespas-
sory use of this technique by the FBI in 1952.^^ But two years later —
a few weeks after the Supreme Court denounced the use of a micro-
phone installation in a criminal defendant's bedroom ^^ — Attorney
General Brownell gave the FBI sweeping authority to engage in
bugging for intelligence purposes. ". . . ( C ) onsiderations of internal
security and the national safety are paramount," he wrote, "and, there-
fore, may compel the unrestricted use of this technique in the national
interest." ^^

Since Brownell did not require the prior approval of the Attorney
General for bugging specific targets, he largely undercut the policy
that had developed for wiretapping. The FBI in many cases could
obtain equivalent coverage by utilizing bugs rather than taps and
would not be burdened with the necessity of a formal request to thp
Attorney General.

The vague "national interest" standards established by Brownell.
and the policy of not requiring the Attorney General's prior approval
for microphone installations, continued until 1965, when the Justice
Department began to apply the same criteria and procedures to both
microphone and telephone surveillance.

3. Ignoring the Prohibitions Against Wai'^rantless Mail Opening and
Surreptitious Entries

Warrantless mail opening and surreptious entries, unlike the use
of informants and electronic surveillance, have been clearly prohibited
by both statuton^ and constitutional law. In violation of these pro-
hibitions, the FBI and the CIA decided on their own when and how
these techiiiques should be used.^^

Sections 1701 through 1973 of Title 18 of the United States Code
forbid persons other than employees of the Postal Service "dead letter"
office from tampering with or opening mail that is not addressed to
them. Violations of these statutes may result in fines of up to $2000

'"Memorandum from Iredell to Gayler, 4/10/70; See NSA Report: Sec. I.
Introduction and Summary. BNDD originally requested NSA to monitor the
South American link because it did not believe it had authority to wiretap a few
public telephones in New York City from which drug deals were apparently being
arranged. (Iredell testimony, 9/18/75, p. 99.)

'^ Memorandum from the Attorney General to Mr. Hoover, 2/26/52.

'= Irvme v. California, 347 U.S. 128 (1954).

^^ Memorandum from the Attorney General to the Director, FBI, 5/20/54.

'* While such techniques might have been authorized by Attorneys General
under expansive "internal security" or "national interest" theories similar to
Brownell's authorization for installing microphones by trespass, the issue was
never presented to them for decision before 1967. when Attorney General Ramsey
Clark turned down a surreptitious entry request. There is no indication that the
legal questions were considered in any depth in 1970 or 1971 at the time of the
"Huston Plan" and its aftermath. See Huston Plan Report: Sec. Ill, Who,
What, When and Where.

191

and imprisonment for not more than five years. The Supreme Court
has also held that both First Amendment and Fourth Amendment
restrictions appl}- to mail opening.

The Fourth Amendment concerns were articulated as early as 1878,
when the Court wrote :

The constitutional guaranty of the right of the people to be
secure in their papers against unreasonable searches and
seizures extends to their papers, thus closed against inspec-
tion, wherever the}- may be. Whilst in the mail, they can only
be opened and examined under like warrant ... as is re-
quired when papers are subjected to search in one's own house-
hold.^'^

This principle was reaffirmed as recently as 1970 in United States v.
YanLeeuicen. 396 U.S. 249 (1970). The infringement of citizens' First
xVmendment rights resulting from warrantless mail opening was first
recognized by Justice Holmes in 1921. "The use of the mails,'' he wrote
in a dissent no^v embraced by prevailing legal opinion, "is almost as
much a part of free speech as the right to use our tongues." ^' This
principle, too, has been affirmed in recent years.^^

Breaking and entering is a conunon laAv felony as well as a viola-
tion of state and federal statutes. AVhen committed by Government
agents, it has long been recognized as "the chief evil against which
the wording of the Fourth Amendment is directed." ^^

In the one judicial decision concerning the legality of warrantless
"national security" break-ins for physical search purposes. United
States District Court Judge Gerhard Gescll held such entries un-
constitutional. This case. United States v. Ehrlichman,;^^ involved
an entry into the office of a Los Angeles psychiatrist. Dr. Lewis Field-
ing, to obtain the medical records of his client Daniel Ellsberg, who
was then under federal indictment for revealing classified docu-
ments. The entry was approved by two Presidential assistants, John
Ehrlichman and Charles Colson, who argued that it had been justi-
fied "in the national interest." Ruling on the defendants' discovery
motions. Judge Gesell found that because no search Avarrant was
obtained :

The search of Dr. Fielding's office was clearly illegal under
the unambiguous mandate of the Fourth Amendment. . .
[T]he Government must comply with the strict constitu-
tional and statutory limitations on trespassory searches and
arrests even when known foreign agents are involved. . , .
To hold otherwise, except under the most exigent circum-
stances, would be to abandon the Fourth Amendment to the
whim of the Executive in total disregard of the Amend-
ment's history and purpose."

"^ Ex Parte Jackson, 96. U.S. 727, 733 (1878).

'''' Miltcaukec Pub. Co. v. Burleson, 255 U.S. 407. 437 (1921) (dissent).
^See Lamont v. Postmaster General, 381 U.S. 301 (1965) ; Procunier v. Mar-
tinez, 416 U. S. 396 ( 1975 ) .

"^United States v. United States District Court, 407 US 297. 313 (1972).
•"■376 F. Supp. 29. (D.D.C. 1974).
" 376 F. Supp. at 33.

192

In the appeal of this decision, the Justice Department has taken the
position that a physical search may be authorized by the Attorney
General without a warrant for "foreign intelligence" proposes.*^
The warrantless mail opening programs and surreptitious entries
by the FBI and CIA did not even conform to the "foreign intelligence"
standard, however, now were they specifically approved in each case by
the Attorney General. Domestic "subversives" and "extremists" were
targeted for mail opening; and domestic "subversives" and ""Wliite
Hate groups" were among those targeted for surreptitious entries.*^
Until the Justice Department's recent statement in the Ehrlichman
case, moreover, no legal justification had ever been advanced publicly
for violating the statutory or constitutional prohibitions against physi-
cal searches or opening mail without a judicial warrant, and none has
ever been officially advanced by any Administration to justify war-
rantless mail openings.

Subprnding (h)

In addition to providing the means by which the Government
can collect too much information about too many people, certain tech-
niques have their own peculiar dangers :

(i) Informants have provoked and participated in violence and
other illegal activities in order to maintain their cover, and they have
obtained membership lists and other private documents.

(ii) Scientific and technological advances have rendered obsolete
traditional controls on electronic surveillance obsolete and have made
it more difficult to limit intrusions. Because of the nature of wiretaps,
microphones, and other sophisticated electronic techniques, it has not
always been possible to restrict the monitoring of communications to
the persons being investigated.

a. The Intrusive Nature of the Intelligence Informant Tech-
nique

The FBI employs two types of informants: (1) "intelligence
informants" who are used to report on groups and individuals in the
course of intelligence investigations, and (2) "criminal informants,"
who are used in connection with investigations of specific criminal
activity. FBI intelligence informants are administered by the FBI
Intelligence Division at Bureau headquarters through a centralized
system that is separate from the administrative system for FBI crimi-
nal informants. For example, the FBI's large-scale Ghetto Informant
Program was administered by the FBI Intelligence Division. The
Committee's investigation centered on the use of FBI intelligence in-
formants. The FBI's criminal informant program fell outside the
scope of the Committee's mandate, and accordingly it was not
examined.

The Committee recognizes that FBI intelligence infonnants in
violent groups have sometimes played a key role in the enforcement of

■*" Letter from Acting Assistant Attorney General John C. Keeny to Hugh E.
Kline. Clerk of the U.S. Coiirt of Appeals for the District of Columbia. .5/9/75.

"The Supreme Court's decision in United States v. United States District
Court, 407 U.S. 297 (1972K clearly established the principle that such warrant-
less invasions of the privacy of Americans are unconstitutional.

193

the criminal law. The Committee examined a number of such cases,**
and in public hearings on the use of FBI intelligence informants in-
cluded the testimony of a former informant in the Ku Klux Klan
whose reporting and court room testimony was essential to the arrest
and conviction of the murderers of Mrs. Viola Liuzzo, a civil rights
worker killed in 1965.*^ Former Attorney General Katzenbach testified
that informants were vital to the solution of the murders of three civil
rights workers killed in Mississippi in lOG-i.**^

FBI informant coverage of the AYomen's Liberation INIovement re-
sulted in intensive reporting on the identities and opinions of women
Avho attended WLM meetings. For example, the FBI's New York
Field Office summarized one informant's report in a memorandum to
FBI Headquarters:

Informant advised that a "WLM meeting was held on

*' Each woman at

this meeting stated why she had come to the meeting and how
she felt oppressed, sexually or otherwise.

According to this informant, these women are mostly con-
cerned with liberating women from this "oppressive society."
They are mostly against marriage, children, and other states
of oppression caused by men. Few of them, according to the
informant, have had political backgrounds.*^

Individual women who attended WLM meetings at midwestern
univei-sities were identified by FBI intelligence infomiants. A report
by the Kansas City FBI Field Office stated :

Informant indicates members of Women's Liberation
campus group who are now enrolled as students at Univei-sity

of Missouri, Kansas City, are , , ,

, *^ Informant noted that , and

,^° not currently students on the UMKC campus are

reportedly roommates at ^^

" In one case, an FBI informant involved in an intelligence investigation
of the Detroit Black Panther Party furnished advance information regarding a
planned ambush of Detroit police officers which enabled the Detroit Police De-
partment to take necessary action to prevent injury or death to the officers and
resulted in the arrest of eight persons and the seizure of a cache of weapons. The
informant also furnished information resulting in the location and confiscation by
Bureau agents of approximately fifty sticks of dynamite available to the Black
Panther Party which likely resulted in the saving of lives and the prevention of
property damage. (Joseph Deegan testimony, 2/13/76, p. 54)

*^ Rowe, 12/2/75, Hearings, Vol. 6, p. 115.

^^ Katzenbach testified that the case "could not have been solved without
acquiring informants who were highly placed members of the Klan." (Katzen-
bach, 12/3/75, Hearings, Vol. 6, p. 215.)

*' Date and address deleted at FBI request so as not to reveal informant's
identity.

*^ Memorandum, from New York Field Office to FBI Headquarters, re : Women's
Liberation Movement, 5/28/69, p. 2.

*® Names deleted for security reasons.

^ Names deleted for security reasons.

" Names and addresses deleted for security reasons.

68-786 0-76-14

194

Informants were instructed to report "everything" they knew about
a group to the FBI.

... to go to meetings, write up reports ... on what hap-
pened, who was there ... to try to totally identify the
background of everj^ person there, what their relationships
were, who they were living with, who they were sleeping
with, to try to get some sense of the local structure and the
local relationships among the people in the organization.^^

Another intelligence informant described his mission as "total report-
ing." Rowe testified that he reported "anything and everything I
observed or heard" pertaining to any member of the group he infil-
trated.^^

Even where intelligence informants are used to infiltrate groups
where some members are suspected of violent acti\dty, the nature of
the intelligence mission results in governmental intrusion into matters
irrelevant to that inquiry. The FBI Special Agents who directed an
intelligence informant in the Ku Klux Klan testified that the
informant

. . . furnished us information on the meetings and the
thoughts and feelings, intentions and ambitions, as best he
knew them, of other members of the Klan, both the rank and
file and the leaderehip.^^

Intelligence informants also report on other groups — not the sub-
ject of intelligence investigations — which merely associate with, or
are even opposed to, the targeted group. For example, an FBI in-
formant in the VVAW had the following exchange with a member of
the Committee :

Senator Hart (Mich.). . . . did you report also on groups
and individuals outside the [VVAW]. such as other peace
groups or individuals who were opposed to the war whom you
came in contact with because they were cooperating with the
[^^^AW] in connection with protest demonstrations and
petitions ?

Ms. Cook. ... I ended up reporting on groups like the
United Church of Christ. American Civil Liberties Union, the
National Lawyers Guild, liberal church organizations
[which] quite often went into coalition with the VVAW.^^

This informant reported the identities of an estimated 1,000 in-
dividuals to the FBI, although the local chapter to which she was
assigned had onlv 55 regular members.^*' Similarly, an FBI infor-
mant in the Ku Klux Klan reported on the activities of civil rights
and black groups that he observed in the course of his work in the
Klan."

In short, the intelligence informant technique is not a precise instru-
ment. By its nature, it extends far beyond the sphere of proper govern-

^ Cook, 12/2/75, Hearings, Vol. 6, p. 111.
^' Rowe, 12/2/75, Hearings. Vol. 6, p. 116.
" Special Agent, 11/21/75, p. 7.
^ Cook, 12/2/75. Hearings, Vol. 6, pp. 119, 120.
^ Cook, 12/2/75. Hearings, Vol. 6. p. 120.
^' Rowe, 12/2/75, Hearings, Vol. 6, p. 116.

195

mental interest and risks governmental monitoring of the private lives
and the constitutionally-protected activity of Americans. Nor is the
intelligence informant technique used infrequently. As reflected in
the statistics described above, FBI intelligence investigations are
in large part conducted through the use of informants; and FBI
agents are instructed to "develop reliable informants at all levels and
in all segments'' of groups under investigation.^^

6. Other Dangers in the Intelligence Informunt Technique

In the absence of clear guidelines for informant conduct. FBI paid
and directed intelligence informants have participated in violence and
other illegal activities and have taken membership lists and other
private documents.

1. Participation in Violence and Other Illegal Activity

The Committee's investigation has revealed that there is often a
fundamental dilemma in the use of intelligence informants in violent
organizations. The Committee recognizes that intelligence informants
in such groups have sometimes played essential roles in the enforce-
ment of the criminal law. At the same time, however, the Committee
has found that the intelligence informant technique carries with it
the substantial danger that informants will participate in, or provoke,
violence or illegal activity. Intelligence informants are frequently
infiltrated into groups for long-term reporting rather than to collect
evidence for use in prosecutions. Consequently, intelligence informants
must participate in the activity of the group they penetrate to preserve
their cover for extended periods. Where the group is involved in
violence or illegal activity, there is a substantial risk that the infor-
ant must also become involved in this activity. As an FBI Special
Agent who handled an intelligence informant in the Ku Klux Klan
testified : "[you] couldn't be an angel and be a good informant. ''"^^

FBI officials testified that it is Bureau practice to instruct informants
that they are not to engage in violence or unlawful activity and, if
they do so, they may be prosecuted. FBI Deputy Associate Director
Adams testified :

... we have informants who have gotten involved in the
violation of the law, and we have immediately converted their
status from an informant to the subject, and have prosecuted,
I would say, offhand . . . around 20 informants.^"

The Committee finds, however, that the existing guidelines dealing
with informant conduct do not adequately ensure that intelligence
informants stay within the law in carrying out their assignments.
The FBI Manual of Instructions contain no provisions governing
informant conduct. While FBI employee conduct regulations pro-
hibit an FBI agent from directing informants to engage in violent
or other illegal activity, informants themselves are not governed by
these regulations since the FBI does not consider them as FBI
employees.

^ FBI Manual, Section 107 c (3) .
^ Special Agent. 11/21/75, p. 12.
*» Adams, 12/2/75, Hearings, Vol. 6, p. 150.

196

In the absence of clear and precise written provisions directly appli-
cable to informants, FBI intellio;ence informants have engaged in vio-
lent and other illegal activity. For example, an FBI intelligence in-
formant who penetrated the Kii Klux Klan and reported on its
activities for over five years testified that on a number of occassions he
and other Klansmen had "beaten people severely, had boarded buses
and kicked people off ; had went in restaurants and beaten them with
blackjacks, chains, pistols." *^^ This informant described how he had
taken part in Klan attacks on Freedom Riders at the Birmingham,
Alabama, bus depot, where "baseball bats, clubs, chains and pistols"
were used in beatings.^^

Although the FBI Special Agents who directed this informant in-
structed him that he was not to engage in violence, it was recognized
that there was a substantial risk that he would become a participant
in violent activity.

As one of the Agents testified :

... it is kind of difficult to tell him that we would like you to be
there on deck, observing, be able to give us information and
still keep yourself detached and uninvolved and clean, and
that was the problem that we constantly had.*'^

In another example, an FBI intelligence informant penetrated
"right wing" groups operating in California under the names "The
Minutemen" and "The Secret Army Oroganization.'' The informant
reported on the activities of these "right wing" paramilitary groups
for a period of five years but was also involved in acts of violence or
destruction. In addition, the informant actually rose to a position of
leadership in the SAO and became an innovator of various harass-
ment actions. For example, he admittedlv participated in firebombing
of an automobile and was present, conducting a "surveillance" of a
professor at San Diego State University, when his associate and
subordinate in the SAO took out a gun and fired into the home of the
professor, wounding a young woman.*'*

An FBI intelligence informant in a group of antiwar protesters
planning to break into a draft board claimed to have provided tech-
nical instruction and materials that were essential to the illegal break-
testified to the committee :

Everything they learned about breaking into a building or
climbing a wall or cutting glass or destroying lockers, I taught
them. I got sample equipment, the type of windows that we
would go through, I picked up off the job and taught them how
to cut the slass, how to drill holes in the glass so you cannot
hear it and stuff like that, and the FBI supplied me with the
equipment needed. The stuff I did not have, the [the FBI] got
off their own agents. ^^

The Committee finds that where informants are paid and directed
by a government agency, the government has a responsibility to

" Rowe deposition, 10/17/75. p. 12.
«- Rowe, 12/2/75, Hearings, Vol. 6, p. 118.
** Special Agent, 11/21/75, pp. 16-17.

'* JMemorandum from the FBI to Senate Select Committee, 2/26/76, with
enclosures.

"" Hardy, 9/29/75, pp. 16-17.

197

impose clear restrictions on their conduct. Unwritten practice or gen-
eral provisions aimed at persons other than the informants themselves
are not sufficient. In the investigation of violence or illegal activity, it
is essential that the government not be implicated in such activity.

2. Mefnhership Lists and Other Private Documents Ohtained hy the
Government Through InteJligem.ce Infoi-munts

The Committee finds that there are inadequate guidelines to regulate
the conduct of intelligence informants with respect to private and
confidential documents, such as membership lists, mailing lists and
papers relating to legal matters. The Fourth Amendment provides
that citizens shall be ""secure in their . . . papers and effects, against
unreasonable searches and seizures'' and requires probable cause to
believe there has been a violation of law before a search warrant may
issue. Moreover the Supreme Court, in NAACP v. AJahama,^^ held
that the First Amendment's protections of speech, assembly and group
association did not permit a state to compel the production of the
membership list of a group engaged in lawful activity. The Court dis-
tinguished the case where a state was able to demonstrate a "control-
ling justification'' for such lists by showing a group's activities in-
volved "acts of unlawful intimidation and violence." *"^''

There are no provisions in the FBI ]Manual which preclude the
FBI from obtaining private and confidential documents through
intelligence informants. The ^Manual does prohibit informant report-
ing of "any information pertaining to defense plans or strategy," but
the FBI interprets this as applying only to privileged communications
between an attorney and client in connection with a specific court
proceeding.''"

The Committee's investigation has shown that, the FBI, through
its intelligence informants and sources, has sought to obtain member-
ship lists and other confidential documents of groups and individuals.^®
For example, one FBI Special Agent testified :

I remember one evening . . . [an informant] called my
home and said I will meet you in a half an hour ... I have
a complete list of everybody that I have just taken out of the
files, but I have to have it back within such a length of time.

Well, naturally I left home and met him and had the list
duplicated forthwith, and back in his possession and back in
the files with nobody suspecting." '^^

Similarly, the FBI Special Agent who handled an intelligence
informant in an antiwar group testified that he obtained confidential
papers of the group which related to legal defense matters :

"She brought back several things . . . various position papers
taken by various legal defense groups, general statements
of . . . the VVAW, legal thoughts on various trials, the

*'3.57 U.S. 449 (1958). Similarly, in Bates v. Citij of Utile Rock. 361 U.S.
516 (1960), the Supreme Court held compulsory disclosure of group membership
lists was an imjustified interference with members' freedom of association.

^^''Sei U.S. at 46.5.

"' FBI Manual of Instructions, Section 107.

■^ Surreptitious entry has also provided a means for the obtaining of such lists
and other confidential documents.

•" Special Agent, 11/19/75, pp. 10-11.

198

Gainesville (Florida) 8 . . . the Camden (New Jersey)
9 . . . various documents from all of these groups." '"

This informant also testified that she took the confidential mailing
list of the group she had penetrated and gave it to the FBI.'^

She also gave the FBI a legal manual prepared by the group's
attorneys to guide lawyers in defending the group's members should
they be arrested in connection with antiwar demonstrations or other
political activity. ^^ Since this document was prepared as a general
legal reference manual rather than in connection with a specific trial
the FBI considered it outside the attorney-client privilege and not
barred by the FBI Manual provision with respect to legal defense and
strategy matters.

For the government to obtain membership lists and other private
documents pertaining to lawful and protected activities covertly
through intelligence informants risks infringing rights guaranteed by
the Constitution. The Committee .finds that there is a need for new
guidelines for informant conduct with respect to the private papers of
groups and individuals.

c. Electronic Surveillance
In the absence of judicial warrant, both the "traditional" forms of
electronic surveillance practiced by the FBI — wiretapping and bug-
ging— and the highly sophisticated form of electronic monitoring prac-
ticed by NSA have been used to collect too much information about
too many people.

1. Wiretapping and Bugging

Wiretaps and bugs are considered by FBI officials to be one of the
most valuable techniques for the collection of information relevant to
the Bureau's legitimate foreign counterintelligence mandate. W. Ray-
mond Wannall, the former Assistant Director in charge of the FBI's
Intelligence Division, stated that electronic surveillance assisted Bu-
reau officials in making "decisions" as to operations against foreigners
engaged in espionage. "It gives us leads as to persons . . . hostile intel-
ligence services are trying to subvert or utilize in the United States, so
certainly it is a valuable technique." ^^

Despite its stated value in foreign counterintelligence cases, how-
ever, the dangers inherent in its use imply a clear need for rigorous
controls. By their nature, wiretaps and bugs are incapable of a sur-
gical precision that would permit intelligence agencies to overhear
only the target's conversations. Since wiretaps are placed on particular
telephones, anyone who uses a tapped phone — ^including members of
the target's family — can be overheard. So, too, can everyone with
whom the target (or anvone else using the target's telephone) commu-
nicates.^* Microphones planted in the target's room or office inevitably
intercept all conversations in a particular area: anyone conferring in
the room or office, not just the target, is overheard.

™ Special Agent, 11/20/75, pp. 15-16.

" Cook, 12/2/75, Hearings, Vol. 6, p. 112.

■" Cook clepo.<?ition, 10/14/75, p. 36.

''^ W. Raymond Wannall testimony. 10/21/75, p. 21.

''^ Under the .Justice Department's procedures for Title III (court-ordered)
wiretaps, however, the monitoring agent is obligated to turn off the recording
equipment when certain privileged communications begin. Manual for conduct
of Electronic Surveillance under Title III of Public Law 90-351, Sec. 8.1.

199

The intrusiveness of these techniques has a second aspect as well. It
is extremely difficult, if not impossible, to limit the interception to
conversations that are relevant to the purposes for which the surveil-
lance is placed. Virtually all conversations are overheard, no matter
how trivial, personal, or political they might be. "\Mien the electronic
surveillance target is a political figure who is likely to discuss political
affairs, or a lawyer, who confers with his clients, the possibilities for
abuse are obviously heightened.

The dangei-s of indiscriminate interception are perhaps most acute
in the case of microphones planted in locations such as bedrooms.
When Attorney General Herbert Brownell gave the FBI sweeping au-
thority to engage in microphone surveillances for intelligence pur-
poses in 1954, he expressly permitted the Bureau to plant microphones
in such locations if, in the sole discretion of the FBI, the facts war-
ranted the installation." Acting under this general authority, for ex-
ample, the Bureau installed no fewer than twelve bugs in hotel rooms
occupied by Dr. Martin Luther King, Jr. ' ^

The King surveillances which occurred between January 1964 and
October 1965, were ostensibly approved within the FBI for internal
securit}^ reasons, but they produced vast amounts of personal infor-
mation that were totallj^ unrelated to any legitimate governmental
interest; indeed, a single hotel room bug alone yielded twenty reels
of tape that subsequently provided the basis for the dissemination
of personal information about Dr. King throughout the Federal estab-
lishment."*'^ Significantly, FBI internal memoranda with respect to
some of the installations make clear that they were planted in Dr.
King's hotel rooms for the express purpose of obtaining personal in-
formation about him."

Extremely personal information about the target, his family, and
his friends, is easily obtained from wiretaps as well as microphones.
This fact is clearly illustrated by the warrantless electronic surveil-
lance of an American citizen who was suspected of leaking classified
data to the press. A wiretap on this individual produced no evidence
that he liad in fact leaked any stories or documents, but among the
items of information that the FBI did obtain from the tap (and de-
livered in utmost secrecy to the "\"\niite House) were the following : that
"meat was ordered [by the target's family] from a grocer;" that the
target's daughter had a toothache ; that the target needed grass clip-
pings for a compost heap he was building; and that during a telephone
conversation between the target's wife and a friend the "matters dis-
cussed were milk bills, hair, soap operas, and church." ''^

''^ Memorandum from the Attorney General to the Director. FBI. 5/20/54.

™ Three additional bui^s were planted in Dr. King's hotel rooms in 1965 after
the standards for "n-iretapping and microphone .surveillance became identical.
According to FBI memoranda, apparently initiated by Katzenbach. Attorney
General Nicholas Katzenbach was given after the fact notification that these
three surveillances of Dr. King had occurred. See p. 273, and the King Re-
port, Sec. IV. for further details.

^^ Memorandum from F. J. Baumgardener to W. C. Sullivan, 3/26/64.

" For example, memorandum from Baumgardner to W. C. Sullivan, 2/4/64.

" FBI memoranda. Identifying details are being withheld by the Select Com-
mittee becau.se of privacy considerations. Even the FBI realized that this type of
information was unrelated to criminnl activity or national security: for the last
four months of this surveillance, most of the summaries that were disseminated
to the White House began, "The following is a summary of nonpertinent informa-
tion concerning captioned individual as of . . ."

200

The so-called "seventeen" wiretaps on journalists and government
employees, which collectively lasted from May 1969 to Febniaiy 1971,
also illustrate the intrusiveness of electronic surveillance. According
to former President Nixon, these taps produced "just gobs of material :
gossip and bull." ^^ FBI summaries of information obtained from the
wiretaps and disseminated to the White House, suggest that the former
Presidents private evaluation of them was correct. This wiretapping
program did not reveal the source of any leaks of classified data, which
was its ostensible purpose, but it did generate a wealth of information
about the personal lives of the targets — their social contacts, their
vacation plans, their employment satisfactions and dissatisfaction,
their marital problems, their drinking habits, and even their sex lives.^^

Among those who were incidentally overheard on one of these wire-
taps was a currently sitting Associate Justice of the Supreme Court
of the United States, who made plans to review a manuscript written
by one of the targets.*^ Vast amounts of political information were also
obtained from these wiretaps.^^

The "seventeen" wiretaps also exemplify the particularly acute
problems of wiretapping when the targeted individuals are involved
in the domestic political process. These wiretaps produced vast amounts
of purely political information,^- much of which was obtained from
the home telephones of two consultants to Senator Edmund Muskie
and other Democratic politicians.

The incidental collection of political information from electronic
surveillance is also shown bv a series of telephone and microphone
surveillances conducted during the Kennedy administration. In an in-
vestigation of the possibly unlawful attempts of representatives of a
foreign country to influence congressional deliberations about sugar
quota legislation in the early 1960s, Attorney General Robert Kennedy
authorized a total of twelve warrantless wiretaps on foreign and do-
mestic targets. Among the wiretaps of American citizens were two on.
American lobbyists, three on executive branch officials, and two on a
staff member of a House of Representatives' Committee.^^ A bug was
also planted in the hotel room of a ITnited States Congressman, the
Chairman of the House Agriculture Committee, Harold D. Cooley.®*

Although this investigation was apparently initiated because of the
Government's concern about future relations with the foreign coun-
try involved and the possibility of bribery,®^ it is clear that the Ken-

''^ Transcript of Presidential Tapes. 2/28/73 (House Judiciary Committee State-
ment of Information, Book VII, Part 4, p. 1754).

^° For example, letters from Hoover to the Attorney General, 7/25/69, and
7/.31/6f>: letters from Hoover to H. R. Haldeman, 6/25/70.

■" Letter from Hoover to Haldeman. 6/25/70.

*^ Examples of such information are listed in the finding on Political Abuse, "The
'17' wiretaps."

^ Memorandum from J. Edgar Hoover to the Attorney General, 2/14/61 ;
Memorandum from .T. Edgar Hoover to the Attorney General, 2/16/61 ; Memo-
randum from .J. Edgar Hoover to the Attorney General, 6/26/62 ; Memorandum
from Wannall to W. C. Sullivan. 12/22/66.

•* Memorandum from D. E. Moore to A. H. Belmont, 2/16/61.

^ Memorandum from W. R. Wannall to W. C. Sullivan, 12/22/66; Memorandum
from A. H. Belmont to Mr. Parsons, 2/14/61. This investigation did discover
that representatives of a foreign nation were attempting to influence Congres-
sional deliberations, but it did not reveal that money was being passed to any
member of Congress or Congressional staff aide.

201

nedy administration was politically interested in the outcome of the
sugar quota legislation as well.^^ Given the nature of the techniques
used and of the targets they were directed against, it is not surprising
that a great deal of potentially useful political information was gen-
erated from these '"Sugar Lobby" surveillances.^'

The highly intrusive nature of electronic surveillance also raises
special problems when the targets are lawyers and journalists. Over
the past two decades there have been a number of wiretaps placed on
the office telephones of lawyers.^* In the Sugar Lobby investigation,
for example, Eobert Kennedy authorized wiretaps on ten telephone
lines of a single law firm.^° All of these lines were apparently used by
the one lawyer who was a target and presumably by other attorneys in
the firm as well. Such wiretaps represent a serious threat to the attor-
ney-client privilege, because once they are instituted they are capable
of detecting all conversations between a lawyer and his clients, even
those relating to pending criminal cases.

Since 1960, at least six American journalists and newsmen have also
been the targets of warrantless wiretaps or bugs.^^ These surveillances
were all rationalized as necessary to discover the source of leaks of
classified information, but, since wiretaps and bugs are indiscriminate
in the types of information collected, some of these taps revealed the
attitudes of various newsmen toward certain politicians and supplied
advance notice of forthcoming newspaper and magazine articles deal-
ing with administration policies. The collection of information such
as this, and the precedent set by wiretapping of newsmen, generally,
inevitably tends to undermine the constitutional guarantee of a free
and independent press.

2. NSA Monitoring

The National Security Agency (NSA) has the capability to monitor
almost any electronic communication which travels through the air.
This means that NSA is capable of intercepting a telephone call or
even a telegram, if such call or telegram is transmitted at least par-
tially through the air. Radio transmissions, a fortiori^ are also within
NSA's reach.

Since most communications today — to an increasing extent even
domestic communications — are, at some point, transmitted through the
air, XSA's potential to violate the privacy of American citizens is un-
matched by any other intelligence agency. Furthermore, since the inter-
ception of electronic signals entails neither the installation of electronic
surveillance devices nor the cooperation of private communications
companies, the possibility that such interceptions will be undetected
is enhanced.

NSA has never turned its monitoring apparatus upon entirely do-
mestic communications, but from the early 1960s until 1973, it did inter-

** Memorandum from Wannall to W. C. Sullivan, 12/22/66.

*'' See Finding on Political Abuse, p. 233.

^ Electronic Surveillance Report : Sec. II, "Presidential and Attorney General
Authorization."

~ Memorandum from J. Edgar Hoover to the Attorney General, 6/26/62.

^'^ Memorandum from J. Edgar Hoover to the Attorney General 6/29/61 ; memo-
randum from J. Edgar Hoover to the Attorney General 7/31/62 ; memorandum
from J. Edgar Hoover to the Attorney General 4/19/65 ; memorandum from J. Ed-
gar Hoover to the Attorney General 6/4/69 ; memorandum from J. Edgar Hoover
to the Attorney General 9/10/69 ; letter from W. C. Sullivan to J. Edgar Hoover
7/2/69.

202

cept the international communications of American citizens, without a
warrant, at the request of other federal agencies.

Under current practice, NSA does not target any American citizen
or firm for the purpose of intercepting their foreign communications.
As a result of monitoring international links of coimnunication, how-
ever, it does acquire an enormous number of communications to, from,
or about American citizens and firms.^^

As a practical matter, most of the communications of American citi-
zens or firms acquired by NSA as incidental to its foreign intelligence-
gathering process are destroyed upon recognition as a communication
to or from an American citizen. But other such communications, which
bear upon NSA's foreign intelligence requirements, are processed, and
information obtained from them are used in NSA's reports to other
intelligence agencies. Current practice precludes NSA from identify-
ing American citizens and firms by name in such reports. Nonetheless,
the practice does result in NSA's disseminating information derived
from the international communications of American citizens and firms
to the intelligence agencies and policymakers in the federal
government.

In his dissent in Ohnstead v. United Sfates^^^ which held that the
Fourth Amendment warrant requirement did not apply to the seizure
of conversations by means of wiretapping. Justice Louis D. Brandeis
expressed grave concern that new technologies might outstrip the
ability of the Constitution to protect American citizens. He wrote :

Subtler and more far-reaching means of invading privacy
have become available to the government . . . (and) the prog-
ress of science in furnishing the Government with means of
espionage is not likely to stop with wiretapping. Ways may
some day be developed by which the Government, without
removing papers from secret drawers, can reproduce them in
court, and by which it will be enabled to expose to a jury the
most intimate occurrences of the home .... Can it be that the
Constitution affords no protection against such invasions of
individual security ?

The question posed by Justice Brandeis applies with obvious force to
the technological developments that allow NSA to monitor an enor-
mous number of communications each year. His fears were firmly
based, for in fact no warrant was ever obtained for the inclusion of
1200 American citizens on NSA's "Watch List" between the early
1960s and 1973, and none is obtained today for the dissemination with-
in the intelligence community of information derived from the inter-
national communications of American citizens and firms. In the face
of this new technology, it is well to remember the answer Justice
Brandeis gave to his OAvn question. Quoting from Boyd v. United
States, 116 U.S. 616, he wrote :

It is not the breaking of his doors, and the rummaging of his
drawers that constitutes the essense of the offense; but it is
the invasion of his indefeasible right of personal security, per-
sonal liberty, and private property . . .^*^

^ NSA has long: asserted that it had the authority to do this so long as one of
the parties 'ro such commimipntion was located in a foreign country.
^ 277 U.S. 438, 473-474 (1928) .
*"* 277 U.S. at 474-475.

203

D. Mail Opening

By ignoring the legal prohibitions against warrantless mail open-
ing, the CIA and the FBI were able to obtain access to the written com-
munications of hundreds of thousands of individuals, a large propor-
tion of whom were American citizens. The intercepted letters were
presumably sealed with the expectation that they would only be
opened by the party to whom they were addressed, but intelligence
agents in ten cities throughout the United States surreptitiously
opened the seal and photographed the entire contents for inclusion in
their intelligence files.

Mail opening is an imprecise technique. In addition to relying on
a "Watch List" of names, the CIA opened vast numbers of letters on
an entirely random basis ; as one agent who opened mail in the CIA's
New York project testified, "You never knew what you would hit." ^^
Given the imprecision of the technique and the large quantity of cor-
respondence that was opened, it is perhaps not surprising that during
the twenty year course of the Agency's New York project, the mail
that was randomly opened included that of at least three United
States Senators and a Congressman, one Presidential Candidate, and
numerous educational, business, and ciWl rights leaders.^^

Several of the FBI pix)grams utilized as selection criteria certain
"indicatore" on the outside of envelopes that suggested that the com-
munication mig'ht be to or from a foreign espionage agent. These
"indicatoi's" Avere more refined than the "shotgim approach" ^^ which
characterized the CIA's New York project, and they did lead to the
identification of three foreign spies.^^ But even by the Bureau's own
accounting, it is clear that the mail of hundreds of innocent American
Citizens was opened and read for every successful counterintelligence
lead that was obtained by means of "indicators." ^^

Large volumes of mail were also intercepted and opened in other
FBI mail programs that were based not on indicators but on far less
precise criteria. Two programs that involved the opening of mail to
and from an Asian country, for example, used "letters to or from a
university, scientific, or technical facility" as one selection criterion.^""
According to FBI memoranda, an average of 50 to 100 letters per day
was opened and photographed during the ten years in which one of
these two programs operated.^°^

*" "CIA Officer" testimony, 9/30/75, p. 15.

®* Staff summary of "Master Index." review, 9/5/75.

*^James Angelton testimony, 9/17/75, p. 28.

"^ Wannall. 10/21/75, p. 5.

** In one of the programs based on "indicators" a participating agent testified
that he opened 30 to 60 letters each day. (FBI agent statement, 9/10/75, p. 23.) In
a second such program, a total of 1.011 letters were opened in one of the six cities
in which it operated ; statistics on the number of letters opened in the other
five cities cannot be reconstructed. (W. Raymond Wannall testimony. 10/21/75,
p. 5. ) In a third such project. 2.350 letters were opened in one city and statistics
for the other two cities in which it operated are unavailable. (Memorandum from
W. A. Branisran to "W. C. Sullivan, 8/31/61 ; Memorandum from Mr. Branigan
to Mr. Sullivan. 12/21/61 ; memorandum from New York Field OflSce to FBI
Headquarters, 3A5/62.)

"^ Letter from the FBI to the Senate Select Committee. 10/29/75. Six other
criteria were used in these programs. See Mail Opening Report, Sec. IV.

"^ Memorandum from S. B. Donohoe to A. H. Belmont. 2/23/61 : Memorandum
from San Francisco Field Office to FBI Headquarters, 3/11/60. Statistics relat-
ing to the number of letters opened in the other program which used this cri-
terion cannot be reconstructed.

204

E. Surreptitious Entries

Surreptitious entries, conducted in violation of the law, have also
permitted intelligence agencies to galther a wide range of information
about American citizens and domestic organization as well as foreign
targets.^"^ By definition this technique involves a physical entry into
the private premises of individuals and groups. Once intelligence
agents are inside, no "papers or effects" are secure. As the Huston
Plan recommendations stated in 1970, "It amounts to burglary." ^"^

The most private documents are rendered vulnerable by the use of
surreptitious entries. According to a 1966 internal FBI memorandum,
which discusses the use of this technique against domestic
organizations :

[The FBI has] on numerous occasions been able to obtain
material held highly secret and closely guarded by subversive
groups and organizations which consisted of membership
lists and mailing lists of these organizations.^"*

A specific example cited in this memorandum also reveals the types
of information that this technique can collect and the uses to which
the information thus collected may be put :

Through a "black bag" job, we obtained the records in the
possession of three high-ranking officials of a Klan organiza-
tion. , . . These records gave us the complete membership
and financial information concerning the Klan's operation
which we have been using most effectively to disrupt the
organization and, in fact, to bring about its near
disintegration. ^°^

Unlike techniques such as electronic surveillance, government
entries into private premises were familiar to the Founding Fathers.
"Indeed," Judge Gesell wrote in the Ehrllchmmi case, "the American
Revolution was sparked in part by the complaints of the colonists
against the issuance of writs of assistance, pursuant to which the King's
revenue officers conducted unrestricted, indiscriminate searches of
persons and homes to uncover contraband." '^°^ Recognition of the
intrusiveness of government break-ins was one of the primary reasons

"* According to the FBI, "there were at least 239 surreptitious entries (for
purposes other than microphone installation) conducted against at least fifteen
domestic subversive targets from 1942 to April 196S. ... In addition, at least
three domestic subversive targets were the subject of numerous entries from
October 1952 to June 1966." (FBI memorandum to the Senate Select Committee,
10/13/76.) One target, the Socialist Workers Party, was the subject of possibly
as many as 92 break-ins by the FBI, between 1960 and 1966 alone. The home of
at least one SWP member was also apparently broken into. (Sixth Supplementary
Response to Requests for Production of Documents of Defendant, Director of
the FBI, Socialist Workers Party v. Attorney General, 73 Civ. 3160, (SDNY),
3/24/76.) An entry against one "white hate group" was also reported by the
FBI. (Memorandum from FBI Headquarters to the Senate Select Committee,
10/13/75.)

^•"Memorandum from Tom Huston to H. R. Haldeman, 7/70, p. 3.

"* Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66.

"' Ibid.

^^ United States v. Ehrlicliman, 376 F. Supp. 29, 32 (D.D.C. 1974).

205

for the subsequent adoption of the Fourth Amendment in 1791,^°^ and
this technique is certainly no less intrusive today.

Sub funding (c)

The imprecision and manipulation of labels such as "national se-
curity," "domestic security," "subversive activities" and "foreign in-
telligence" have led to unjustified use of these techniques.

Using labels such as "national security" and "foreign intelligence",
intelligence agencies have directed these highly intrusive techniques
against individuals and organizations who were suspected of no
criminal activity and who posed no genuine threat to the national
security. In the absence of precise standards and effective outside
control, the selection of American citizens as targets has at times been
predicated on grounds no more substantial than their lawful protests
or their non-conformist philosophies. Almost any connection with any
perceived danger to the country has sufficed.

The application of the "national security" rationale to cases lacking
a substantial national security basis has been most apparent in the
area of warrantless electronic surveillance. Indeed, the unjustified use
of wiretaps and bugs under this and related labels has a long history.
Among the wiretaps approved by Attorney General Francis Biddle
under the standard of "persons suspected of subversive activities," for
example, was one on the Los Angeles Chamber of Commerce in 1941.^°^
This was approved in spite of his comment to J. Edgar Hoover that the
target organization had "no record of espionage at this time." ^°^
In 1945, Attorney General Tom Clark authorized a wiretap on a
former aide to President Roosevelt."" According to a memorandum
by J. Edgar Hoover, Clark stated that President Truman wanted "a
very thorough investigation" of the activities of the former official so
that "steps might be taken, if possible, to see that [his] activities did
not interfere with the proper administration of government." "^
The memorandum makes no reference to "subversive activities" or
any other national security considerations.

The "Sugar Lobby" and Martin Luther King, Jr., wiretaps in the
early 1960s both show the elasticity of the "domestic security" stand-
ard which supplemented President Roosevelt's "subversive activities"
formulation. Among those wiretapped in the Sugar Lobby investiga-
tion, as noted above, was a Congressional staff aide. Yet the documen-
tary record of this investigation reveals no evidence indicating that
the target herself represented any threat to the "domestic security."
Similarly, while the FBI may properly have been concerned with the
activities of certain advisors to Dr. King, the direct wiretapping of
Dr. King shows that the "domestic security" standard could be
stretched to unjustified lengths.

The microphone surveillances of Congressman Cooley and Dr. King
under the "national interest" standard established by Attorney Gen-
eral Brownell in 1954 also reveal the relative ease with which elec-
tronic bugging devices could be used against American citizens who

'*" See. e.g.. Olm.9tead v. ZTnited States. 277 U.S. 438, (1928).
^"^ Memorandum from Francis Biddle to Mr. Hoover, 11/19/41.
^■^ Ibid.

"" Unaddressed Memorandum from J. Edsrar Hoover, 11/15/45, found in
Director Hoover's "OflScial and Confidential" files.
^^ Ibid.

206

posed no genuine "national security" threat. Neither of these targets
advocated or engaged in any conduct that was damaging to the
security of the United States.

In April, 1964, Attorney General Robert Kennedy approved "tech-
nical coverage (electronic surveillance)" of a black nationalist leader
after the FBI advised Kennedy that he was "forming a new group"
which would be "more aggressive" and would "participate in racial
demonstrations and civil rights activities." The only indication of
possible danger noted in the FBI's request for the wiretaps, however,
was that this leader had "recommended the possession of firearms by
members for their self-protection."^

One year later, Attorney General Nicholas Katzenbach approved a
wiretap on the offices of the Student Non-Violent Coordinating Com-
mittee on the basis of potential communist infiltration into that organi-
zation. The request which was sent to the Attorney General noted that
"confidential informants" described SNCC as "Ihe principal target
for Communist Party infiltration among the various civil rights
organizations" and stated that some of its leaders had "made public
appearances with leaders of communist-front organizations" and had
"subversive backgrounds." "^ The FBI presented no substantial evi-
dence however, that SNCC was in fact infiltrated by communists — only
that the organization was apparently a target for such infiltration in
the future.

After the Justice Department adopted new criteria for the institu-
tion of warrantless electronic surveillance in 1968, the unjustified use
of wiretaps continued. In November 1969, Attorney General John
Mitchell approved a series of three wiretaps on organizations involved
in planning the antiwar "March on Washington." The FBI's request
for coverage of the first group made no claim that its members en-
gaged or were likely to engage in violent activity: the request was
simply based on the statement that the anticipated size of the dem-
onstration was cause for "concern should violence of anv tvpe break
out." "*

The only additional justification given for the wiretap on one of the
other groups, the Vietnam Moratorium Committee, was that it "has
recently endorsed fully the activities of the [first group] concerning
the upcoming antiwar demonstrations." ^^^

In 1970, approval for a wiretap on a "New Left oriented campus
group" was granted by Attorney General Mitchell on the basis of an
FBI request which included, among other factors deemed relevant to
the necessity for the wiretap, evidence that the group was attempting
"to develop strong ties with the cafeteria, maintenance and other
workers on campus" and wanted to "go into industry and factories
and . . . take the radical politics they learned on the campus and spread
them among factory workers." ^^®

^"^ Memorandum from J. Ed^ar Hoover to the Attorney General. 4/1/64.

"* Memorandum from J. Edgar Hoover to the Attorney General. 6/15/6.5.

"* Memorandum from .T. Edgar Hoover to the Attorney General. 11/5/69.
"^ Memorandum from J. Edgar Hoover to Attorney General Mitchell. 11/7/69.

'" Memorandum from J. Edgar Hoover to the Attorney General, 3/16/70. The
strongest evidence that this group's conduct was inimical to the national security
was reported as follows :

"The [group] is dominated and controlled hy the pro-Chinese Marxist Leninist
(excised). . . .

"In carrying out the Marxist-Leninist ideology of the (excised) members have
repeatedly sought to become involved in labor disputes on the side of labor, join

207

This approval was renewed three months later despite the fact that
the request for renewal made no mention of violent or illegal activity
by the group. The value of the wiretap was shown, according to the
FBI, by such results as obtaining "the identities of over 600 persons
either in touch with the national headquarters or associated with" it
during the preceding three months.^^" Six months after the original
authorization the number of persons so identified had increased to
1,428 ; and approval was granted for a third three-month period." ^^^

The "seventeen wiretaps" also show how the term "national secu-
rity" as a justification for wiretapping can obscure improper use of
this technique. Shortly after these wiretaps were revealed publicly,
President Nixon stated they had been justified by the need to prevent
leaks of classified information harmful to the national security.^^^

Wiretaps for this purpose had, in fact, been authorized under the
Kennedy and Johnson administrations. President Nixon learned of
these and other prior taps and, at a news conference, sought to justify
the taps he had authorized by referring to past precedent. He stated
that in the :

period of 1961 to '63 there were wiretaps on news organiza-
tions, on news peoj^le, on civil rights leaders and on other
people. xAjid I think they were perfectly justified and I'm
sure that President Kennedy and his brother, Robert Ken-
nedy, would never have authorized them, unless he thought
they were in the national interest. (Presidential News Con-
ference, 8/22/73.)

Thus, questionable electronic sur^^eillances by earlier administra-
tions were put forward as a defense for improper surveillances ex-
posed in 1973. In fact, however, two of these wiretaps were placed on
domestic affairs advisers at the White House wlio had no foi'eign
affairs responsibilities and apparently no access to classified foreign
policy materials.^^^ A third target was a "Wliite House speech writer
who had been overheard on an existing tap agreeing to provide a re-
porter with background information on a Presidential speech con-

picket lines and engage in disruptive and sometimes violent tactics against indus-
try recruiters on college campuses. . . .

"This faction is currently very active in many of the major demonstrations and
student violence on college campuses. . . ." (Memorandum from J. Edgar Hoover
to the Attorney General, 3/16/70. The excised words have been deleted bv the
FBT.)

'" Memorandum from J. Edgar Hoover to the Attorney General, 6/16/70. Th*^
only other results noted by Hoover related to the fact that the wiretap had
"obtained information concerning the activities of the national headquarters of
[the group and] plans for [the group's] support and participation in demon-
strations supporting antiwar groups and the (excised)." It was also noted that
the wiretap "revealed . . . contacts with Canadian student elements".

'" ^Memorandum from J. Edgar Hoover to the Attorney General, 9/16/70. The
only other results noted by Hoover again related to obtaining information about
the "plans and activities" of the group. Specifically mentioned were the "plans
for the Xationnl Interim Committee (ruling Itody of [excised]) meeting which
took place in New York and Chicago", and the plans "for demonstrations at
San Francisco. Detroit, Salt Lake City, Minneapolis, and Chicago." There was no
indication that these demonstrations were expected to be violent. (The excised
words have lieen deleted by the FBI) .

"^ Public statement of President Nixon, .5/22/73.

'^ Memorandum from J. Edgar Hoover to the Attorney General 7/23/69 ;
memorandum from J. Edgar Hoover to the Attorney GJeneral 12/14/70.

208

ceming domestic revenue sharing and welfare reform.^^^ The
reinstatement of another wiretap in this series was requested by H. R.
Haldeman simply because "they may have a bad apple and have to
get him out of the basket," ^"^ The last four requests in this series
that were sent to the Attorney General (including the requests for a
tap on the "bad apple") did not mention any national security justifi-
cation at all. As former Deputy Attorney General William Ruckels-
haus has testified :

I think some of the individuals who were tapped, at least to
the extent I have reviewed the record, had very little, if any,
relationship to any claim of national security . , , I think
that as the program proceeded and it became clear to those
who could sign off on taps how easy it was to institute a wire-
tap under the present procedure that these kinds of considera-
tions [i.e,, genuine national security justifications] were con-
siderably relaxed as the program went on,^^*

None of the "seventeen" wiretaps was ever reauthorized by the
Attorney General, although 10 of them remained in operation for
periods longer than 90 days and although President Nixon himself
stated privately that "[t]he tapping was a very, very unproductive
thing , . . it's never been useful to any operation I've conducted . . ." ^^^

In short, warrantless electronic surveillance has been defended on the
ground that it was essential for the national security, but the history
of the use of this technique clearly shows that the imprecision and
manipulation of this and similar labels, coupled with the absence of
any outside scrutiny, has led to its improper use against American
citizens who posed no criminal or national security threat to the
count ry,^^®

Similarly, the terms "foreign intelligence" and "counterespionage"
were used by the CIA and the FBI to justify their cooperation in the
CIA's New York mail opening project, but this project was also used to
target entirely innocent American citizens.

As noted above, the CIA compiled a "Watch List" of names of per-
sons and organizations whose mail was to be opened if it passed through
the New York facility. In the early days of the project, the names
on this list — which then numbered fewer than twentv — miffht reason-

^ Memorandum from W. C. Sullivan to C. D. DeLoach, 8/1/69.

^ Memorandum from J. Edgar Hoover to Messrs. Tolson, Sullivan and D. C.
Brennan. 10/15/70.

"* Ruckelshaus testimony before the Senate Subcommittee on Administrative
Practice and Procedure. 5/9/74, pp. 311-12.

^Transcript of the Presidential Tapes, 2/28/73 (House Judiciary Committee
Statement of Information Book VII, Part W, p. 17.54.)

^ The term "national security" was also used by John Ehrlichman and Charles
Colson to .instify their roles in the break-in of Dr. Fielding's office in 1971. A
March 21, 1973 tape recording of a meeting between President Nixon. .John Dean,
and H. R. Haldeman suggests, however, that the national security "justification"
may have been developed long after the event for the purpose of obscuring its im-
propriety. When the President asked what could be done if the break-in was
revealed publicly. John Dean suggested, "You might put it on a national security
grounds basis." Later in the conversation. President Nixon stated "With the
bombing thing coming out and everything coming out. the whole thing was
national security," and Dean said, "I think we could get by on that." (Transcript
of Presidential tapes, 3/21/73. )

209

ably have been expected to lead to genuine foreign intelligence or
counterintelligence information. But as the project developed, the
Watch List grew and its focus changed. By the late 1060s there were
approximately 600 names on the list, many of them American citizens
and organizations who were engaged in purely lawful and consti-
tutionally protected forms of protest against governmental policies.
Among the domestic organizations on the Watch List, which was
supplemented by submissions from the FBI, were : Clergy and Laymen
Concerned about Vietnam, the National Mobilization Committee to
End the War in Vietnam, Rmnparts^ the Student Non-Violent Coordi-
nating Committee, the Center for the Study of Public Policy, and the
American Friends Service Committee.^^^

The FBI levied more general requirements on the CIA's project as
well. The focus of the original categories of correspondence in which
the FBI expressed an interest was clearly foreign counterespionage,
but subsequent requirements became progressively more domestic in
their focus and progressively broader in their scope. The requirements
that were levied by the FBI in 1972, one year before the termination of
the project, included the following :

". . . [pjersons on the Watch List; known communists, New
Left activists, extremists, and other subversives . . .

Communist party and front organizations . . . extremist and
New Left organizations.

Protest and peace organizations, such as People's Coalition
for Peace and Justice, National Peace Action Committee, and
Women's Strike for Peace.

Communists, Trotskyites and members of other Marxist-
Leninist, subversive and extremist groups, such as the Black
Nationalists and Liberation groups . . . Students for a Demo-
cratic Society . . . and other New Left groups.

Traffic to and from Puerto Rico and the Virgin Islands
showing anti-U.S. or subversive sympathies." ^^^

This final set of requirements evidently reflected the domestic turmoil
of the late 1960s and early 1970s. The mail opening program that began
as a means of collecting foreign intelligence information and dis-
covering Soviet intelligence efforts in the United States had expanded
to encompass detection of the activities of domestic dissidents of all
types.

In the absence of effective outside control, highly intrusive tech-
niques have been used to gather vast amounts of information about the
entirely lawful activities — and privately held beliefs — -of large num-
bers of American citizens. The very intrusiveness of these techniques
demands the utmost circumspection in their use. But with vague or
non-existent standards to guide them, and with labels such as "national
security" and "foreign intelligence" to shield them, executive branch
officials have been all too willing to unleash these techniques against
American citizens with little or no legitimate justification.

"^ Staff summary of Watch List review, 9/5/75.

"* Routing slip from J. Edgar Hoover to James Angelton {attachment) , 3/10/72.

-786 O - 76 - 15

D. USING COVERT ACTION TO DISRUPT AND DISCREDIT
DOMESTIC GROUPS

Major Finding

The Committee finds that covert action proo;rams have been used to
disrupt the lawful political activities of individual Americans and
groups and to discredit them, using dangerous and degrading tactics
which are abhorrent in a free and decent society.

Subfmdings

(a) Although the claimed purposes of these action programs were
to protect the national security and to prevent violence, many of the
victims were concededly nonviolent, were not controlled by a foreign
power, and posed no threat to the national security.

(b) The acts taken interfered with the First Amendment rights of
citizens. They were explicitly intended to deter citizens from joining
groups, "neutralize" those who were already members, and prevent
or inhibit the expression of ideas.

(c) The tactics used against Americans often risked and some-
times caused serious emotional, economic, or physical damage. Actions
were taken which were designed to break up marriages, terminate
funding or employment, and encourage gang warfare between violent
rival groups. Due process of law forbids the use of such covert tactics,
whether the victims are innocent law-abiding citizens or members of
groups suspected of involvement in violence.

,(d) The sustained use of such tactics by the FBI in an attempt to
destroy Dr. Martin Luther King, Jr., violated the law and funda-
mental human decency.

Elaboration of the Findings

For fifteen years from 1956 until 1971, the FBI carried out a series
of covert action programs directed against American citizens.^
These "counterintelligence programs" (shortened to the acronym
COINTELPRO) resulted in part from frustration with Supreme
Court rulings limiting the Government's power to proceed overtly
against dissident groups.^

^ Before 1956 the FBI engjaeed in activities to disrupt and discredit Communists
and (before "World War II) Fascists, but not as part of a formal program. The
Bureau is the only agency which carried on a sustained effort to "neutralize"
domestic groups, althoiish other agencies made sporadic attempts to disrupt dis-
sident groups. (See Military Surveillance Report ; IRS Report.)

^ The Bureau personnel involved in COINTELPRO link the first formal coun-
terintelligence program, against the Communist Party. USA. to the Supreme
Court reversal of the Smith Act convictions, which "made it impossible to prose-
cute Communist Party members at the time". (COINTELPRO imit chief,
10/16/75, p. 14.) It should be noted, however, that the Court's reversal occurred
in 1957. the year after the program was instituted. This belief in the deficiencies
of the law was a major factor in the four subsequent programs as well : "The
other COINTELPRO programs were opened as the threat arose in areas of
extremism and subversion and there were not adequate statutes to proceed
against the organization or to prevent their activities." (COINTELPRO Unit
Chief, 10/16/75, p. 15.)

(211)

212

They ended formally in 1971 with the threat of public exposure.^
Some of the findings discussed herein are related to the findings on
lawlessness, overbreadth, and intrusive techniques previously set
forth. Some of the most offensive actions in the FBI's COINTEL
PRO programs (anonymous letters intended to break up marriages, or
efforts to deprive people of their jobs, for example) were based upon
the covert use of information obtained through overly-broad inves-
tigations and intrusive techniques.* Similarly, as noted above, COIN-
TELPRO involved specific violations of law, and the law and the
Constitution were "not [given] a thought" under the FBI's policies.^

But COIXTELPRO was more than simply violating the law or
the Constitution. In COINTELPRO the Bureau secretly « took the
law into its own hands, going beyond the collection of intelligence and
beyond its law enforcement function to act outside the legal process
altogether and to covertly disrupt, discredit and harass groups and
individuals. A law enforcement agency must not secretly usurp the
functions of judge and jury, even when the investigation reveals crim-
inal activity. But in COINTELPRO, the Bureau imposed summary
punishment, not only on the allegedly \aolent, but also on the non-
violent advocates of change. Such action is the hallmark of the vig-
ilante and has no place in a democratic society.

Under COINTELPRO, certain techniques the Bureau had used
against hostile foreign agents were adopted for use against perceived
domestic threats to the established political and social order.^

Some of the targets of COINTELPRO were law-abiding citizens
merely advocating change in our society. Other targets were members

* For further information on the termination of each of the programs, see The
Accountability and Control Findings, p. 265 and the detailed reports on the Black
Panther Party and COINTELPRO.

Although the programs have been formally terminated, Bureau witnesses
agree that there is a "grey area" between "counter-intelligence" and investiga-
tive activities which are inherently disruptive. These investigative activities
continue. ( See COINTELPRO Report : "Command and Control— The Problems of
Oversight.")

* Information gained from electronic surveillance, informant coverage, bur-
glaries, and confidential financial records was used in COINTELPRO.

p. 275.)

= Moore, 11/3/75, p. 83.

* Field oflSces were instructed that no one outside the Bureau was to know
that COINTELPRO existed, although certain persons in the executive branch
and in Congress were told about — and did not object to — efforts to disrupt the
CPUSA and the Klan. However, no one was told about the other COINTELPRO
programs, or about the more dangerous and degrading techniques employed. ( See
p. 275.)

^ As the Chief of the Racial Intelligence Section put it :

"You can trace [the origin.s of COINTELPRO] up and back to foreign intel-
ligence, particularly perretration of the group by the individual informant. Be-
fore you can engage in counterintelligence you must have intelligence. ... If
you have good intelligence and know what it's going to do. you can seed distrust,
sow misinformation. The same technique is used, misinformation, disruption,
is used in the domestic groups, although in the domestic groups you are dealing
in '67 and '68 with many, many more across the country . . . than you had ever
dealt with as far as your foreign groups." (Moore, 11/3/75, pp. 32-33.)

Former Assistant Director William C. Sullivan atso testified that the "rough,
tough, dirty business" of foreign counterintelligence was "brought home against
anv organization against which we were targeted. We did not differentiate."
(Sullivan, 11/1/75, pp. 97-98.)

213

of groups that had been involved in violence, such as the Ku Klux
Klan or the Black Panther Party. Some victims did nothing more than
associate with targets.^

The Committee does not condone acts of violence, but the response
of Government to allegations of illegal conduct must comply with the
due process of law demanded by the Constitution. Lawlessness by
citizens does not justify lawlessness by Government.

The tactics which were employed by the Bureau are therefore
unacceptable, even against the alleged criminal. The imprecision of
the targeting compounded the abuse. Once the Government decided
to take the law into its own hands, those unacceptable tactics came
almost inevitably to be used not only against the "kid with the bomb"
but also against the "kid with the bumper sticker." ®

Subfinding {a)

Although the claimed purposes of these action programs were
to protect the "national security" and to prevent violence, many of
the victims were concededly nonviolent, were not controlled by a
foreign power, and posed no threat to the "national security."

The Bureau conducted five "counterintelligence programs" aimed
against domestic groups: the "Communist Party, USA" program
(1956-71); the "Socialist Workers Party" program (1961-69); the
"White Hate" program (1964-1971) ; the "Black Nationalist-Hate
Group" program (1967-71) ; and the "New Left" program (1968-71).

While the declared purposes of these programs were to protect the
"national security" or prevent violence, Bureau witnesses admit that
many of the targets were nonviolent and most had no connections
with a foreign power. Indeed, nonviolent organizations and individ-
uals were targeted because the Bureau believed they represented a
"potential" for violence ^° and nonviolent citizens who were against
the war in Vietnam were targeted because they gave "aid and comfort"
to violent demonstrators by lending respectability to their cause.^^

The imprecision of the targeting is demonstrated by the inability
of the Bureau to define the subjects of the programs. The Black
Nationalist program, according to its supervisor, included "a great
number of organizations that you might not today characterize as
black nationalist but which were in fact primarily black." " Thus, the
nonviolent Southern Christian Leadership Conference was labeled as
a Black Nationalist-"Hate Group."

Furthermore, the actual targets were chosen from a far broader
group than the titles of the programs would imply. The CPUSA
program targeted not only Communist Party members but also spon-
sors of the National Committee to Abolish the House Un-American

* For example, parents and spouse, of targets received letters containing accu-
sations of immoral conduct by the target. (Memorandum from St. Louis Field
Office to FBI Headquarters. 1/30/70; memorandum from FBI Headquarters to
Minneapolis Field Office. 11/4/68.)

* Huston. 9/23/75. Hearings, Vol. 2, p. 45.
" Moore, 11/8/75, p. 37.

" New I^ft supervisor, 10/28/75, p. 69.

^ Black Nationalist Supervisor, 10/17/75, p. 12.

214

Activities Committee ^* and civil rights leaders allegedly under Com-
munist influence or not deemed to be "anti-Communist'\^^ The
Socialist Workers Party program included non-SWP sponsors of
antiwar demonstrations which were cosponsored by the SWP or the
Young Socialist Alliance, its youth group. ^^ The Black Nationalist
program targeted a range of organizations from the Panthers to
SNCC to the peaceful Southern Christian Leadership Conference, and
included every Black Student Union and many other black student
groups.^^ Xew Left targets ranged from the SDS ^® to the Inter-
University Committee for Debate on Foreign Policy ,^^ from Antioch
College (''vanguard of the New Left") -° to the New jNIexico Free
University and other "alternate" schools,-^ and from underground
newspapers - to students protesting university censorship of a student
publication by carrying signs with four-letter words on them.^'*

S%ib-finding (h)

The acts taken interfered with the First Amendment rights of citi-
zens. They were explicitly intended to deter citizens from joining

^* For example, the entire Unitarian Society of Cleveland was targeted because
the minister and some members circulated a petition calling for the abolition of
HUAC, and because the Church gave oflBce space to the "Citizens for Constitu-
tional Rights". (Memorandum from FBI Headquarters to Cleveland Field OflBce,
11/6/64. )

^ See Finding on "Overbreadth" p. 181.

" For instance, the Bureau targeted two non-member students who partici-
pated in an anti-war "hunger strike" at Oberlin. which was "guided and directed"
by the Young Socialists Alliance. The students" parents received anonymous let-
ters, purportedly from a friend of their sons. One letter expressed concern that a
group of "left wing students" were "cynically using" the boy, which would lead to
"injury" to his health and "damage to his academic standing". The other letter
also stated that it was motivated by concern for "damage" to the student's
"health and personal future" and "the belief that you may not be aware of
John's current involvement in left-wing activities." (Memorandum from FBI
headquarters to Cleveland Field Office, 11/29/68. )

" One proposal sought to expose Black Student Union Chapters as "breeding
grounds for racial militancy" by an anonymous mailing to "all institutions where
there are BSU chapters or incipient chapters". (Memorandum from Portland
Field Office to FBI Headquarters, 6/3/68. )

^^ For example Memorandum from FBI Headquarters to San Antonio Field
Office, 10/31/68.

" An anonymous letter was sent to "influential" Michigan political figures, the
mass media. University of Michigan administrators, and the Board of Regents,
in an attempt to "discredit and neutralize" the "communist activities" of the
lUCDFP. The letter decried the "undue publicity" given anti-war protest
activities which "undoubtedly give 'aid and comfort' to the enemy" and encour-
age the Vietcong and the North Vietnamese in "refusing to come to the bargain-
ing table". The letter continued, "I wonder if the strategy is to bleed the United
States white by prolonging the war in Vietnam and pave the way for a takeover
by Russia?" (Memorandum from Detroit Field Office to FBI Headquarters. 10/11/
66 : Memorandum from FBI Headquarters, to Detroit Field Office 10/26/66. )

^"Memorandum from FBI Headquarters to Cincinnati Field Office. 6/18/68.

^ The New Mexico Free University was targeted because it taught such courses
as "confrontation politics" and "draft counselling". (Memorandum from FBI
Headquarters to Albuquerque Field Office, 3/10/69.) In another case, an "alter-
nate" school for students "aged five and beyond", which was co-sponsored by the
ACLU, was targeted because "from the staff being assembled, it appears that
the school will be a New Left venture and of a radical revolutionary nature".
The Bureau contacted a confidential source in the bank financing the school so
that he could "take steps to discourage its developments". (Memorandum from
FBI Headquarters to San Antonio Field Office, 7/23/69.

"See e.g.. Memorandum from FBI Headquarters to Pittsburgh Field Office,
11/14/69.

** Memorandum from FBI Headquarters to Minneapolis Field Office, 11/4/68.

215

groups, ''neutralize" those who were already members, and prevent or
inhibit the expression of ideas.

In achieving its purported goals of protecting the national security
and preventing violence, the Bureau attempted to deter membership in
the target groups. As the supervisor of the "Black Nationalist" CO
INTELPRO stated, "Obviously, you are going to prevent violence or a
greater amount of violence if you have smaller groups." ^^ The chief
of the COINTELPRO unit agreed : "We also made an effort ... to
deter recruitment where we could. This was done with the view that if
we could curb the organization, we could curb the action or the vio-
lence within the organization." -^ As noted above, many of the orga-
nizations "curbed" were not violent, and covert attacks on group
membership contravened the First Amendment's guarantee of freedom
to associate.

Nor was this the only First Amendment right violated by the
Bureau, In addition to attempting to prevent people from joining or
continuing to be members in target organizations, the Bureau tried
to "deter or counteract" what it called "propaganda" ~^ — the expres-
sion of ideas which it considered dangerous. Thus, the originating
document for the "Black Nationalist" COINTELPRO noted that
"consideration should be given to techniques to preclude" leaders of
the target organizations "from spreading their philosophy publicly
or through various mass communication media." ^^

Instructions to "preclude" free speech were not limited to "black
nationalists;" they occurred in every program. In the New Left pro-
gram, for instance, approximately thirty-nine percent of all actions
attempted to keep targets from speaking, teaching, writing, or
publishing.-^

The cases included attempts (sometimes successful) to prompt the
firing of university and high school teachers ; ^^ to prevent targets
from speaking on campus ; ^° to stop chapters of target groups from

^* Black Nationalist supervisor, 10/17/75, p. 24.

"" COINTELPRO unit chief, 10/12/75, p. 54.

^ COINTELPRO unit chief, 10/12/75. p. 54.

^' Memorandum from FBI Headquarters to all SAC's, 8/25/67.

" The FBI was not the only intelligence agency to attempt to prevent the
propagation of ideas with which it disagreed, but it was the only one to do so in
any organized way. The IRS responded to Congressional and Administration
pressure by targeting political organizations and dissidents for audit. The CIA
improperly obtained the tax returns of Ramparts magazine after it learned
that the magazine intended to publish an article revealing Agency support of
the National Student Association. The CIA saw the article as "an attack on CIA
in particular and the Administration in general." (CIA memorandum re: "IRS
Briefing on Ramparts," 2/2/67.)

'^ For instance, a high school English teacher was targeted for inviting two
poets to attend a class at his school. The poets were noted for their efforts in
the draft resistance movement. The Bureau sent anonymous letters to two local
newspapers, the Board of Education, and the school board. (Memorandum from
FBI Headquarters to Pittsburgh Field Office. 6/19/69.)

*■ In one case, the Bureau attempted to stop a "Communist" speaker from
appearing on campus. The sponsoring organization went to court and won an
order permitting the lecture to proceed as scheduled ; the Bureau then investi-
gnted the judge who issupd the order. (Memorandum from Detroit Field Office to
FBI Henfiquarters. 10/26/60; Memorandum from FBI Headquarters to Detroit
Field Office. 10/27/60. 10 /2S/. 10/31/60; Memorandum from F. J. Baumgardner
to A. H. Belmont, 10/26/60. )

216

being formed ; ^^ to prevent the distribution of books, newspapers, or
periodicals ; ^^ to disrupt or cancel news conferences ; ^^ to interfere
with peaceful demonstrations, including the SCLC's Poor Peo-
ple's Campaign and Washington Spring Project and most of the
large anti-war marches ; ^* and to deny facilities for meetings or
conferences.^^

As the above cases demonstrate, the FBI was not just "chilling"
free speech, but squarely attacking it.

The tactics used against Americans often risked and sometimes
caused serious emotional, economic, or physical damage. Actions were
taken which were designed to break up marriages, terminate funding
or employment, and encourage gang warfare between violent rival
groups. Due process of law forbids the use of such covert tactics
whether the victims are innocent law-abiding citizens or members
of groups suspected of involvement in violence.

The former head of the Domestic Intelligence Division described
counterintelligence as a "rough, tough, dirty, and dangerous" busi-
ness.^*' His description was accurate.

One technique used in COINTELPEO involved sending anony-
mous letters to spouses intended, in the words of one proposal, to
"produce ill-feeling and possibly a lasting distrust" between husband
and wife, so that "concern over what to do about it" would distract
the target from "time spent in the plots and plans" of the organiza-
tion.^" The image of an agent of the United States Government scrawl-
ing a poison-pen letter to someone's wife in language usually reserved
for bathroom walls is not a happy one. Nevertheless, anonymous let-

^ The Bureau tried on several occasions to prevent the formation of campus
chapters of SDS and the Young Socialist Alliance. (See, e.g., Memorandum from
San Antonio Field Office to FBI Headquarters, 5/1/69 ; Memorandum from FBI
Headquarters to San Antonio Field Office, 5/1/69.)

® For example, an anonymous letter to a state legislator protested the distribu-
tion on campus of an underground newspaper's "depravity", (Memorandum from
Newark Field Office to FBI Headquarters, 5/23/69 ; Memorandum from FBI Head-
quarters to Newark Field Office, 6/4/69) and thhe Bureau anonymously contacted
the landlady of premises rented by two "New Left" newspapers in an attempt to
have them evicted. (Memorandum from Los Angeles Field Office to FBI Headquar-
ters, 9/9/68 ; Memorandum from FBI Headquarters to Los Angeles Field Office,
9/23/68.)

^For example, a confidential source in a radio station was contacted in two
successful attempts to cancel news conferences. (Memorandum from FBI Head-
quarters to Cleveland Field Office, 10/1/65 ; Memorandum from FBI Headquarters
to Cleveland Field Office 10/4/65 ; Memorandum from Boston Field Office to FBI
Headquarters, 2/5/64 ; Memorandum from F. J. Baumgardner to William C. Sulli-
van, 6/25/64.)

"For instance, the Bureau used the standard counterespionage technique of
"disinformation" against demonstrators. In one case, the Chicago Field Office
duplicated blank forms soliciting housing for demonstrators coming to Chicago
for the Democratic National Convention, filled them out with fictitious names
and addresses and sent them to the organizers. Demonstrators reportedly made
"long and use'ess Journeys to locate these addresses." (Memorandum from
Chicago Field Office to FBI Headquarters. 9/9/68. ) The same program was carried
out by the Washington Field Office when housing forms were distributed for dem-
onstrators comine to the 1969 Presidential inauerural ceremonies. (Memorandum
from FBI Headquarters to Washington Field Office. 1/10/69.) Army inteUieence
agents occasionally took similar, but wholly unauthorized action, see Military
Surveillance Report : Section III : "Domesttic Radio Monitoring by ASA : 1967-
1970."

^ Memorandum from FBI Headquarters to San Diego field office, 9/11/69.

"^ Sullivan, 11/1/75, pp. 97-98.

^ Memorandum from St. Louis Field Office to FBI Headquarters, 2/14/69.

217

ters were sent to, amon(y others, a Klansman's wife, informing her
that her husband had "taken the flesh of another unto himself," the
other person being a woman named Ruby, with her "hist filled eyes
and smart aleck figure;'' ^* and to a "Black Nationalist's" wife saying
that her husband "been maken it here" with other women in his or-
ganization "and than he gives us this jive bout their better in bed
then you." ^^ A husband who was concerned about his wife's activities
in a biracial group received a letter which started, "Look man I guess
your old lady doesn't get enough at home or she wouldn't be shucking
and jiving with our Black Men" in the group.*° The Field Office re-
ported as a "tangible result" of this letter that the target and her
husband separated.*^

The Bureau also contacted employers and funding organizations in
order to cause the firing of the targets or the termination of their
support.*- For example, priests who allowed their churches to be used
for the Black Panther breakfast programs were targeted, and anony-
mous letters were sent to their bishops; *^ a television commentator
who expressed admiration for a Black Nationalist leader and criticized
heavy defense spending was transferred after the Bureau contacted
his employer ; ** and an employee of the Urban League was fired after
the FBI approached a "confidential source" in a foundation which
funded the League.*^

The Bureau also encouraged "gang warfare" between violent groups.
An FBI memorandum dated November 25, 1968 to certain Field Offices
conducting investigations of the Black Panther Party ordered recip-
ient offices to submit "imaginative and hard-hitting counterintelli-
gence measures aimed at crippling the BPP." Proposals were to be
received every two weeks. Particular attention was to be given to
capitalizing upon differences between the Panthers and US, Inc. (an
other "Black Nationalist" group), which had reached such propor-
tions that "it is taking on the aura of gang warfare with attendant
threats of murder and reprisals.'' "^^^ On May 26, 1970, after U.S. orga-
nization members had killed four BPP members and members of each
organization had been shot and beaten by members of the other, the
Field Office reported :

Information received from local sources indicate [s] that,
in general, the membership of the Los Angeles BPP is physi-
cally afraid of US members and take premeditated precau-
tions to avoid confrontations.

^' Memorandum from Richmond Field OflBce to FBI Headquarters, 8/26/66.

^ The wife who received this letter was described in the Field Office proposal
as "faithful ... an intelligent respectable young mother who is active in the
AME Methodist Church." (Memorandum from St. Louis Field Office to FBI Head-
quarters. 2/14/69. )

*" Memorandum from St. Louis Field Office to FBI Headquarters, 1/30/70.

" Memorandum from St. Louis Field Office to FBI Headquarters, 6/19/70.

*' When the targets were teachers, the intent was to prevent the propagation of
ideas. In the case of other employer contacts, the purpose was to stop a source
of funds.

"^ Memorandum from New Haven Field Office to FBI Headquarters, 11/12/69 ;
memorandum from FBI Headquarters to San Diego Field Office. 9/9/69.

** Memorandum from FBI Headquarters to Cincinnati Field Office. 3/2S/69.

"^ Memorandum from FBI Headquarters to Pittsburgh Field Office, .3/3/69.

^* Memorandum from FBI Headquarters to Baltimore Field Office, 11/25/68.

218

In view of their anxieties, it is not presently felt that the
Los Angeles BPP can be prompted into what could result
in an internecine struggle between the two organizations. . , .

The Los Angeles Division is aware of the mutually hostile
feelings harbored between the organizations and the first
opportunity to capitalize on the situation will be maximized.
It is intended that US Inc. will be appropriately and dis-
creetly advised of the time and location of BPP activities in
order that the two organizations might be brought together
and thus grant nature the opportunity to take her due
course^^ [Emphasis added.]

A second Field Office noted :

Shootings, beiatings 'and a high degree of unrest continues
to prevail in the ghetto area of Southeast San Diego. Al-
though no specific counterintelligence action can be credited
with contributing to this overall situation, it is felt that a
substantial amount of the mirest is directly attributable to
this program.^^

In another case, an anonymous letter was sent to the leader of the
Blackstone Rangers (a group, according to the Field Offices' proposal,
"to whom violent-type activity, shooting, and the like are second
nature") advising him that "the brothers that run the Panthers blame
you for blocking their thing and there's supposed to be a hit out for
you." The letter was intended to "intensify the degree of animosity
between the tAvo groups" and cause "retaliatory action which could
disrupt the BPP or lead to reprisals against its leadership." *^

Another technique which risked serious harm to the target was
falsely labeling a target an informant. This technique was used in all
five domestic COINTELPRO. When a member of a nonviolent group
was successfully mislabeled as an informant, the result was alienation
from the group.*^ When the target belonged to a group known to have
killed suspected informants, the risk was substantially more serious.
On several occasions, the Bureau used this technique against members
of the Black Panther Party ; it was used at least twice after FBI docu-
ments expressed concern over the possible consequences because two
members of the BPP had been murdered as suspected informants.^"

The Bureau recognized that some techniques used in COINTELPRO
were more likely than others to cause serious physical, emotional, or
economic damage to the targets.^^ Any proposed use of such tech-
niques— for example, encouraging enmity between violent rival

*' Memorandum from Los Angeles Field Office to FBI headquarters, 5/26/70,
pp. 1-2.

*'' Memorandum from San Diegv> Field Office to FBI headquarters. 9/15/69.

** Memorandum from Chicago Field Office to FBI headquarters, 1/12/69 ; Mem-
orandum from FBI Headquarters to Chicago Field Office, 1/30/69.

*' See, e.g., Memorandum from San Diego Field Office to FBI Headquarters,
4/30/69.

^ One proposal to label a BPP member a "pig informer" was rejected because
the Panthers had recently murdered two suspected informers. The victims had
not been targets of a Bureau effort to label them informants. (Memorandum from
FBI Headquarters to Cincinnati Field Office, 2/18/71.) Nevertheless, two similar
proposals were implemented a month later, (Memorandum from FBI Headquar-
ters to Washington Field Office, 3/19/71 ; Memorandum from FBI Headquarters
to Charlotte Field Office, 3/31/71.)

^^ At least four assaults — two of them on women — were reported as "results"
of Bureau actions. (See COINTELPRO Report, Section IV : Wartimes Technique
Brought Home. )

219

groups, falsely labeling group members as informants, and mailing
anonymous letters to targets' spouses accusing the target of infidelity —
was scrutinized carefully by headquarters supervisory personnel, in
an attempt to balance the "greater good" to be achieved by the pro-
posal against the known or risked harm to the target. If the "good"
was sufficient, the proposal was approved. For instance, in discussing
anonymous letters to spouses, the agent who supervised the New Left
COINTELPRO stated:

[Before recommending approval] I would want to know
what you want to get out of this, who are these people. If it's
somebody, and say they did split up, what would accrue from
it as far as disrupting the New Left is concerned ? Say they
broke up, what then. . . .

[The question would be] is it worth it ? ^^
Similarly, with regard to caiising false suspicions that an individual
was an informant, the chief of the Racial Intelligence Section stated :
You have to be able to make decisions and I am sure that la-
beling somebody as an informant, that you'd want to make
certain that it served a good purpose before you did it and not
do it haphazardly. ... It is a serious thing ... As far as I am
aware, in the black extremist area, by using that technique, no
one was killed. I am sure of that.^^^
This official was asked whether the fact that no one was killed was the
result of "luck or planning." He answered : "Oh, it just happened that
way, I am sure." ^^^

It is intolerable in a free society that an agency of the Government
should adopt such tactics, whether or not the targets are involved in
criminal activity. The "greater good" of the country is in fact served
by adherence to the rule of law mandated by the Constitution.

Sub-findmg (d)

The sustained use of such tactics by the FBI in an attempt to de-
stroy Dr. Martin Luther King, Jr., violated the law and fundamental
human decency.

The Committee devoted substantial attention to the FBI's covert
action campaign against Dr. Martin Luther King because it demon-
strates just how far the Government could go in a secret war against
one citizen. In focusing upon Dr. King, however, it should not be
forgotten that the Bureau carried out disruptive activities against
hundreds of lesser-known American citizens. It should also be borne
in mind that positive action on the part of high Government officials
outside the FBI might have prevented what occurred in this case.^^

The FBI's claimed justification for targeting Dr. King — alleged
Communist influence on him and the civil rights movement — is ex-
amined elsewhere in this report.^*

^ New Left supervisor 10/28/75, pp. 72, 74.

'=" Moore, 11/3/75, p. 62.

^^ Moore, 11/3/75, p. 64.

® See pp. 275-277 and 205-206 of this Report for a detailed discussion of which
officials were aware or sht>uld have been aware of what the Bureau was doing
to Dr. King and how their action or inaction might have contributed to what
went on.

^ See Marin Luther King Report, Section III, "Concern in the FBI and the
Kennedy Administration Over Allegations of Communist Influence in the Civil
Rights Movement Increases, and the FBI Intensifies the Investigation : Octo-
ber 1962-October 1963." See generally, Finding on Overbreadth, p. 175.

220

The FBI's campaign against Dr. ISIartin Luther King, Jr. began in
December 1963, four months after the famous civil rights March on
Washington,^^ when a nine-hour meeting was convened at FBI Head-
quarters to discuss A^arious "avenues of approach aimed at neutralizing
King as an effective Negro leader." ^^ Following the meeting, agents
in the field were instructed to "continue to gather information con-
cerning King's personal activities ... in order that we may consider
using this information at an opportune time in a counterintelligence
move to discredit him." ^^

About two weeks after that conference, FBI agents planted a micro-
phone in Dr. King's bedroom at the Willard Hotel in Washington,
D.C.^^ During the next two years, the FBI installed at least fourteen
more "bugs" in Dr. King's hotel rooms across the countrj'.^^ Physical
and photographic surveillances accompanied some of the microphones
coverage.®"

The FBI also scrutinized Dr. King's tax returns, monitored his
financial affairs, and even tried to determine whether he had a secret
foreign bank account.®^

In late 1964, a "sterilized" tape was prepared in a manner that would
prevent attribution to the FBI and was "anonymously" mailed to Dr.
King just before he received the Nobel Peace Prize.®^ Enclosed in the
package with the tape was an unsigned letter which warned Dr. King,

■^ The August 1963 march on Washington was the occasion of Dr. Kings "I
Have a Dream" speech, on the steps of the Lincoln Memorial. (See memorandum
from William C. Sullivan to Alan Belmont, 8/30/63, characterizing the speech as
"demagogic". )

*• Memorandum from William C. Sullivan to Alan Belmont, 12/24/63. Although
FBI officials were making derogatory references to Dr. King and passing personal
information about Dr. King to their superiors. (Memorandum from Hoover to
Deputy Attorney General Katzenbach, 8/13/63.) Prior to December 1963, the
Committee had discovered no document reflecting a strategy to deliberately
discredit him prior to the memorandum relating to the December 1963 meeting.

^^ Memorandum from William C. Sullivan to Alan Belmont, 12/24/63.

^The microphone was installed on January 5, 1964 (Memorandum from
William C. Sullivan to Alan Belmont, l/6/(>4.), just days after Dr. King's pic-
ture appeared on the cover of Time magazine as "Man of the Year." (Time
Magazine, January 3, 1964.) Reading of the Time magazine award, the Director
had written, "They had to dig deep in the garbage to come up with this one."
(Note on UP release, 12/29/63.)

*' FBI memoranda make clear that microphones were one of the technique!*
being used in the effort to obtain information about Dr. King's private life.
(Memorandum from F. J. Baumgardner to William C. Sullivan 1/28/64.) The mi-
crophones were installed at the following places: Washington: Willard Hotel
(Jan. 1964) ; Miltvavkee: Shroeder Hotel (Jan. 1964) ; Honolulu: Hilton Hawai-
ian Village (Feb. 1964) ; Detroit: Statler Hotel (March 1964) ; Sacramento:
Senator Motel (Apr. 1964) ; New York Citu: Park Sheraton Hotel (Jan. 1965).
Americana Hotel (Jan. and Nov. 1965), Sheraton Atlantic Hotel (May 1965),
Astor Hotel (Oct. 1965), New York Hilton Hotel (Oct. 1965).

*" FBI summary memorandum, 10/3/75 : memorandum from F. J. Baumgardner
to William C. Sullivan, 3/26/64 ; memorandum from William C. Sullivan to Alan
Belmont, 2/22/64 ; and unsigned memorandum, 2/28/64.

"^Memorandum from F. J. Baumgardner to William C. Sullivan. 3/27/64;
memorandum from New York Field Office to FBI Headquarters, 6/2/64; memo-
randum from F. J. Baumgardner to William Sullivan, 7/14/65.

^ Sullivan 11/1/75. pp. 104-105. staff summary of a .special agent interview,
7/25/75. Three days before the tape was mailed. Director Hoover had publicly
branded Dr. King "the most notorious liar in the country" and Dr. King had
responded with a criticism of the Bureau. (Memorandum from Cartba DeLoach
to John Mohr, 11/18/64 ; telegram from Martin Luther King to J. Edgar Hoover
11/19/64.)

221

"your end is approaching . . . you are finished." The letter intimated
that the tape might be publicly released, and closed with the follow-
ing message:

King, there is only one thing left for you to do. You know
what it is. You have just 34 days in which to do (this exact
number has been selected for a specific reason, it has definite
practical significance) . You are done. There is but one way out
for you . . .^^

Dr. King's associates have said he interpreted the message as an effort
to induce him to commit suicide.^*

At about the same time that it mailed the "sanitized" tape, the FBI
was also apparently offering tapes and transcripts to newsmen.''^ Later
when civil rights leaders Eoy Wilkins and James Farmer went to
Washington to persuade Bureau officials to halt the FBI's discredit-
ing efforts,*^'^ they were told that "if King want[s] war we [are] pre-
pared to give it to him." ^^

Shortly thereafter, Dr. King went to Europe to receive the Nobel
Peace Prize. The Bureau tried to undermine ambassadorial receptions
in several of the countries he visited,^^ and when he returned to the

"^ This paragraph appears in a document in the form of a letter which the FBI
has supplied to the Committee and which the Bureau maintains was discovered in
the files of former Assistant Director Sullivan. (FBI memorandum to the Select
Committee, 9/18/75.) Sullivan stated that he did not recall the letter and sug-
gested that it may have been "planted" in his files by his former colleagues.
(Sullivan 11/1/75, p. 104.) Congressman Andrew Young has informed the Com-
mittee that an identical paragraph was contained in the letter which was
actually received by Dr. King with the tape, and that the letter the committee
had, supplied by the Bureau, appears to be an "early draft." (Young, 2/19/76,
p. 36.)

Sullivan said that the purpose of sending the tape was "to blackmail King into
silence ... to stop him from criticising Hoover; ... to diminish his stature.
In other words, if it caused a break between Coretta and Martin Luther King, that
would diminish his stature. It would weaken him as a leader." (Sullivan,
11/1/75, 11/26/75, p. 152.)

** Young, 2/19/76, p. 37, Time magazine had reported earlier in the year that
Dr. King had attempted suicide twice as a child. [Time magazine, Jan. 4, 1964.]

^ Several newsmen have informed the Committee that they were offered this
kind of material or that they were aware that such material was available. Some
have refused to identify the individuals who made the offers and others have
said they could not recall their identities. Former FBI officials have denied that
tapes or transcripts were offered to the press (e.g., DeLoach testimony, 11/26/75,
p. 152) and the Bureau maintains that their files contain no documents reflecting
that this occurred.

" Staff interviews of Roy Wilkins, 11/23/75, and James Farmer, 11/13/75.

*' Memorandum from Cartha DeLoach to John Mohr, 11/27/64 ; staff interview
of James Farmer, 11/13/75. Three days after Wilkins' meeting with DeLoach,
Dr. King asked to see the Director, telling the press "the time has come to bring
this controversy to an end." (UPI release, 12/1/64) Dr. King and Hoover met the
following day; the meeting was described as "amicable." (Memoranda from
Cartha DeLoach to John Mohr, 12/1/64 and 12/2/64.) Despite the "amicable"
meeting, the Bureau's campaign against Dr. King continued.

''Memorandum from F. J. Baumgardner to William C. Sullivan, 11/30/64;
memorandum from Legat to FBI Headquarters, 12/10/64. Steps were also taken
to thwart a meeting which Dr. King was planning to have with a foreign leader
during this same trip (Memorandum from F. J. Baumgardner to William C.
Sullivan. 11/10/64; memorandum from FBI Headquarters to Legat, 11/10/64),
and to influence a pending USIA decision to send Dr. King on a ten-day lecture
trip in Africa after receiving the Nobel Pris^e. (Memorandum from F. J. Baum-
gardner to William C. Sullivan, 11/12/64.)

222

United States, took steps to diminish supjDort for a banquet and a
special "day" being planned in his honor.''^

The Bureau's actions against Dr. King included attempts to prevent
him from meeting with world leaders, receiving honors or favorable
publicity, and gaining financial support. When the Bureau learned
of a possible meeting between Dr. King and the Pope in August 1964,
the FBI asked Cardinal Spellman to try to arrange a cancellation of
the audience.'^" Discovering that two schools (Springfield College and
Marquette University) were going to honor Dr. King with special
degrees in the spring of 1964, Bureau agents tried to convince officials
at the schools to rescind their plans." And when the Bureau learned
in October 1966 that the Ford Foundation might grant three million
dollars to Dr. King's Southern Christian Leadership Conference, they
asked a former FBI agent who was a high official at the Ford Motor
Company to try to block the award."

A magazine was asked not to publish favorable articles about him.^^
Keligious leaders and institutions were contacted to undermine their
support of him.^* Press conference questions were prepared and dis-

'" The Bureau was in touch with Atlanta Constitution publisher Ralph McGill,
and tried to obtain the assistance of the Constitution's editor, Eugene Patterson,
to undermine the banquet. (Memorandum from William C. Sullivan to Alan
Belmont, 12/21/64; staff summary of Eugene Patterson interview, 4/30/75.) A
governor's assistance was sought in the effort to "water down" the "King day."
(Memorandum from F. J. Baumgardner to William C. Sullivan, 3/2/65.)

'"' The Bureau had decided it would be "astounding" for Dr. King to have an
audience with the Pope and that plans for any such meeting should be "nipped
in the bud." (Memorandum from F. J. Baumgardner to William C. Sullivan,
8/31/64.) When the Bureau failed to block the meeting and the press reported
that the audience was about to occur, the Director noted that this was "astound-
ing." (FBI Director's notation on UPI release, 9/18/64). FBI officials took
immediate steps to determine "if there could possibly have been a slip-up."
(Memorandum from F. J. Baumgardner to William C. Sullivan, 9/17/64.)

" The Bureau had decided that it would be "shocking indeed that the pos-
sibility exists that King may receive an Honorary Degree from the same institu-
tion (Marquette) which honored the Director with such a Degree in 1950." With
respect to Springfield College, where the Director had also been offered an honor-
ary degree, the Bureau's decision about whom to contact included the observation
that "it would not appear to be prudent to attempt to deal with" the President
of the college because he "is very close to Sargent Shriver." (Memorandum from
F. J. Baumgardner to William C. Sullivan, 3/4/64 ; and 4/2/64 ; memorandum
from Cartha DeLoach to John Mohr, 4/8/64. )

'* Memorandum from Cartha DeLoach to Clyde Tolson, 10/25/66 and 10/26/66.
At about the same time, the Bureau leaked a story to the press about Dr. King's
intention to seek financial assistance from Teamsters Union President James R.
Hoffa because "[d]isclo.sure would be mutually embarrassing to both men and
probably cause King's quest for badly needed funds to fail in this instance."
(Memorandum from F. J. Baumgardner to William C. Sullivan, 10/28/66.)

The Bureau also tried to block the National Science Foundation (NSF) from
dealing with the SCLC. "It is incredible that an outfit such as the SCLC should
be utilized for the purpose of recruiting Negroes to take part in the NSF program,
particularly where funds of the U.S. Government are involved." (Memorandum
from F. J. Baumgardner to William C. Sullivan, 12/17/64.)

''Hiemorandum from Special Agent to Cartha DeLoach, 11/3/64.

'* "It is shocking indeed that King continues to be honored by religious groups."
(Memorandum from F. J. Baumgardner to William C. Sullivan. 2/1/65.) Contacts
were made with representatives of the National Council of Churches of Christ,
the Baptist World Alliance, the American Church in Paris, and Catholic Church.
(Memoranda from William C. Sullivan to Alan Belmont, 6/12/64, 12/15/64 and
2/16/64 ; memorandum from F. J. Baumgardner to William C. Sullivan. 2/18/66 :
memorandum from Chicago Field Office to FBI Headquarters, 2/24/66, and

223

tributed to "friendly" journalists." And plans were even discussed for
sabotaging his political campaign in the event he decided to run for
national office.'^^ An SCLC employee was "anonymously" informed
that the SCLC was trying to get rid of her "so that the Bureau
[would be] in a position to ca})italize on [her] bitterness." ^^ Bureau
officials contacted members of Congress/^ and special "off the record"
testimony was prepared for the Director's use before the House
Appropriations Committee.^"

The "neutralization" program continued until Dr. King's death. As
late as INIarch 1968, FBI agents were being instructed to neutralize
Dr. King because he might become a "messiah" who could "unify,
and electrify, the militant black nationalist movement" if he were to
"abandon his supposed 'obedience' to 'white liberal doctrines' (non-
violence) and embrace black nationalism." ^^ Steps were taken to sub-
vert the "Poor People's Campaign" which Dr. King was planning to
lead in the spring of 1968.^- Even after Dr. King's death, agents in
the field were proposing methods for harassing his widow,^^ and Bu-
reau officials were trying to prevent his birthday from becoming a
national holiday.^*

The actions taken against Dr. King are indefensible. They repre-
sent a sad episode in the dark history of covert actions directed against
law abiding citizens by a law enforcement agency.

memorandum from Legat, Paris, to FBI Headquarters, 4/14/66 and 5/9/66.)
The Director did disapprove a suggestion that religious leaders be permitted "to
listen to sources we have" (FBI Director's note on memorandum from Jones to
Thomas Bishop, 12/8/64. )

'^ Memorandum from Charles Brennan to William C. Sullivan, 3/8/67. The Bu-
reau also disseminated to "friendly media sources" a newspaper article which
was critical of Dr. King's position on the Vietnam war. The stated purposes
were to "publicize King as a traitor to bis country and his race," and to "re-
duce his income," (memorandum from George C. Moore to William C. Sullivan,
10/18/67.) "Background information" was also given to at least one wire serv-
ice (memorandum from Sizoo to William C. Sullivan, 5/24/65).

™ Memorandum from FBI Headquarters to New York Field Office 5/18/67. There
has been rumors about a "peace ticket" headed by Dr. King and Benjamin
Spock.

'* Memorandum from FBI Headquarters to New York Field Office, 4/13/64 ;
memorandum from New York Field Office to FBI Headquarters, 4/2/64.

" Memorandum from Cartha DeLoach to John Mohr, 8/14/65 ; memorandum
from F. J. Baumgardner to William C. Sullivan, 1/10/67.

^ Memorandum from F. J. Baumgardner to William C. Sullivan, 1/22/64 ;
memorandum from Nicholas Callahan to John Mohr, 1/31/64. On one occasion
the testimony leaked to other members of Congress, prompting the Director to
note. "Someone on Rooney's Committee certainly betrayed the secrecy of the
'oflf the record' testimony I gave re: King." (Director's note on memorandum
from Cartha DeLoach to John Mohr, 3/16/64.)

^ Memorandum from FBI Headquarters to all SACs, 3/4/68.

*^ Memorandum from George C. Moore to William C. Sullivan, 3/26/68.

^Memorandum from Atlanta Field Office to FBI Headquarters, 3/18/69.

^ Memoranda : From George C. Moore to William C. Sullivan. 1/17/69 : and
from Jones to Thomas Bishop, 3/18/69. Steps were even taken to prevent the
issuance of "commemorative medals." (Memorandum from Jones to Thomas
Bishop, 5/22/68.)

E. POLITICAL ABUSE OF INTELLIGENCE
INFORMATION

Major Finding

The Committee finds that information has been collected and dis-
seminated in order to serve the purely political interests of an intel-
ligence agency or the administration, and to influence social policy
and political action.

Subfindings

(a) "White House officials have requested and obtained politically
useful information from the FBI, including information on the activi-
ties of political opponents or critics.

(b) In some cases, political or personal information was not specifi-
cally requested, but was nevertheless collected and disseminated to ad-
ministration officials as part of investigations they had requested.
Neither the FBI nor the recipients differentiated in these cases be-
tween national security or law enforcement information and purely
political intelligence.

(c) The FBI has also volunteered information to Presidents and
their staffs, without having been asked for it, sometimes apparently to
curry favor with the current administration. Similarly, the FBI has
assembled intelligence on its critics and on political figures it believed
might influence public attitudes or Congressional support.

(d) The FBI has also used intelligence as a vehicle for covert efforts
to influence social policy and political action.

Elahoration of Findings

The FBI's ability to gather information without effective restraints
gave it enormous power. That power was inevitably attractive to politi-
cians, who could use information on opponents and critics for their
own advantage, and was also an asset to the Bureau, which depended
on politicians for support. In the political arena, as in other facets of
American life touched by the intelligence community, the existence of
unchecked power led to its abuse.

By providing politically useful information to the Wliite House
and congressional supporters, sometimes on demand and some-
times gratuitously, the Bureau buttressed its own position in the
political structure. At the same time, the widespread — and accurate —
belief in Congress and the administration that the Bureau had avail-
able to it, derogatory information on politicians and critics created
what the late Majority Leader of the House of Representatives, Hale
Boggs, called a "fear" of the Bureau :

Freedom of speech, freedom of thought, freedom of action for
men in public life can be compromised quite as effectively by
the fear of surveillance as by the fact of sur\^eillance.^

^ Remarks by Rep. Hale Boggs, 4/22/71, Congressional Record, Vol. 117, Part
9, p. 11565.

(225)

-786 O - 76 - le

226

Information gathered and disseminated to the White House ranged
from purely political intelligence, such as lobbying efforts on bills an
administration opposed and the strategy of a delegate challenge at a
national political convention, to "tidbits" about the activities of poli-
ticiaiis and public figures which the Bureau believed "of interest" to
the recipients.

Such participation in political machinations by an intelligence
agency is totally improper. Responsibility for what amounted to a
betrayal of the public trust in the integrity of the FBI must be shared
between the officials who requested such information and those who
provided it.

The Bureau's collection and dissemination of politically useful in-
formation was not colored by partisan considerations ; rather its effect
was to entrench the Bureau's own position in the political structure,
regardless of wliich party was in power at the time. However, the
Bureau also used its powers to serve ideological purposes, attempting
covertly to influence social policy and political action.

In its efforts to "protect society," the FBI engaged in activities
which necessarily affected the processes by which American citizens
make decisions. In doing so, it distorted and exaggerated facts, made
use of the mass media, and attacked the leadership of groups which
it considered threats to the social order.

Law enforcement officers are, of course, entitled to state their opin-
ions about what choices the people should make on contemporary social
and political issues. The First Amendment guarantees their right to
enter the marketplace of ideas and persuade their fellow citizens of
the correctness of those opinions by making speeches, writing books,
and, within certain statutory limits, supporting political candidates.
The problem lies not in the open expression of views, but in the covert
use of power or position of trust to influence others. This abuse is
aggravated by the agency's control over information on which the
public and its elected representatives rely to make decisions.

The essence of democracy is the belief that the people must be free
to make decisions about matters of public policy. The FBI's ac-
tions interfered with the democratic process, because attitudes within
the Bureau toward social change led to the belief that such inton^en-
tion formed a part of its obligation to protect society. When a govern-
mental agency clandestinely tries to impose its views of what is right
upon the American people, then the democratic process is undermined.

Si/hftidinQ (a)

AMiite House officials have requested and obtained politically use-
ful information from the FBI. including personal life information
on the activities of political opponents or critics.

Presidents and "Wliite House aides have asked the FBI to provide
political or personal information on opponents and critics, including
"name checks" of Bureau files.^ They have also asked the Bureau to

^ A "name cheek" is not an investigation, but a search of existing: FBI files
throneh the use of the Bureau's comprehensive general name inrlpx. Requests
for FBI "name checks" were peculiarly damaging because no new investigation
was done to verify allegations stored away for years in Bureau files. A former
FBI official responsible for compliance with such requests said that the Bu-
reau "answered ... by furnishing the White House every piece of information
In our files on the individuals requested." Depo.sition of Thomas E. Bishop,
former Assistant Director, Crime Records Division, 12/2/75, p. 144.)

227

conduct electronic surveillance or more limited investigations of such
persons. The FBI appears to have complied unquestioningly with
these requests, despite occasional internal doubts about their pro-
priety.^

Precedents for certain political abuses go back to the very outset
of the domestic intelligence program. In 1940 the FBI complied with
President Roosevelt's request to file the names of people sending
critical telegrams to the "\^niite House.* There is evidence of improper
electronic sui'veillance for the White House in the 1940s.^ And an aide
to President Eisenhower asked the FBI to conduct a questionable
name check.*' In 1962, the FBI complied unquestioningly with a re-
quest from Attorney General Kennedy to interview a steel executive
and several reporters Avho had written stories about a statement by
the executive.' As part of an investigation of foreign lobbying efforts
on sugar quota legislation in 1961 and 1962, Attorney General Ken-
nedy requested wiretaps on a Congressional aide, three executive
officials, and two American lobbyists, including a Washington law
finn.^

Nevertheless, the political misuse of the FBI under the Johnson
and Nixon administrations appears to have been more extensive
than in previous years.

Under the Johnson administration, the FBI was used to gather
and report political intelligence on the administration's partisan op-
ponents in the last days of the 1964 and 1968 Presidential election

^ Former FBI executive Cartha DeLoacli, who was FBI liaison witli the White
House during part of the Johnson administration, has stated, "I simply followed
Mr. Hoover's instructions in complying with "White House requests and I never
asked any questions of the White House as to what they did with the material
afterwards." (DeLoach deposition, 11/2.5/75, p. 28.) On at least one occasion,
when a A^liite House aide indicated that President Johnson did not want any
record made by the FBI of a request for a "run-down" on the links between
Robert Kennedy and officials involved in the Bobby Baker investigation, the
Bureau disregarded the order. DeLoach stated that he "ignored the specific
instructions" in this instance because he "felt that any instructions we received
from t>ie White House should be a matter of record." (DeLoach deposition,
11/25/75, p. 89.)

Former Assistant Director Bishop stated, "Who am I to ask the President of
the United States what statutory basis he has if he wants to know what in-
formation is in the files of the FBI?" It was a "proper dis.semination" because
it was "not a dissemination outside the executive branch" and because there was
"no law, no policy of the Department of .Justice, ... no statute of the United
States that says that was not i)ermissible." But even if there had been a statute
laying down standards, BLshop said "it wouldn't have made a bit of difference
. . . wlien the Attorney General or the President asks for it."

Bishop recalled from his "own knowledge" instances where President Kennedy,
•Johnson, and Nixon had "called over and asked Mr. Hoover for a memo on
certain people." (Bishop deposition, 12/2/75, pp. 153-154.) _

* Memoranda from Stephen Early, Secretary to the President, to Hoover, 5/21/40
and 6/17/40.

" FBI memorandum to Senate Select Committee, 3/26/76 ; See pp. 36-37.
' Memorandum from J. Edgar Hoover to Thomas E. Stephens. Secretary to the
President. 4/13/54.

■^ Tourtnev Evans deposition, 12/1/75, p. 39.

* See pp. 64-65. The tap aiithorized by Attorney General Kennedy on another
high executive official was not related to political considerations, nor appar-
enti.v was the tap authorized by Attorney General Katzenbach in 1965 on the
editor of an anti-communist newsletter who had published a book alleging
impropriety by Robert Kennedy a year earlier.

228

campaio^ns. In the closing days of the 1964 campaign, Presidential
aide Bill Moyers asked the Bureau to conduct "name checks" on all
persons employed in Senator Goldwater's Senate office, and informa-
tion on two staff members was reported to the White House.^ Simi-
larly, in the last two weeks of the 1968 campaign, the Johnson White
House requested an investigation (including indirect electronic sur-
veillance and direct physical surveillance) of Mrs. Anna Chennault, a
prominent Republican leader, and her relationships with certain South
Vietnamese ofRcials.^^ This investigation also included an FBI check
of Vice Presidential candidate Spiro Agnew's long distance telephone
call records, apparently at the personal request of President
Johnson.^^

Another investigation for the Johnson White House involved ex-
ecutive branch officials who took part in the criminal investigation
of former Johnson Senate aide Bobby Baker. When Baker's trial
began in 1967, it was revealed that one of the government witnesses
had been "wired" to record his conversations with Baker. Presidential
aide Marvin Watson told the FBI that Johnson was quite "exercised,"
and the Bureau was ordered to conduct a discreet "nm-down" on the
former head of the Justice Department's Criminal Division and four
Treasury Department officials who had been responsible for "wiring"

® Memorandum from Hoover to Moyers, 10/27/64, cited in FBI summary
memorandum. 1/31/75.

" Bureau files indicate that the apparent "reason" for the "White House
interest" was to determine "whether the South Vietnamese had secretly been
in touch with supporters of Presidential candidate Nixon, possibly through
Mrs. Chennault, as President Johnson was apparently suspicious that the South
Vietnamese were trying to sabotage his peace negotiations in the hope that
Nixon would win the election and then take a harder line towards North
Vietnam." (FBI memorandum, subject: Mrs. Anna Chennault, 2/1/75.) The
FBI has claimed that its investigation of Mrs. Chennault was "consistent with
FBI responsibilities to determine if her activities were in violation of certain
provisions of the Foreign Agents Registration Act and of the Neutrality Act."

Direct electronic surveillance of Mrs. Chennault was rejected, according to a
contemporaneous FBI memorandum, because FBI executive Cartha DeLoach
pointed out that "it was widely known that .«he was involved in Republican
political circles and, if it became known that the FBI was surveilling her this
would put us in a most untenable and embarrassing position." (Memorandum
from DeLoach to Tolson, 10/30/68.)

Electronic surveillance was, however, directed at the South Vietnamese ofl3-
cials and was approved by Attorney General Ramsey Clark. Clark has testified
that he did not know of the physical surveillance aspect of the FBI's investiga-
tion, but that he did authorize the electronic surveillance of the South Vietnamese
officials. (Clark testimony, 12/3/75, Hearings, Vol. 6, p. 252.)

" FBI executive Cartha DeLoach has stated that a White House aide made
the initial request for the check of telephone company records late one night.
According to DeLoach, the request was "to find out who. either Mr. Agnew or
Mr. Nixon, when they had been in Albuquerque (New Mexico) several days prior
to that, had called from Albuquerque while they were there." When DeLoach
refused to contact the telephone company "late in the evening," President Johnson
"came on the phone and proceeded to remind me that he was Commander in
Chief and he should get what be wanted, and he wanted me to do it immedi-
ately." DeLoach then talked with Director Hoover, who told him to "stand
your ground." The next day, however. Hoover ordered that the records be
checked, but the only calls identified were "made by Mr. Agnew's staff." These
were rei)orted to the White House. (DeLoach Deposition, 11/2.5/75, pp. 74-75.)
Agnew's arrival and departure times in and out of Albuquerque were also
"verified at the request of the White House." (FBI summary memorandiun,
subject : Mrs. Anna Chennault, 2/1/75).

229

the witness. The Bureau was specifically insisted to include any asso-
ciations between those persons and Robert Kennedy.^^

Several Jolmson White House requests were directed at critics of
the war in Vietnam, at newsmen, and at other opponents. According
to a Bureau memorandum, White House aide Marvin Watson at-
tempted to disguise liis, and the President's interest in such requests
by asking the FBI to channel its replies through a lower level White
House staff member,"

In 1966, Watson asked the FBI to monitor the televised hearings
of the Senate Foreign Relations Committee on Vietnam policy and
prepare a memorandum comparing statements of the President's Sen-
ate critics with "the Commmiist Pai-ty line.'' ^* Similarly, in 1967 when
seven Senators made statements criticizing the bombing of North
Vietnam, Watson requested (and the Bureau delivered) a "blind mem-
orandum'' setting forth infonnation from FBI files on each of the
Senators. Among the data supplied were the following items :

Senator Clark was quoted in the press as stating that the
three major threats to America are the military-industrial
complex, the Federal Bureau of Investigation, and the Central
Intelligence Agency.

Senator ^IcGovem spoke at a rally sponsored by the Chi-
cago Committee for a Sane Nuclear Policy, a pacifist group.
Senator McGovern stated that the "United States was mak-
ing too much of the communist take-over of Cuba."

[Another Senator now deceased] has, on many occasions,
publicly criticized United States policy toward Vietnam. He
frequently speaks before groups throughout the United States
on this subject. He has been reported as intentionally enter-
ing into controversial areas so that his services as a speaker
for which he receives a fee, will be in demand.^^

The Johnson administration also requested information on contacts
between members of Congress and certain foreign officials known to
oppose the United States presence in Vietnam. According to FBI

" FBI Director Hoover brought the matter to the attention of the White
House in a letter describing why the FBI had refused to "wire" the witness
(tliere was not adequate "security") and how tlie Criminal Division had then
used the Bureau of Narcotics to do so. (JNIemorandum from Hoover to Watson,
1/12/67.) This was the instance where FBI executive Cartha DeLoach made
a record, after Watson told him that "the President does not want any record
made." (Memorandum from DeLoach to Tolson, 1/17/67; see also FBI summary
memorandum, 2/3/75.)

^^ According to this memorandum. Watson told Cartha DeLoach in 1967 that
"he and the President" wanted all "communications addre.s.sed to him by the
Director" to be addressed instead to a lower level White House staff member.
Watson told DeLoach that the "reason for this change" was that the staff
member "did not have the direct connection with the President that he had and,
consequently, people who saw such commiinications would not suspicion (sic)
that Watson or the President had requested such information, nor were inter-
ested in such information." (Memorandum from De Loach to Tolson, 3/17/67.)

^* FBI summary memorandum, subject : Coverage of Television Presentation.
Senate Foreign Relations Commiftee, 1/31/7.5. Former FBI executive Cartha
DeLoach has stated, regarding this incident, "We felt that it was beyond the
jurisdiction of the FBI, but obviou.sly Mr. Hoover felt that this was a request
by the President and he desired it to be done." (DeLoach deposition, 11/25/7.5,
p. 58.)

^^ Blind FBI memorandum, 2/10/67.

230

records, President Johnson believed these foreign officials had gen-
erated "much of the protest concerning his Vietnam policy, particu-
larly the hearings in the Senate." ^®

Wliite House requests were not limited to critical Congressmen.
Ordinary citizens who sent telegrams protesting the Vietnam war
to the Wliite House were also the subject of Watson requests for FBI
name check reports.^^ Presidential aide Jake Jacobsen asked for name
checks on persons whose names appeared in the Congressional Record
as signers of a letter to Senator Wayne Morse expressing support for
his criticism of U.S. Vietnam policy.^^ On at least one occasion, a
request was channeled through Attorney General Ramsey Clark, who
supplied Watson (at the latter's request) with a summary of infor-
mation on the National Committee for a Sane Nuclear Policy.^^

Other individuals who were the subject of such name check requests
under the Johnson Administration included NBC Commentator David
Brinkley,^" Associated Press reporter Peter Arnett,^^ columnist
Joseph Kraft,^' Life magazine Washington bureau chief Richard
Stolley,^^ Chiago Daily News Washington bureau chief Peter
Lisagor,^* and Ben W. Gilbert of the Washington Post.^^ The John-
son "\Vliite House also requested (and received) name check reports on
the authors of books critical of the Warren Commission report ; some
of these reports included derogatory information about the personal
lives of the individuals.^^

The Nixon administration continued the practice of using the FBI
to produce political information. In 1969 John Ehrlichman, counsel
to President Nixon, asked the FBI to conduct a "name check" on
Joseph Duffy, chairman of Americans for Democratic Action. Data
in Bureau files covered Duffy's "handling arrangements" for an anti-
war teach-in in 1965, his position as State Coordinator of the group

" President Johnson's request also went beyond "legislators," and included
contacts by any "prominent U.S. citizens." (FBI summary memorandum, sub-
ject: Information Concerning Contacts Between [Certain Foreign officials] and
Members or Staff of the United States Congress Furnished to the White House
at the Request of the President, 2/3/75.) The FBI's reports indicated that its
information came "through coverage" of the foreign officials and that the Bureau,
in this case, had "conducted no investigation of members of Congress." (FBI
summary memorandum, 2/3/75.) FBI "coverage" apparently included electronic
surveillance.

President Nixon also requested information on contacts between foreign officials
and Congressmen, but his request does not appear to have related to Presidential
critics. Rather, the Nixon request grew out of concern about "an increase in
[foreign] interest on Capitol Hill" which had been expressed to President Nixon
by at least one Senator ; and the FBI's report "included two examples of
[foreign] intelligence initiatives directed against Capi'tol Hill without identifying
the [foreigners] or American involved." (FBI summary memorandum, 2/3/75.)

"Memoranda from Hoover to Watson, 6/4/65 and 7/30/65.

" Memorandum from Hoover to Watson, 7/15/66, citing Jacobsen request.

" Memorandum from Clark to Watson, 4/S/67, enclosing memorandum from
Director, FBI to the Attorney General. 4/7/67. (LB J Library.)

^"Memoranda from Hoover to Watson, 2/15/65 and 5/29/65.

^ Memorandum from Hoover to AVatson, 7/22/65.

^Memorandum from Hoover to Watson, 1/27/67.

*' Memorandum from Hoover to Watson, 4/6/66.

^* Memorandum from Hoover to Watson, 2/24/66.

^° Memorandum from Hoover to Watson, 4/6/66.

^* Memorandum from Hoover to Watson, 11/8/66; DeLoach, 12/3/75, Hear-
ings, Vol. 6, pp. 180-182.

231

"Negotiation Now" in 1967, and his activity as chairman of Con-
necticut Citizens for McCarthy in 1968.2''^

Presidential aide H. R. Haldeman requested a name check on CBS
reporter Daniel Schorr. In this instance, the FBI mistakenly con-
sidered the request to be for a full background investigation and began
to conduct interviews. These interviews made the inquiry public. Sub-
sequently, White House officials stated (falsely) that Schorr was
imder consideration for an executive appointment.'^ In another case,
a Bureau memorandum states that Vice President Agnew asked the
FBI for information about Rev. Ralph David Abernathy, then head
of the Southern Christian Leadership Conference, for use in "de-
stroying Abernathy's credibility." ^^ (Agnew has denied that he made
such a request, but agrees that he received the information.)^^

Several White House requests involved the initiation of electronic
surveillance. Apparently on the instructions of President Nixon's aide
John Ehrlichman and Director Hoover, FBI Assistant Director Wil-
liam C. Sullivan arranged for the microphone surveillance of the hotel
room of columnist Joseph Kraft while he was visiting a foreign
country.^" Kraft was also the target of physical surveillance by the
FBI.^^ There is no record of any specific "national security" rationale
for the surveillance.

Similarly, although the "17" wiretaps were authorized ostensibly to
investigate national security "leaks," there is no record in three of the
cases of any national security claim having been advanced in their
support. Two of the targets were domestic affairs advisers at the White
House, with no foreign affairs duties and no access to foreign policy
materials,^- A third was a White House speechwriter who had been
overheard on an existing tap agreeing to provide a reporter with back-
ground on a presidential speech concerning, not foreign policy, but
revenue sharing: and welfare reform.^^

'"" Letter from J. Edgar Hoover to John D. Ehrlichman, 10/6/69 ; letter from
Clarence M. Kelly to Joseph Duffy, 7/14/75, enclosing FBI records transmitted
under Freedom of Information Act.

^ House Judiciary Committee Hearings, Book VII, White House Surveillance
Activities (1974), p. 1111.

^ According to Director Hoover's memorandum of the conversation, Agnew
asked Hoover for "some assistance" in obtaining information about Rev. Aber-
nathy. Hoover recorded : "The Vice President said he thought he was going to
have to start destroying Abernathy's credibility, so anything I can give him
would be appreciated. I told him I would be glad to." (Memorandum from Hoover
to Tolson, et al. 5/18/70.) Subsequently, the FBI Director sent Agnew a report
on Rev. Abernathy containing not only the by-product of Bureau investigations,
but also derogatory public record information. (Letter from Hoover to Agnew,
5/19/70.)

'* Staff summary of Spiro Agnew interview, 10/15/75.

^"Memoranda from Sullivan to Hoover, 6/30/69 and 7/2/69.

^ Memorandum from Sullivan to DeLoaeh, 11/5/69. The Kraft surveillance is
also discussed in Part II, pp. 121-122.

^ Coverage in these two cases was requested by neither Henry Kissinger nor
Alexander Haig (as most of the "17" were), but by other White House officialSi
Attorney General Mitchell approved the first at the request of "higher authority."
(Memorandum from Hoover to Mitchell, 7/23/69.) The second was specifically
rennested by H. R. Haldeman. (Memorandum from Hoover to Mitchell. 12/14/70.

^ This tap was also apparently requested by White House oflSeials other than
Kissinger or Haig. (Memorandum from Sullivan to DeLoaeh, 8/1/69.) The "17"
wiretaps are also discussed at p. 122.

232

Subfinding (h)

In some cases, political or personal information was not specifically
requested, but Avas nevertheless collected and disseminated to admin-
istration officials as part of investigations they had requested. Neither
the FBI nor the recipients differentiated in these cases between na-
tional security or law enforcement information and purely political
intelligence.

In some instances, the initial request for or dissemination of infor-
mation was premised upon law enforcement or national security pur-
poses. However, pursuant to such a request, information was furnished
which obviously could serve only partisan or personal interests. As
one Bureau official summarized its attitude, the FBI "did not decide
what was political or what represented potential strife and violence.
We are an investigative agency and we passed on all data." ^^

Examples from the Eisenhower, Kennedy, Johnson, and Nixon ad-
ministrations illustrate this failure to distinguish between political
and nonpolitical intelligence. They include the FBI's reports to the
"Wliite House in 1956 on NAACP lobbying activities, the intelligence
about the legislative process produced by the "sugar lobby" wiretaps in
1961-1962, the purely political data disseminated to the White House
on the credentials challenge in the 1964 Democratic Convention, and
dissemination of both political and personal information from the
"leak" wiretaps in 1969-1972.

(^•) The NAACP
In early 1956 Director Hoover sent the "White House a memoran-
dum describing the "potential for violence" in the current "racial
situation".^^ Later reports to the "^^Tiite House, however, went far
beyond intelligence about possible violence; they included extensive
inside information about NAACP lobbying efforts, such as the fol-
lowing :

A report on "meetings held in Chicago" in connection Avith
a plamied Leadership Conference on Civil Risfhts to be held in
Washington under the sponsorship of the NAACP.^^

An extensive report on the Leadership Conference, based
on the Bureau's ''reliable sources'" and describing plans of
Conference delegations to visit Senators Paul Douglas. Her-
bert Lehman, Wayne Morse, Hubert Humphrey, and John
Bricker. The report also summarized a speech bv Rov Wil-
kins, other conference proceedings, and the report of "an
informant" that the United Auto Workers was a "predomi-
nant organization" at the conference.^"

Another report on the conference included an account of
what transpired at meetings between conference delegations
and Senators Paul Douglas and Everett Dirksen.^^

^ DeTx»ach. 12/3/75. Hearingrs. Vol. 6. p. ISO.

"^ Memorandum from Hoover to Dillon Anderson. Special Assistant to the
President. 1/.S/56. Tliis report was also provided to the Attorney General, the
Sef'retary of Defense, and military intelligrence.

^ Memorandum from Hoover to Anderson. 3/2/.56.

^ Memorandum from Hoover to Anderson. .V5/.^6.

'® Memorandum f I'om Hoover to Anderson, 3/6/56.

233

A report including the information that two New Jersey
congressmen would sign a petition to the Attorney General.^^

A presidential aide suggested that Hoover brief the Cabinet on
"developments in the South."*" Director Hoover's Cabinet briefing
also included political intelligence. He covered not only the NAACP
conference, but also the speeches and political activities of Southern
Senators and Governors and the formation of the Federation for Con-
stitutional Government with Southern Congressmen and Governors on
its advisory board.*^

(ii) The Sugar Lobby
The electronic surveillance of persons involved in a foreign country's
lobbying activities on sugar quota legislation in 1961-1962, authorized
by Attorney General Robert Kennedy for the White House, also pro-
duced substantial political intelligence unrelated to the activities of
foreign officials.*- Such information came from wiretaps both on for-
eign officials and on American citizens, as well as from the microphone
surveillance of the chairman of the House Agriculture Committee
when he met with foreign officials in a New York hotel room.*^ The
following are examples of the purely political (and personal) by-
product :

A particular lobbyist "mentioned he is working on the Sen-
ate and has the Republicans all lined up." **

The same lobbyist said that "he had seen two additional
representatives on the House Agriculture Committee, one of

^ Memorandum from Hoover to Anderson, 3/7/56. A National Security Council
staff member responsible for internal security matters summarized these re-
ports as providing information "regarding attempts being made by the Na-
tional Association for the Advancement of Colofed People to send instructed
delegations to high-ranking Government oflBcials 'to tactfully draw out their
positions concerning civil rights.'" (Memorandum from J. Patrick Coyne to
Anderson, 3/6/56. )

*° After consulting the Attorney General, this aide advised the Secretary to the
Cabinet that the FBI had "reported developments in recent weeks in several
southern States, indicating a marked deterioration in relationships between the
races, and in some instances fomented by communist or communist-front organi-
zations." (Memorandum from Anderson to Maxwell Rabb, 1/16/56.) The Secre-
tary to the Cabinet, who had "experience in handling minority matters" for the
White House, agreed that "each Cabinet Member should be equipped with the
plain facts." (Memorandum from Rabb to Anderson, 1/17/56.) A National Secu-
rity Council staff member who handled internal security matters reported shortly
thereafter that the FBI Dii'ector was "prepared to brief the Cabinet along the
general lines" of his written communications to the White House. (Memorandum
from .1. Patrick Coyne to Anderson, 2/1/56.)

" Memorandum from Director, FBI, to the Executive Assistant to the Attorney
General, 3/9/56, enclosing FBI memorandum described as the "basic statement"
used by the Director "in the Cabinet Briefing this morning on Racial Tension and
Civil Rights." For a further discussion of the exaggeration of Communist influ-
ence on the NAACP in this briefing, see pp. 250-257, note 151a.

*^The electronic surveillances were generally related to foreign affairs con-
cerns. See pp. 64-65.

"The Americans include three Agriculture Department oflScials, the secretary
to the Chairman of the House Agriculture Committee, and two registered lobby-
ing agents for foreign interests. For Attorney General Kennedy's relationship
to thp microphone .surveillance of the Congressman, see p. 61, note 233. One
of the wiretaps directed at a registered lobbying agent was placed on the oflSce
telephone of a Washington law firm. (See p. 201)

** FBI memorandum, 6/15/62.

234

whom was 'dead set against vis' and who may reconsider, and
the other was neutral and 'may vote for us.' " *^

The Agriculture Committee chairman believed "he had ac-
complished nothing" and that "he had been fighting over the
Rules Committee and this had interfered with his attempt
to organize." '"'

The "friend" of a foreign official "was under strong pres-
sure from the present administration, and since the 'friend' is
a Democrat, it would be very difficult for him to present a
strong front to a Democratic Administration." *^

A lobbyist stated that Secretary of State Rusk "had received
a friendly reception by the Committee and there appeared to
be no problem with regard to the sugar bill." *^

A foreign official was reported to be in contact with two Con-
gressmen's secretaries "for reasons other than business." The
official asked one of the secretaries to tell the other that he
"would not be able to call her that evening" and tliat one of
his associates "was planning to take [the two secretaries and
another Congressional aide] to Bermuda." *^

The FBI's own evaluation of these wiretaps indicates that they "un-
doubtedly . . . contributed heavily to the Administration's success" in
passing the legislation it desired.^"

(iii) The 1964 Democratic Corwention
Political reports were disseminated by the FBI to the White House
from the 1964 Democratic convention in Atlantic City. These reports,
from the FBI's "special squad" at the convention, apparently resulted
from a civil disorders intelligence investigation which got out of hand
because no one was willing to shut off the partisan by-product.^^ They
centered on the Mississippi Freedom Democratic Party's credentials
challenge. Examples of the political intelligence which flowed from
FBI surveillance at the 1964 convention include the following : ^^

^ FBI memorandum, 6/15/62.

" Memorandum from Hoover to Attorney General Kennedy, 2/18/61. This in-
formation came from the Bureau's "coverage" (by microphone surveillance) of
the Congressman's hotel room meeting.

""^ FBI memorandum. 2/15/62.

^ Memorandum from J. EJdgar Hoover to Robert Kennedy, 3/13/61.

** Memorandum from J. Edgar Hoover to Robert Kennedy, 3/13/61.

^ Memorandum from W. R. Wannall to W. C. Sullivan, 12/22/66. According to
a Bureau memorandum of a meeting between Attorney General Kennedy and
FBI Assistant Director Courtney Evans, Kennedy stated in April 1961 that "now
the law has passed he did not feel there was justification for continuing this
extensive investigation." (Memorandum from Evans to Parsons, 4/15/61.)

" There is no clear evidence as to what President Johnson had in mind when,
as a contemporaneous FBI memorandum indicates, he directed "the assignment
of the special squad to Atlantic City." (DeLoach to Mohr, 8/29/64) Cartha De-
Loach has testified that Presidential aide Walter Jenkins made the original re-
quest to him, but that he said it should be discussed with Director Hoover and
that "Mr. Jenkins or the President, to the best of my recollection, later called
Mr. Hoover and asked that this be done." DeLoach claimed that the purpose was
to gather "intelligence concerning matters of strife, violence, etc." which might
arise out of the credentials challenge. (DeLonch, 12/3/75. hearings. Vol. 6, p. 175.)

^^The operations of the FBI in Atlantic City are described in greater detail in
Section II, pp. 117-119.

235

Dr. Martin Luther King and an associate "were drafting
a telegram to President Johnson ... to register a mild
protest. According to King, the President pledged complete
neutrality regarding the selecting of the proper Mississippi
delegation to be seated at the convention. King feels that
the Credentials Committee will turn down the Mississippi
Freedom Party and that they are doing this because the
President exerted pressure on the committee along this
line." '^

Another associate of Dr. King contacted a member of the
MFDP who "said she thought King should see Governor
Endicott Peabody of Massachusetts, Mayor Robert Wagner
of New York City, Governor Edmund G. (Pat) Brown of
California, Mayor Richard Daley of Chicago, and Governor
John W. King of New Hampshire." The purpose was "to
urge them to call the 'NAHiite House directly and put pressure
on the White House in behalf of the I^IFDP." '^

"MFDP leaders have asked Reverend King to call Gover-
nor Egan of Alaska and Governor Burns of Hawaii in an at-
tempt to enlist their support. According to the MFDP spokes-
man, the Negro Mississippi Party needs these two states plus
California and New York for the roll call tonight." ^^

An SCLC staff member told a representative of the MFDP :
"Off the record, of course, you know we will accept the
Green compromise proposed." This referred to "the proposal
of Congresswoman Edith Green of Oregon." ^®

In a discussion between Dr. King and another civil rights
leader, the question of "a Vice-Presidential nominee came
up and King asked what [the other leader] thousfht of Hugh
[sic] Humphrey, and [the other leader] said Hugh Hum-
phrev is not goinof to get it, that Johnson needs a Catholic . . .
and therefore the Vice-President will be Muskie of Maine." ®^

An unsigned White House memorandum disclosing Dr. King's
strategy in connection with a meeting to be attended by President
Johnson suggests that there was political use of these FBI reports.^^

(iv) The ''ir' Wiretaps.
The Nixon White House learned a substantial amount of purely po-
litical intelligence from wiretaps to iuA^estigate "leaks" of classified
information placed on three newsmen and fourteen executive officials
during 1969-1971.^^ The following illustrate the range of data
supplied :

One of the targets "recently stated that he was to spend an
hour with Senator Kennedy's Vietnam man, as Senator
Kennedy is giving a speech on the 15th." ^°

® Mpmorandum from DeLoach to Jenkins. 8/24/64.

^ Memorandum from DeLoach to Jenkins, 8/2.V64.

^ Memorandum from DeLoach to Jenkins, 8/2.5/64.

^ Memorandum rom DeLoach to Jenkins, 8/25/64.

^ Mpmorandum from DeLoach to Jenkins. 8/25/64.

^ Blind memorandum from LBJ Library bearing- handwritten date 8/26/64 and
the typewritten <Tate 8/19/64, Hearines. Vol. 6, Exhibit 68-2, p. 713.

^ In at least two instances, the wiretaps continued on targets after they left
the Executive Branch and became advisers to Senator Edmund Muskie, then the
leading Democratic prospect for the Presidency. See Part IT. p. 1?2.

*° Memorandum from Hoover to Nixon, Kissinger, and Mitchell, 10/9/69.

236

Another target said that Senator Fulbright postponed con-
gressional hearings on Vietnam because he did not believe
they would be popular at that time.^^

A well-known television news correspondent "was very
distressed over having been 'singled out' by the Vice Presi-
dent." «2

A friend of one of the targets said the Washington Star
planned to do an article critical of Henry Kissinger.®^

One of the targets helped former Ambassador Sargent
Shriver write a press release criticizing a recent speech by
President Nixon in which the President "attacked" certain
Congressmen.^*

One of the targets told a friend it "is clear the Administra-
tion will win on the ABM by a two-vote margin. He said
'They've got [a Senator] and they've got [another Sen-
ator].'." «=^

A friend of one of the targets wanted to see if a Senator
would "buy a new amendment" and stated that "they" were
"going to meet with" another Senator.^^

A friend of one of the targets described a Senator as "mar-
ginal" on the Cooper-Church Amendment and stated that
another Senator might be persuaded to support it.^^

One of the targets said Senator Mondale was in a "dilemma"
over the "trade bill." ^^

A friend of one of the targets said he had spoken to former
President Johnson and "Johnson would not back Senator
Muskie for the Presidency as he intended to stay out of
politics." ^^

There is at least one clear example of the political use of such
information. After the FBI Director informed the "Wliite House
that former Secretary of Defense Clark Clifford planned to write a
magazine article criticizing President Nixon's Vietnam policy,'" White
House aide Jeb Stuart ISIagruder advised John Ehrlichman and H. R.
Haldeman that "we are in a position to counteract this article in any
number of ways." '^ It is also significant that, after ISIay 1970, the
FBI Director's letters summarizing the results of the wiretaps were
no lo2iger sent to Henry Kissinger, the President's national security
advisor, but to the President's political advisor, H. R. Haldeman.^^

" Memorandum from Hoover to Nixon and Kissinger, 12/3/69.

'^ Memorandum from Hoover to Nixon and Kissinger, 2/26/70.

'^ Memorandum from Hoover to H. R. Haldeman, 6/2/70.

** Memorandum from Hoover to Haldeman. 9/4/70.

'^ Memorandum from Hoover to Nixon and Kissinger, 7/18/69.

" Memorandum from Hoover to Haldeman, 5/18/70.

*^ Memorandum from Hoover to Haldeman, 6/23/70.

*' Memorandum from Hoover to Haldeman, 11/24/70.

*® Memorandum from Hoover to Haldeman, 12/22/70.

^ Memorandum from Hoover to Nixon, Kissinger, and Mitchell, 12/29/69.

'^ Memorandum from Magruder to Haldeman and Ehrlichman, 1/15/70. Ehr-
lichman advised Haldeman, "This is the kind of early warning we need more of —
your game planners are now in an excellent position to map anticipatory action."
(Memorandum from "E" (Ehrlichman) to "H" (Haldeman), undated.) Halde-
man responded, "I aarree with .John's point. Let's get going." (Memorandum from
"H" to "M" (Magruder) , undated) .

" Report of the House Judiciary Committee, 8/20/74, p. 147.

237

These four illustrations from administrations of both political par-
ties indicate clearly that direct channels of communication between
top FBI officials and the White House, combined with the failure to
screen out extraneous information, and coupled with overly broad in-
vestigations in the first instance, have been sources of flagrant political
abuse of the intelligence process."

Suhflnding (c)

The FBI has also volunteered information to Presidents and their
staffs, without having been asked for it, sometimes apparently to curry
favor with the current administration. Similarly, the FBI has as-
sembled information on its critics and on political figures it believed
might influence public attitudes or Congressional support.

There have been numerous instances over the past three decades
where the FBI volunteered to its superiors purely political or personal
information believed by the FBI Director to be "of interest" to them.'^*

The following are examples of the information in Director Hoover's
letters under the Truman, Eisenhower, Kennedy, and Johnson
administrations."^

To Major General Harry Vaughn, Military Aide to Presi-
dent Truman, a report on the activities of a former Roosevelt
aide who was trying to influence the Truman administration's
appointments.^^

To Matthew J. Connelly, Secretary to President Truman, a
report from a "very confidential source" about a meeting of
newspaper representatives in Chicago to plan publication of
stories exposing organized crime and corrupt politicians."

To Dillon Anderson, Special Assistant to President Eisen-
hower, the advance text of a speech to be delivered by a promi-
nent labor leader. '^^

''^ It should be noted, howiever, that in at least one case the Bureau did dis-
tinguish between political and non-political information. In 1968, when an aide
to Vice President Humphrey asked that a "special squad" be sent to the Demo-
cratic National Convention in Chicago. Director Hoover not only declined, but
he also specifically instructed the SAC in Chicago not "to get into anything
political" but to confine his reports to "extreme action or violence." (Memo-
randum from Hoover to Tolson., et al, 8/15/68.) There were no comparable in-
structions at Atlantic City.

''*' Former Attorney General Francis Biddle recalled in his autobiography how
J. Edgar Hoover shared with him some of the "intimate details" of what his
fellow Cabinet members did and said, "their likes and dislikes, their weaknesses
and their associations." Biddle confessed that he enjoyed hearing these deroga-
tory and sometimes "embarrassing" tidbits and that Hoover "knew how to flatter
his superior." (Francis Biddle, In Brief Authority [Garden City: Doubleday,
1962], pp. 258-259.)

A former FBI oflieial has described one aspect of the Bureau's practice :

"Mr. Hoover would say what do we have in our files on this guy? Just what do
we have? Not blind memorandum, not public source information, everything we've
got. And we would maybe write a 25 page memo. "When he got it and saw what's
in it, he'd say we'd better send that to the White House and the Attorney General
so they can have in one place everything that the FBI has now on this guy. . . .
(Bishop deposition, 12/2/75, pp. 141-142.)"

'^None of these letters indicate that they were in response to requests, as is
the case with other similar letters examined by the Committee. All were volun-
teered as matters which Director Hoover considered to be "of interest" to the
recipients.

'* Memorandum from Hoover to Vaughn, 2/15/47.

" Memorandum from Hoover to Connelly, 1/27/50.

" Memorandum from Hoover to Anderson, 4/21/55.

238

To Robert Cutler, Special Assistant to President Eisen-
hower, a report of a "confidential source" on plans of Mrs.
Eleanor Roosevelt to hold a reception for the head of a civil
rights group. ^''

To Attorney General Robert Kennedy, information from a
Bureau "source" regarding plans of a group to publish allega-
tions about the President's personal lif e.^°

To Attorney General Kennedy, a summary of material in
FBI files on a prominent entertainer which the FBI Director
thought "may be of interest".^^

To Marvin Watson, Special Assistant to President Johnson,
a summary of data in Bureau files on the author of a play
satirizing the President.^^

As these illustrations indicate, the FBI Director provided such data
to administrations of both political parties without apparent partisan
favoritism.^^

Additionally, during the Nixon Administration, the FBI's INLET
(Intelligence Letter) Program for sending regular short summaries
of FBI intelligence to the White House was used on one occasion to
provide information on the purely personal relationship between an
entertainer and the subject of an FBI domestic intelligence investi-
gation.®* SACs were instructed under the INLET program to submit
to Bureau headquarters items with an "unusual twist" or regarding
"prominent" persons.®^

One reason for the Bureau's volunteering information to the "VMiite
House was to please the Administration and thus presumably to build
high-level political support for the FBI. Thus, a 1975 Bureau report
on the Atlantic City episode states :

One [agent said], "I would like to state that at no time did I
ever consider (it) to be a political operation but it was obvious
that DeLoach wanted to impress Jenkins and Moyers with the
Bureau's ability to develop information which would be of
interest to them." Furthermore, in response to a question as to
whether the Bureau's services were being utilized for political
reasons, [another] answered, "No. I do recall, however, that
on one occasion I was present when DeLoach held a lengthy
telephone conversation with Walter Jenkins. They appeared
to be discussing the President's 'image.' At the end of the
conversation DeLoach told us something to the effect, 'that
may have sounded a little political to you but this doesn't do
the Bureau any harm.' " ®^

In addition to providing information useful to superiors, the Bureau
assembled information on its own critics and on political figures it
believed might influence public attitudes or congressional support.
FBI Director Hoover had massive amounts of information at his

'"' Memorandum from Hoover to Cutler, 2/13/58.

^ Memorandum from Hoover to Robert Kennedy, 11/20/63.

" Memorandum from Hoover to Robert Kennedy, 2/10/61.

^ Memorandum from Hoover to Watson, 1/9/67.

^ For additional examples, See Section II, pp. 51-53.

^ Staff memorandum : Review of INLET letters, 11/18/75.

*° Memorandum from FBI Headquarters to all SACs, 11/26/69.

^ Memorandum from Bassett to Callahan, 1/29/75.

239

fingertips. As indicated above, he could have the Bureau's files checked
on anyone of interest to him. He personally received political infor-
mation and "personal tidbits" from the special agents in charge of
FBI field offices.^" This information, both from the files and Hoover's
personal sources, was available to discredit critics.

The following are examples of how the Bureau disseminated in-
formation to discredit its opponents :

In 1949 the FBI provided Attorney General J. Howard
McGrath and Presidential aide Harry Vaughn inside infor-
mation on plans of the Lawyers Guild to denounce Bureau
surveillance so the}' would have an opportunity to prepare a
rebuttal well in advance of the expected criticism.^^

In 1960, when the Knoxville Area Human Relations Coun-
cil in Tennessee charged that the FBI was practicing racial
discrimination, the Bureau conducted name checks on mem-
bers of the Council's board of directors and sent the results
to Attorney General William Rogers, including derogatory
personal allegations and political affiliations from as far back
as the late thirties and early forties.^^

When a reporter wrote stories critical of the Bureau, he was
not only refused any further interviews, but an FBI official
in charge of press relations also spread derogatory personal
information about him to other newsmen.^"

The Bureau also maintained a "not to contact list" of "those in-
dividuals known to be hostile to the Bureau." Director Hoover spe-
cifically ordered that "each name" on the list "should be the subject of
a memo." ^^

^ Former FBI official Mark Felt has stated that the SAC's could have sent
personal letters to Hoover containing such "personal tidbits" "to curry favor
with him," and on one occasion he did so himself with respect to a "scandalous"
incident. (W. Mark Felt testimony, 2/3/76, p. 91.)

The following excerpt from one SAC's letter is an example of political informa-
tion fed to the Director : "I have heard several comments and items which I
wanted to bring to your attention. As I imagine is true in all States at this time,
the political situation in [this state] is getting to be very interesting. As you
know, Senator [deleted] is coming up for re-election as is Representative [de-
leted]. For a long time it appeared that [the Senator] would have no opposition
to amount to anything in his campaign for re-election. The speculation and word
around the State right now is that probably [the Representative] will file for
the U.S. Senate seat now held by [the Senator]. I have also been informed that
[the Senator's] forces have offered [the Representative] $50,000 if he will stay
out of the Senate race and run for re-election as Congressman." (Letter from
SAC to Hoover, 5/20/64.)

** Letter from Attorney General McGrath to President Truman, 12/7/49 ;
letter from Hoover to Vaughn, 1/14/50.

*" Memorandum from Hoover to Rogers, 5/25/60.

*° Bishop deposition, 12/2/75, p. 211. Bishop stated that he acted on his own,
rather than at the direction of higher Bureau executives. However, Director
Hoover did have a memorandum prepared on the reporter summarizing every-
thing in the Bureau's files about him, which he referred to when he met with
the reporter's superiors. (Bishop deposition, 12/2/75, p. 215.)

" Memorandum from Executives Conference to Hoover, 1/4/50. Early exam-
ples included historian Henry Steele Commager, "personnel of CBS," and former
Interior Secretary Harold Ickes. (Memorandum from Mohr to Tolson, 12/21/49.)
By the time it was abolished in 1972, the list included 332 names, including
mystery writer Rex Stout, whose novel 'The Doorbell Rang" had "presented a
highly distorted and most unfavorable picture of the Bureau." (Memorandum
from M. A. Jones to Bishop, 7/11/72.)

240

This request for "a memo" on each critic meant that, before someone
was placed on the list, the Director received, in effect, a "name check"
report summarizing "what we had in our files" on the individual.^^

In addition to assembling information on critics, name checks were
run as a matter of regular Bureau policy on all "newly elected Gover-
nors and Congressmen." The Crime Records Division instructed the
field offices to submit "summary memoranda" on such officials, cover-
ing both "public source information" and "any other information that
they had in their files," °^ These "summary memoranda" were provided
to Director Hoover and maintained in the Crime Records Division for
use in "congressional liaison "^ — which the Division head said included
"selling" hostile Congressmen on "liking the FBI." ^^

It has been widely believed among Members of Congress that the
Bureau had information on each of them.^^ The impact of that belief
led Congressman Boggs to state :

Our apathy in this Congress, our silence in this House, our
very fear of speaking out in other forums has watered the
roots and hastened the growth of a vine of tyranny which
is ensnaring that Constitution and Bill of Rights which we
are each sworn to uphold.

Our society can survive many challenges and many threats.

It cannot survive a planned and programmed fear of its
own government bureaus and agencies.^^

Sub finding (d)

The FBI has also used intelligence as a vehicle for covert efforts
to influence social policy and political action.

The FBI's interference with the democratic process was not the
result of any overt decision to reshape society in conformance with
Bureau-approved norms. Rather, the Bureau's actions were the natural
consequence of attitudes within the Bureau toward social change, com-
bined with a strong sense of duty to protect society — even from its
own "wrong" choices.

The FBI saw itself as the guardian of the public order, and be-
lieved that it had a responsibility to counter threats to that order,
using any means available.''^ At the same time, the Bureau's assess-
ment of what constituted a "threat" was influenced by its attitude
toward the forces of change. In effect, the Bureau chose sides in the

^' Bishop deposition, 12/2/75, p. 207.

*^ Tlie field office was also exi>ected to send to headquarters any additional
allegations about the Congressman or Governor which might come to it.s atten-
tion in future investigations, even if the Congressman or Governor was not
himself the "subject" of the investigation. (Bishop deposition, 12/2/75, pp. 194-
200.)

"* Bishop deposition, 12/2/75, pp. 206-7.

*^ The FBI is not the only agency believed to have files on Congressmen. Ac-
cording to Rep. Andrew Young, "in the freshman orientation" of new House
members, "one of the things you are told is that there are seven agenices that
keep files on private lives of Congressmen." (Rep. Andrew Young testimony,
2/19/76, p. 48.)

^ Remarks by Rep. Hale Boggs, House of Representatives, 4/22/71, Congres-
sional Record, Vol. 117, Part 9, p. 11562.

^ The means used are discussed in the finding on "Covert Action to Disrupt
and Discredit Domestic Groups", as well as the Detailed Reports on COIN-
TELPRO, Dr. Martin Luther King, Jr., and the Black Panther Party.

241

major social movements of the last fifteen years, and then attacked the
other side with the unchecked power at its disposal.

The clearest proof of the Bureau's attitude toward change is its own
rhetoric. The language used in internal documents which were not
intended to be disseminated outside the Bureau is that of the highly
charged polemic revealing clear biases.

For example, in one of its annual internal reports on COINTEL-
PRO, the Bureau took pride in having given "the lie" to what it
called "the Communist canard'' that "the Negro is downtrodden and
has no opportunities in America." This was accomplished by placing
a story in a newspaper in which a "wealthy Negro industrialist" stated
that "the Negro will have to earn respectability and a responsible posi-
tion in the community before he is accepted as an equal." It is signifi-
cant that this view was expressed at about the same time as the civil
rights movement's March on Washington, which was intended to
focus public attention on the denial of opportunities to black Ameri-
cans, and which rejected the view that inalienable rights have to be
"earned." ^^

The rhetoric used in dealing with the Vietnam War and those in
opposition to it is even more revealing. The war in Vietnam produced
sharply divided opinions in the country; again, the Bureau knew
which side it was on. For instance, fifty copies of an article entitled
"Eabbi in Vietnam Says Withdrawal Not The Answer" were anony-
mously mailed by the FBI to members of the Vietnam Day Committee
to "convince" the recipients "of the correctness of the U.S. foreign
policy in Vietnam." ^^

The Bureau also ordered copies of a film called "While Brave Men
Die" which depicted "communists, left-wing and pacifist activities as-
sociated with the so-called 'peace movement' or student agitational
demonstrations in opposition to the United States position in Viet-
nam." The film was to be used for training Bureau personnel in con-
nection with "increased responsibilities relating to communist inspired
student agitational activities." ^°°

In the same vein, a directive to the Chicago field office shortly after
the 1968 Democratic Convention instructed it to "obtain all possible
evidence" that would "disprove" charges that the Chicago police
used undue force in dealing with antiwar demonstrations at the
Convention :

Once again, the liberal press and the bleeding hearts and
the forces on the left are taking advantage of the situation
in Chicago surrounding the Democratic National Convention
to attack the police and organized law enforcement agen-
cies. . . . We should be mindful of this situation and develop
all possible evidence to expose this acti\dty and to refute
these false allegations.^"^

^'Memorandum from FBI Headquarters to New York Field Office, et al.,
8/13/63.

*® Memorandum from FBI Headquarters to San Francisco Field Office,
11/11/65

^"^ Memorandum from FBI Headquarters to New York Field Office et al.,
3/9/66.

'"^ Memorandum from FBI headquarters to Chicago Field Office 8/28/68.

242

The Bureau also attempted to enforce its view of sexual morality.
For example, two students became COINTELPEO targets when they
defended the use of a four-letter word, even though the demonstration
in which they participated "does not appear to be inspired by the
New Left," because it "shows obvious disregard for decency and es-
tablished morality." "^ An anonymous letter purportedly from an
irate parent and an article entitled "Free Love Comes to Austin"
were mailed to a state senator and the chairman of the University
of Texas Board of Regents to aid in "forcing the LTniversity to take
action against those administrators who are permitting an atmosphere
to build up on campus that will be a fertile field for the New Left." "^
And a field office was outraged at the distribution on campus of a
newspaper called SCREW, which was described as "containing a
type of filth that could only originate in a depraved mind. It is repre-
sentative of the type of mentality that is following the New Left
theory of irmnorality on certain college campuses." ^°*

As these examples demonstrata, the FBI believed it had a duty to
maintain the existing social and political order. Whether or not one
agrees with the Bureau's views, it is profoundly disturbing that an
agency of the government secretly attempted to impose its views on the
American people.

(^) Use of the Media
The FBI attempted to influence public opinion by supplying in-
formation or articles to "confidential sources" in the news media. The
FBI's Crime Records Division "^ was responsible for covert liaison
with the media to advance two main domestic intelligence objectives : ^°®

^•^ Memorandum from FBI Headquarters to Minneapolis Field Office, 11/4/68.

^°^ Memorandum from San Antonio field office to FBI Headquarters, 8/12/68 ;
memorandum from FBI Headquarters to San Antonio Feld Office, 8/27/68.

^"* The field office also disapproved of the "hippy types" distributing the new.s-
paper, with their "unkempt clothes", "wild beards", and "other examples of their
nonconformity". Accordingly, an anonymous letter was sent to a state legi.slator
protesting the distribution of such "depravity" at a state university, noting that
"this is becoming a way of campus life. Poison the minds of the young, destroy
their moral being, and in less than one generation this country will be ripe for
its downfall." (Memorandum from New York Field Office to FBI Headquarters,
5/2.3/69 ; memorandum from FBI Headquarters to Newark Field Office, 1/69.

los rpjjg Crime Records Division also had responsibility for disseminating infor-
mation to cultivate a favorable public image for the FBI — a practice common to
many government agencies. This objective was pursued in various ways. One sec-
tion of the Crime Records Division was assigned to assemble "material that was
needed for a public relations program." This section "developed information for
television shows, for writers, for authors, for newspapermen, people who wanted
in-depth informiabion concerning the FBI." The section also "handled scripts"
for public service radio programs produced by FBI Field Offices ; reviewed scripts
for television and radio shows dealing with the FBI ; and handled the "public
relations and publicity aspect" of the "ten most wanted fugitives program." The
Bureau attempted to assert control over media presentations of information
about its activities. For example, Director Hoover's approval was necessary
before the Crime Records Division would cooperate vf\t\\ an author intending
to write a book about the FBI (Bishop testimony, 12/2/75. pp. e-8. 18.)

^"'Memoranda recommending use of the media for COINTELPRO purposes
sometimes bore the designation "Mass Media Program," which appeared mere-
ly to signify the function of the Crime Records Division as a "conduit" for
disseminating information at the request of the Domestic Intelligence Division.
(Bishop testimony, 12/2/75, pp. 63-68, 88.) The dissemination of derogatory
information to the media was usually reviewed through the Bureau's chain of
command and received final approval from Director Hoover. (Bishop testimony,
12/2/75, p. 89.)

243

(1) providing derogatory information to the media intended to gen-
erally discredit the activities or ideas of targeted groups or individuals ;
and (2) disseminating unfavorable articles, news releases, and back-
ground information in order to disrupt particular activities.

Typically, a local FBI agent would provide information to a "friend-
ly news source" on the condition "that the Bureau's interest in these
matters is to be kept in the strictest confidence." ^°^ Thomas E. Bishop,
former Director of the Crime Records Division, testified that he kept
a list of the Bureau's "press friends" in his desk."^ Bishop and one
of his predecessors indicated that the FBI sometimes refused to co-
operate with reporters critical of the Bureau or its Director."^

Bishop stated that as a "general rule," the Bureau disseminated only
"public record information" to its media contacts, but this category
was viewed by the Bureau to include any information which could
conceivably be obtained by close scrutiny of even the most obscure pub-
lications.^^° Within these parameters, background information supplied
to reporters "in most cases [could] include everything" in the Bureau
files on a targeted individual ; the selection of information for publica-
tion would be left to the reporter's judgment.^"

There are numerous examples of authorization for the preparation
and dissemination of unfavorable information to discredit generally
the activities and ideas of a target ; ^^^

— FBI headquarters solicited information from field offices "on a
continuing basis" for "prompt . . . dissemination to the news media . . .
to discredit the New Left movement and its adherents." Headquaiiers
requested, among other things, that :

specific data should be furnished depicting the scurrilous and
depraved nature of many of the characters, activities, habits
and living conditions representative of New Left adherents.

Field Offices were to be exhorted that "Every avenue of possible em-
barrassment must be vigorously and enthusiastically explored." ^^^

— FBI headquarters authorized a Field Office to furnish a media con-
tact with "background information and any arrest record" on a man

'^'" For example, Memorandum from FBI Headquarters to Atlanta Field OflBce,
10/22/68.

^"^ Bishop. 12/2/75, p. 33.

^™ Cartha DeLoach, who handled media contacts for several years, testified that
this technique was not actually used as much as the Director desired :
If any unfair comment appeared in any segment of the press concerning
Mr. Hoover or the FBI . . . Mr. Hoover . . . would say do not contact
this particular newspaper or do not contact this person or do not co-
operate with this person. ... If I had complied strictly to the letter
of the law to Mr. Hoover's instructions, I think I would be fair in say-
ing that we wouldn't be cooperating with hardly a single newspaper in
the United States. . . . The men down through the years had to overlook
some of those instructions and deal fairly with all .segments of the
press. (DeLoach testimony, 11/25/75, pp. 213-214.)
"" Bi.shop stated that the Crime Records Division was "scrupulous" in provid-
ing information which could be cited to a "page and paragraph" in a public
source. (Bishop. 12/2/75, pp. 24, 177-178.)
"' Bishop, 12/2/75, pp. 13,5-136.

"^ T. E. Bishop stated that from the FBI documents available to the Committee,
it was impossible to determine whether an article was actually printed after a
news release or a draft article had been supplied to a media source. (Bishop,
12/2/75, p. 86. )

^ Memorandum from C. D. Brennan to W. C. Sullivan, 5/22/68.

244

affiliated with "a radical New Left element" who had been "active in
showing films on the Black Panthers and police in action at various
imiversities during student rioting." The media contact had requested
material from the Bureau which "would have a detrimental effect on
[the target's] activities," "*

— Photographs depicting a radical group's apartment as "a sham-
bles with lewd, obscene and revolutionary slogans displayed on the
walls" were furnished to a free-lance writer. Tlie directive from head-
quarters said: "As this publicity will be derogatory in nature and
might serve to neutralize the group, it is being approved." ^^^

■ — The Boston Field Office was authorized to furnish "derogatory
information about the Nation of Islam (NOI) to established source
[name excised] " :

Your suggestions concerning material to furnish [name] are
good. Emphasize to him that the NOI predilection for vio-
lence, preaching of race hatred, and hypocrisy, should be ex-
posed. Material furnished [name] should be either public
source or known to enough people as to protect your sources.
Insure the Bureau's interest in this matter is completely
protected by [name] .^^'^

One Bureau-inspired documentary on the NOI reached an audience
of 200,000."'^ Altliough the public was to be convinced that the NOI
was "violent", the Bureau knew this was not in fact true of the or-
ganization as a whole.^^^

— The Section which supervised the COINTELPRO against the
Communist Party intended to discredit a couple "identified with the
Community Party movement" by preparing a news release on the
drug arrest of tlieir son, which was to be furnished to "news media
contacts and sources on Capitol Hill." A Bureau official observed
that the son's "arrest and the Party connections of himself and his
parents presents an excellent opportunity for expoitation." The news
release noted that "the Russian-born mother is currently under a
deportation order" and had a former marriage to the son of a promi-
nent Communist Party member. The release added : "the Red Chinese
have long used narcotics to help w^eaken the youth of target
countries." ^^^

"* Memorandum to Director from SAC Miami, 3/10/70. Bishop testified that
he "would hope" that in response to the directive to disseminate the target's
"arrest record" the Division would have disseminated only conviction records.
Bishop said that under the Attorney General's guidelines then in effect only
conviction records or arrests which were a matter of public record in a par-
ticular jurisdiction were to be disseminated. Bishop stated that his policy was
not to disseminate an arrest record "especially if that arrest record resulted in
an acquittal or if the charge was never completed . . . because that is not, to my
mind, anything derogatory against a guy, until he actually gets convicted."
(Bishop testimony, 12/2/75, pp. 163-167, 173.)

"^ Memorandum from FBI Headquarters to Boston Field OflSce, 1/13/68.

"^ Memorandum from FBI Headquarters to Boston Field OflSce, 2/27/68.

"^Memorandum from Tampa Field Oflice to FBI Headquarters, 2/7/69.

"' Deposition of Black Nationalist COINTELPRO supervisor, 10/17/75, p. 21 ;
Deposition of George C. Moore, Chief of the Racial Intelligence Section, 11/3/75.
p. 36.

"* Memorandum from F. J. Baumgardner to W. C. Sullivan, 6/3/63.

245

— When the wife of a Communist Party leader purchased a new car,
the FBI prepared a news item for distribution to "a cooperative news
media source" mocking the leader's "prosperity'' "as a disruptive
tactic." The item commented sarcastically that "comrades of the self-
proclaimed leader of the American working class should not allow
this example of [the leader's] prosperity to discourage their con-
tinued contributions to Party coffers." ^^°

— After a public meeting in New York City, where "the handling
of the [JFK assassination] investigation was criticized," the FBI
prepared a news item for placement "with a cooperative news media
source" to discredit the meeting on the grounds that "a reliable [FBI]
source" had reported a "convicted perjurer and identified espionage
agent as present in the audience." ^^^

—As part of the new Left COINTELPEO, the FBI sent a letter
under a fictitious name to Life magazine to "call attention to the
unsavory character" of the editor of an underground magazine, who
was characterized as "one of the moving forces behind the Youth
International Party, commonly known as the Yippies." To counteract
a recent Life "article favorable" to the Yippie editor, the FBI's ficti-
tious letter said that "the cuckoo editor of an unimportant smutty
little rag" should be "left in the sewers." ^^^

Much of the Bureau's use of the media to influence public opinion
was directed at disrupting specific activities or plans of targeted
groups or individuals :

— In March 1968, FBI Headquarters granted authority for furnish-
ing to a "cooperative national news media source" an article "designed
to curtail success of Martin Luther King's fund raising" for the poor
people's march on Washington, D.C. by asserting that "an embarrass-
ment of riches has befallen King . . . and King doesn't need the
money." ^^^ To further this objective. Headquarters authorized the
IMiami Office "to furnish data concerning money wasted by the Poor
People's Campaign" to a friendly news reporter on the usual condition
that "the Bureau must nat be revealed as the source." ^-*

The Section Chief in charge of the Black Nationalist COINTEL-
PRO also recommended that "photographs of demonstrators" at the
march should be furnished; he attached six photographs of Poor
People's Campaign participants at a Cleveland rally, accompanied by
the note : "These show the militant, aggressive appearance of the par-
ticipants and might be of interest to a cooperative news source." ^^^

— As part of the New Left COINTELPRO, authority was granted
to the Atlanta Field Office to furnish a newspaper editor who had
"written numerous editorials praising the Bureau" with "information
to supplement that already known to him from public sources concern-
ing subversive influences in the Atlanta peace movement. His use of
this material in well-timed articles would be used to thwart the
[upcoming] demonstrations." ^^^

^*' Memorandum from F. .T. Banmardner to W. C. Sullivan, 8/9/65.

"^Memorandum from F. .T. Baum.firardner to W. C. Sullivan, 2/24/64.

^-Memorandum from New York Field Office to FBI Headquarters, 10/16/68.

^^ Memorandum from G. C. Moore to W. C. Sullivan, 10/26/68.

"* Memorandum from FBI Headquarters to Miami Field Office. 7/9/68.

^Memorandum from G. C. Moore to W. C. Sullivan, .'i/17/76.

'^ Memorandum from FBI Headquarters to Atlanta Field Office, 10/22/68.

246

— An FBI Special Agent in Chicago contacted a reporter for a
major newspaper to arrange for the publication of an article which
was expected to "greatly encourage factional antagonisms during the
SDS Convention" by publicizing the attempt of "an undergroimd
communist organization" to take over SDS. This contact resulted in
an article headlined "Red Unit Seeks SDS Rule." ^^

— FBI Director Hoover approved a Field Office plan "to get cooper-
ative news media to cover closed meetings of Students for a Democratic
Society (SDS) and other New Left groups" with the aim of "dis-
rupting them." ^^^

— Several months after COINTELPRO operations were supposed
to have terminated, the FBI attempted to discredit attorney Leonard
Boudin at the time of his defense of Daniel Ellsberg in the Pentagon
Papers case. The FBI "called to the attention" of the Washington
bureau chief of a major news service information on Boudin's alleged
"sympathy" and "legal services" for "communist causes." The reporter
placed a detailed news release on the wires which cited Boudin's "iden-
tification with Leftist causes" and included references to the arrest of
Boudin's daughter, his legal representation of the Cuban government
and "Communist sympathizer" Paul Robeson, and the statement that
"his name also has been connected with a number of other alleged com-
munist front groups." In a handwritten note, J. Edgar Hoover di-
rected that copies of the news release be sent to "Haldeman, A. G.,
and Deputy." ^^^

The Bureau sometimes used its media contacts to prevent or post-
pone the publication of articles it considered favorable to its targets
of unfavorable to the FBI. For example, to influence articles which
related to the FBI, the Bureau took aclA^antage of a close relationsliip
with a high official of a major national magazine, described in an FBI

'-' Memorandum from Chicago Field Office to FBI Headquarters, 6/18/69.

^ Memorandum from FBI Headquarters to Indianapolis Field Office, 6/17/68.

'^ FBI Memorandum from Bishop to Mohr, 7/6/71 ; Bishop testimony, 12/2/75,
pp. 148-151.

Two years earlier the Crime Records Division prepared a sixteen-page memo-
randum containing information on "Leonard B. Boudin, Attorney for Dr. Ben-
jamin Spock," written at the time of Spock's indictment for conspiring to violate
the Selective Service Act. (FBI Memorandum from M. A. Jones to T. E. Bishop,
2/26/68) The memorandum described "alleged associations and activities of
Boudin" related to organizations or individuals considered "subversive" by the
FBI, (Bishop, 12/2/75, pp. 134-135) and included: names of many of Boudin's
clients ; citations to magazines and journals in which Boudin had published
articles ; references to petitions he had signed ; and notes on rallies and academic
conferences at which he had spoken. The memorandum indicated that "the "White
House and Attorney General have been advised" of the information on Boudin's
background. Notations on the cover sheet of the memorandum by high Bureau
officials indicate that approval was granted for "furnishing the attached infor-
mation to one of our friendly news contacts" but the information was not used
until after the "results of appeal in Spock's case." Bishop did not recall dis-
tributing the Boudin memorandum. (Bishop, 12/2/75, pp. 125-126)

The head of the Crime Records Division speculated that the memorandum
was prepared at the request of a reporter because he did not remember a request
from Hoover or from the Domestic Intelligence Division, which was the normal
route for assignments to the Crime Records Division. Division Chief Bishop
testified that he probably instructed the Division "to get up any public source
information that we have concerning Boudin that shows his connection with the
Communist Party or related groups of that nature." (Bishop, 12/2/75, pp. 131-
133)

247

memorandum as "our good friend." Through this relationship, the
FBI "squelched" an "unfavorable article against the Bureau" written
by a free-lance writer about an FBI investigation ; "ix)9tponed pub-
lication" of an article on another FBI case ; "forestalled publication"
of an article by Dr. ISIartin Luther King, Jr. ; and received informa-
tion about proposed editing of King's articles.^^°

The Bureau also attempted to influence public opinion by using
news media sources to discredit dissident gi^oups by linking them to
the Communist Party :

— A confidential source who published a "self-described conserva-
tive weekly newspaper" was anonymously mailed information on a
church's sponsorehip of efforts to abolish the House Committee on
Un-American activities. This pix>mpted an article entitled "Locals to
Aid Red Line," naming the minister, among others, as a local sponsor
of what it termed a "Communist dominated plot" to abolish HUAC.^^^

— ^The Bureau targeted a professor who had been the president of
a local peace center, a "coalition of anti- Vietnam and anti-draft
groups." In 1968, he resigned temporarily to become state chairman of
Eugene McCarthy's presidential campaign organization. Information
on the professor's wife, who had apparently associated with Commu-
nist Party members in the early 1950's, was furnished to a newspaper
editor to "expose those people at this time when they are receiving
considerable publicity in order" to "disrupt the members" of the
peace organization.^^^

— Other instances included an attempt to link a school boycott with
the Communists by alerting newsmen to the boycott leader's plans to
attend a literary reception at the Soviet mission ; ^^^ furnishing infor-
mation to the media on the participation of the Communist Party
presidential candidate in the United Farm Workers' picket line ; "*
"confidentially" informing established sources in three northern Cali-
fornia newspapers that the San Francisco County Communist Party
Committee had stated that civil rights groups were to "begin work-
ing" on the area's large newspapers "in an effort to secure greater
employment of Negroes ;" ^^^ and furnishing information to the media
on Socialist Workers Party participation in the Spring Mobilization
Committee to End the War in Vietnam to "discredit" the antiwar
group.^^^

(n) Attacks on Leaders
Through covert propaganda, the FBI not only attempted to in-
fluence public opinion on matters of social policy, but also directly in-

^^ Memorandum from W. H. Stapleton to C. D. DeLoach, 11/5/64.

^^ Memorandum from Cleveland Field Office to FBI Headquarters, 10/28/64 :
memorandum from FBI Headquarters to Cleveland Field Office, 11/6/64.

^"^ Memorandum from FBI Headquarters to Phoenix Field Office, 6/11/68.

^^ Memorandum from FBI Headquarters to New York Field Office, 2/4/64.

"* The target was not intended to be the United Farm Workers, but a local
college professor expected to participate in the picket line. The Bureau had
unsuccessfully directed "considerable efforts to prevent hiring" the professor.
Apparently, the Bureau did not consider the impact of this technique on the
United Farm Workers' efforts. (Memorandum from San Francisco Field Office to
FBI Headquarters, 9/12/68 ; memorandum from FBI Headquarters to San Fran-
cisco Field Office. 9/13/68. )

^■■^ Memorandum from San Francisco Field Office to FBI Headquarters, 4/16/64.

"* Memorandum from San Francisco Field Office to FBI Headquarters, 3/10/67 ;
memorandum from FBI Headquarters to San Francisco Field Office, 3/14/67.

248

tervened in the people's choice of leadership both through the electoral
process and in other, less formal arenas.

For instance, the Bureau made plans to disrupt a possible "Peace
Party" ticket in the 1968 elections. One field office noted that "effec-
tively tabbing as communists or as communist-backed the more hysteri-
cal opponents of the President on the Vietnam question in the midst
of the presidential campaign would be a real boon to Mr. Johnson." ^-^

In the FBI's COINTELPRO programs, political candidates were
targeted for disruption. The document which originated the Socialist
Workers Party COINTELPRO noted that the SWP "has, over the
past several years, been openly espousing its line on a local and
national basis through running candidates for public office." The
Bureau decided to "alert the public to the fact that the SWP is not
just another socialist group but follows the revolutionary principles
of Marx, Lenin, and Engels as interpreted by Leon Trotsky." Several
SWP candidates were targeted, usually by leaking derogatory in-
formation about the candidate to the press.^^^

Other COINTELPRO programs also included attempts to disrupt
campaigns. For example, a Midwest lawyer nmning for City Council
was targeted because he and his firm had represented "subversives".
The Bureau sent an anonymous letter to several community leaders
which decried his "communist background" and labelled him a "charla-
tan." ^^^ Under a fictitious name, the Bureau sent a letter to a television
station on which the candidate was to appear, enclosing a series of
questions about his clients and his activities which it believed should
be asked.^*" The candidate was defeated. He later ran (successfully,
as it happened) for a judgeship. Tlie Bureau attempted to disrupt this
subsequent, successful campaign for a judgeship by using an anti-
communist group to distribute fliers and write letters opposing his
candidacy."^

In another instance, the FBI attempted to have a Democratic Party
fundraising affair raided by the state Alcoholic Beverage Control
Commission. The fund raiser was targeted because of two of the can-
didates who would be present. One, a state assemblyman running for
reelection, was active in the Vietnam Day Committee ; the other, the
Democratic candidate for Congress, had been a sponsor of the National
Committee to Abolish the House Committee on Un-American Activi-
ties and had led demonstrations opposing the manufacture of napalm
bombs."^

Although the disruption of election campaigns is the clearest exam-
ple, the FBI's interference with the political process was much broader.

^^' Memorandum from Chicago Field Office to FBI Headquarters, 6/1/67.

'^ Memorandum from FBI Headquarters to all SAC's, 10/12/61.

^^ Memorandum from Detroit Field Office to FBI Headquarters, 9/1/65; memo-
randum from FBI Headquarters to Detroit Field Office, 9/22/65.

"" Memorandum from Detroit Field Office to FBI Headquarters. 9/28/65 ; memo-
randum from FBI Headquarters to Detroit Field Office. 10/1/65.

"' Memorandum from Detroit Field Office, to FBI Headquarters, 1/19/67.

"■ Memorandum from FBI Headquarters to San Antonio Field Office, 11/14/66.
The attempt was unsuccessful ; a prior raid on a fire department's fund raiser
had angered the local District Attorney, and the ABC decided not to raid the
Democrats becau.se of "political ramifications."

249

For example, all of the COINTELPRO programs were aimed at the
leadership of dissident groups."^

In one case, the Bureau's plans to discredit a civil rights leader in-
cluded an attempt to replace him with a candidate chosen by the
Bureau. During 1964, the FBI began a massive program to discredit
Dr. Martin Luther King, Jr. and to "neutralize" his effectiveness
as the leader of the civil rights movement."* On January 8, 1964,
Assistant Director William C. Sullivan proposed that the FBI select
a new "national Negro leader" as Dr. King's successor after the Bureau
had taken Dr. King "off his pedestal" :

When this is done, and it can and will be done . . . the
Negroes will be left without a national leader of sufficiently
compelling personality to steer them in the right direction.
This is what could happen, but need not happen if the right
kind of Negro leader could at this time be gradually devel-
oped so as to overshadow Dr. King and be in the position to
assume the role of leadership of the Negro people when King
has been completely discredited.

I want to make it clear at once that I don't propose that
the FBI in any way became involved openly as the sponsor
of a Negro leader to overshadow Martin Luther King. . . .
But I do propose that I be given permission to explore further
this entire matter. ...

If this thing can be set up properly without the Bureau in
any way becoming directly involved, I think it would not
only be a great help to the FBI but would be a fine thing for
the country at large. While I am not specifying at this
moment, there are various ways in which the FBI could give
this entire matter the proper direction and development.
There are highly placed contacts of the FBI who might be
very helpful to further such a step. . . ."^

The Bureau's efforts to discredit Dr. King are discussed more fully
elsewhere."*' It is, however, important to note here that some of the
Bureau's efforts coincided with Dr. King's activities and statements
concerning major social and political issues.

(in) Exaggerating The Threat
The Bureau also used its control over the information-gathering
process to shape the views of government officials and the public on the

^^ The originating document for the "Black Nationalist" COINTELPRO ordered
field oflBces to "expose, disrupt, misdirect, discredit, or otherwise neutralize" the
"leadership" and "spokesmen" of the target groups. The "New Left" originating
memo called for efforts to "neutralize" the New Left and the "Key Activitists,"
defined as "those individuals who are the moving forces behind the New Left ;"
the letter to field oflBces made it clear that the targets were the "leadership"
of the "New Left" — a term which was never defined. (Memorandum from FBI
Headquarters to all SAC's, 8/25/67. )

^" Memorandum from Brennan to Sullivan, 5/9/68 ; memorandum from FBI
Headquarters to all SAC's, 5/10/68.

"'^Memorandum from Sullivan to Belmont, 1/8/64. Although this proposal
was approved by Director Hoover, there is no evidence that any steps were taken
to implement the plan.

"* See Martin Luther King, Jr. Report : Sec. V, The FBI's Efforts to Discredit
Dr. Martin Luther King: 1964, Sec. VII, The FBI Program Against Dr. King:
1965-1968.

250

threats it perceived to the social order. For example, the FBI ex-
aggerated the strength of the Communist Party and its influence over
the civil rights and anti- Vietnam war movements.

Opponents of civil rights legislation in the early 1960s had charged
that such legislation was "a part of the world Communist conspiracy
to divide and conquer our country from within." The truth or falsity
of these charges was a matter of concern to the administration, Con-
gress, and the public. Since the Bureau was assigned to compile intelli-
gence on Communist activity, its estimate w^as sought and, presumably,
relied upon. Accordingly, in 1963, the Domestic Intelligence Division
submitted a memorandum to Director Hoover detailing the CPUSA's
"efforts" to exploit black Americans, which it concluded were an
"obvious failure." ^^''

Director Hoover was not pleased with this conclusion. He sent a
sharp message back to the Division which, according to the Assistant
Director in charge, made it "evident that we had to change our ways
or we would all be out on the street." "^ Another memorandum was
'therefore written to give the Director "what Hoover wanted to
hear." "»

The memorandum stated, "The Director is correct;" it called Dr.
Martin Luther King, Jr. "the most dangerous Negro of the future in
this Nation from the standpoint of communism, the Negro, and na-
tional security;" and it concluded that it was "unrealistic" to "limit
ourselves" to "legalistic proofs or definitely conclusive evidence" that
the Communist Party wields "substantial influence over Negroes which
one day could become decisive." ""

Although the Division still had not said the influence was decisive,
by 1964 the Director testified before the House Appropriations Sub-
committee that the "Communist influence" in the "Negro movement"
was "vitally important." ^^^ Only someone with access to the underlying
information would note that the facts could be interpreted quite dif-
ferently.^^^^

^" Memorandum from Baumgardner to Sullivan, 8/23/63, p. 1.

'*® Sullivan deposition, 11/1/75, p. 20.

"" Sullivan deposition, 11/1/75, p. 29.

"^"Memorandum from Sullivan to Director, FBI, 8/30/63. Sullivan described
this process of "interpretive" memo writing to lead a reader to believe the Com-
munists were influential without actually stating they were in control of a move-
ment : "You have to spend years in the Bureau really to get the feel of this. . . .
You came down here to 'efforts', these 'colossal efforts'. That was a key word of
ours when we are getting around the facts. . . . You will not find anywhere in the
memorandum whether the efforts were successful or unsuccessful. . . . Here is
another one of our words that we used to cover up the facts, 'efforts to exploit',
that word 'exploit'. Nowhere will you find in some of these memos the results of
the exploitation. [Like] 'planning to do all possible', you can search in vain for a
statement to the effect that their plans were successful or unsuccessful, partly suc-
cessful or partly unsuccessful." (Sullivan, 11/1/75, pp. 15-16.)

^ Hearings before the House Appropriations Subcommittee, 88th Cong.,
2d Sess. (1964), p. 309. Director Hoover's statement was widely publicized.
(E.g., "Hoover Says Reds Exploit Negroes," New York Times, 4/22/64, p. 30)
It caused serious concern among civil rights leaders who feared that it would
hurt the prospects for passage of the 19(54 civil rights bill.

iBia Director Hoover had included similar exaggerated statements about Com-
munist influence in a briefing to the Eisenhower Cabinet in 1956. Hoover had
stated, regarding an NAACP-sponsored conference :

"The Communist Party plans to use this conference to embarrass the Adminis-
tration by causing a rift between the Administration and Dixiecrats who have

251

A similar exaggeration occurred in some of the Bureau's statements
on communist influence on the anti-Vietnam war demonstrations.

In April 1965 President Johnson met with Director Hoover to dis-
cuss Johnson's "concern over the anti-Vietnam situation.'' According
to Hoover, Johnson said he had "no doubt" that Communists were
"behind the disturbances." ^^^ Hoover agreed, stating that upcoming
demonstrations in eighty-five cities were being i^lannecl by the Students
for a Democratic Society and that SDS was "largely infiltrated by
communists and [it] has been woven into the civil rights situation
which we know has large communist influence.'' ^^^

Immediately after the meeting, hoAvever, Hoover told his associates
that the Bureau might not be able to "technically state" that SDS was
"an actual communist organization.'' The FBI merely knew that there
were "communists in it.'' Hoover instructed, however, "What I want
to get to the President is the background with emphasis upon the
communist influence therein so that he will know exactly what the pic-
ture is." The Director added that he wanted "a good, strong memo-
randum" pinpointing that the demonstrations had been "largely par-
ticipated in by communists even though they may not have initiated
them;" the Bureau could "at least" say that they had "joined and
forced the issue.'' According to the Director, President Johnson was
"quite concerned" and wanted "prompt and quick action.'' ^^*

Once again, the Bureau wrote a report which made Communist "ef-
forts" sound like Communist success. The eight-page memorandum
detailed all of the Communist Party's attempts to "encourage" domes-
tic dissent by "a crescendo of criticism aimed at negating every effort
of the United States to prevent Vietnam from being engulfed by com-
munist aggressors.'' Twice in the eight pages, for a total of two and a
half sentences, it was pointed out that most demonstrators were not
Party members and their decisions were not initiated or controlled by
the communists. Each of these brief statements moreover, was followed
by a qualification: (1) '■''however^ the Communist Party, USA . . . has
vigorously supported these groups and exerted influence;" (2) '"'"While
the March [on "Washington] was not Communist initiated . . . Com-
munist Party members from throughout the nation participated."
[Emphasis added.] ^^^

The rest of the memorandum is an illustration of what former
Assistant Director Sullivan called "interpretive" memo writing in

supported it, by forcing the Administration to take a stand on civil riglits leg-
.islation ^^^th the present Congress. The Party hopes through a rift to affect the
19.56 elections." [Emphasis added.] (Memorandum from Director, FBI, to the
Executive Assistant to the Attorney General, 3/9/56, and enclosure.)

Director Hoover did not include in his prepared briefing statement the infor-
mation reported to the White House separately earlier that there was "no indi-
cation" the the NAACP had "allowed the Communist Party to infiltrate the
conference." (Hoover to Dillon Anderson. Special Assistant to the President,
3/5/56.) According to one historical account, Hoover's Cabinet briefing "rein-
forced the President's inclination to passivity" on civil rights legislation. (J. W.
Anderson, Eiscnhotver, Broicncll, and the Congress: The Tangled Origins of the
Civil Rights Bill of 19o6-57 [University of Alabama Press, 1964], p. 34.)

"- Memorandum from Hoover to subordinate FBI oflicials, 4/28/65.

^" Hoover memorandum, 4/28/65.

^ Hoover memorandum, 4/28/65.

'^Letter from Hoover to McGeorge Bundy, Special Assistant to the
Pre.sident (National Security), 4/28/65, enclosing FBI memorandum. Subject:
Communist Activities Relative to United States Policy on Vietnam.

252

which Communist efforts and desires are emphasized without any
evaluation of whether they had been or were likely to be successful.
The exaggeration of Communist participation, both by the FBI
and "VVliite House staff members relying on FBI reports,"*^ could only
have had the effect of reinforcing President Johnson's original tend-
ency to discount dissent against the Vietnam War as "Communist
inspired" — a belief shared by his successor.^" It is impossible to meas-
ure the full effect of this distorted perception at the very highest pol-
icymaking level.

^^'See, e.g., a memorandum from Marvin (Watson) to the President, 5/16/67,
quoting from a Bureau report tliat : "the Communist Party and other organiza-
tions are continuing their efforts to force the United States to change its present
policy toward Vietnam."

^^' The report prepared by the intelligence agencies as the basis for the 1970
"Huston Plan" Included the following similar emphasis on the potential threat
(and downplaying of the actual lack of success) :

"Leaders of student protest groups" who traveled abroad were "considered to
have potential for recruitment and participation in foreign-directed intelligence
activity."

"Antiwar activists" who had "frequently traveled abroad" were considered
"as having potential for engaging in foreign-directed intelligence collection."

The CIA was "of the view that the Soviet and bloc intelligence services are
committed at the political level to exploit all domestic dissidents wherever
possible."

Although there was "no hard evidence" of substantial foreign control of "the
black extremist movement," there was "a marked potential" and the groups were
"highly susceptible to exploitation by hostile foreign intelligence services."

"Communist intelligence services are capable of using their personnel, facili-
ties, and agent personnel to work in the black extremist field."

While there were "no substantial indications that the communist intelligence
services have actively fomented domestic unrest," their "capability"' could not
"be minimized."

"The dissidence and violence in the United States today present adversary
intelligence services with opportunities unparalleled for forty years." [Emphasis
added.] (Special Report, Interagency Committee on Intelligence (Ad Hoc),
June 1970 ; substantial portions of this report appear in Hearings, Vol. 2,
pp. 141-188. )

F. FINDING— INADEQUATE CONTROLS ON
DISSEMINATION AND RETENTION

Major Finding

The Committee finds that the product of intelligence investigations
has been disseminated without adequate controls. Reports on lawful
political activity and law-abiding citizens have been disseminated to
agencies having no proper reason to receive them. Information that
should have been discarded, purged, or sealed, including the product
of illegal techniques and overbroad investigations, has been retained
and is available for future use.

Suhfind'mgs

(a) Agencies have volunteered massive amounts of irrelevant
infonnation to other officials and agencies and have responded unques-
tioningly in some instances to requests for data witliout assuring that
the information would be used foi* a lawful purpose,

(b) Excessive dissemination has sometimes contributed to the inef-
ficiency of the intelligence process itself.

(c) Under the federal employee security program, unnecessiai'y
information about the ]3olitical beliefs and associations of prospective
government employees has been disseminated.

(d) The FBI, which has been the "clearinghouse" for all domestic
intelligence data, maintains in readily accessible files sensitive and
derogatory personal information not relevant to any investigation, as
well as information which was improperly or illegally obtained.

Elaboration of FhuHngs

The adverse etfects on privacy of the Overbreadth of domestic intelli-
gence collection and of the use of Intrusive Techniques have been mag-
nified many times over by the dissemination practices of the collecting
agencies. Information which should not have been gathered in the first
place has gone beyond the initial agency to numerous other agencies
and officials, thus compounding the original intrusion. The amount
disseminated within the Executive branch has often been so volumi-
nous as to make it difficult to separate useful data from worthless
detail.

The Committee's finding on Political Abuse describes dissemination
of intelligence for the political advantage of high officials or the
self-interest of an agency. The problems of excessive dissemination,
however, include more than political use. Dissemination has not been
confined to what is appropriate for law enforcement or other proper
government purposes. Rather, any information wdiich could have been
conceived to be useful was passed on, and doubts were generally
resolved in favor of dissemination. Until recently, none of the stand-
ards for the exchange of data among agencies has taken privacy
interests into account. The same failure to consider privacy interests

(253)

254

has characterized the retention of data by the original collecting
agency.

Suh finding (a)

Agencies have volunteered massive amounts of irrelevant informa-
tion to other officials and agencies and have responded unquestioningly
in some instances to requests for data without assuring that the
information would be used for a lawful purpose.

The following examples illustrate the extent of dissemination :

— FBI reports on dissident Americans flowed to the CIA at a rate
as high as 1,000 a month. CIA officials regarded any names in these
reports as a standing requirement from the FBI for information about
those persons.^

— In 1967 the Internal Security Division of the Justice Department
was receiving 150 reports and memoranda a day from the FBI on
"organizations and individuals engaged in agitational activity of one
kind or another." ^

— Attorney General Ramsey Clark could not "keep up with" the
volume of FBI memoranda coming into him and to the Assistant At-
torneys General on the 700,000 FBI investigations per year.^

— The Justice Department's IDIU sent its computer list of 10,000 to
12,000 American dissidents to the CIA's Operation CHAOS (which
apparently found it useless) and to the Special Service Staff of the
Internal Revenue Service (which did use it as part of its program
of tax investigations).*

— In fiscal year 1974 alone, the FBI, the Civil Service Commission,
and military intelligence received over 367,000 requests "for "national
agency checks," or name checks of their files, on prospective federal
government employees.^

The information disseminated to other agencies has often been con-
sidered useless by the recipients. FBI officials have said they received
"very little in the way of good product" from the National Security
Agency's interception of the international communications of Amer-
icans." FBI officials also considered most of the material on "the do-
mestic scene" sent to them from the CIA mail opening project to be
irrelevant "junk." ^^ The Secret Service destroyed over ninety j^ercent
of the information disseminated to it by the FBI without ever putting
it in its own intelligence files.^ Defense Department directives re-
quire the destruction of a great deal of information it receives from
the FBI about civilians considered "threatening" to the military, in-
cluding reports on civilian "subversion." ^

Sometimes dissemination has become almost an end in itself. The
FBI would often anticipate what it considered to be the needs of other

^ Richard Ober testimony, 10/28/75, pp. 67, 68.

* Memorandum from Kevin Maroney, et al, to Attorney General Ramsev Clark,
12/6/67.

=" Clark, 12/3/75, Hearings, Vol. 6, p. 249. This statistic refers to criminal in-
vestigations as well as intelligence investigations.

* See Part II, pp. 80. 95.

' Statement of Attorney General Edward H. Levi before House Jxidiciary Com-
mittee, February 1975.

* W. R. Wannall testimony, 10/3/75, p. 13.

" W. A. Branigan testimony, 10/24/75, Hearings, Vol. 4, p. 168.
' GAO Report, p. 125.

* DOD Directive 5200.27, 3/1/71.

255

"appropriate agencies." ^ The Bureau has disseminated data to mili-
tary intelligence agencie^s, regardless of whether or not there was
likely to be serious violence requiring the dispatch of troops; the
Bureau also disseminated information when there was no connection
between the subject of the report and any militarj^ personnel or fa-
cility.^"^ Consequently, the computerized and non-computerized domes-
tic intelligence data banks compiled by the Continental Army Com-
mand cited the P'BI as "data source" for about 80 percent of the in-
formation where a source was identified.^^

FBI dissemination to the military has shown how information can
get into the hands of agencies which have no proper reason to receive
it.i^

The FBI disseminated a large volume of information on domestic
political activities to the CIA, thus providing a substantial part of
the data for the CHAOS program." Much of this information was
also furnished to the State Department." The FBI sometimes dis-
seminated reports to the CIA and the State Department if the subject
matter involved public discussion of national security policy and pos-
sible "subversive" influence. ^^

The FBI was also the largest source of political targets for tax
investigations by the Special Service Staff of the Internal Revenue
Service. While still in its formative days, SSS was placed on the FBI's
distribution list in response to a request from an Assistant IRS Com-
missioner for information regarding :

various organizations of predominantly dissident or extrem-
ist nature and/or people prominently identified with those
organizations.^*'

" For example, in 1966 before the FBI had received any si)ecific instructions
from the Attorney General to gather civil disturbance intelligence, Bureau Head-
quarters advised all Field OflBces that "national, state, and local" government
officials "rely on us" for information "so they can take appropriate action to
avert disastrous outbreaks." Thus, FBI offices were told to "intensify and ex-
pand" their "coverage" of demonstrations opposing "United States foreign policy
in Vietnam" or "protests involving racial issues," in order to insure that "ad-
vance signs" of violence could be "disseminated to appropriate authorities."
(SAC Letter 66-27, 5/2/66)

^° These policies were part of the formal obligation of the FBI under the 1949
Delimitation Agreement with military intelligence. The Agreement itself re-
quired the FBI to keep military intelligence agencies advised of tlie activities
of "civilian groups" classed as "subversive." (Delimitation Agreement, 2/23/49.)
And a Supplementary Agreement said, "Where there is doubt as to whether or
not one of the other agencies is interested in information collected, it should be
transmitted to the other agency." (Supplemental Agreement No. 1 to the Delimi-
tation Agreement, 6/2/49.)

" "Military Surveillance of Civilian Politics," Report of the Senate Subcom-
mittee on Constitutional Rights (1973), p. 72.

^ The Agreements between the FBI and military intelligence have not been
revised to take account of the restrictions on Army .siurveillance imi>osed by the
Department of Defense in 1971. See DOD Directive 5200.27, 3/1/71.

" Richard Ober, 10/28/75, pp. 67, 68.

" The FBI Manual stated that information concerning "proiwsed travel
abroad" by domestic "subversives" was to be furnished to the CIA and the State
Department, and Bureau Field Offices were told to recommend the "extent of
foreign investigation" required. (FBI Manual of Instructions, Section 87, p. 33a,
revised 4/15/63.)

^^ For example. Reports on the ABM debate discussed on pp. 257-258.

" Memorandum from D. W. Bacon to Director, FBI, 8/8/69.

256

The FBI, perceiving that SSS would "deal a blow to dissident ele-
ments," ^' decided to supply reports relating to this broad category of
individuals and organizations.

The FBI did not select the reports it forwarded on the basis of the
presence of a probable tax violation, but on the basis of the political
and ideological criteria IRS had supplied ;^ yet the furnishing of the
report resulted in establishment of an SSS file and, subject to resource
limitations, to a review of possible tax liability.^^ Among the other
lists of "extremists," "subversives" and dissidents SSS received was a
list of 2,300 organizations the FBI categorized as "Old Left," "New
Left," and "Right Wing." "

One reason for the Bureau's widespread dissemination of intelli-
gence throughout the Executive branch was recalled by a former FBI
official. In the late 1940s a sensitive espionage case involved a high
government official. At that time the FBI held such information "very
tightly," as it had during World War II. However, one item of in-
formation that "became rather significant" had allegedly "not been
disseminated to the White House or the Secretary of State."

Mr. Hoover was criticized for that, and frankly, he never
forgot it. From then on, you might say, the policy was dis-
seminate, disseminate, disseminate.^"

This testimony illustrates the dilemma of an agency which was blamed
for inadequate dissemination, but never criticized for too much dis-
semination. In practice, this dilemma was resolved by passing on any
information "which in any way even remotely suggested that there
was a responsibility for another agency." ^^

The following are examples of excessive dissemination, drawn from
a random sample of materials in FBI headquarters files :

— In 1969 the FBI disseminated to Army and Air Force intelligence,
Secret Service, and the IDIL^ a report on a Black Student Union; the
report which discussed "a tea" sponsored by the group to develop fac-
ulty-student "dialogue" as a junior college and the plans of the col-
lege to establish a course on "The History of the American Negro."
There was no indication of violence whatsoever. Dissemination to the
military intelligence agencies and Secret Service took place both at
the field level and at headquarters, in Washington, D.C. The informa-
tion came from college officials.^^

— In 1970 the FBI disseminated to military intelligence and the
Secret Service (both locally and at Headquarters), as well as to the
Justice Department (IDIIT, Internal Security Division, and Civil
Rights Division) a report received from a local police intelligence
unit on the picketing of a local Industries of the Blind plant by "blind
black workers" who were on strike. The sixteen-page report included
a copy of a handbill distributed at a United Church of Christ announc-

" FBI memorandum from D. J. Brennan, Jr., to W. C. Sullivan, 8/15/69.
"SSS Bi-weekly Reports, 6/15/70; from Donald Bacon, 9/15/75 pp. 91-05.
" SSS Bi-weekly Report, 8/29/69.

^Former FBI liaison with CIA deposition, 9/22/75, pp. 16-17.
"Former FBI liaison with CIA deposition, 9/22/75, pp. 16-17; memorandum
from Attorney General Tom Clark to J. Edg'ar Hoover, 12/5/47.
^ Memorandum from Tampa Field Office to FBI Headquarters, 5/29/69.

257

in^ a meeting at the church to support the strike, as well as copies
of "leaflets that had been distributed by the blind workers." The only
hint of violence in this report was the opinion of a local police intelli-
gence officer that "young black militants," Avho supported tlie strike by
urging blacks to boycott white-owned stores in the community, might
cause "confrontations that might result in violence." ^^

—The FBI dissiminated a report on Dr. Carl Mclntyre's American
Christian Action Council to the Secret Service in 1972. The cover
memorandum to Secret Service indicated that the group fell within
the category of the FBI-Secret Service agreement described as "poten-
tially dangerous because of background, emotional instability or
activity in groups engaged in activities inimical to U.S." The report
itself reflected no "activities inimical to" the country, but only plans
to hold peaceful demonstrations. The report also discussed policies
and activities of the group unrelated to demonstrations, including
plans to enter lawsuits in "school busing" cases, opposition to "Nixon ^s
China trip" and support for a constitutional amendment for "public
school prayer." This data came from a Bureau informant.-*

— In 1966 the FBI disseminated to the Army, Navy, and Air Force
intelligence divisions, to the Secret Service (locally and at Headquar-
ters) , to the Justice Department and to the State Department a ten-
page report on a "Free University." The report described in detail the
courses offered, including such subjects as "Modern Film," "Workshop
on Art and Values," "Contemporary Music," "Poetiy Now," and
"Autobiography and the Image of SelJF." Over thirty "associates" were
listed by name, although only one was identified as having "subversive
connections" (and his course had been "dropped because not enough
students had registered.") Others were identified as "involved in Viet-
nam protest activities" or as being known to officials of a nearby es-
tablished university as "problem people." The information came from
several FBI informants and a confidential source.^^

— In 1966 the FBI disseminated to "appropriate federal and local
authorities," including military intelligence, Secret Service, the De-
partment of State and Justice, and a campus security officers (who was
a former FBI agent) a report on a group formed for "discussion on
Vietnam." The "controlling influence" on the organization was said
to be "the local Friends Meeting." Only one person characterized as
"subversive" was active in the group. The report was devoted to de-
scribing a "speak out" demonstration attended by approximately 300
persons on a university campus. The gathering was entirely peaceful
and included "speakers who supported U.S. policies in Viet Nam."
The data came from two Bureau informants.^^

— In 1969 the FBI disseminated reports to the White House, the
CIA, the State Department, the three military intelligence agencies.
Secret Service, the IDIU, the Attorney General, the Deputy Attorney
General, and the Internal Security and Civil Rights Divisions on a
meeting sponsored by a coalition of citizens concerned about the Anti-

^ Memorandum from Charlotte Field Office to FBI Headquarters, 12/10/70.
" Letter from Acting Director, FBI, to Director, United States Secret Service,
5/2.5/72.

^ Memorandum from Detroit Field Office, to FBI Headquarters, 4/15/66.
" Memorandum from Springfield Field Office to FBI Headquarters, 7/5/66.

68-786 O - 18

258

Ballistic Missile. The only indication of "subversive" influence was
that one woman married to a Communist was assisting in publicity
work for the meeting. The reports described (from reliable FBI
sources) the speakers, pro and con, including prominent scientists,
academics, and a Defense Department spokesman.^^

— In 1974 the FBI disseminated to the State Department, the
Defense Intelligence Agency, the Secret Service, the Internal Security
Division, and the Civil Disturbance Unit (formerly IDIU), exten-
sive reports on a national conference on amnesty for war resistere.
One of the participants had "recently organized [a] nonviolent pro-
test demonstration" during a visit by President Ford, two others
were identified as draft evaders, and the Vietnam Veterans Against
the War were active at the conference. But the report went much
further to describe — based on information from FBI informants —
the activities of religious, civil liberties, and student groups, as well
as "families of men killed in Vietnam" and congressional staff aides.^^

— In 1974 the FBI disseminated a report on a peaceful vigil in the
vicinity of the Soviet Embassy in support of the rights of Soviet
Jews, not just to the Secret Service and the Justice Department's
Civil Disturbance Unit, but also to the CIA and the State Depart-
ment.^®

— In 1972 the FBI disseminated a report to the CIA, Army and
Navy intelligence, and an un-named "U.S. Government agency which
conducts security-type investigations" in West Germany (apparently
a military intelligence agency). The latter agency had asked the
Bureau for information about an antiwar reservist group and a proj-
ect to furnish "legal advice to GI's and veterans." The report des-
cribed not only the reservists group, but also "a group dedicated to
giving free legal aid to servicemen" and "an antiwar political group"
which endorsed "political candidates for office who have a solid peace
position and a favorable chance of being elected." The three groups
"planned to share offices." This data came from a Bureau informant.^"

The FBI does have an obligation to disseminate to local law en-
forcement agencies information about crimes within their jurisdic-
tion. NevertTieless, there has been improper dissemination to local
police under at least two Bureau programs. Such dissemination oc-
curred under COINTELPRO, as part of the FBI's effort to dis-
credit individuals or disrupt groups.^^ Others were in response to
local police requests for "public source" information relating to "sub-
versive matters." ^^ Experienced police officials confirmed that the term

" Memorandum from Washington Field Office to FBI Headquarters, 5/28/69 ;
memorandum from Alexandria Field Office to FBI Headquarters, 6/3/69.

^Memorandum from Louisville Field Office to FBI Headquarters, 11/14/74,
11/15/74, 11/20/74.

^ Memorandum from Washington Field Office to FBI Headquarters, 6/28/74.

'"Memorandum from Legal Attache, Bonn, to FBI Headquarters, 1/11/72;
memorandum from Boston Field Office to FBI Headquarters, 5/4/72.

*^ See COINTELPRO report : Sec. IV, for examples of FBI dissemination to
local police of data on trivial offenses for the purpose of disruption.

^Tlie FBI responds to such requests with "a blind memorandum" upon the
condition that the Bureau's "identity as source of the information must he
kept strictly confidential." Bureau regulations do not link this procedure to any
specific criminal law enforcement function. (FBI Manual of Rules and Regula-
tions, Part II, Section 5, p. 7.)

259

"subversive" is so broad that it inevitably leads to dissemination about
political beliefs.^^

Other executive agencies have also engaged in excessive dissemina-
tion. The Justice Department's Inter-Division Information Unit
(IDIU) sent its computerized data to the CIA, in order that the CIA
could cheek its records on foreign travel of American dissidents.^* The
IDIU sent the same material to the Internal Revenue Service's Special
Service Staff, which used the information as part of its program for
initiating tax audits.^^ The Internal Revenue Service itself dissemi-
nated tax returns or related tax information to the CIA, the FBI,
and the Justice Department's Internal Security Division (which also
made requests on behalf of the FBI), without ascertaining whether
there was a proper basis for the request or the purpose for which the
information would be used.^*^

Sub-finding (b)

Excessive dissemination has sometimes contributed to the inef-
ficiency of the intelligence process itself.

The dissemination of large amounts of relatively useless or totally
irrelevant information has reduced the efficiency of the intelligence
process. It has made it difficult for decision-makers to weigh the im-
portance of reports.^^ Agencies such as the FBI have collected intel-
ligence, not because of its own needs or desires, or because it had been
requested to do so, but because the data was assumed to be of value to
someone else. Units established to screen and evaluate intelligence have
encouraged, rather than reduced, further dissemination.

In some instances the FBI has disseminated information to local
police in a manner that was counterproductive to effective law enforce-
ment. One former police chief has described how the Bureau, under
"pressure" from the White House to prepare for a specific demonstra-
tion, "passed on information in such a way that it was totally useless"
because it was not "evaluated" and thus exaggerated the dangers.^^ The
need for prior evaluation of the significance of raw intelligence has not
been fully recognized in the Bureau's policy for dissemination of data
on protest demonstrations.^®

^Testimony of James F. Ahern (former New Haven police chief), Robert
dlGrazia (Boston chief of police), and Patrick V. Murphy (former New York
police commissioner and President of the Police Foundation), 1/20/76, p. 44,
These experienced law enforcement oflScials stated that local police do not need
information from the FBI about "political beliefs."

"'See CHAOS Report: Section III.

=^ See IRS Report : Section, "SSS."

^ See IRS Report : Section, "Dissemination.""

^ On at least one occasion. Justice Department officials expressed concern that
they had received a report from the FBI on an incident and then a second report
from Army intelligence which appeared to confirm the Bureau's information, but
the Army's report turned out to have been based on the FBI's information. This
led to a Justice Department request that the Army "screen" its intelligence and
.send "only key items." (Memorandum for the Record General Counsel Robert B.
Jordan to Under Secretary of the Army David McGifEert, 1/10/68.)

^ Ahem. 1/20/76, p. 4.

2» xhe FBI had adhered a cro.ss-t he-board to the position that its reports do not
contain "conclusions," and Bureau rules have permitted the dissemination of
data from ".sources known to be unreliable" .so long as "good judgment" is used.
It has been up to the recipient agencies "to intelligently evaluate the information"
on the basis of "descriptive information" about the Bureau's sources. (FBI Man-

( Continued)

260

The impediments to accurate intelligence collection have been aug-
mented by the dissemination practices of some local law enforcement
agencies. An example is the report on the Chicago Police Department's
Security Section, which has been described as having passed "inher-
ently inaccurate and distortive data" to federal intelligence agencies.^"
The General Accounting Office has confirmed that this is a general
problem." While the Committee has not examined local law enforce-
ment intelligence, the dissemination practices of such agencies require
as much careful control as federal agencies.^-

The assumption that some other agency might need information
has not only produced excessive dissemination, but has also served as
a specific rationale for collection of intelligence that was not otherwise
within an agency's jurisdiction. The best example is the FBI's collec-
tion of intelligence on "general racial matters" for the military.*^

One of the ironies in the recent history of domestic intelligence was
that the Justice Department's IDIU, which was set up to collate and
evaluate the massive amounts of data flowing to the Justice Depart-
ment from the FBI, contributed to even more extensive collection and
dissemination.^* The IDIU encouraged numerous federal agencies

(Continued) x

ual of Rules and Regulations, Part II, Section 5) Thus the FBI has not ade-
quately distinguished between situations where evaluation is or is not necessary.
More than just "descriptive information" about FBI sources is needed to help
recipients of data on possible violent protest demonstration understand the likeli-
hood of actual disorders.

'" See Part II, p. 78.

■*^ The GAO has ranked the types of sources of information relied upon by the
FBI in beginning domestic intelligence investigations according to whether the
data initially supplied were "hard," "medium," or "soft." According to the GAO,
police and other state and local agencies were found to have provided the lowest
proportion of "hard" information and the highest proportion of "soft" informa-
tion. (GAO Report, p. 106).

■" Two major cities have made efforts recently to establish standards for police
intelligence activities. (Los Angeles Police Department, Public Disorder Intel-
ligence Division : Standards and Procedures, 4/10/75; New York City Police De-
partment. Procedures : Public Security Activities of the Intelligence Division,
House Internal Security Committee, Hearings, Domestic Intelligence Operations
for Internal Security Purposes, 1974. )

*^The FBI Manual cited the needs of the military as a basis for its intelligence-
gathering on "general racial matters." The Manual stated that the Bureau did
not itself have "investigative jurisdiction over such general racial matters," but
that its "intelligence function" included advising "appropriate Government agen-
cies" of information about "proposed or actual activities of individuals, officials,
committees, legislatures, organizations, etc., in the racial field." The Manual based
"Federal jurisdiction" on the military's responsibility :

"Insofar as Federal jurisdiction in general racial matters is concerned, U.S.
Armj' regulations place responsibility upon the Army to keep advised of any
developments of a civil disturbance nature which may require the rendering of
assistance to civil authorities or the intervention of federal troops. OSI (Air
Force) and ONI (Navy) have a collateral responsibility under Army in such
matters and copies of pertinent documents disseminated to Army concerning such
matters should be furni.shed to OSI and ONI." (1960 FBI Manual Section 122,
pp. 5-6)

■" For example, in addition to containing the names of known activists, the
IDIU printouts supplied to IRS's SSS also contained the names of many promi-
nent citizens whom the .Justice Department thought could be of assistance in
quelling a civil disturbance in a particular locality should one occur. SSS per-
sonnel were unaware that the IDIU printout contained the names of these per-
sons and established files indiscriminately on them.

261

(including many without regular investigative functions) to dissemi-
nate information to it about "organizations and individuals" who
might "instigate" or "prevent" civil disorders,*^

Subjiivding (c)

Under the federal employee security program, unne-cessary infor-
mation about the political beliefs and associations of prospective
government employees has l)een disseminated.

For nearly thirty years the federal employee security program has
required a "national agency check" of the files of several government
agencies, including the FBI, the Civil Service Commission, and mili-
tary intelligence, on prospective employees.*'' Although there was often
no information to report, federal agencies received "name check"
reports on all candidates for employment. This appears to have been
the single largest source of regular dissemination of data in intelli-
gence files.

These name check reports have provided information from intel-
ligence files not only about possible criminal activity or personal
weaknesses of the individual, but also about lawful political activity
and association. Until recently the Executive Order on employee secu-
rity required reports on any "association" with a person or group
supporting "subversive" views. These reports have been required for
every federal employee, regardless of whether he or she holds a sensi-
tive position or has access to classified information.*'

It has been the policy of the FBI, and presumably other agencies
as well, to disseminate via name che<^k reports any information in
its files — no matter how old or how unreliable — which might relate
to the standards of the Executive Order.*^ The current criteria have
been substantially narrowed : the basic standards for reporting are
group membership and potential criminal conduct.*^ However, the
Justice Department has advised the FBI that "it is not possible to set
definite parameters" for organizations and that the Bureau should
include those with a "potential" for meeting the criteria.^" The FBI
does not determine whether or not the information it furnishes is
decisive under these standards. Departmental instructions state :

It is not the Bureau's responsibility to determine whether
the information is or is not of importance to the particular

^ Attorney General Clark to Maroney, et al, 11/9/67.

•"Executive Order 10450, Section 3(a). For a discussion of the origins and ap-
plication of this order, pp. 42-44.

*^ Executive Order 10450, Section 8(a) (5).

** Memorandum from FBI to Senate Select Committee, 3/3/76.

"* The current criteria are : "Knowing membership with the specific intent of
furthering the aims of, or adherence to and active participation in, any foreign
or domestic organization, association movement, group, or combination of per-
sons (hereinafter referred to as organizations) which unlawfully advocates or
practices the commission of acts of force or violence to prevent others from
exercising their rights under the Constitution or laws of the United States or
of any State, or which seeks to overthrow the Government of the United States
or any State or subdivision thereof by unlawful means." (Executive Order 11785,
Section 3, June 4, 1974.) This order also abolished the "Attorney General's
list."

^ Memorandum from Assistant Attorney General Glen E. Pommerening to FBI
Director Clarence Kelley, 11/1/74.

262

agenc}^ in the carrying out of its current activities and respon-
sibilities and whether or not any action is taken by the de-
partment or agency is not, of course, a principal concern of
the Bureau.^^

The FBI itself has expressed misgivings about the breadth of its
responsibilities under the employee security program. It has con-
tinued to seek "clarification" from the Justice Department, and it has
pointed out that there have been no "advei^se actions" taken against
current or prospective Federal employees under the loyalty and secur-
ity provisions of the Executive Order "for several years." This has
been due to the fact "that difficulties of proof imposed by the courts
in loyalty and security cases have proved almost insurmountable." ^^

The employee security program has served an essential function in
full background investigation and name checks for those having access
to classified information. But its extension to vaguely-defined "sub-
versives" in nonsensitive positions has gone beyond the Government's
proper need for information on the suitability of persons for employ-
ment.^^

Sub finding (d)

The FBI, which has been the "clearinghouse" for all domestic
intelligence data, maintains in readily accessible files sensitive and
derogatory personal information not relevant to any investigation,
as well as information which was improperly or illegally obtained.

In recent years, the Secret Sei*\''ice, military intelligence, and other
agencies have instituted significant programs for the destruction or
purging of useless information.^* However, the FBI has retained its
vast general files, accumulated over the years under its duty to serve
as a "clearinghouse" for domestic intelligence data.^^ There are over
6,500,000 files at FBI headquarters ; and the data is retrievable through
a general index consisting of over 58,000,000 index cards. Each Bureau
Field Office has substantial additional information in its files. Domestic
intelligence information included in the general index is described by
the FBI as :

associates and relatives of the subject; members of organiza-
tions under investigation or determined to be possible subver-

" Letter from Attorney General Tom Clark to J. Edgar Hoover, 12/5/47. The
FBI advises that it considers this directive still to be in effect. (Memorandum
from FBI to Select Committee, 3/3/76.)

^^ Letter from Kelley to Pommerening, 12/11/74. The FBI has advised that
federal employees are now^ evaluated according to "suitability" rather than
"loyalty and security" criteria. (Memorandum from FBI to Select Committee,
3/3/76.)

^ According to a 1974 Bureau memorandum and a confirming Justice Depart-
ment memorandum, the purpose is to provide "information concerning possible
subversive infiltration into the Executive Branch of Government." (Kelley to
Pommerening, 8/14/74; Pommerening to Kelley, 8/26/74.) As indicated in the
Committee's finding on overbreadth, the concept "subversion" is so vague and
flexible as to invite excesses.

^ Secret Service practices are described in Review of Secret Service Protective
Measures, Hearings before the Senate Committee on Appropriations, 94th Cong.,
1st Sess. (1975), p. 16. Destruction of Army intelligence files is discussed in
Report on Military Surveillance.

^ For a discussion or the origins of this function, see p. 23.

263

sive; individuals contributing funds to subversive-type ac-
tivity ; subversive or seditious publications ; writere of articles
in subvereive or seditious publications ; bookstores specializing
in subversive-type publications and related types of informa-
tion.^^

The Committee has found that there are massive amounts of irrele-
vant and trivial information in these files.^'' The FBI has kept such
data in its filing system on the theory that they might be useful some-
day in the future to solve crimes, for employee background checks, to
evaluate the reliability of the source, or to "answer questions or chal-
lenges" about the Bureau's conduct.^^

The FBI has recently issued instructions to its Field Offices to take
greater care in recording domestic intelligence information in its
files. They are to exercise "judgment"' as to whether or not the ac-
tivity is "pertinent" to the Bureau's "legitimate investigative in-
terest." ^^ Nevertheless, current policies still allow the indexing of
the names of persons who are not the subject of investigation but just
attend meetings of a group under investigation.^"

"" Memorandum from FBI to Senate Select Committee, 5/22/75.

^Current FBI policies modify past practice with respect to the indexing of
unsolicited allegations, including those of "a i)ersonal nature," not requiring "in-
vestigative action." Tlie Bureau no longer includes in its name index the name
of the person ahout whom the information is volunteered where the Bureau has
"no legitimate investigative interest." In the case of an unsolicited letter, for
example, the name of the sender only is included in the index. The letter itself
is also retained so the FBI "can retrieve" it Wa the index reference to the sender
"should an occasion arise in the future when we need to refer back to it." (Mem-
orandum from FBI Headquarters to all SACs, 11/10/75.)

^* Memorandum from FBI to Select Committee, 7/21/75. This memorandum
states that the Bureau has adopted, under regulations of the National Archives,
a program for destroying files which "no longer have contemporary value." The
FBI has not included within this program most of the investigative and intelli-
gence information in its files dating back as far as 1939.

59 Memorandum from FBI Headquarters to all SACs, 1/27/76. The Field Offices
were given the following specific guidance :

"For example, the statement of a local leader of the Ku KUix Klan in which he
advocates regular attendance at church would be merely an exercise of his right
to free speech and, hence, maintenance of such a record would be prohibited. On
the other hand, should this same individual stand up before a gathering and ad-
vocate the use of violence in furthering the organization's objectives, this ob-
viously would be pertinent to our investigation."

Bureau headquarters recognized that these were "extreme" examples and that
"problems" were created in "those instances which are in the middle and which
are not so clear." Thus, FBI agents were encouraged to consult Headquarters "to
resolve any question concerning a specific problem."

*" One Field Ofl!ice has described regular Bureau procedures as follows :

"[Our] informants, after attending meetings of these organizations [under
investigation], usually submit reports in which they describe briefly the ac-
tivities and discussions which took place as well as listing those members and
non-members in attendance at such meetings. Copies of these informant re-
ports are disseminated to various individuals' files and the names of those in
attendance where no individuals file exists, are indexed to the organization's
file." (Memorandum from SAC to FBI Headquarters, 12/1/75). [Emphasis
added.]

FBI headquarters did not indicate that this practice was outside the "scope"
of authorized "law enforcement activity." It is considered "pertinent" to the in-
vestigation "to maintain records concerning membership, public utterings, and/or
other activities" of an organization under investigation. (Memorandum from
FBI Headquarters to all SACs, 1/27/76.)

264

Finally, there is information in FBI files which was collected by
illegal or improper means. It ranges from the fruits of warrantless
electronic surveillance, mail openings, and surreptitious entries, to the
results of sweeping intelligence investigations which collected data
about the la\yful political activities and personal lives of Americans.
Where such intelligence remain in the name-indexed files, it can be
retrieved and disseminated along with other information, thus con-
tinuing indefijiitely the potential for compounding the initial intrusion
into constitutionally protected areas.

G. DEFICIENCIES IN CONTROL AND ACCOUNTABILITY

Major Finding
The Committee finds that those responsible for overseeing, super-
vising, and controlling domestic activities of the intelligence com-
munity, although often unaware of details of the excesses described
in this report, made those excesses possible by delegating broad au-
thority without establishing adequate guidelines and procedural
checks ; by failing to monitor and coordinate sufficiently the activities
of the agencies under their charge ; by failing to inquire further after
receiving indications that improper activities may have been occur-
ring; by exhibiting a reluctance to know about secret details of pro-
grams; and sometimes by requesting intelligence agencies to engage in
questionable practices. On numerous occasions, intelligence agencies
have, by concealment, misrepresentation, or partial disclosure, hidden
improper activities from those to whom they owed a duty of dis-
closure. But such deceit and the improper practices which it con-
cealed would not have been possible to such a degree if senior officials
of the Executive Branch and Congress had clearly allocated respon-
sibility and imposed requirements for reporting and obtaining prior
approval for activities, and had insisted on adherence to those
requirements.

Subfindings

(a) Presidents have given intelligence agencies firm orders to col-
lect information concerning "subvei-sive activities" of American citi-
zens, but have failed until recently to define the limits of domestic
intelligence, to provide safeguards for the rights of American citi-
zens, or to coordinate and control the ever-expanding intelligence
efforts by an increasing number of agencies.

(b) Attorneys General have permitted and even encouraged the
FBI to engage in domestic intelligence activities and to use a wide
range of intrusive investigative techniques — such as wiretaps, micro-
phones, and informants — but have failed until recently to supervise
or establish limits on these activities or techniques by issuing ade-
quate safeguards, guidelines, or procedures for review.

(c) Presidents, White House officials, and Attorneys General have
requested and received domestic political intelligence, thereby con-
tributing to and profiting from the abuses of domestic intelligence
and setting a bad example for their subordinates.

(d) Presidents, Attorneys General, and other Cabinet officers have
neglected until recently to make inquiries in the face of clear indica-
tions that intelligence agencies were engaging in improper domestic
activities.

(e) Congress, which has the authority to place restraints on do-
mestic intelligence activities through legislation, appropriations, and

(265)

266

oversight committees, has not effectively asserted its responsibilities
until recently. It has failed to define the scope of domestic intelli-
gence activities or intelligence collection techniques, to uncover ex-
cesses, or to propose legislative solutions. Some of its members have
failed to object to improper activities of which they were aware and
have prodded agencies into questionable activities.

(f) Intelligence agencies have often undertaken programs without
authorization with insufficient authorization, or in disregard of ex-
press orders.

(g) The weakness of the system of accountability and control can
be seen in the fact that many illegal or abusive domestic intelligence
operations were terminated only after they had been exposed or threat-
ened with exposure by Congress or the news media.

Elaboration of Findings

The Committee has found excesses committed by intelligence agen-
cies— lawless and improper behavior, intervention in the democratic
process, overbroad intelligence targeting and collection, and the use
of covert techniques to discredit and "neutralize" persons and groups
defined as enemies by the agencies. But responsibility for those acts
does not fall solely on the intelligence agencies which committed
them. Systematic excesses would not have occurred if lines of authority
had been clearly defined ; if procedures for reporting and review had
been established ; and if those responsible for supervising the intelli-
gence community had properly discharged their duties.

The pressure of events and the widespread confidence in the FBI
help to explain the deficiencies in command and authorization dis-
covered by the Committee. Most of the activities examined in this
report occurred during periods of foreign or domestic crisis. There
was substantial support from the public and all branches of govern-
ment for some of the central objectives of domestic intelligence policy,
including the search for "Fifth Columnists" before World War II;
the desire to identify communist "influence" in the Cold War atmos-
phere of the 1950s; the demand for action against Klan violence in
the early 1960s; and the reaction to violent racial disturbances and
anti- Vietnam war activities in the late 1960s and early 1970s. It was
in this heated environment that President and Attorneys General or-
dered the FBI to investigate "subversive activities". Further, the
Bureau's reputation for effectiveness and professionalism, and Direc-
tor Hoover's ability to cultivate political support and to inspire appre-
hension, played a significant role in shaping the relationship between
the FBI and the rest of the Government.

With only a few exceptions, the domestic intelligence activities re-
viewed by the Committee were properly authorized imthin the intelli-
gence agencies. The FBI epitomizes a smoothly functioning military
structure: activities of agents are closedly supervised; programs are
authorized only after they have traveled a well-defined bureaucratic
circuit; and virtually all activities — ranging from high-level policy
considerations to the minutia of daily reports from field agencies —
are reduced to writing. These characteristics are commendable. An
efficient law enforcement and intelligence-gathering machine, acting
consistently with laAv, can greatly benefit the nation. However, when
used for wrongful purposes, this efficiency can pose a grave danger.

267

It appears that many specific abuses were not known by the Attor-
ney General, the President, or other Cabinet-level officials directly
responsible for supervising domestic intelligence activities. But
whether or not particular activities were authorized by a President
or Attorney General, those individuals nnvst — as the chief executive
and the principal law enforcement officer of the United States Gov-
ernment— bear ultimate responsibility for the activities of executive
agencies under their command. The President and his Cabinet officers
have a duty to determine the nature of activities engaged in by execu-
tive agencies and to prevent undesired activities from taking place.
This duty is particularly compelling when responsible officials have
reason to believe that undesii'able activity is occurring, as has often
been the case in the context of domestic intelligence.

The Committee's inquiry has revealed a pattern of reckless disre-
gard of activities that threatened our Constitutional system. Intelli-
gence agencies were ordered to investigate "subversive activities,'' and
were then usually left to determine for themselves which activities
were "subvei-sive" and how those activities should be investigated.
Intelligence agencies were told they could use investigative tech-
niques— wiretaps, microphones, informants — that permitted them to
pry into the most valued areas of privacy and were then given in many
cases the unregulated authority to detei-mine when to use those tech-
niques and how long to continue them. Intelligence agencies were en-
couraged to gather "pure intelligence," which was put to political use
by public officials outside of those agencies. This was possibly because
Congress had failed to pass laws limiting the areas into which intel-
ligence agencies could legally inquire and the information they could
disseminate.

Improper acts were often intentionally concealed from the Govern-
ment officials responsible for supervising the intelligence agencies, or
undertaken without express authority. Such behavior is inexcusable.
But equally inexcusable is the absence of executive and congressional
oversight that engendered an atmosphere in which the heads of those
agencies believed they could conceal activities from their superiors.
Attorney General Levi's recent guidelines and the recommendations
of this Committee are intended to provide the necessary guidance.

Whether or not the responsible Government officials knew about
improper intelligence activities, and even if the agency heads failed in
their duty of full disclosure, it still follows that Pi-esidents and the
appropriate Cabinet officials should have known about those activi-
ties. This is a demanding standard, but one that must be imposed. The
future of democracy rests upon such accountability.

Subfinding {a)

Presidents have given intelligence agencies firm orders to collect
information concerning "subversive activities" of American citizens,
but have failed until recently to define the limits of domestic intelli-
gence, to provide safeguards for the rights of American citizens, or to
coordinate and control the ever-expanding intelligence efforts by an
increasing number of agencies.

As emphasized throughout this report, domestic intelligence activi-
ties have been undertaken pursuant to mandates from the Executive
branch, generally issued during times of war or domestic crisis. The

268

directives of Presidents Roosevelt, Truman, and Eisenhower to investi-
gate "subversive activities," or other equally ill-defined targets, were
echoed in various orders from Attorneys General, who themselves en-
couraged the FBI to undertake domestic intelligence activities with
vague but vigorous commands.

Neither Presidents nor their chief legal officers, the Attorneys Gen-
eral, have defined the "subversive activities" which may be investi-
gated or provided guidelines to the agencies in determining which in-
dividuals or groups were engaging in those activities. No reporting
procedures were established to enable Oabinet-level officials or their
designees to review the types of targets of domestic investigations and
to exercise independent judgment concerning whether such investiga-
tions were warranted. No mechanisms were established for monitoring
the conduct of domestic investigations or for determining if and when
they should be terminated. If Presidents had articulated standards in
these areas, or had designated someone to do the job for them, it is pos-
sible that many of the abuses described in this report would not have
occurred.

Considering the proliferation of agencies engaging in domestic in-
telligence and the overlapping jurisdictional lines, it is surprising that
no President has successfully designated one individual or body to
coordinate and supervise the domestic intelligence activities of the vari-
ous agencies. The half-hearted steps that were taken in that direction
appear either to have been abandoned or to have resulted in the con-
centration of even more power in individual agency heads. For ex-
ample, in 1949 President Truman attempted to establish a control
mechanism — the Interdepartmental Intelligence Conference — to cen-
tralize authority for supervising domestic intelligence activities of
the FBI and military intelligence agencies in a committee chaired
by the Director of the FBI. The Committee reported to the Na-
tional Security Council, and an NSC staff member was assigned
responsibility for internal security.^ The practical effect of the IIC
was apparently to increase the power of the FBI Director and to
remove control further from the Cabinet level. In 1962, the func-
tions of the IIC were transferred to the Justice Department, and
the Attorney General was put in nominal charge of domestic intelli-
gence.^ Wliile in theory supervision resided in the Internal Security
Division of the Justice Department, that Division deferred in large
part to the FBI and provided little oversight.^ The top two executives
of the Internal Security Division were former FBI officials. They

^ National Security Council memorandum 17/5, 6/15/49.

^ National Security Action memorandum 161, 6/9/62.

^ For example, tlie FBI continued an investigation of one group in 1964 after
the Internal Security Division told the Bureau there was "insufficient evidence"
of any legal violations. ( Memorandum from Yeagley to Hoover, 3/3/64. ) Two
years later, an FBI intelligence official suggested that it would lie "in the Bureau's
hest interest to put the Department on record again." The Department approved
the FBI's request for permission to continue the investigation even thougli
there had been "no significant changes as to the character and tactics of the
organization." The FBI did not request further instructions in this investigation
until 1973. (Memorandum from Baumgardner to Sullivan, 7/15/66 ; memorandum
from Yeagley to Hoover, 7/28/66.)

269

appeared sympathetic to the Bureau, and like the Bureau, emphasized
threats of Communist "influence" without mentioning actual results.'*

Another opportunity to coordinate intelligence collection was missed
in 1967, when Attorney General Ramsey Clark established the Inter-
divisional Intelligence Unit (IDIU) to draw on virtuallj' the entire
Federal Government's intelligence collecting capability for informa-
tion concerning groups and individuals "who may play a role, whether
purposefully or not, either in instigating or spreading civil disorders,
or in preventing or checking them." ^ In the rush to obtain intelligence,
no efforts were made to formulate standards or guidelines for con-
trolling how the intelligence would be collected. In the absence of such
guidelinevS and under pressure for results, the agencies undertook
some of the most overly broad programs encountered by the Commit-
tee. For example, the FBI's "ghetto" informant program was a direct
rasjx>nse to the Attorney General's broad requests for intelligence.

The need for centralized control of domestic intelligence was again
given senous consideration during the vigorous demonstrations against
the war in Vietnam in 1970. The intelligence community's program
for dealing with internal dissent — the Huston Plan — envisioned not
only relaxing controls on surveillance techniques, but also coordinating
intelligence collection efforts. According to Tom Charles Huston's testi-
mony, tlie President viewed the suggestion of a coordinating body as
the most important contribution of the plan.^ Although the President
quickly revoked his approval for the Pluston Plan, the idea of a central
domestic intelligence body had taken root. Two months later, with
the encouragement of Attorney General John Mitchell, the Intelli-
gence Evaluation Committee was established in the Justice Depart-
ment. That Committee, like its precursor, the IDIU, compiled and
evaluated raw intelligence; it did not exercise supervision.^

The growing sophistication of intelligence collection techniques
underscores the present need for central control and coordination of
domestic intelligence activities. Although the Executive Branch has

* For example, the annual report of Assistant Attorney General J. Walter
Yeagley for Fiscal Year 1959 emphasized Communist attempts to wield influence,
without pointing out the lack of tangible results :

"Despite the 'thaw,' real or apparent, in the Cold War, and despite Tits] losses,
the [Communist] Party has continued as an organized force, constantly seeking
to repair its losses and to regain its former position of influence. In a number of
fields its activities are directed ostensibly toward laudable objectives, such as the
elimination of discrimination by reason of race, low cost housing for the eco-
nomically underprivileged, and so on. These activities are pursued in large part
as a xcay of extending the forces and currents in American life, and ivith the
hope of being able to 'move in' on such movements when the time seems pro-
pitious." [Emphasis added.] (Annual Report of the Attorney General for Fiscal
Year 1959, pp. 247-248.)

The same executives headed the Internal Security Division from 1959 until
1970, through the administrations of five Attorneys General and four Presidents.
In 1971 a new Assistant Attorney General for the Internal Security Division,
Robert Mardian, actively encouraged FBI surveillance and collaborated with
FBI executive William C. Sullivan in transferring the records of the "17" wire-
taps from the Bureau to the Nixon White House.

° Memorandum from Attorney General Clark to Kevin Maroney, et al., 11/9/67.

* Tom Charles Huston deposition, 5/23/75, p. 32.

" Staff summary of interview of Colonel Werner E. Michel, 5/12/75.

270

recognized that need in the past, it has not, until recently, faced up to
its responsibilities. President Gerald Ford's joint effort with members
of Congress to place further restrictions on wiretaps is a welcome step
in the right direction. Congress must act expeditiously in this area.

Suhfvnding (b)

Attorneys General have permitted and even encouraged the FBI to
engage in domestic intelligence activities and to use a wide range of
intrusive investigative techniques — such as wiretaps, microphones,
and informants — but have failed until recently to supervise or estab-
lish limits on these activities or techniques by issuing adequate safe-
guards, guidelines, or procedures for review.

The Attorney General is the chief law enforcement officer of the
United States and the Cabinet-level officer formally in charge of the
FBI.^" The Justice Department, until recently, has failed to issue
directives to the FBI articulating the grounds for opening domestic
intelligence investigations or the standards to be followed in carrying
out those investigations. The Justice Department has neglected to
establish machinery for monitoring and supervising the conduct of
FBI investigations, for requiring approval of major investigative
decisions, and for determining when an investigation should be ter-
minated. Indeed, in 1972 the Attorney General said he did not even
know whether the FBI itself had formulated guidelines and standards
for domestic intelligence activities, was not aware of the FBI's manual
of instructions, and had never reviewed the FBI's internal guidelines.^^
The Justice Department has frequently levied specific demands on
the FBI for domestic intelligence, but has not accompanied these
demands with restrictions or guidelines. Examples include the Justice
Department's Civil Rights Division's requests for reports on demon-
strations in the early 1960's (including coverage of a speech by Gov-
ernor-elect George Wallace ^^" and coverage of a civil rights demon-
stration on the 100th anniversary of the Emancipation Proclama-
tion ^2) : Attorney General Kennedy's efforts to expand FBI infiltra-
tion of the Ku Klux Klan in 1964 ; ^^ Attorney General Clark's sweep-
ing instructions to collect intelligence about civil disorders in 1967; "
and the Internal Security Division's request for more extensive investi-
gations of campus demonstrations in 1969.^^ While a limited investiga-
tion into some of these areas may have been warranted, the improper
acts committed in the course of those investigations were possible
because no restraints had been imposed.

The Justice Department also cooperated with the FBI in defying
the Emergency Detention Act of 1950 by approving the Bureau's Secu-
rity Index criteria for the investigation of "potentially dangerous"

" Despite the formal line of responsibility to the Attorney General. Director
J. Edgar Hoover in fact developed an informal channel to the White House. Dur-
ing several administrations beginning with President Franklin Roosevelt the
Director and the President circumvented the Justice Department and dealt
directly with each other.

"" Memorandum from St. John Barrett to Marshall, 6/18/63.

"" Memorandum from Director, FBI to Assistant Attorney General Burke
Marshall, 12/4/62.

" Memorandum from Director, FBI to Assistant Attorney General Burke

" Annual Report of the Attorney General for Fiscal Year 1965, pp. 185-186.

" Memorandum from Attorney General Clark to Hoover, 9/14/67.

^ Memorandum from Assistant Attorney General Yeagley to Hoover, 3/3/69.

271

persons.^® Even after Congress repealed the Detention Act, the Justice
Department allowed the Bureau to continue listing "potentially dan-
gerous" persons on a new Administrative Index. The Department
stopped reviewing the names on the FBI's index, and apparently
endorsed the FBI's view that the list could, contrary to law, be used for
detention purposes in an "emergency/'

The FBI's autonomy has been a prominent and long-accepted fea-
ture of the Federal bureaucratic terrain. As early as the 1940s the FBI
could oppose Justice Department inquiries into its internal affairs by
raising the specter of "leaks." ^' The Department acquiesced in the Bu-
reau's claim that it was entitled to withhold its raw files, conceal the
identities of informants, and, in a number of cases, refuse to give the
Justice Department evidence supporting broad allegations and charac-
terizations. Former Attorney General Katzenbach has pointed out that
there were both positive and negative sides to the Bureau's autonomy :

Keeping the Bureau free from political interference was a
powerful argument against efforts by politically appointed
officials, whatever their motivations, to gain a greater measure

of control over operations of the Bureau [Director Hoover

also] found great value in his formal position as subordinate
to the Attorney General and the fact that the FBI was a part
of the Department of Justice. ... In effect, he was uniquely
successful in having it both ways ; he was protected from pub-
lic criticism by having a theoretical superior who took re-
sponsibility for his work, and was protected from his su-
prior by his public reputation.^*

As a consequence of its autonomy, the Bureau could plan and imple-
ment many of the abusive operations described in this report. Former
Attorneys General have told the Committee that they would never
have permitted the more unsavory aspects of the New Left or Racial
COINTELPROs if they had been aware of the Bureau's plans. To
the extent that Attorneys General were ignorant of the Bureau's activ-
ities, it was the consequence not only of the FBI Director's independ-
ent political position, but also of the failure of the Attorneys General to
establish procedures for finding out what the Bureau was doing and
for permitting an atmosphere to evolve in which Bureau officials
believed that they had no duty to report their activities to the Justice
Department, and that they could conceal those activities with little risk
of exposure.^"

" Memorandum from Belmont to Ladd, 10/15/52.

" Memorandum from Hoover to L. M. C. Smith, Chief, Neutrality Laws Unit,
11/28/40.

^* Nicholas Katzenbach testimony, 12/3/75, Hearings, Vol. 6, p. 201.

'" The Justice Department's investigation of the FBI's COINTELPRO illustrates
the reluctance of the Justice Department to interfere in or even inquire about
Internal Bureau matters. Although the existence of COINTELPRO was made
public in 1971, the Justice Department did not initiate an investigation until 1974.
The Department's Committee, headed by Assistant Attorney General Henry Peter-
sen, which conducted the investigation, agreed to use only summaries of docu-
ments prepared by the Bureau instead of examining the Bureau documents
themselves.

Those summaries were often extremely misleading. For example, one summary
stated :

"It was recommended that an anonymous letter be mailed to the leader of the
Blackstone Rangers, a black extremist organization in Chicago. The letter would

(Continued)

272

Attorneys General have not only neglected to establish procedures
for reviewing FBI programs and activities, but they have at the same
time granted the FBI authority to employ highly intrusive investi-
gative techniques with inadequate guidelines and review procedures,
and in some instances with no external restraints whatsoever. Before
1965, wiretaps required the approval of the Attorney General in
advance, but once the Attorney General had authorized wiretap
coverage of a subject, the Bureau could continue the surveillance for
as long as it judged necessary.

This permissive policy was current in October 1963 when Attorney
General Robert Kennedy authorized the FBI to wiretap the phones
of Dr. Martin Luther King, Jr. "at his current address or at any
future address to which he may move" and to wiretap the New York
and Atlanta SCLC offices.^^ Reading the Attorney General's wiretap
authorization broadly, the FBI construed Dr. King's "residence" so
as to permit wiretaps on three of his hotel rooms and the homes of
friends with whom he stayed temporarily.^^ The FBI was still rely-
ing on Attorney General Kennedy's initial authorization when
it sought reauthorization for the King wiretaps in April 1965
in response to new procedures formulated by Attorney General Kat-
zenbach. Although Attorney General Kennedy's authorizing memo-
randum in October 1963 said that the FBI should provide him with
an evaluation of the wiretaps after 60 days, he failed to complain
when the FBI neglected to send him the evaluation. Apparently the
Attorney General never mentioned the wiretaps to the FBI again,
even though he received FBI reports from the wiretaps until he re-
signed in September, 1964.^^

The Justice Department's policy toward the use of microphones
has been even more permissive than for wiretaps. Until 1965, the
FBI was free to carry out microphone surveillance in national secu-
rity cases w^ithout first seeking the approval of the Attorney General
or notifying him afterward. The total absence of supervision enabled
the FBI to hide microphones in Dr. Martin Luther King's hotel rooms
for nearly two years for the express puiT)Ose of not only determining
whether he was being influenced by allegedly communist advisers,
but to "attempt" to obtain information about the private "activities

(Continued)

hopefully drive a wedge between the Blackstone Rangers and the Black Panthers
Party. The anonymous letter would indicate that the Black Panther Party in
Chicago blamed the leader of the Blackstone Rangers for blocking their pro-
grams."

The document from which this summary was derived, however, stated that the
Blackstone Rangers were prone to "violent type activity, shooting, and the like."
The anonymous letter was to state that "the Panthers blame you for blocking
their thing and there's supposed to be a hit out for you." Tlie memorandum
concluded that the letter "may intensify the degree of animosity between the two
groups" and "lead to reprisals against its leadership." (Memorandum from Chi-
cago Field Office to FBI Headquarters, 1/18/69.)

^Memorandum from J. Edgar Hoover to Attorney General Robert Kennedy,
10/7/63 ; memorandum from J. Edgar Hoover to Attorney General Robert
Kennedy, 10/18/63.

=^ Letter from FBI to Senate Select Committee, 7/24/75, pp. 4-5.

^ See M. L. King Report : "Elecrtronic Surveillance of Dr. Martin Luther King
and the Christian Leadership Conference." It should be noted, however, that
President Kennedy was assassinated a month after the wiretap was installed
which may account for Attorney General Kennedy's failure to inquire about the
King wiretaps, at least for the first few months.

273

of Dr. King and his associates" so that Dr. King could be "completely
discredited." -^ Attorney General Kennedy was apparently never told
about the microphone surveillances of Dr. King, although he did
receive reports containing una.ttributed information from that sur-
veillance from which he might have concluded that microphones were
the source.'^

The Justice Department imposed external control over microphones
for the first time in March 1965, when Attoraey General Katzenbach
applied the same procedures to wiretaps and microphones, requir-
ing not only prior authorization but also formal peiiodic review.-"
But irregularities w^ere tolerated even with this standard. For exam-
ple, the FBI has provided the Committee three memoranda from
Director Hoover, initialed by Attorney General Katzenbach, as evi-
dence that it informed the Justice Department of its microphone
surveillance of Dr. King after the March 1965 policy change. These
documents, however, show that Katzenbach was informed about the
microphones only after they had already been installed.-' Such after-
the-fact approval was permitted under Katzenbach's procedures.^'^
There is no indication that Katzenbach inquired further after receiv-
ing the notice.^*

The Justice Department condoned, and often encouraged, the FBI's
use of informants — the investigative technique with the highest poten-
tial for abuse. However, the Justice Department imposed no restric-
tions on informant activity or reporting, and established no proce-
dures for reviewing the Bureau's decision to use informants in a par-
ticular case.

In 1954 the Justice Department entered into an agreement with
the CIA in which the CIA was permitted to withhold the names of

^ Memorandum from Frederick Baumgardner to William Sullivan, 1/28/64.

^The FBI informed the Committee that it has no documents indicating that
Attorney General Kennedy was told about the microphones. His associates
in the Justice Department testified that they were never told, and they did not
believe that the Attorney General had been told about the microphones. (See
memorandum from Charles Brennan to William Sullivan, 12/19/66; Courtney
Evans testimony, 12/1/75, p. 20; Burke Marshall testimony, 3/3/76, p. 43.)

The question of whether Attorney General Kennedy suspected that the FBI
was using microphones to gather information about Dr. King must be viewed
in light of the Attorney General's express authorization of wiretaps in the King
case on national security grounds, and the FBI's practice — known to the Attorney
General — of installing microphones in such national security cases without noti-
fying the Department.

=' Memorandum from Director, FBI to Attorney General, 3/30/65, p. 2. The
Attorney General's policy change occurred during a period of publicity and
Congressional inquiry into the FBI's use of electronic surveillance.

"Memorandum from Director, FBI to Attorney General, 5/17/65; Memoran-
dum from Director, FBI, to Attorney General, 10/19/65; Memorandum from
Director, FBI, to Attorney General, 12/1/65.

"^ Katzenbach advised Director Hoover in September 1965 that "in emergency
situations [wiretaps and microphones] may be used subject to my later ratifica-
tion." (Memorandum from Katzenbach to Hoover, 9/27/65.) Nevertheless, there
is no indication that these microphone surveillances of Dr. King presented
"emergency situations."

'* Katzenbach testified that he could not recall having seen the notices, although
he acknowledged the initials on the memoranda as in his handwriting and in
the location where he customarily placed his initials. (Katzenbach, 12/3/75,
Hearings, Vol. 6, p. 227.)

68-786 O - 19

274

employees whom it had determined were "almost ceilairdy guilty of
violations of criminal statutes" when the CIA could "devise no
charge" under w^iich they could be prosecuted that would not "require
revelation of highly classilied information." ^" This practice was ter-
minated by the J ustice Department in Januai-y, 1975.^'-'^

Despite the failure of Attorneys General to exercise the supervi-
sion that is necessary in the area of domestic intelligence, several
Attorneys General have taken steps in the right direction. Of note
were Attornej^ General Nicholas Katzenbach's review procedures for
electronic surveillance in 1965; Ramsey Clark's refusal to approve
electronic surveillance of domestic intelligence targets and his rejec-
tion of repeated requests by the FBI for such surveillance; Acting
Deputy Attorney General William Ruckelshaus' inquiries into the
Bureau's domestic intelligence program; Deputy Attorney General
Laurence Silberman's inquiiy into political abuses of the FBI in
early 1975 ; and Attorney General Saxbe's decision to make the Justice
Department's COINTELPRO report public.

During the past year, Attorney General Edward H. Levi has exer-
cised welcome leadership by formulating guidelines for FBI investi-
gations; developing legislative proposals requiring a judicial war-
rant for national security wiretaps and microphones; establishing
the Office of Professional Responsibility to inquire into departmental
misconduct; initiating investigations of alleged wrongdoing by the
FBI ; and cooperating with this Committee's requests for documents
on FBI intelligence operations.^° The Justice Department's concern
in recent years is a hopeful sign, but long overdue.

Suh finding (c)

Presidents, White House officials, and Attorneys General have
requested and received domestic political intelligence, thereby con-
tributing to and profiting from the abuses of domestic intelligence
and setting a bad example for their subordinates.

The separate finding on "political abuse" sets forth instances in
which the FBI was used by White House officials to gather polit-
ically useful information, including data on administration op-
ponents and critics. This misuse of the Bureau's powers by its political
superiors necessarily contributed to the atmosphere in which abuses
flourished.

If the Bureau's superiors were willing to accept the fruits of ex-
cessive intelligence gathering, to authorize electronic surveillance for
political purposes, and to receive reports on critics which included
intimate details of their personal lives, they could not credibly hold
the Bureau to a high ethical standard. If political expediency char-
acterized the decisions of those expected to set limits on the Bureau's
conduct, it is not surprising that the FBI considered the principle of
expediency endorsed.

^ Memorandum from Lawrence Houston to Deputy Attorney General, 3/1/54.
^^ Memorandum for the Record by General Counsel, CIA, 1/31/75.
^ The Committee's requests also provided the Department of Justice with the
opportunity to see most of these FBI documents for the first time.

275

Suhfinding (d)

Presidents, Attorneys General, and other cabinet officers have
neglected, until recently, to make inquiries in the face of clear indi-
cations that intelligence agencies were engaging in improper domestic
activities.

Executive branch officials contributed to an atmosphere in which
excesses were possible by ignoring clear indications of excesses and
failing to take corrective measures when directly confronted with
improper behavior. The Committee's findings on "Violating and Ignor-
ing the Law" illustrate that several questionable or illegal programs
continued after higher officials had learned partial details and failed
to ask for additional information, either out of the naive assumption
that intelligence agencies would not engage in lawless conduct, or
because they preferred not to be informed.^^

Some of the most disturbing examples of insufficient action in the
face of clear danger signals were uncovered in the Committee's investi-
gation of the FBI's program to "neutralize" Dr. Martin Luther King,
Jr. as the leader of the civil rig'hts movement. The Bureau informed
the Committee that its files contain no evidence that any officials out-
side of the FBI "were specifically aware of any efforts, steps, or plans
or proposals to 'discredit' or 'neutralize' King." ^^ The relevant execu-
tive branch officials have told the Committee that they were unaware
of a general Bureau program to discredit King. Former Attorney Gen-
eral Katzenbach, however, told the Committee :

Nobody in the Department of Justice connected with Civil
Rights could possibly have been unaware of Mr. Hoover's
feelings [against Dr. King]. Nobody could have been un-
aware of the potential for disaster which those feelings em-
bodied. But, given the realities of the situation, I do not
believe one could have anticipated the extremes to which it
was apparently carried.^*

The evidence before the Committee confirms that the "potential for
disaster" was indeed clear at the time. There is no question that
officials in the White House and Justice Department, including Presi-
dent Johnson and Attorney General Katzenbach, knew that the Bu-
reau was taking steps to discredit Dr. King, although they did not
know the full extent of the Bureau's efforts.

— In January 1964 the FBI gave Presidential Assistant Walter
Jenkins an FBI report unfavorable to Dr. King. According to a
contemporaneous FBI memorandum, Jenkins said that he "was of the
opinion that the FBI could perfonn a good service to the country if
this matter could somehow be confidentially given to members of the
press." Jenkins, in a staff interview, denied having made such a
suggestion.^^

^' One cabinet ofladal, when told that the CIA wanted to tell him something
secret, replied, "I would rather not know, anything about it." The "secret" matter
was CIA's illegal mail opening program. (J. Edward Day testimony, 10/22/75,
Hearings, Vol. 4, p. 4.5.)

"' Letter from FBI to the Senate Select Committee, 11/6/75.

" Katzenbach, 12/3/75. Hearings, Vol. 6, p. 209.

^ Memorandum from Cartha DeLoach to J. Edgar Hoover, 1/14/64 ; Staff sum-
mary of Walter Jenkins Inter\aew. 12/1/75, pp. 1-2. Mr. Jenkins subsequently
said that he was unable to testify formally because of illness and has failed to
ans\^ er written interrogatories submitted to him by the Committee for response
under oath.

276

— Ill February 1964 a reporter informed the Justice Department
that the FBI had ottered to "leak" information unfavorable to Dr.
King to the press. The Justice Department's Press Chief, Edwin
Guthman, asked Cartha DeLoach, the FBI's liaison with the press,
about this allegation and DeLoach denied any involvement. The Jus-
tice Department took no further action.^^

— Bill INIoyers, an Assistant to President Johnson, testified that he
learned sometime in early 1964 that an FBI agent twice offered to play
a tape recording for Walter Jenkins that would have been personally
embarrassing to Dr. King and that Jenkins refused to listen to the
tape on both occasions.^*''' Moyei-s testified that he never asked the FBI
why it had the tape or was offering to play it in the Whit€. House.^^
When asked if he had ever questioned the propriety of the FBI's dis-
seminating information of a pei'sonal nature about Dr. King within
the Government, he replied, "I never questioned it, no." When he was
asked if he could recall anyone in the White House ever questioning
the propriety of the FBI disseminating this type of material, Moyers
testified. "I think . . . there were comments that tended to ridicule
the FBI's doing this, but no." ^^

— Burke Marshall, Assistant Attorney General in charge of the
Civil Rights Division, testified that sometime in 1964 a reporter told
him that the Bureau had offered information unfavorable to Dr. King,
Marshall testified that he repeated this allegation to a Bureau official
and asked for a report. The Bureau official subsequently informed him
"The Director wants you to know that you're a . . . damned liar." ^^

— In November 1964 the Washington Bureau Chief of a national
news publication told Attorney General Katzenbach and Assistant
Attorney General Marshall that one of his reporters had been ap-
proached by the FBI and offered the opportunity to hear some "inter-
esting" tape recordings involving Dr. King. Katzenbach testified that
he had been "shocked," and that he and Marshall had informed Presi-
dent Johnson, who "took the matter very seriously" and promised to
contact Director Hoover.^" Neither INIarshall nor Katzenbach knew
if the President contacted Hoover.^^ Katzenbach testified that, during
this same period, he learned of at least one other reporter who had
been offered tape recordings by the Bureau, and that he personally
confronted DeLoach, who was reported to have made the offers.^-
DeLoach told Katzenbach that he had never made such offers.''^ The
only record of this episode in FBI files is a memorandum by DeLoach
stating that Moyers had informed him that the newsman was "telling

^ Memorandum from John Mohr to Cartha DeLoach, 2/5/65 ; Edwin Guthman
testimony, 3/16/76, pp. 20-23.

"'" Bill Moyers testimony, 3/2/76, p. 19.

^^ Bill Moyers testimony, 3/2/76, p. 19 ; staff summary of Bill Moyers interview,
11/24/75.

In an unsworn staff interview, Jenkins denied that he ever received an offer
to listen to such tapes. (Staff summary of Walter Jenkins interview, 12/1/75.)

*" Moyers. 3/2/76. pp. 17-18.

'" Marshall, 3/8/76, pp. 46-47.

'" Katzenbach, 12/3/75, Hearings, Vol. 6, p. 210.

"Marshall, 3/3/76, p. 43; Katzenbach, 12/3/75, Hearings, Vol. 6, p. 210.

*^ Katzenbach, 12/3/75. Hearings, Vol. 6, p. 210.

" Katzenbach, 12/3/75, Hearings, Vol. 6, p. 210. DeLoach testified before the
Committee that he did not recall conversations with reporters about tape
recordings of Dr. King. (Cartha DeLoach testimony, 11/25/75, p. 156.)

277

all over town" that the FBI was making allegations concerning Dr.
King, and that Movers had "stated that the President felt that [the
newsman] lacked integrity. . . ." ^^ Movers could not recall this episode,
but told the Committee that it would be fair to conclude that the
President had been upset by the fact that the newsman revealed the
Bureau's conduct rather than by the Bureau's conduct itself.^^

The response of top White House and Justice Department officials
to strong indications of wrongdoing by the FBI was clearly inade-
quate. The Attorney General went no further than complaining to
the President and asking a Bureau official if the charges were true.
President Johnson apparently not only failed to order the Bureau to
stop, but indeed warned it not to deal with certain reporters because
they had complained about the l^ureau's improper conduct.

In 1968 Attorney General Ramsey Clark asked Director Hoover if
he had "any information as to how" facts about Attorney General
Kennedy's authorization of the wiretap on Dr. King had leaked to
columnists Drew Pearson and Jack Anderson. Clark requested the FBI
Director to "undertake whatever investigation you deem feasible to
determine how this happened." '^^^ Director Hoover's reply, drafted in
the office of Cartha DeLoach, expressed "dismay" at the leak and of-
fered no indication of the likely source.^^*"

In fact, DeLoach had prepared a memorandum ten days earlier stat-
ing that a middle-level Justice Department official with knowledge of
the King wiretap met with him and admitted having "discussed this
matter with Drew Pearson." According to this memorandum, DeLoach
attempted to persuade the official not to allow the story to be printed
because "certain Xegro groups would still blame the FBI, whether we
were ordered to take such action or not.'' ^^*" Thus, DeLoach and
Hoover deliberately misled Attorney General Clark by withholding
their knowledge of the source of the "leak."

Suhfinding {e)

Congress, which has the authority to place restraints on domestic
intelligence activities through legislation, a.ppropriations. and over-
sight committees, has not effectively asserted its responsibilities until
recently. It has failed to define the scope of domestic intelligence activ-
ities or intelligence collection techniques, to uncover excesses, or to
propose legislative solutions. Some of its members have failed to object
to improper activities of which they were aware and have prodded
agencies into questionable activities.

Congress, unlike the Executive branch, does not have the function of
supervising the day-to-day activities of agencies engaged in domestic

** Memorandum from Cartha DeLoach to John Mohr, 12/1/64.

*^ Moyers, 3/2/76. p. 9.

^^ Memorandum from Clark to Hoover. 5/27/68. The story was puhlished in the
midst of Robert Kennedy's eampaisn for the Democratic presidential nomination.

^^ Memorandum from Hoover to Clark. 5/2S/68.

*°' Memorandum from C. D. DeLoach to Mr. Tolson, 5/17/68. Four days later
DeLoach had a phone conversation with .Tack Anderson in which, according to
partment official "had advised him concerning specific information involving an
old wire tap on King." CMemorandum from C. D. DeLoach to Mr. Tolson,
5/21/68. ) Both of these memoranda were initialed by Hoover.

278

intelligence. Congress does, however, have the ability through legisla-
tion to affect almost every aspect of domestic intelligence activity : to
erect the framework for coordinating domestic intelligence activities ;
to define and limit the types of activities in which executive agencies
may engage; to establish the standards for conducting investigations;
and to promulgate guidelines for controlling the use of wiretaps, micro-
phones, and informants. Congress could also exercise a great in-
fluence over domestic intelligence thi'ough its power over the appro-
priations for intelligence agencies' budgets and through the investiga-
tive powers of its committees.

Congress has failed to establish precise standards governing do-
mestic intelligence. No congressional statutes deal Avith the authority
of executive agencies to conduct domestic intelligence operations, or
instruct the executive in how to structure and supervise those opera-
tions. No statutes address when or under what conditions investiga-
tions may be conducted. Congress did not attempt to formulate stand-
ards for wiretaps or microphones until 1968, and even then avoided
the issue of domestic intelligence wiretaps by allowing an exception
for an undefined claim of inherent executive power to conduct do-
mestic security surveillance, which was subsequently held unconstitu-
tional. '^^^ No legislative standards have been enacted to govern the
use of informants.

Congress has helped shape the environment in which improper
intelligence activities were possible. The FBI claims that sweeping
provisions in several vague criminal statutes and regulatory measures
enacted by Congress provide a basis for much of its domestic intelli-
gence activity.*^^ Congress also added its voice to the strong consensus
in favor of governmental action against Communism in the 1950's and
domestic dissidents in the 1960-s and 1970's.

Congress' failure to define intelligence functions has invited action
by the executive. If the top officials of the executive branch are respon-
sible for failing to control the intelligence agencies, that failure is
in part due to a lack of guidance from Congress.

During most of the 40-year period covered in this report, congres-
sional committees did not effectively monitor domestic intelligence
activities. For example, in 1966, a Senate Judiciary subcommittee
undertook an investiaration of electronic surveillance and other intru-
sive techniques by Federal asfencies. According to an FBI memo-
randum, its chairman told a delegation from the FBI that he would
make "a commitment that he would in no way embarrass the FBI,"
and acceded in the FBI's request that the subcommittee refrain from
calling FBI witnesses.*®

*^* U.S. V. U.S. Biatrict Court, 407 U.S. 297 (1972).

*^' These include the Smith Act of 1940 and the Voorhis Act of 1941. In addi-
tion to reliance on these statutes to buttress its claim of authority for domestic
intelligence operations, the FBI has also placed reliance on a Civil War seditious
conspiracy statute and a rebellion and insurrection statute passed during the
Whiskey Rebellion of the 1790's. FBI Director Clarence Kelley, in a letter to
the Attorney General, stated that these later statutes were designed for past
centuries, "not the Twentieth Century." (Memorandum from Director, FBI.
to Attorney General, Hearings, Vol. 6, Exhibit 53.) The Committee agrees.

" Memorandum from DeLoach to Clyde Tolson, 1/21/66.

279

Another example of the deficiencies in congressional oversight is
seen in the House Appropriations Committee's regular approval of
the FBI's requests for appropriations without raising objections to
the activities described in the Director's testimony and off-the-record
briefings. There is no question that members of a House Appropria-
tions subcommittee were aware not only that the Bureau was engaged
in broad domestic intelligence investigations, but that it w^as also
employing disruptive tactics against domestic targets.

In 1958, Director Hoover informed the subcommittee that the
Bureau had an "intensive program" to "disorganize and disrupt" the
Communist Party, that the program had existed "for years" and that
Bureau informants were used "as a disruptive tactic." *'' The next year,
the Director informed the subcommittee that informants in 12 field
offices

have been carefully briefed to engage in controversial dis-
cussions with the Communist Party so as to promote dissen-
tion, factionalism and defections from the communist cause.
This technique has been extremely successful from a disrup-
tive standpoint.

Under another phase of this program, we have carefully
selected 28 items of anticommunist propaganda and have
anonymously mailed it to selected communists, carefully con-
cealing the identity of the FBI as its source. More than 2,809
copies of literature have been placed in the hands of active
communists.*®

Hoover described more aggressive "psychological warfare" techniques
in 1962 :

During the past year we have caused disruption at large
Party meetings, rallies and press conferences through various
techniques such as causing the last-minute cancellation of the
rental of the hall, packing the audience with anticommunists,
arranging adverse publicity in the press and making available
embarrassing questions for friendly reporters to ask the Com-
munist Party functionaries.

The Appropriations subcommittee was also told during this briefing
that the FBI's operations included exposing and discrediting "com-
munists who are secretly operating in legitimate organizations and
employments, such as the Young Men's Christian Association, Boy
Scouts, civic groups, and the like." *"

In 1966 Director Hoover informed the Appropriations subcommittee
that the disruptive program had been extended to the Ku Klux Klan.^

The present Associate Director of the FBI, Nicholas Callahan, who
accompanied Director Hoover during several of his appearances before
the Appropriations subcommittee, said that members of the subcom-

*'' 1958 Fiscal Year Briefing Paper prepared by FBI for House Appropriations
Committee,

^^1959 Fiscal Year Briefing Paper prepared by FBI for House Appropriations
Committee.

*^ 1962 Fiscal Year Briefing Paper prepared by FBI for House Appropriations
Committee.

^ 1966 Fiscal Year Briefing Paper prepared by FBI for House Appropriations
Committee.

280

mittee made "no critical comment" about "the Bureau's efforts to neu-
tralize groups and. associations." ^^

Subcommittee Chairman John Rooney's statements in a televised
interview in 1971 regarding FBI briefings about Dr. Martin Luther
King are indicative of the subcommittee's attitude toward the Bureau :

Representative Rooney. Now you talk about the F.B.I.
leaking something about Martin Luther King. I happen to
know all about Martin Luther King, but I have never told
anybody.

Intervieioer. How do you know everything about Martin
Luther King ?

Representative Rodney. From the Federal Bureau of In-
vestigation.

Interviewer. They've told you — gave you information based
on taps or other sources about Martin Luther King.

Representative Rooney. They did.

Interviewer. Is that proper?

Representative Rooney. Why not ? ^^

Former Assistant Attorney General Fred Vinson recalled that in 1967
the Justice Department averaged "fifty letters a week from Congress"
demanding that "people like [Stokely] Carmichael be jailed." Vinson
said that on one occasion when he was explaining Fii*st Amendment
limits at a congressional hearing, a Congressman "got so provoked he
raised his hand and said, 'to hell ^vith the Fii*st Amendment.' " Vin-
son testified that these incidents fairly characterized "the atmosphere
of the time." ^^

The congressional performance has improved, however, in recent
years. Subcommittees of the Senate Judiciary Committee have initiated
inquiries into Army surveillance of domestic targets and into elec-
tronic surveillance by the FBI. House Judiciary Committee subcom-
mittees commissioned a study of the FBI by the General Accounting
Office and have inquired into FBI misconduct and surveillance activ-
ities. Concurrent with this Committee's investigations, the House
Select Committee on Intelligence considered FBI domestic intelligence
activities.

Our Constitution envisions Congress as a check on the Executive
branch, and gives Congress certain powers for discharging that func-
tion. Until recently. Congress has not effectively fulfilled its consti-
tutional role in the area of domestic intelligence. Although the appro-
priate congressional committees did not always know what intelligence
agencies were doing, they could have asked. The Appropriations sub-
committee was aware that the FBI was engaging in activities far be-
yond the mere collection of intelligence, yet it did not inquire into the
details of those programs.^* If Congress had addressed the issues of
domestic intelligence and passed regulatory legislation, and if it had
probed into the activities of intelligence agencies and required them to

" Memorandum from FBI to Select Committee, 1/12/76.

^^ Interview with Congressman Rooney, NBC News' "First Tuesday," 6/1/71.

°^ Fred Vinson testimony, 1/27/76, p. 34.

" Director Hoover appears to have told the subcommittee of the House Appro-
priations Committee more about COINTELPRO operations and techniques than
he told the Justice Department or the White House.

281

account for their deeds, many of the excesses in this Report might not
have occurred.

Sivb-fi'nding (/)

Intelligence agencies have often undertaken programs without au-
thorization, with insufficient authorization, or in dehance of express
orders.

The excesses detailed in this report were due in part to the failure
of Congress and the Executive branch to erect a sound framework for
domestic intelligence, and in part to the dereliction of responsibility
by executive branch officials who were in charge of individual
agencies. Yet substantial responsibility lies with officials of the intel-
ligence agencies themselves. They had no justification for initiating
major activities without first seeking the express approval of their su-
periors. The pattern of concealment and partial and misleading dis-
closures must never again be allowed to occur.

The Committee's investigations have revealed nmnerous instances
in which intelligence agencies have assimied programs or activities
were authorized under circumstances where it could not reasonably be
inferred that higher officials intended to confer authorization. Some-
times far-reaching domestic programs were initiated without the
knowledge or approval of the appropriate official outside of the agen-
cies. Sometimes it was claimed that higher officials had been "noti-
fied" of a program after they had been informed only about some
aspects of the program, or after the program had been described with
vague references and euphemisms, such as "neutralize," that carried
different meanings for agency personnel than for uninitiated outsid-
ers. Sometimes notice consistecl of references to programs buried in
the details of lengthy memoranda; and "authorization" was inferred
from the fact that higher officials failed to order the agency to dis-
continue the program that had been obscurely mentioned.

The Bureau has made no claim of outside authorization for its
COINTELPROs against the Socialist Workers Party, Black Nation-
alists, or New Left adherents. After 1960, its fragile claim for authori-
zation of the COINTELPROs against the Communist Party USA and
White Hate Groups was drawn from a series of hints and partial, ob-
scured disclosures to the Attorneys General and the White House.

The first evidence of notification to higher government officials of
the FBI's COINTELPRO against the Communist Party USA con-
sists of letters from Director Hoover to President Eisenhower and At-
torney General William Rogers in May 1958 informing them that "in
August of 1956, this Bureau initiated a program designed to promote
disruption within the ranks of the Communist Party (CP) USA.""
There is no record of any reply to these letters.

Later that same year, Director Hoover told President Eisenhower
and his Cabinet :

To counteract a resurgence of Communist Party influence in
the United States, we have a . . . program designed to inten-
sify any confusion and dissatisfaction among its members.

Memorandum from the Director, FBI to the Attorney General, 5/8/58.

282

During the past few years, this program has been most effec-
tive. Selected informants were briefed and trained to raise
controversial issues within the Party. . . . The Internal Reve-
nue Service was furnished names and addresses of Party func-
tionaries who had been active in the underground appara-
tus . . . ; Anticommunist literature and simulated Party docu-
ments were mailed anonymously to carefully chosen mem-
bers. . . .^^

The FBI's only claim to having notified the Kennedy Administra-
tion about COINTELPRO rests upon a letter written shortly before
the inauguration in January 1961 from Director Hoover to Attorney
General-designate Robert Kennedy, Deputy Attorney General-desig-
nate Byron R. White, and Secretary of State-designate Dean Rusk.
One paragraph in the five-page letter stated that the Bureau had a
"carefully planned program of counterattack against the CPUSA
which keeps it off balance," and which was "carried on from both in-
side and outside the party organization." The Bureau claimed to have
been "successful in preventing communists from seizing control of legi-
timate mass organizations" and to have "discredited others who were
secretly operating inside such organizations." ^^ Specific techniques
were not mentioned, and no additional notice was provided to the Ken-
nedy Administration. Indeed, when the Kennedy White House form-
ally requested of Hoover a report on "Internal Security Programs," the
Director described only the FBI's "investigative program," and made
no reference to disruptive activities.^^

The only claimed notice of the COINTELPRO against the Ku
Klux Klan was given after the program had begun and consisted of
a partial description buried within a discussion of other subjects. In
September 1965, copies of a two-page letter were sent to President
Johnson and Attorney General Katzenbach, describing the Bureau's
success in solving a number of cases involving racial violence in the
South. That report contained a paragraph stating that the Bureau was
"seizing every opportunity to disrupt the activities of Klan organiza-
tions," and briefly described the exposure of a Klan member's "kick-
back" scheme involving insurance company premiums.^® More ques-
tionable tactics, such as sending a letter to a Klansman's wife to de-
stroy their marriage, were not mentioned. The Bureau viewed Katzen-
bach's reply to its letter — which praises the investigative successes
which are the focus of the FBI's letter — as constituting authorization
for the White Hate COINTELPRO.^"

The claimed notification to Attorney General Ramsey Clark of the
Wliite Hate COINTELPRO consisted of a ten-page memorandum
captioned "Ku Klux Klan Investigations — FBI Accomplishments"
with a buried reference to Bureau informants "removing" Klan offi-
cers and "provoking scandal" within the Klan organization ''^ Clark

^ Excerpt from FBI Director's Briefing of Cabinet, 11/6/58.

^^ Memorandum from Hoover to Attorney General Robert Kennedy, 1/10/61,
copies to White and Rusk.

^ Letter from J. Edgar Hoover to McGeorge Bundy, 7/25/61, and attached
I.I.C. Report : "Status of U.S. Internal Security Programs."

^^ Letters from Hoover to Marvin Watson, Special Assistant to the President,
and Attorney General Katzenbach, 9/17/65.

^ Memorandum from Katzenbach to Hoover, 9'/S/65.

^ Memorandum from Hoover to Clark, 12/18/67.

283

told the Committee that he did not recall reading those phrases or
interpreting them as notice that the Bureau was engaging in disruptive
tactics ^- Cartha DeLoach, Assistant to the Director during this period,
testified that he "distinctly'' recalled briefing Attorney General Clark
"generally . . . concerning COINTELPRO." •'^ Clark denied having
been briefed.*'*

The letters and briefings described above, which constitute the Bu-
reau's entire claim to notice and authorization for the CPUSA and
A\niite Hate COINTELPROs, failed to mention techniques which
risked physical, emotional, or economic harm to their targets. In no
case was an Attorne}^ General clearly told the nature and extent of the
programs and asked for his approval. In no case was approval ex-
pressly given.

Former Attorney General Katzenbach cogently described another
misleading foi-m of "authorization" relied on by the Bureau and other
intelligence agencies :

As far as Mr. Hoover was concerned, it was sufficient for the
Bureau if at any time any Attorney General had authorized
[a particular] activity in any circumstances. In fact, it was
often sufficient if any Attorney General had written some-
thing which could be construed to authorize it or had been in-
fonned in some one of hundreds of memoranda of some facts
from which he could conceivably have inferred the possibil-
ity of such an activity. Perhaps to a permanent head of a
large bureaucracy this seems a reasonable way of proceeding.
However, there is simply no way an incoming Cabinet officer
can or should be charged with endowing every decision of
his predecessor. . . .^^

For example, the CPUSA COINTELPRO was substantially de-
scribed to the Eisenhower Administration, obliquely to the Ken-
nedy Administration designees, but continued — apparently solely on
the strength of those assumed authorizations — through the Johnson
Administration and into the Nixon Administration. The idea that
authority might continue from one administration to the next and
that there is no duty to reaffirm authority inhibits responsible decision
making. Circumstances may change and judgments may differ. New
officials should be given — and should insist upon — the opportunity to
review significant programs.

The CIA's mail opening project illustrates an instance in which an
intelligence agency apparently received authorization for a limited
program and then expanded that program into significant new areas
without seeking further authorization. In IVIay 1954, DCI Allen Dulles
and Richard Helms, then Chief of Operations in the CIA's Directorate
of Plans, briefed Postmaster General Arthur Summerfield about the
CIA's New York mail project, which at that time involved only the
examination of envelope exteriors. CIA memoranda indicate that
Summerfield's approval was obtained for photographing envelope ex-
teriors, but no mention was made of the possibility of mail opening.^*'

*" Clark, 12/3/75, Hearings, Vol. 6. p. 235.
*' DeLoach, 12/3/75, Hearings, Vol. 6, p. 183.
« Clark, 12/3/75, Hearings, Vol. 6, p. 232.
•^ Katzenbach, 12/3/75, Hearings, Vol. 6. p. 202.

** Memorandum from Richard Helms, Chief of Operations, DDP, to Director
of Security, 5/17/54.

284

The focus of the CIA's project shifted to mail opening sometime dur-
ing the ensuing year, but the CIA did not return to inform Summer-
field and made no attempt to secure his approval for this illegal
operation.

Intelligence officers have sometimes withheld information from
their superiors and concealed programs to prevent discovery by their
superiors. The Bureau apparently ignored the Attorney General's
order to stop classifying persons as "dangerous" in 1943 ; unilaterally
decided not to provide the Justice Department with information about
communist espionage on at least two occasions "for security reasons;"
and withheld similar information from the Presidential Commission
investigating the government's security program in 1947.'^^ More re-
cently, CIA and NSA concealed from President Richard Nixon their
respective mail opening and communications interception programs.

These incidents are not unique. The FBI also concealed its Reserve
Index of prominent persons who were not included on the Security
Index reviewed by the Justice Department; its other targeting pro-
grams against "Rabble Rousers," "Agitators," "Key Activists," and
"Key Extremists;" and its use of intrusive mail opening and sur-
repititious entry techniques. Indeed, the FBI institutionalized its
capability to conceal activities from the Justice Department by estab-
lishing a regular "Do Not File" procedure, which assured internal
control while frustrating external accountability.

Subfinding (g)

The weakness of the system of accountability and control can be seen
in the fact that many illegal or abusive domestic intelligence opera-
tions were terminated only after they had been exposed or threatened
with exposure by Congress or the news media.

The lack of vigorous oversight and internal controls on domestic
intelligence activity frequently left the termination of improper pro-
grams to the ad hoc process of public exposure or threat of exposure
by Congress, the press, or private citizens. Less frequently, domestic
intelligence projects were terminated solely because of an agency's
internal review of impropriety.

The Committee is aware that public exposure can jeopardize legiti-
mate, productive, and costly intelligence programs. We do not con-
done the extralegal activities which led to the exposure of some ques-
tionable operations.

Nevertheless two point emerge from an examination of the termi-
nation of numerous domestic intelligence activities: (1) major illegal
or imj^roper operations tlirived in an atmosphere of secrecy and in-
adequate executive control; and (2) public airing proved to be the
most effective means of terminating or reforming those operations.

Some intelligence officers and Executive branch administrators
sought the termination of questionable programs as soon as they
became aware of the nature of the operation — the Committee praises
their actions. However, too often we have seen that the secrecy that
protected illegal or improper activities and the insular nature of the
agencies involved prevented intelligence officers from questioning
their actions or realizing that they were wrong.

*' See Part II, pp. 35-36, 55-56.

285

There are several noteworthy examples of illegal or abusive domes-
tic intelligence activities which were terminated only after the threat
of public exposure :

— The FBI's widesweeping COINTELPRO operations were termi-
nated on April 27, 1971, in response to disclosures about the program
in the press.^^

— IB.S payments to confidential informants were suspended in
March 1975 as a result of journalistic investigation of Operation
Leprechaun.^*

— The Army's termination of several major domestic intelligence
operations, which were clearly overbroad or illegal, came only after
the programs were disclosed in the press or were scheduled as the
subject of congressional inquiry."^

— On one occasion, FBI Director Hoover insisted that electronic sur-
veillance be discontinued prior to his appearance before the House
Appropriations Committee so that he could report a relatively small
number of wiretaps in place.'^ Contrary to frequent allegations, how-
ever, no general pattern of temporary suspensions or terminations
during the Director's appearances before the House Appropriations
Committee is revealed by Bureau records.

— Following the report of a Presidential committee which had been
established in response to news reports in 1967, the CIA terminated
its covert relationship with a large number of domestically based orga-
nizations, such as academic institutions, student groups, private foun-
dations, and media projects aimed at an international audience.^^

Other examples of curtailment of domestic intelligence activity in
response to the prospect of public exposure include : President Nixon's

" Memorandum from Brennan to Sullivan, 4/27/71 ; letter from Director, FBI,
to all Field Offices, 4/28/71. Even after the termination of COINTELPRO, it
was suggested that "counterintelligence action" would be considered "in excep-
tional instances" so long as there were "tight procedures to insure absolute
secrecy" (Sullivan memorandum, 4/27/71; letter from Director, FBI to all Field
Offices, 4/28/71.)

''* See IRS Report : "Operation Leprechaun."

'* The Army made its first effort to curb its domestic collection of "civil dis-
turbance" intelligence on the political activities of private citizens in June 1970,
only after press disclosures about the program which prompted two Congres-
sional committees to schedule hearings on the matter. (Christopher Pyle,
"CONUS Intelligence: The Army Watches Civilian Politics" Washington
Monthly, January 1970.) Despite legal opinions, both from inside and outside the
Army, that domestic radio monitoring by the Army Security Agency was illegal,
the Army did not move to terminate the program until after the media revealed
that the Army Security Agency had monitored radio transmissions during the 1968
Democratic National Convention (Memorandum from Army Assistant Chief of
Staff for Intelligence to the Army General Counsel re : UPASA Covert Activities
in Civil Disturbance Control Operations.) Department of Defense controls on
domestic surveillance were not imposed until March 1971, after NBC News
reported that the Army had placed Senator Adlai Stevenson III and Congress-
man Abner Mikva under surveillance. (NBC News, "First Tuesday", 12/1/70.)

■^^This involved nine of the so-called "17" wiretaps in February 1971. (Report
of the Committee on the Judiciary, House of Representatives, 8/20/75, pp. 148,
149.)

^* This included nine of the so-called "17" wiretaps in February 1971.
In response to the storm of public and congressional criticism engendered
by a press account of CIA support for a student organization. President Johnson
appointed a Committee, chaired by then Under Secretary of State Nicholas
Katzenbach. to review government activities that "endanger the integrity and
independence" of United States educational and private voluntary organizations
which operate abroad. In March 1967, the Committee recommended "that no fed-
eral agency shall provide any covert financial assistance or support, direct or

(Continued)

286

revocation of approval for the Huston Plan out of concern for the
risk of disclosure of the possible illegal actions proposed and the
fact that "their sensitivity would likely generate media criticism if
they were employed;" "^ J. Edgar Hoover's cessation of the bugging
of Dr. Martin Luther King, Jr.'s hotel rooms after the initiation of a
Senate investigation chaired by Edward V. Long of Missouri;^"
and the CIA's consideration of suspending mail-opening until the Long
inquiry abated and eventual termination of the program "in the Water-
gate climate." *^ More recently, several questionable domestic intelli-
gence practices have been terminated at least in part as a result of
Congressional investigation,^^

(Continued)

indirect, to any of the nation's educational or private voluntary organizations."

The CIA responded with a major review of such projects.

The question of the nature and extent of the CIA's compliance with the
Katzenbach guidelines is discussed in the Committee's Foreign Intelligence
Report.

'* Response by Richard Nixon to Interrogatory Number 17 posed by Senate
Select Committee.

*" On January 7, 1966, in response to Associate Director Tolson's recommenda-
tion. Director Hoover "feserveCd] final decision" about whether to discontinue
all microphone surveillance of Dr. King "until DeLoach sees [Senator Edward
v.] Long." (Memorandum from Sullivan to DeLoach, 1/21/66.) The only occasion
on which the FBI Director rejected a recommendation for bugging a hotel room
of Dr. King's was January 21, 1966, the same day that Assistant Director De-
Loach met with an aide to Senator* Long to try to head off the Long Committee's
hearings on the subject of FBI "bugs" and taps. (Memorandum from DeLoach
to Tolson, 1/21/66. ) When DeLoach returned from the meeting, he reported :

"While we have neutralized the threat of being embarrassed by the Long
Subcommittee, we have not yet eliminated certain dangers which might be
created as a result of newspaper pressure on Long. We therefor'e must keep on
top of this situation at all times." (Memorandum, Executives Conference to the
Director, 1/7/66.)

Another possible explanation for Hoover's cessation of the King hotel bugging
is found in the impact of a memorandum from the Solicitor General in the
Black case which Hoover apparently interpreted as a restriction upon the FBI's
authority to conduct microphone surveillance. (Supplemental memorandum for
the United States, U.8. v. Black, submitted by Solicitor General Thurgood
Marshall, 7/13/66 ; Katzenbach, 10/11/75. p. 58.)

" In 1965, the Long Subcommittee investigation caused the CIA to con-
sider whether its major mail opening "operations should be partially or fully
suspended until the subcommittee's investigations are completed." When the
CIA contacted Chief Postal Inspector Henry Montague and learned that he be-
lieved that the Long investigation would "soon cool off," it was decided to con-
tinue the operation. (Memorandum to the files by "CIA officer." 4/23/(55.)

De.spite continued apprehensions about the "flap potential" of exposure
and repeated recognition of its illegality, the actual termination of the CIA's
New York mail-opening project came, according to CIA OflBce of Security Direc-
tor Howard Osborn because : "I thought it was illegal and in the Watergate
climate we had absolutely no business doing this." (Howard Osborn deposition,
8/28/75, p. 89.) He discussed the matter with William Colby who agreed that the
project was illegal and should not be continued, "particularly in a climate of that
type." (Osborn deposition, 8/28/75, p. 90.)

*^ Shortly after the Senate Select Committee on Intelligence Activities held
hearings on the laxity of the system for disclosure of tax return information
to United States attorneys, the practice was changed. In October 1975, U.S.
Attorneys requesting tax return information were required by the IRS
to provide a sufficient explanation of the need for the information and
the intended use to which it would be put to enable IRS to ascertain the validity
of the request. Operation SHAMROCK. NSA's program of obtaining millions
of international telegrams, was terminated in May 1975, according to a senior
NSA official, primarily because it was no longer a valuable source of foreign
intelligence and because the Senate Select Committee's investigation of the
program had increased the risk of exposure. (Staff summary of "senior NSA
official" interview, 9/17/75, p. 3.)

287

There are several prominent instances of terminations which re-
sulted from an internal review process :

— In August 1973, shortly after taking office, Internal Revenue
Service Commissioner Donald Alexander abolished the Special Service
Staff upon learning that it was engaged in political intelligence activi-
ties which he considered "antithetical to proper tax administration." ^^

— An internal legal review in 1973 prompted the termination of the
joint effort by NSA and CIA to monitor United States-South Ameri-
can communications by individuals named on a drug traffic "watch
list." 8*

— On May 9, 1973, newly appointed CIA Director James Schle-
singer requested from CIA pereonnel an inventory of all "questionable
activities" which the Agency had undeitaken. The 694 pages of memo-
randa received in i-esponse to this request — which became known at
the CIA as "The Family Jewels" — prompted the tennination or limi-
tation of a number of programs which were in violation of the
the Agency's mandate, notably the CHAOS project involving intelli-
gence-gathering against American citizens.^^

— In the early 1960s, the CIA's MKULTRA testing program, which
involved surreptitiously administering drugs to unwitting persons,

^"^ Donald Alexander testimony, 10/2/75, Hearings, Vol. 3, p. 8. Alexander testi-
fied, however, that in a meeting with IRS administrators on the day after he took
office, the SSS was discussed, and "full disclosure" was not made to him. Prior
to the Leprechaun revelations. Commissioner Alexander had also initiated a gen-
eral review of IRS information-gathering and retrieval systems, and he had al-
ready suspended certain types of information-gathering due to discovery of vast
quantities of non-tax-related material. (Alexander, 10/2/75, Hearings, Vol. 3, pp.
8-10.)

Another termination due to internal review took place at IRS in 1968. The
Chief of the Disclosure Branch terminated what he considered the "illegal" pro-
vision of tax return information to the FBI hy another IRS Division. (IRS
Memorandum, D. O. Virdin to Harold Snyder, 5/2/68.) During this same period,
the CIA was also obtaining returns in a manner similar to the FBI (though
in much smaller numbers), yet no one in tlie Intelligence Division or
elsewhere in the Compliance Division apparently thought to examine that prac-
tice in light of the change being made in the practice with respect to the FBI.
(Donald O. Virdin testimony, 9/16/75, pp. 69-73.)

^ The CIA suspended its participation in the program as a result of an opinion
by its General Counsel, Lawrence Houston, that the intercepts were illegal.
(Memorandum from Houston to Acting Chief of Division, 1/29/73.) Shortly
thereafter, NASA reviewed the legality and appropriateness of its own
involvement in what was essentially a law enforcement effort by the Bureau of
Narcotics and Dangerous Drugs rather than a foreign intelligence program,
w^hich is the only authorized province for NSA operations. ( "Senior NSA official
deposition," 9/16/75, p. 10.) In June li>73 the Director of NSA terminated the
drug watch list, several months after the CIA had terminated its own intercept
program. NSA's drug watch list activity had been in operation since 1970. (Allen,
10/29/75, Hearings, Vol. 5, p. 23.)

In the fall of 1973, NSA terminated the remainder of its watch list activity,
which had involved monitoring communications by individuals targeted for NSA
by other agencies including CIA, FBI, and BXDD. In response to the Keith case
and to another case which threatened to disclose the existence of the NSA watcli
list, NSA and the Justice Department had begun to reconsider the propriety of
the program. The review process culminated in termination. See NSA Report :
Termination of Civil Disturbance Watch List.

^ Schlesinger described his review of "grey area activities" which were "per-
haps legal, perhaps not legal" as a part of "the enhanced effort that came in
the wake of Watergate" for oversight of the propriety of Government activities.
(Schlesinger testimony. Rockefeller Commission, 5/5/75, pp. 114, 116.) Schlesinger
testified that his request for the reporting of "questionable activities" came after

(Continued)

288

was "frozen'' after the Inspector General questioned the morality and
lack of administrative control of the program. ^^^

— Several mail-opening operations were terminated because they
lacked sufficient intelligence value, which was often measured in rela-
tion to the "flap potential" — or risk of disclosure — of an operation.
However, both the CIA and the FBI continued other mail-opening
operations after these terminations.^''

The Committee's examination of the circumstances surrounding
terminations of a wide range of improper or illegal domestic intelli-
gence activities clearly points to the need for more effective oversight
from outside the agencies. In too many cases, the impetus for the ter-
mination of programs of obviously questionable propriety came from
the press or the Congress rather than from intelligence agency admin-
istrators or their superiors in the Executive Branch. Although there
were several laudable instances of termination as a responsible out-
growth of an agency's internal review process, the Committee's record
indicates that this process alone is insufficient — intelligence agencies
cannot be left to police themselves.

(Continued)

learning that "there was this whole set of relationships" between the CIA and
AVliite House "plumber" E. Howard Hunt, .Jr., about which Schlesinger had not
been briefed completely upon assuming his ix>sition. (Schlesinger, Rockefeller
Commission testimony, p. 115.) "As a consequence," Schlesinger "insisted that
all people come forward" with "anything to do with the Watergate affair" and
any other arguably improper or illegal operations. (Schlesinger, Rockefeller
Commission, 5/.5/75, p. 116.)

^^ After the Inspector General's survey of the Technical Services Division, he
recommended termination of the testing program. (Earman memorandum,
5/5/63.) The program was then suspended pending resolution at the highest
levels within the CIA of the issues presented by the program — "the risks of
embarrassment to the Agency, coupled with the moral problem." (Memorandum
from DDP Helms to DCI McCone, 9/4/65.) In response to the IG Report, DDP
Helms recommended to DCI McCone that unwitting testing continue. Helms
maintained that the program could be conducted in a "secure and effective
manner" and believed it "neces.sary that the Agency maintain a central role in
this activity, keep current on enemy capabilities in the manipulation of human
behavior, and maintain an offensive capability." (Memorandum from Helms to
DCI McCone, 8/19/63.) The Acting DCI deferred decision on the matter and
directed TSD in the meantime to "continue the freeze on unwitting testing."
(CIA memorandum to Senate Select Commitee. received 9/4/75.) According to
a CIA report to the Select Committee :

"With the destruction of the MKULTRA files in early 1973, it is believed that
there are no definitive records in CIA that would record the termination of the
program for testing behavioral drugs on unwitting persons. . . . Tliere is no
record to our knowledge, that [the] freeze was ever lifted." (CIA memorandum to
Senate Select Committee, received 9/4/75.)

Testimony from the CIA officials involved confirmed that the testing was not
resumed. (See Foreign and Military Intelligence Report.)

^ Two FBI mail-opening programs were suspended for security reasons in-
volving changes in local postal personnel and never reinstituted, on the theory
that the value of the programs did not justify the risk involved. (Memorandum
from San Francisco Field Office to FBI Headquarters, 5/19/66.) The CIA's San
Francisco mail-opening project "was terminated since the risk factor outweighed
continuing an activity which had already achieved its objectives." (Memorandum
to Chief, East Asia Division. June 1973.) The lack of any significant intelligence
value to the CIA apparently led to the termination of the New Orleans mail-
opening program. (Memorandum from "Identity 13" to Deputy Director of Se-
curity, 10/9/57.) Three other programs were terminated because they had pro-
duced no valuable counterintelligence information, while diverting manpower
needed for other operations.

IV. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions

The findings which have emerged from our investigation convince
us that the Government's domestic intelligence policies and practices
require fundamental reform. We have attempted to set out the basic
facts; now it is time for Congress to turn its attention to legislating
restraints upon intelligence activities which may endanger the consti-
tutional rights of Americans.

The Committee's fundamental conclusion is that intelligence activ-
ities have undermined the constitutional rights of citizens and that they
have done so primarily because checks and balances designed by the
framers of the Constitution to assure accountability have not been
applied.

Before examining that conclusion, we make the following observa-
tions.

— While nearly all of our findings focus on excesses and things
that went wrong, we do not question the need for lawful domestic
intelligence. We recognize that certain intelligence activities serve
perfectly proper and clearly necessary ends of government. Surely,
catching spies and stopping crime, including acts of terrorism, is
essential to insure "domestic tranquility" and to "provide for the
common defense." Therefore, the power of government to conduct
proper domestic intelligence activities under effective restraints and
controls must be preserved.

— We are aware that the few earlier efforts to limit domestic intel-
ligence activities have proven ineffectual. This pattern reinforces the
need for statutory restraints coupled with much more effective over-
sight from all branches of the Government.

— The crescendo of improper intelligence activity in the latter part
of the 1960s and the early 1970s shows what we must watch out for :
In time of crisis, the Government will exercise its power to conduct
domestic intelligence activities to the fullest extent. The distinction
between legal dissent and criminal conduct is easily forgotten. Our job
is to recommend means to help ensure that the distinction will always
be observed.

— In an era where the technological capability of Government
relentlessly increases, we must be wary about the drift toward "big
brother government." The potential for abuse is awesome and re-
quires special attention to fashioning restraints which not only cure
past problems but anticipate and prevent the future misuse of
technology.

— We cannot dismiss what we have found as isolated acts which
were limited in time and confined to a few willful men. The failures
to obey the law and, in the words of the oath of office, to "preserve, pro-
tect, and defend" the Constitution, have occurred repeatedly through-
out administrations of both political parties going back four decades.

(289)

68-786 O - 20

290

— We must acknowledo^e that the assi^ment which the Govemment
has ofiven to the intelligence community has, in many waj'S, been
impossible to fulfill. It has been expected to jjredict or prevent every
crisis, respond immediately with information on any question, act to
meet all threats, and anticipate the special needs of Presidents. And
then it is chastised for its zeal. Certainly, a fair assessment must place
a major part of the blame upon the failures of senior executive officials
and Cono;ress.

In the final analysis, however, the purpose of this Committee's work
is not to allocate blame among individuals. Indeed, to focus on per-
sonal culpability may divert attention from the underlying institu-
tional causes and thus may become an excuse for inaction.

Before this investigation, domestic intelligence had never been
systematically surveyed. For the first time, the Government's domestic
surveillance programs, as the}^ have developed over the past forty
years, can be measured against the values which our Constitution
seeks to preserve and protect. Based upon our full record, and the
findings which we have set forth in Part III above, the Committee
concludes that :

Domestic Intelligence Actii'ity Has Threatened and TJncJer-
niined The Constitutional Rights of Americans to Free
Speech. Association and Privacy. It Has Done So Primarily
Because The Constitutional System for Checking Ahuse of
Poicer Has Not Been Applied.

Our findings and the detailed reports which supplement this volume
set forth a massive record of intelligence abuses over the years.
Through a vast network of informants, and through the uncontrolled
or illegal use of intrusive techniques — ranging from simple theft to
sophisticated electronic surveillance — the Government has collected,
and then used improperly, huge amounts of information about the
private lives, political beliefs and associations of numerous Americans.

Affect Vpan Constitutional Rights. — That these abuses have ad-
versely affected the constitutional rights of particular Americans is
beyond question. But we believe the harm extends far beyond the citi-
zens directly affected.

Personal privacy is protected because it is essential to liberty and the
pursuit of happiness. Our Constitution checks the power of Govern-
ment for the purpose of protecting the rights of inclividuals, in order
that all our citizens may live in a free and decent society. Unlike
totalitarian states, we do not believe that any government has a monop-
oly on truth.

^^lien Government infringes those rights instead of nurturing and
protecting them, the injury spreads far beyond the particular citizens
targeted to untold numbers of other Americans who may be
intimidated.

Free government depends upon the ability of all its citizens to speak
their minds without fear of official sanction. The ability of ordinary
people to be heard by their leaders means that they must be free to
join in groups in order more effectively to express their grievances.
Constitutional safeguards are needed to protect the timid as well as
the courageous, the weak as well as the strong. While many Americans
have been willing to assert their beliefs in the face of possible govern-

291

mental reprisals, no citizen should have to weigh his or her desire to
express an opinion, or join a group, against the risk of having lawful
speech or association used against him.

Persons most intimidated may well not be those at the extremes of
the political spectrum, but rather those nearer the middle. Yet voices
of moderation are vital to balance public debate and avoid polarization
of our society.

The federal government has recently been looked to for answers to
nearly every problem. The result has been a vast centralization of
power. Such power can be turned against the rights of the people.
Many of the restraints imposed by the Constitution were designed to
guard against such use of power by the government.

Since the end of World War II, governmental power has been in-
creasingly exercised through a proliferation of federal intelligence
programs. The very size of this intelligence system, multiplies the
opportunities for misuse.

Exposure of the excesses of this huge structure has been necessary.
Americans are now aware of the capability and proven willingness of
their Government to collect intelligence about their lawful activities
and associations. What some suspected and others feared has turned
out to be largely true — vigorous expression of unpopular views, associ-
ation with dissenting groups, participation in peaceful protest activi-
ties, have proA'oked both government surveillance and retaliation.

Over twenty years ago. Supreme Court Justice Robert Jackson,
previously an Attorney General, warned against growth of a central-
ized power of investigation. Without clear limits, a federal investiga-
tive agency would "have enough on enough people" so that "even if
it does not elect to prosecute them" the Government would, he wrote,
still "find no opposition to its policies". Jackson added, "Even those
who are supposed to supervise fintelligence agencies] are likely to fear
[them]." His advice speaks directly to our responsibilities today:

I believe that the safeguard of our liberty lies in limiting any
national police or investigative organization, first of all
to a small number of strictly federal offenses, and secondly
to nonpolitical ones. The fact that we may have confidence
in the administration of a federal investigative agency under
its existing head does not mean that it may not revert again
to the days when the Department of Justice was headed by
men to whom the investigative power was a weapon to be used
for their own purposes.^

Fcnhire to Apply ChecJcs and BaTamces. — The natural tendency of
Government is toward abuse of power. ISIen entrusted with power,
even those aware of its dangers, tend, particularly when pressured,
to slight liberty.

Our constitutional system guards against this tendency. It establishes
many different checks upon power. It is those wise restraints which
keep men free. In the field of intelligence those restraints have too
often been ignored.

^Robert H. -Tackson, The Slupreme Court in the American System of Govern-
ment (New York: Harper Torehbook, 1955, 1963), pp. 70-71.

292

The three main departures in the intelliffence field from the consti-
tutional plan for controllino: abuse of power have been :

(a) Excessive Executwe Power. — In a sense the growth of domes-
tic intelliofence activities mirrored the jjrowth of presidential power
generally. But more than any other activity, more even than exercise
of the war power, intelligence activities have been left to the control
of the Executive.

For decades Congress and the courts as well as the press and the
public have accepted the notion that the control of intelligence activi-
ties was the exclusive prerogative of the Chief Executive and his sur-
rogates. The exercise of this power was not questioned or even inquired
into bv outsiders. Indeed, at times the power was seen as flowing not
from the law. but as inherent in the Presidency. "\^niatever the theory,
the fact was that intelligence activities were essentiallv exempted from
the normal svstem of checks and balances.

Such Executive power, not foimded in law or checked by Congress
or the courts, contained the seeds of abuse and its growth was to be
expected.

( 5 ) Excessive Secrecy. — Abuse thrives on secrecv. Obviousl v, public
disclosure of matters such as the names of intelligence agents or the
technological details of collection methods is inappropriate. But in
the field of intelliflrence, secrecy has been extended to inhibit review of
the basic programs and practices themselves.

Those within the Executive branch and the Congress who would
exercise their responsibilities wisely must be fully informed. The
American public, as well, should know enough about intelligence activ-
ities to be able to apply its good sense to the underlying issues of policy
and morality.

Knowledge is the kev to control. Secrecy should no longer be al-
lowed to shield the existence of constitutional, legal and moral prob-
lems from the scrutiny of all three branches of government or from
the American people themselves.

(c) Avoidance of the Rvle of Law. — Lawlessness bv Government
breeds corrosive cvnicism among the people and erodes the trust upon
Avhich government depends.

Here, there is no sovereign who stands above the law. Each of us,
from presidents to the most disadvantaged citizen, must obey the law.

As intelligence operations developed, however, rationalizntions were
fashioned to immunize them from the restraints of the Bill of Rights
and the specific prohibitions of the criminal code. The experience of
our investigation leads us to conclude that such rationalizations are a
dangerous delusion.

B. Priiicivles Applied in Framing Recommeiidations and The ^cope
of the Recommendations.

Although our recommendations are numerous and detailed, they flow
naturally from our basic conclusion. Excessive intelligence activity
which undermines individual rights must end. The system for con-
trolling intelligence must be brought back within the constitutional
scheme.

Some of our proposals are stark and simple. Because certain domes-
tic intelligence activities were clearly wrong, the obvious solution is to
prohibit them altogether. Thus, Ave would ban tactics such as those used

293

in the FBI's COINTELPRO. But other activities present more com-
plex problems. We see a clear need to safeofuard the constitutional
riofhts of si^eech, assembly, and privacy. At the same time, we do not
want to prohibit or unduly restrict necessaiy and proper intelligence
activity.

In seeking to accommodate those sometimes conflicting interests we
have been guided by the earlier efforts of those who originally shaped
our nation as a republic under law.

The Constitutional amendments protecting speech and assembly and
individual privacv seek to preserve values at the core of our heritage
and vital to our future. The Bill of Rights, and the Supreme Court's
decisions interpreting it suggest three principles which we have fol-
lowed:

(1) Governmental action which directlv infrinsres the rights of
free speech and association must be prohibited. The First Amend-
ment recognizes that even if useful to a proper end, certain govern-
mental actions are simply too dangerous to permit at all. It commands
that "Congress shall make no law" abridging freedom of speech or
assembly.

(2) The Supreme Court, in interj^reting that command, has required
that any governmental action which has a collateral (rather than
direct) impact upon the rights of speech and assembly is permissible
onlv if it meets two tests. First, the action must be undertaken only
to fulfill a compelling governmental need, and second, the government
must use the least restrictive means to meet that need. The effect upon
protected interests must be minimized.^

(3) Procedural safeguards — "auxiliary precautions" as they were
characterized in the Federalist Papers ^ — must be adopted along with
substantive restraints. For example, while the Fourth Amendment
prohibits only "unreasonable" searches and seizures, it requires a pro-
cedural check for reasonableneSvS — the obtaining of a judicial warrant
upon }:)robable cause from a neutral magistrate. Our proposed pro-
cedural checks range from iudicial review of intelligence activity
before or after the fact, to formal and high level Executive branch
approval, to greater disclosure and more effective Congressional
oversight.

The Committee believes that its recommendations should be em-
bodied in a comprehensive legislative charter defining and control-
ling the domestic security activities of the Federal Government. Ac-
cordingly, Part i of the recommendations provides that intelligence
agencies nnist be made subject to the rule of law. In addition. Part i
makes clear that no theory, of "inherent constitutional authority"
or otherwise, can justify the violation of any statute.

Starting from the conclusion, based upon our record, that the Con-
stitution and our fundamental values require a substantial curtailment

' De Grecfory v. A^eir Hainpahirc. 383 U.S. 825. 829 (1966) ; NAACP v. AlaMnia.
377 U.S. 288 (1964) ; aibson v. Florida Leqifdative Tnvef>tipntion Commission, 372
U.S. 539. 546 (1962) : Shclton v. Tucker, 364 U.S. 479, 488 (1960) .
' Madison, Federali.st No. 51. Madison made the point with ^ace:
"If men were angels, no grovernment would he necessary. If angrels were to
govern men. neither external nor internal controls on government w^ould he neces-
sary. In framing a government which is to he administered hy men over men, the
great difficulty lies in this : you must first enahle the government to control the
governed ; and in the next place ohlige it to control it.self. A dependence on the
people is. no doubt, the primary control on the government ; hut experience has
taught mankind the necessity of auxiliary precautions."

294

of the scope of domestic surveillance, we deal after Part i with five
basic questions :

1. Which asrencies should conduct domestic security investigations?
The FBI should be primarily responsible for such investigations.

Under the minimization principle, and to facilitate the control of
domestic intelligence operations, only one agency should be involved
in investigative activities which, even when limited as we propose,
could give rise to abuse. Accordingly, Part ii of these recommenda-
tions reflects the Committee's position that foreign intelligence agen-
cies (the CIA, NSA, and the military agencies) should be precluded
from domestic security activity in the United States. Moreover, they
should only become involved in matters involving the rights of Amer-
icans abroad where it is impractical to use the FBI, or where in the
course of their lawful foreign intelligence operations * they inadver-
tently collect information relevant to domestic security investigations.
In Part iii the Committee recommends that non-intelligence agen-
cies such as the Internal Revenue Service and the Post Office be re-
quired, in the course of any incidental involvement in domestic se-
curity investigations, to protect the privacy which citizens expect of
first class mail and tax records entrusted to those agencies.

2. Wlien should an American be the subject of an investigation at
all; and when can particularly intrusive covert techniques, such as
electronic surveillance or informants, be used ?

In Part, iv, which deals with the FBI, the Committee's recommen-
dations seek to prevent the excessively broad, ill-defined and open
ended investigations shown to have been conducted over the past four
decades. We attempt to change the focus of investigations from con-
stitutionally protected advocacy and association to dangerous con-
duct. Part iv also sets forth specific substantive standards for, and
procedural controls on, particular intrusive techniques.

3. Wlio should be accountable within the Executive branch for en-
suring that intelligence agencies comply with the law and for the
investigation of alleged abuses by employees of those agencies?

In Parts v and vi, the Committee recommends that these respon-
sibilities fall initially upon the agency heads, their general counsel
and inspectors general, but ultimately upon the Attomey General.
The information necessary for control must be made available to those
responsible for control, oversight and review ; and their responsibili-
ties must be made clear, formal, and fixed.

4. ^Hiat is the appropriate role of the courts ?

In Part, vii, the Committee recommends the enactment of a com-
prehensive civil remedy providing the courts with jurisdiction to
entertain legitimate complaints by citizens injured by unconstitutional
or illegal activities of intelligence agencies. Part viii suggests that
criminal penalties should attach in cases of gross abuse. In addition,
Part iv provides for judicial warrants before certain intrusive tech-
niques can be used.

5. What is the appropriate role of Congress :

In Part xii the Committee reiterates its position that the Senate
create a permanent intelligence oversight committee.

The recommendations deal with numerous other issues such as the
proposed repeal or amendment of the Smith Act, the proposed mod-

* Directed primarily at foreigners abroad.

295

ernization of the Espionage Act to cover modem forms of espionage
seriously detrimental to the national interest, the use of the GAO to
assist Congressional oversight of the intelligence comriiunity, and re-
medial measures for past victims of improper intelligence activity.

Scope of Recomm-endatimis. — The scope of our recommendations
coincides with the scope of our investigation. We examined the FBI,
which has been responsible for most domestic security investigations,
as well as foreign and military intelligence agencies, the IRS, and
the Post Office, to the extent they became involved incidentally in
domestic intelligence functions. While there are undoubtedly activi-
ties of other agencies which might legitimately be addressed in these
recommendations, the Committee simply did not have the time or re-
sources to conduct a broader investigation. Furthermore, the mandate
of Senate Resolution 21 required that the Committee exclude from
the coverage of its recommendations those activities of the federal
government which are directed at organized crime and narcotics.

The Committee believes that American citizens should not lose
their constitutional rights to be free from improper intrusion by their
Government when they travel overseas. Accordingly, the Committee
proposes recommendations which apply to protect the rights of Amer-
icans abroad as well as at home.

1. Activities Covered

The Domestic Intelligence Recommendations pertain to : the domes-
tic security activities of the federal government ; ^ and any activities
of military or foreign intelligence agencies which affect the rights of
Americans ^ and any intelligence activities of any non-intelligence
agency working in concert with intelligence agencies, which affect
those rights.

2. Activities Not Covered

The recommendations are not designed to control federal investiga-
tive activities directed at organized crime, narcotics, or other law en-
forcement investigations unrelated to domestic security activities.

S. Agencies Covered
The agencies whose activities are specifically covered by the recom-
mendations are:

(i) the Federal Bureau of Investigation; (ii) the Central
Intelligence Agency; (iii) the National Security Agency
and other intelligence agencies of the Department of De-

® "Domestic security activities" means federal governmental activities, di-
rected against Americans or conducted within the United States or its territories,
including enforcement of the criminal law, intended to (a) protect the United
States from hostile foreign intelligence activity, inchiding espionage; (b) pro-
tect the federal, state, and local governments from domestic violence or rioting ;
and (c) protect Americans and their government from terrorist activity. See
Part xiii of the recommendations and conclusions for all the definitions used in
the recommendations.

'"Americans" means U.S. citizens, resident aliens and unincorporated asso-
ciations, composed primarily of U.S. citizens or resident aliens ; and corpora-
tions, incorporated or having their principal place of business in the United
States or having majority ownership by U.S. citizens, or resident aliens, includ-
ing foreign subsidiaries of such corporations, provided, however, Americans does
not include corporations directed by foreign governments or organizations.

296

fense; (iv) the Internal Revenue Service ; and (v) the United
States Postal Service.

Wliile it might be appropriate to provide similar de^tailed treatment
to the activities of other agencies, such as the Secret Service, Customs
Service, and Alcohol, Tobacco, and Firearms Division (Treasury
Department), the Committee did not study these agencies intensively.
A permanent oversight committee should investigate and study the
intelligence functions of those agencies and the effect of their activities
on the rights of Americans.

Jf. Indirect Prohibitions
Except as specifically provided herein, these Recommendations are
intended to prohibit any agency from doing indirectly that which it
would be prohibited from doing directly. Specifically, no agency cov-
ered by these Recommendations should request or induce any other
agency, or 'any person, whether the agency or person is American or
foreign, to engage in any activity which the requesting or inducing
agency is prohibited from doing itself.

5. Individuals and Groups Not Covered

Except as specifically provided herein, these Recommendations do
not apply to investigation of foreigners "^ who are officers or employees
of a foreign power, or foreigners who, pursuant to the direction of
a foreign power, are engaged in or about to engage in "hostile foreign
intelligence activity" or "terrorist activity".®

6. Geographic Scope

These Recommendations apply to intelligence activities which af-
fect the rights of Americans whether 'at home or abroad, including
all domestic security activities within the United States.

7. Legislative Enactment of Recommendations

Most of these Recommendations are designed to be implemented in
the foi-m of legislation and others in the form of regulations pursuant
to statute. (Recommendations 85 and 90 are not proposed to be imple-
mented by statute.

C Recommendations

Pursuant to the requirement of Senate Resolution 21, these recom-
mendations set forth the new congressional legislation [the Commit-
tee] deems necessary to "safeguard the rights of American citizens." ^
We believe these recommendations are the appropriate conclusion to
a traumatic year of disclosures of abuses. We hope they will prevent
such abuses in the future.

i. Intelligence Agencies Are Subject to the Rule of Law
Estiablishing a legal framework for agencies engaged in domestic
security investigation is the most fundamental reform needed to end
the long history of violating and ignoring the law set forth in Finding
A. The legal framework can be created by a two-stage process of
enabling legislation and administrative regulations promulgated to
implement the legislation.

'' "Foreigners" means persons and organizations who are not Americans as de-
fined above.

^ These terms, which cover the two areas in which the Commiittee recommends
authorizing preventive intelligence investigations, are defined on pp. 340-341.

*S. Res. 21, Sec. 5,- 2(12).

297

However, the Committee proposes that the Congress, in developing
this mix of legislative and administrative charters, make clear to the
Executive branch that it will not condone, and does not accept, any
theory of inherent or implied authority to violate the Constitution,
the proposed new charters, or any other statutes. We do not believe the
Executive has, or should have, the inlierent constitutional authority
to violate the law or infringe the legal rights of Americans, whether
it be a warrantless break-in into the home or office of an American,
warrantless eleotronic surveillance, or a President's authorization to
the FBI to create a massive domestic security progi'am based upon
secret oral directives. Certainly, there would be no such authority after
Congress has, as we propose it should, covered the field by enactment
of a comprehensive legislative charter.^" Therefore statutes enacted
pui^uant to these recommendations should provide the exclusive legal
authority for domestic security activities.

Recotnmendation 1. — There is no inherent constitutional authority
for the President or any intelligence agency to violate the law.

Recommend at ion 2. — It is the intent of the Committee that statutes
implementing these recommendations provide the exclusive legal
authority for federal domestic security activities.

{a) No intelligence agency may engage in such activities unless
authorized by statute, nor may it permit its employees, informants, or
other covert human sources ^^ to engage in such activities on its behalf.

(6) No executive directive or order may be issued which would
conflict with such statutes.

Recomtnendation 3. — In authorizing intelligence agencies to engage
in certain activities, it is not intended that such authority empower
agencies, their informants, or covert human sources to violate any pro-
hibition enacted pursuant to these Recomendations or contained in the
Constitution or in any other law.

a. United States Foreign and Military Agencies Should Be
Precluded from Domestic Security Activities
Part iv of these Recommendations centralizes domestic security in-
vestigations within the FBI. Past abuses also make it necessary that
the Central Intelligence Agency, the National Security Agency, the
Defense Intelligence Agency, and the military departments be pre-
cluded expressly, except as specifically provided herein, from investi-
gative activity which is conducted within the United States. Their
activities abroad should also be controlled as provided herein to mini-
mize their impact on the rights of Americans.

a. Central Intelligence Agency

The CIA is responsible for foreign intelligence and counterintelli-
gence. These recommendations minimize the impact of CIA opera-
tions on Americans. Tliey do not affect CIA investigations of foreign-
ers outside of the United States. The main thrust is to prohibit past
actions revealed as excessive, and to transfer to the FBI other activi-
ties which might involve the CIA in internal security or law enforce-

^° See, e.g., Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579
(1952).

" "Covert human sources" means undercover agents or informants who are
paid or otherwise controlled by an agency.

298

ment matters. Those limited activities which the CIA retains are
placed under tighter controls.

The Committee's recommendations on CIA domestic 'activities are
similar to Executive Order 11905. They go beyond the Executive
Order, however, in that they recommend that the main safeguards be
made law. And, in addition, the Committee proposes tighter standards
to preclude repetition of some past abuses.

General Provisions

The first two Recommendations pertaining to the CIA provide the
context for more specific proposals. In Recommendation 4, the Com-
mittee endorses the prohibitions of the 1947 Act upon exercise by the
CIA of subpoena, police or law enforcement powers or internal secu-
rity functions. The Committee intends that Congress supplement,
rather than supplant or derogate from the more general resitrictions
of the 1947 Act.

Recommendation 5 clarifies the role of the Director of Central In-
telligence in the protection of intelligence sources and methods. He
should be charged with "coordinating" the protection of sources and
methods — ^that is, the development of procedures for the protection of
sources and methods.^^ (Primary responsibility for investigations of
security leaks should reside in the FBI.) Recommendation 5 also makes
clear that the Director's responsibility for protecting sources and
methods does not permit violations of law. The effect of the new Ex-
ecutive Order is substantially the same as Recommendation 5.

Recomm^endation ^ — To supplement the prohibitions in the 1947 Na-
tional Security Act against the CIA exercising "police, subpoena, law
enforcement powers or internal security functions," the CIA should be
prohibited from conducting domestic security activities within
the United States, except as specifically permitted by these
recommendations.

RecomTnendation 5 — The Director of Central Intelligence should be
made responsible for "coordinating" the protection of sources and
methods of the intelligence community. As head of the CIA, the Di-
rector should also be responsible in the first instance for the security
of CIA facilities, personnel, operations, and information. Neither func-
tion, however, authorizes the Director of Central Intelligence to violate
any federal or state law, or to take any action which is otherwise incon-
sistent with statutes implementing these recommendations.

CIA Activities Within the United States

1. Wiretapping^ Mail Opening and Unauthorized Entry. — The Com-
mittee's recommendations on CIA domestic activities apply primarily
to actions directed at Americans. However, in Recommendation 6 the
Committee recommends that the most intrusive and dangerous investi-

" As noted in the Report on CHAOS, former Directors have had differing inter-
pretations of the mandate of tlie 1947 Act to tlie Director of Central Intelligence
to protect intelligence sources and methods. The Committee agrees with former
Director William Colby that the 1947 Act only authorizes the Director to per-
form a "coordinating" and not an "operational" role.

299

gative techniques (electronic surveillance; ^^ mail opening; or unau-
thorized entry ") should 'be used in the United States only by the FBI
and only pursuant to the judicial warrant procedures described in
Recommendations 53, 54 and 55.

This approach is similar to the Executive order except that the
Order permits the CIA to open mail in the United States pursuant to
api^licable statutes and regulations (i.e., with a warrant). The Com-
mittee's recommendations (see Parts iii and iv), places all three
techniques — mail opening, electronic surveillance and unauthorized
entry — under judicial warrant procedures and centralizes their use
within the FBI mider Attorney General supervision. The Committee
sees no justification for distinguishing among these techniques, all of
which represent an exercise of domestic police powei-s ^^ which is inap-
propriate for a U.S. foreign intelligence agency within the United
States and which inherently involve special dangers to civil liberties
and personal privacy.

2. Other Covert Techniques. — ^Tlie use of other covert techniques ^^
by the CIA within the United States is sharply restricted by Recom-
mendation 7 to specific situations.

The Committee would pennit the CIA to conduct physical surveil-
lance of persons on the premises of its own installations and facilities.
Outside of its premises, the Committee would permit the CIA to con-
duct limited physical surveillance and confidential inquiries of its own
employees ^" as part of a preliminary security investigation.

*" The activity completely prohibited to CIA includes only the interception of
communications restricted under the 1968 Safe Streets Act, and would not limit
the use of body recorders, or telephone taps or other electronic surveillance where
one party to the commimication has given his consent. For example, electronic
coverage of a case officer's meeting mth his agent would not be included. The
prohibition also is not intended to cover the testing of equipment in the United
States, when done with the written approval of the Attorney General and under
procedures he has approved to minimize interception of private communications
and to prevent improper dissemination or use of the communications which are
unavoidably intercepted in the testing process. Xor does the prohibition preclude
the use of countermeasures to detect electronic surveillance mounted against the
CIA, when conducted under general procedures and safeguards approved in
writing by the CIA General Counsel.

" "Unauthorized entry" means entry unauthorized by the target.

^'As part of the CIA's responsibility for its own security, however, appro-
priate personnel should be permitted to carry firearms within the United
States not only for courier protection of documents, but also to protect the
Director and Deputy Director and defectors and to guard CIA installations.

" "Covert techniques" means the collection of information including col-
lection from records sources not readily available to a private person (except
state or local law enforcement files) in such a manner as not to be detected
by the subject. Covert techniques do not include a check of CIA or other
federal agency or state and local police records, or a check of credit bureaus
for the limited puri^ose of obtaining non-financial biographical data, i.e., date
and place of birth, to facilitate such name checks, and the subject's place of
employment. Nor do "covert techniques" include interviews with persons knowl-
edgeable about the subject conducted on a confidential basis to avoid disclosure
of the inquiry to others or to the subject, if he is not yet aware of CIA in-
terest in a pro.si>ective relationship, provided the interview does not involve
the provision of information from medical, financial, educational, phone or
other confidential records.

" For purposes of this section employees includes those employees or eon-
tractors who work regularly at CIA facilities and have comparable access or
freedom of movement at CIA facilities as employees of CIA.

300

Although tlie Committee generally centralizes such investigations
within the FBI, it would be too burdensome to require the Bureau
to investigate every allegation that an employee has personal diffi-
culties, which could make him a security risk, or allegations of sus-
picious behavior suggesting the disclosure of information. Before
involving the FBI, the CIA could conduct a preliminary inquiry,
which usually consists of nothing more than interviews with the sub-
ject's office colleagues, or his family, neighbors or associates, and
perhaps confrontation of the subject himself. In some situations,
however, liinited physical surveillance might enable the CIA to re-
solve the allegation or to determine that there was a serious security
breach involved.

Unlike the Executive Order, however, the Committee recommenda-
tions limit this authority to present CIA employees who are subject
to summary dismissal. The only remedy available to the Government
for security problems with past employees is criminal prosecution
or other legal action. All security leak investigations for proposed
criminal prosecution should be centralized in the FBI. Authorizing
the use of any covert technique against contractors and their em-
ployees, let alone former employees of CIA contractors, as the Exec-
utive Order does, would authorize CIA surveillance of too large a
number of Americans. The CIA can withdraw security clearances
until satisjfied by the contractor that a security risk has been remedied
and, in serious cases, any investigations could be handled by the
FBI.

The recommendation on the use of covert techniques within the
United States also precludes the use of covert human sources such
as undercover agents and informants," with one exception expressly
stated to be limited to "exceptional" cases. The Committee would
authorize the CIA to place an ajjent in a domestic group, but only for
the purpose of establishing credible cover to be used in a foreign intelli-
gence mission abroad and only when the Director of Central Intelli-
gence finds it to be "essential" to collection of information "vital" to the
United States and the Attorney General finds that the operation will be
conducted under procedures designed to prevent misuse.^^

Apart from this limited exception, the CIA could not infiltrate
groups within the United States for any purpose, including, as was
done in the past, the purported protection of intelligence sources and
methods or the general security of the CIA's facilities and personnel.
(The Executive Order prohibits infiltration of groups within the
Ignited States "for purposes of reporting on or influencing its activi-
ties or members," but does not explicitly prohibit infiltration to pro-
tect intelligence sources and methods or the physical security of the
agency.)

"Recommendation 7(c) does permit backg:round and other security investi-
gations conducted with government credentials which do not reveal CTA in-
volvement and. in extremely sensitive cases commercial or other private identi-
fication to avoid disclosure of any government connection.

It would also permit CIA investigators to check the effectiveness of cover
operations, without revealing their affiliation, by means of inquiries at the
vicinity of particularly sensitive CIA projects. If in the course of such in-
quiries, unidentified CIA employees or contractors' employees are observed to
be endangering the project's cover, they may be the subject of limited physical

301

3. Collection of Information. — In addition to limiting the use of
particular covert techniques, the Committee limits, in Kecommenda-
tion 8, the situations in which the CIA may intentionally collect, by
any means, information within the United States concerning Ameri-
cans. The recommendation permits the CIA to collect information
within the United States about Americans only with respect to per-
sons working for the CIA or having some other significant affiliation or
contact with CIA. The CIA shoulcl not be 'u\ the business of investigat-
ing Americans as intelligence or counterintelligence targets within the
United States — a responsibility which should be centralized in the
FBI and performed only under the circumstances proposed as lawful
in Part iv.

The Executive Order only restricts CIA collection of information
about Americans if the information concerns "the domestic actiinties
of United States citizens." Unlike the Committee, the Order does not
restrict CIA collection of information about foreign travel or wholly
lawful international contacts and communication of Americans. As
the Committee has learned from its study of the CIA's CHAOS opera-
tion, in the process of gathering information about the international
travel and contacts of Americans, the CIA acquired within the United
States a great deal of additional information about the domestic activi-
ties of Americans.

The Executive Order also permits collection within the United
States of information about the domestic activities of Americans in
several other instances not permitted under the Committee recom-
mendations :

{a) Collection of "foreign intelligence or counterintelligence" about
the domestic activity of commercial organizations. (The Committee's
restrictions on the collection of information apply to investigations of
organizations as well as individuals.) ;

{h) Collection of information concerning the identity of persons
in contact with CIA employees or with foreigners who are subjects of
a counterintelligence inquiry, (Within the United States, the Commit-

surveillanee at that time for the sole purpose of ascertaining their identity so
that they may be subsequently contacted.

" Such action poses serious danger of misuse. The preparation may in-
volve the agent reporting on his associates so that the CIA can assess his creden-
tials and his observation and reporting ability. This could become an oppor-
tunity to collect domestic intelligence on the infiltrated group even when an
investigation of that group could not otherwise be commenced under the
applicable standards. Obviously, without restrictions the intelligence leom-
munity could use this technique to conduct domestic spying, arguing that the
agents were not being "targeted" against the group but were merely preparing
for an overseas operation.

This was done, for example, in the use by Operation CHAOS of agents being
provided with radical credentials for use in "Project 2," a foreign intelligence
operation abroad. (See the CHAOS Report and the Rockefeller Commission
Report. )

One alternative would be to let the FBI handle the agent while he is pre-
paring for overseas assignment. On balance, however, that seems less desir-
able. The temptation to use the agent to collect domestic intelligence might be
.stronger for the agency with domestic security responsibilities than it would
for the area divi.sion of the CIA concerned with foreign intelligence. Also, im-
proper use of the agent to collect such information would be more readily
identifiable in the context of the foreign intelligence operation run by the CIA
than it would in the contest of an agent operation run by the Intelligence Division
of the FBI.

302

tee Tvould require any investigations to collect such information to be
conducted by the FBI, and only if authorized under Part iv, and sub-
ject to its procedural controls.) ;

(c) Collection of "foreign intelligence" from a cooperating source
within the United States about the domestic activities of Americans,
"Foreign intelligence," is an exceedingly broad and vague staiidard.
The use of such a standard raises the prospect of another Project
CHAOS. (The Committee would prohibit such collection by the CIA
within the United States, except with respect to persons presently or
prospect ivelv affiliated Avith CIA.) ;

(d) Collection of information about Americans "reasonably be-
lieved" to be acting on behalf of a foreign power or engaging in inter-
national terrorist or narcotic activities. (The Committee would re-
quire investigations to collect such infonnation within the United
States, to be conducted by the FBI, and only if authorized under
Part, iv.) ;

(e) Collection of information concerning persons considered by the
CIA to pose a clear threat to intelligence agency facilities or person-
nel, provided such information is retained only by the "threateiied"
agency and that proper coordination is established with the FBI.
(This was the basis for the Office of Security's RESISTANCE pro-
gram investigating dissent throughout the country.) (The Committee
would require any such "threat" collection outside the CIA be con-
ducted by the FBI, and only if authorized by Part iv, or by local law
enforcement.)

Recommendation 6. — The CIA should not conduct electronic sur-
veillance, unauthorized entry, or mail opening within the United
States for any purpose.

Recommendation 7. — The CIA should not employ physical surveil-
lance, infiltration of groups or any other covert techniques against
Americans within the United States except:

(a) Physical surveillance of persons on the grounds of CIA in-
stallations;

(6) Physical surveillance during a preliminary investigation of
allegations an employee is a securitv risk for a limited period outside
of CIA installations. Such surveillance should be conducted only
upon written authorization of the Director of Central Intelligence and
should be limited to the subject of the investigation and, only to the
extent necessary to identify them, to persons with whom the subject has
contact ;

(c) Confidential inquiries, during a preliminary investigation of
allegations an employee is a security risk, of outside sources concern-
ing medical or financial information about the subject which is rele-
vant to those allegations ; ^^'

{d) The use of identification which does not reveal CIA or govern-
ment affiliation, in background and other security investigations per-
mitted the CIA by these recommendations, and the conduct of checks,
which do not reveal CIA or government affiliation for the purpose of
judging the effectiveness of cover operations, upon the written au-
thorization of the Director of Central Intelligence ;

"" Any further investigations conducted in connection with (b) or (e) should
be conducted by the FBI, and only if authorized by Part iv.

303

(e) In exceptional eases, the placement or recruitment of agents
within an unwittintr domestic group solely for the purpose of prepar-
ing them for assignments abroad and only for as long as is necessary to
accomplish that purpose. This should take place only if the Director of
Central Intelligence makes a written finding that it is essential for
foreign intelligence collection of vital importance to the United States,
and the Attorney General makes a written finding that the operation
will be conducted under procedures designed to prevent misuse of the
undisclosed participation or of any information obtained therefrom.^"
In the case of any such action, no information received by CIA from
the agent as a result of his position in the group should be dissemina-
ted outside the CIA unless it indicates felonious criminal conduct or
threat of death or serious bodily harm, in which case dissemination
should be permitted to an appropriate official agency if approved by
the Attorney General.

Recommeiulafion 8. — The CIA should not collect ^^ information
within the United States concerning Americans except :

{a) Information concerning CIA employees,"^ CIA contractors and
their employees, or applicants for such employment or contracting;

(6) Information concerning individuals or organizations pro\dd-
ing, or offering to provide,^ assistance to the CIA ;

(c) Information concerning individuals or organizations being con-
sidered by the CIA as potential sources of information or assistance ;**

{d) Visitors to CIA facilities f

(e) Persons otherwise in the immediate vicinity of sensitive CIA
sites f or

(/) Persons who give their informed written consent to such collec-
tion.

In (a), (b) and (c) above, information should be collected only if
necessary for the purpose of determining the person's fitness for em-
ployment, contracting or assistance. If, in the course of such collec-
tion, information is obtained which indicates criminal acti\dty, it
should be transmitted to the FBI or other appropriate agency, "\\nien
an American's relationship with the CIA is prospective, information
should only be collected if there is a bona fide expectation the person
might be used by the CIA.

^ In addition, the FBI should be notified of such insertions.

'^ "Collect" means to gather or initiate the acquisition of information, or to
request it from another agency. It does not include dissemination of information
to CIA by another agency acting on its own initiative.

'^ "Employees," as used in this recommendation, would include members of
the employee's immediate family or prospective spouse.

^ In the case of persons imknown to the CIA who volunteer to provide informa-
tion or otherwise request contact with CIA personnel, the agency may conduct a
name check before arranging a meeting.

^ The CIA may only conduct a name check and confidential interviews of per-
sons who know the subject, if the subject is unaware of CIA interest in him.

^ The CIA may only collect information by means of a name check.

^ Tlie CIA may make a name check and determine the place of em|ployment
of persons residing or working in the immediate vicinity of sensitive sites, such as
persons residing adjacent to premises used for .safe houses or defector resettle-
ment, or such as proprietors of businesses in premises adjacent to CIA offices in
commercial areas.

304

CIA Activities Outside of the United States

The Committee would permit a wider range of CIA activities
aofainst Americans abroad than it would permit the CIA to undeitake
within the United States, but it would not permit the CIA to investi-
gate abroad the lawful activities of Americans to any greater degree
than the FBI could investigate such activities at home.

Abroad, the FBI is not in a position to protect the CIA from serious
threats to its facilities or personnel, or to investigate all serious security
violations. To the extent it is impractical to rely on local law enforce-
ment authorities, the CIA should be free to preserve its security by
specified appropriate investigations which may involve Americans,
including surveillance of persons other than its own employees.

The Committee gives to the FBI the sole responsibility within the
United States for authorized domestic security investigations of Amer-
icans. However, when such an investigation has overseas aspects, the
FBI looks to the CIA as the overseas operational arm of the intelli-
gence community. The recommendations would authorize the CIA to
target Americans abroad as part of an authorized investigation ini-
tiated by the FBI.

The Committee does not recommend permitting the CIA itself to
initiate such investigations of Americans overseas." Present communi-
cations permit rapid consultation with the Department of Justice.
Moreover, the lesson of CHAOS is that an American's actiAdties abroad
may be ambiguous, such as contact with persons who may be acting on
behalf of hostile foreign powers at an international conference on dis-
armament. The question is who shall determine there is sufficient in-
formation to justify making an American citizen a target of his gov-
ernment's intelligence apparatus ?

The limitations contained in Recommendation 9 only pertain to the
CIA initiating investigations or otherwise intentionally collecting in-
formation on Americans abroad. The CIA would not be prohibited
from accepting and passing on information on the illegal activities of
Americans which the CIA acquires incidentally in the course of its
other activities abroad.

The Committee believes that judgments should be centralized with-
in the Justice Department to promote consistent, carefully controlled
application of the appropriate standards and protection of Constitu-
tional rights. This is the same position taken by Director Colby in
setting current CIA policy for mounting operations against Americans
abroad. In March 1974, Director Colby formally terminated the
CHAOS program and promulgated new guidelines JFor future activity
abroad involving Americans, which, in effect, transferred such respon-
sibilities to the Department of Justice.^

" The counterintelligence component of the CIA would be able to call to the
attention of the FBI any patterns of significance which the CIA thought war-
ranted opening an investigation of an American.

^ The guidelines state :

A. "Whenever information is uncovered as a byproduct result of CIA foreign
targeted intelligence or counterintelligence operations abroad which makes
Americans suspect for security or counterintelligence reasons . . . such informa-
tion will be reported to the FBI . . . specific CIA operations will not be mounted
against such individuals ; CIA responsibilities thereafter will be restricted to

305

The Committee is somewhat more restrictive than the Executive
Order with respect to collection of information on Americans. As men-
tioned earlier, the Order only restricts CIA collection of information
about the "domestic activities" of Americans and does not prohibit
the collection of information regarding the lawfid travel or interna-
tional contacts of American citizens. This creates a particularly
significant problem with respect to CIA activities directed against
Americans abroad.

The Order permits the CIA wider latitude abroad than do the
Committee's Recommendations in two other important respects. The
Order permits collection of information if the American is reasonably
believed to be acting on behalf of a foreign power. That exemption
on its face would include Americans working for a foreign country
on business or legal matters or otherwise engaged in wholly lawful
activities in compliance with applicable registration or other regula-
tory statutes. More importantly, the Order permits the CIA to collect
"foreign intelligence" or "counterintelligence" information abroad
about the domestic activities of Americans. The Order then broadly
defines "foreign intelligence" avS information about the intentions or
activities of a foreign countiy or person, or information about areas
outside the United States. This would authorize the CIA to collect,
abroad, for example, information about the domestic activities of
American businessmen which provided intelligence about business
transactions of foreign persons.

The CIA does not at present specifically collect intelligence on the
economic activities of Americans overseas. The Committee suggests
that appropriate oversight committees examine the question of the
overseas collection of economic intelligence.

Use of Covert Techniques Against Americans Ahroad

Recommendation 11 requires the use of all covert techniques be
governed by the same standards, procedures, and approvals required
for their use by the Justice Department against Americans within the
United States. Thus, in the case of electronic surveillance, miauthor-
ized entiy, or mail opening, a judicial warrant would be required. As
a matter of sound Constitutional principle, the Fourth Amendment
protections enjoyed by Americans at home should also apply to pro-
tect them against their Government abroad. It would be just as offen-
sive to have a CIA agent burglarize an American's apartment in Rome
as it would be for the FBI to do so in New York.

Requirements that a warrant be obtained in the United States would
not present an excessive burden. Electronic surveillance and unauthor-
ized entries are not presently conducted against Americans abroad
without prior consultation and approval from CIA Headquarters in

reporting any further intelligence or connterintelligence aspects to the specific
case which comes to CIA's attention as a byproduct of its continuing foreign
targeted operational activity. If the FBI, on the basis of the receipt of the CIA
information, however, specifically requests further information on terrorist
or counterintelligence matters relating to the private American citizens . . .
CIA may respond to written requests by the FBI for clandestine collection abroad
by CIA of information on foreign terrorist or counterintelligence matters
involving American citizens."

68-786 O - 21

306

Langley, Virginia. Moreover, the present Deputy Director of CIA
for Operations has testified that bona fide counterintelligence investi-
gations are lengthy and time consuming and prior review within the
United States, including consultation with the Justice Department,
would not be a serious problem.^'' Indeed electronic surveillance of
Americans abroad under present administration policy also requires
approval by the Attorney General.

The Committee reinforces the general restrictions upon overseas
targeting of Americans by recommending that the CIA be prohibited
from requesting a friendly foreign intelligence service or other person
from undertaking activities against Americans which the CIA itself
may not do. This would not require that a foreign government's use
of covert techniques be conducted under the same procedures, e.g.,
warrants, required by those Recommendations for the CIA and the
FBI. It would mean that the CIA cannot ask a foreign intelligence
service to bug the apartment of an American imless the circumstances
would permit the United States Government to obtain a judicial war-
rant from a Federal Court in this country to conduct such surveillance
of the American abroad.

The Committee places greater restrictions upon the CIA's use of
covert techniques against Americans abroad than does the Executive
Order. For example, the Order permits the CIA to conduct electronic
surveillance and unauthorized entries under "procedures approved by
the Attorney General consistent with the law." No judicial warrant
procedure is required. In addition, the Order's restriction on CIA's
opening mail of Americans is limited to mail "in the United States
postal channels." In other words, under the Order the CIA is not pre-
vented from intercepting abroad and opening a letter mailed by an
American to his family, or sent to him from the United States.

The Order also contains no restrictions on the CIA infiltrating a
group abroad, even if it were one composed entirely of Americans
engaged in wholly lawful activities such as a political club of Ameri-
can students in Paris. Furthermore, the Order permits the CIA to
conduct physical surveillance abroad of any American "reasonably
believed to be" engaged in "activities threatening to the national
security." On its face this language appears overly permissive and
might be read to authorize a repetition of the CHAOS program in
which Americans were targeted for surveillance because of their par-
ticipation in international conferences critical of the U.S. role in
Vietnam.

Recommendation 9. — The CIA should not collect information abroad
concerning Americans except :

ia) Information concerning Americans which it is permitted to
collect within the United States ; ^°

(b) At the request of the Justice Department as part of criminal
investigations or an investigation of an American for suspected ter-

^ William Nelson testimony, 1/28/76, pp. 33-34. Mr. Nelson wa.s not addressing
procedures to obtain a judicial warrant ; but the time required for an ex parte
application on an expedited basis to a Federal Court in Washington. D.C.. would
not be excessive for the investigative time frames which Nelson described.

Furthermore, the present wiretap statute authorizes electronic surveillance
(for 48 hours) on an emergency basis prior to judicial authorization.

^ Recommendation 8, p. 303.

307

rorist,^"* or hostile foreign intelligence ^°^ activities or security leak or
security risk investigations which the FBI has opened pursuant to
Part iv of those recommendations and which is conducted consistently
with recommendations contained in Part iv.^^

Recommendation 10. — The CIA should be able to transmit to the
FBI or other appropriate agencies information concerning Americans
acquired as the incidental byproduct of otherwise permissible foreign
intelligence and counterintelligence operations,^^ whenever such infor-
mation indicates any activity in violation of American law.

Recommendation 11. — The CIA may employ covert techniques
abroad against Americans :

(«) Under circumstances in wdiich the CIA could use such covert
techniques against Americans within the United States ; ^^ or

(5) When collecting information as part of Justice Department in-
vestigation, in which case the CIA may use a particular covert tech-
niques under the standards and procedures and approvals applicable
to its use against Americans within the United States by the FBI (See
Part i V )• ; or

(c) To the extent necessary to identify persons known or suspected
to be Americans who come in contact with foreigners the CIA is in-
vestigating.

CIA Human Expenments and Drug Use

Kecommendation 12 tracks similar restrictions in the Executive
Order but proposes an additional safegiiard — giving the National
Commission on Biomedical Ethics and Human Standards jurisdiction
to review any testing on Americans.

*** "Terrorist activities" means acts, or conspiracies, which: (a) are violent
or dangerous to human life ; and (b) violate federal or state criminal statutes con-
cerning assassination, murder, arson, bombing, hijacking, or Icidnaping ; and
(c) api)ear intended to, or are likely to have the effect of :

(1) Substantially disrupting federal, state or local government; or

(2) Substantially disriipting interstate or foreign commerce between the United
States and another country ; or

(3) Directly interfering with the exercise by Americans, of Constitutional
rights protected by the Civil Rights Act of 1968, or by foreigners, of their rights
under the laws or treaties of the United States.

^^ "Hostile foreign intelligence activities" means acts, or conspiracies, by
Americans or foreigners, who are officers, employees, or conscious agents of a
foreign power, or who, pursuant to the direction of a foreign power, engage in
clandestine intelligence activity, or engage in espionage, sabotage or similar
conduct in violation of federal criminal statutes. (Tlie term "clandestine intelli-
gence activity" is included in this definition at the suggestion of officials of the
Department of .Justice. Certain activities engaged in by conscious agents of for-
eign powers, such as some forms of industrial, technological, or economic espio-
nage, are not now prohibited by federal statutes. It would be preferable to amend
the espionage laws to cover such activity and eliminate this term. As a matter
of principle, intelligence agencies should not investigate activities of Americans
which are not violations of federal criminal statutes. Therefore, the Committee
recommends (in Recommendation 94) that Congress immediately consider en-
acting such statutes and then eliminating tliis term.)

^^ If the CIA believes that an investigation of an American should be opened
but the FBI declines to do so. the CIA sliould be able to appeal to the Attorney
General or to the appropriate committee of the National Security Council.

"- Such information would include material volunteered by a foreign intelligence
service independent of any request by the CIA.

'^ See Recommendation 7, p. 302.

308

Recorrmiendatimi 12 — The CIA should not use in experimentation
on human subjects, any drug, device or procedure which is designed
or intended to harm, or is reasonably likely to harm, the physical or
mental health of the human subject, except with the informed written
consent, witnessed by a disinterested third party, of each human sub-
ject, and in accordance with the guidelines issued by the National Com-
mission for the Protection of Human Subjects for Biomedical and Be-
havioral Research The jurisdiction of the Commission should be
amended to include the Central Intelligence Agency and other in-
telligence agencies of the United States Government.

Review and Certification

Recommendation 13 ensures careful monitoring of those CIA activi-
ties authorized in the recommendations which are directed at Ameri-
cans.

Recommendation 13 — Any CIA activity engaged in pursuant to
Recommendations 7, 8, 9, 10, or 11 should be subject to periodic re-
view and certification of compliance with the Constitution, applicable
statutes, agency regulations and executive orders by :

( a) The Inspector General of the CIA ;

(6) The General Counsel of the CIA in coordination with the
Director of Central Intelligence ;

(c?) The oversight committee recommended in Part xii.

All such certifications should be available for review by congressional
oversight committees.

h. Natiotial Security Agency

The recommendations contained in this section suggest controls on
the electronic surveillance activities of the National Security Agency
insofar as they involve, or could involve, Americans. There is no statute
which either authorizes or specifically restricts such activities. NSA
was created by executive order in 1952, and its functions are described
in directives of the National Security Council.

While, in practice, NSA's collection activities are complex and
sophisticated, the process by which it produces foreign intelligence
can be reduced to a few easily understood principles. NSA intercepts
messages passing over international lines of communication, some of
which have one terminal within the United States. Traveling over
these lines of communication, especially those with one terminal in the
United States, are the messages of Americans, most of which are ir-
relevant to NSA's foreign intelligence mission. NSA often has no
means of excluding such messages, however, from others it intercepts
which might be of foreign intelligence value. It does have, however,
the capability to select particular messages from those it intercepts
which are of foreign intelligence value. ]\Iost international communica-
tions of Americans are not selected, since they do not meet foreign
intelligence criteria. Having selected messages of possible intelligence
value, NSA monitors (reads) them, and uses the information it ob-
tains as the basis for reports which it furnishes the intelligence
agencies.

Having this process in mind, one will more readily understand the
recommendations of the Committee insofar as NSA's handling of the
messages of Americans is concerned. The Committee recommends first
that NSA monitor only foreign communications. It should not monitor

309

domestic communications, even for forei^ intelligence purposes. Sec-
ond, the Committee recommends that NSA should not select messages
for monitoring, from those foreign communications it has intercepted,
because the message is to or from or refers to a particular American,
unless the Department of Justice has first obtained a search warrant,
or the particular American has consented. Third, the Committee rec-
ommends that NSA be required to make every practicable effort to
eliminate or minimize the extent to which the communications of
Americans are intercepted, selected, or monitored. Fourth, for those
communications of Americans which are nevertheless incidentally
selected and monitored, the Committee recommends that NSA be pro-
hibited from disseminating sucli communication, or information de-
rived therefrom, which identifies an American, unless the communica-
tion indicates evidence of hostile foreign intelligence or terrorist
activity, or felonious criminal conduct, or contains a threat of death
or serious bodily harm. In these cases, the Committee recommends that
the Attorney General approve any such dissemination as being con-
sistent with these policies.

In summary, the Committee's recommendations reflect its belief that
NSA should have no greater latitude to monitor the communications
of Americans than any other intelligence agency. To the extent that
other agencies are required to obtain a warrant before monitoring the
communications of Americans, NSA should be required to obtain a
warrant.^*

Recommendation 7^. — NSA should not engage in domestic security
activities. Its functions should be limited in a precisely drawn legisla-
tive charter to the collection of foreign intelligence from foreign
communications.^^

Recommendation 15. — NSA should take all practicable measures
consistent with its foreign intelligence mission to eliminate or mini-
mize the interception, selection, and monitoring of communications of
Americans from the foreign communications.^^

Recommendation 16. — NSA should not be permitted to select for
monitoring any communication to. from, or about an American with-
out his consent, except for the purpose of obtaining information about
hostile foreign intelligence or terrorist activities, and then only if a
warrant approving such monitoring is obtained in accordance with
procedures similar ^^ to those contained in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968.

** None of the Committee's recommendations pertaining to NSA should be con-
strued as inhibiting or preventing NSA from protecting U.S. communications
against interception or monitoring by foreign intelligence services.

"* "Foreign communications," as used in this section, refers to a communica-
tion between or among two or more parties in which at least one party is out-
side the United States, or a communication transmitted between points within the
United States only if transmitted over a facility which is under the control of,
or exclusively used by, a foreign government.

^ In order to ensure that this recommendation is implemented, both the At-
torney General and the appropriate oversight committees of the Congress should
be continuously apprised of, and periodically review, the measures taken by
NSA pursuant to this recommendation.

^ The Committee believes that in the case of interceptions authorized to ob-
tain information about hostile foreign intelligence, there should be a presumption
that notice to the subject of such intercepts, which would ordinarily be required
under Title III (IS U.S.C. 2518(8) (d) ), is not required, imless there is evidence
of gross abuse.

310

(This recommendation would eliminate the possibility that NSA
would re-establish its "watch lists" of the late 1960s and early 1970s.
In that case, the names of Americans were submitted to NSA by other
federal agencies and were used as a basis for selecting and moni-
toring, without a warrant, the international communications of those
Americans.)

Recommendation 17. — Any personally identifiable information
about an American which NSA incidentally acquires, other than pur-
suant to a warrant, should not be disseminated without the consent of
the American, but should be destroyed as promptly as possible, unless
it indicates :

{a) Hostile foreign intelligence or terrorist activities; or

(b) Felonious criminal conduct for which a warrant might be ob-
tained pursuant to Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 ; or

((?) A threat of death or serious bodily harm.

If dissemination is permitted, by (a), (h) and (c) above, it must
only be made to an appropriate official and after approval by the At-
torney General.

(This recommendation is consistent with NSA's policy prior to the
Executive Order.^* NSA's practice prior to the Executive Order was
not to disseminate material containing personally identifiable infor-
mation about Americans.)

Recommendation 18. — NSA should not request from any commer-
cial carrier any commimication which it could not otherwise obtain
pursuant to these recommendations.

(This recommendation is to ensure that NSA will not resume an op-
eration such as SHAMROCK, disclosed during the Committee's hear-
ings, whereby NSA received for almost 30 years copies of most inter-
national telegrams transmitted by certain international telegraph
companies in the United States.)

Recommendation 19. — The Office of Security at NSA should be per-
mitted to collect background information on present or prospective
employees or contractors of NSA, solely for the purpose of determin-
ing their fitness for employment. With respect to security risks or the
security of its installations, NSA should be permitted to conduct
physical surveillances, consistent with such surveillances as the CIA
is permitted to conduct, in similar circumstances, by these recom-
mendations.

c. Military Service and Defense Department Investigative Agencies

This section of the Committee's recommendations pertains to the
controls upon the intelligence activities of the military services and
Department of Defense insofar as they involve Americans who are not
members of or affiliated with the armed forces.

In general, the restrictions seek to limit military investigations to
activities in the civilian community which are necessary and pertinent
to the military mission, and which cannot feasibly be accomplished by
civilian agencies. In overseas locations where civilian agencies do not

^ The Executive Order places no such restriction on the dissemination of infor-
mation by NSA. Under the Executive Order. NSA is not required to delete names
or destroy messages wliich are personally identifiable to Americans. As long as
these messages fall within the categories established by the Order, the names of
Americans could be transmitted to other intelligence agencies of the Government.

311

perform investigative activities to assist the military mission, military
intellig-ence is ^iven more latitude. Specifically, the Committee recom-
mends that military intellifrence be limited within the United States to
conductino^ investigations of violations of the Uniform Code of Mili-
tary Justice ; investie:ations for security clearances of Department of
Defense employees and contractors; and investigations immediately
before and during the deployment of armed forces in connection with
civil disturbances. None of these investigations should involve the use
of any covert technique employed against American civilians. In over-
seas locations, the Committee recommends that military intelligence
have additional authority to conduct investigations of terrorist activity
and hostile foreign intelligence activity. In these cases, covert tech-
niques directed at Americans may be employed if consistent with the
Committee's restrictions upon the use of such techniques in the United
States in Part iv.

Recommendation 20. — Except as specifically provided herein, the
Department of Defense should not engage in domestic security activi-
ties. Its functions, as they relate to the activities of the foreign intelli-
gence community, should be limited in a precisely drawn legislative
charter to the conduct of foreign intelligence and foreign counter-
intelligence activities and tactical military intelligence activities
abroad, and production, analysis, and dissemination of departmental
intelligence.

Recom7nendatio7i 21. — In addition to its foreign intelligence re-
sponsibility, the Department of Defense has a responsibility to investi-
gate its personnel in order to protect the security of its installations
and proi:)erty, to ensure order and discipline within its ranks, and to
conduct other limited investigations once dispatched by the President
to suppress a civil disorder. A legislative charter should define pre-
cisely— in a manner which is not inconsistent wdth these recommenda-
tions— the authorized scope and purpose of any investigations under-
taken by the Department of Defense to satisfy these responsibilities.

Recommendation- 22. — No agency of the Department of Defense
should conduct investigations of violations of criminal law or other-
wise perform any law enforcement or domestic security functions
within the United States, except on military bases or concerning mili-
tary personnel, to enforce the Uniform Code of Military Justice.

Control of Civil Disturbance Intelligence

The Department of the Army has executive responsibility for render-
ing assistance in connection with civil disturbances. In the late 1960s,
it instituted a nationwide collection program in which Army investi-
gators were dispatched to collect information on the political activi-
ties of Americans. This was done on the theoiy that such information
was necessary to pi-epare the Army in the event that its troops were
sent to the scene of civil disturbances. The Committee believes that the
Armv's potential role in civil disturbances does not justify such an
intelligence effort directed against American civilians.

Recommend atian 2S. — The Department of Defense should not be
permitted to conduct investigations of Americans on the theory that
the information derived thei-efrom might be useful in potential civil
disorders. The Army should be permitted to gather information about
geography, logistical matters, or the identity of local officials which is

312

necessary to the positioning, support, and use of troops in an area
where troops are likely to be deployed by the President in connection
with a civil disturbance. The Army should be permitted to investigate
Americans involved in such disturbances after troops have been de-
ployed to the site of a civil disorder, (i) to the extent necessary to ful-
fill the military mission, and (ii) to the extent the information can-
not be obtained from the FBI. (The FBI's responsibility in connection
with civil disorders and its assistance to the Army is described in
Part iv.)

Recommendation 2Ii.. — Appropriate agencies of the Department of
Defense should be permitted to collect background information on
their present or prospective employees or contractors. With respect
to security risks or the security of its installations, the Department of
Defense should be permitted to conduct physical surveillance consistent
with such surveillances as the CIA is permitted to conduct, in similar
circumstances, by these recommendations.

Prohibitions and Limitations of Covert Techniques

During the Army's civil disturbance collection program of the late
1960s, Army intelligence agents employed a variety of covert tech-
niques to gather information about civilian political activities. These
included covert penetrations of private meetings and organizations,
use of informants, monitoring amateur radio broadcasts, and posing
as newsmen. This provision is designed to prevent the use of such
covert techniques against American civilians. The Committee be-
lieves that none of the legitimate investigative tasks of the military
within the United States justified the use of such techniques against
unaffiliated Americans.

Recommendation 25. — Except as provided in 27 below, the Depart-
ment of Defense should not direct any covert teclmique (e.g., elec-
tronic surveillance, informants, etc.) at American civilians.

Limited Investigations Abroad

The military services currently conduct preventive intelligence in-
vestigations within the United States where members of their respec-
tive services are agents of, or are collaborating with, a hostile for-
eign intelligence service. These investigations are coordinated with,
and under the ultimate control of, the FBI. The Committee's recom-
mendations are not intended to prevent the military services from
continuing to assist the FBI with such investigations involving mem-
bers of the armed forces. They are intended, however, to place respon-
sibility for these investigations, insofar as they take place within the
Ignited States, in the FBI, and not in the military services themselves.
The military services, on the other hand, are given additional re-
sponsibility to conduct investigations of Americans who are suspected
of engaginpT in terrorist activity or hostile foreign intelligence activity
in overseas locations.

Rerommevdafion 26. — The Dennrtmont of Defense should be per-
mitted to conduct abroad preventive iritelligence investigations of un-
affilinted Ampi'icnnR. as doscriborl in Part ^v below, provided such in-
vest] o-ations ai^e first anproved bv the FBI. Such in vest i.Q-af ions bv
the Department of Defense, including the use of covert techniques.

313

should ordinarily be conducted in a manner consistent with the recom-
mendations pertaining- to the FBI, contained in Part iv ; however, in
overseas locations, where IT.S. military forces constitute the governing
power, or where U.S. military forces are engaged in hostilities, cir-
cumstances may require greater latitude to conduct such
investigations.

Hi. Non-Intelligence Agencies Should Be Banned From Do-
mestic Security Activity

a. Internal Revenue Service

The Committee's review of intelligence collection and investigative
activity by IRS' Intelligence Division and of the practice of furnish-
ing information in IRS files to the intelligence agencies demonstrates
that reforms are necessary and appropriate. The primary objective
of reform is to prevent IRS from becoming an instrumentality of the
intelligence agencies, beyond the scope of what IRS, as the Federal
tax collector, should 'be doing. Recommendations 27 through 29 are
designed to achieve this objective by providing that IRS collection of
intelligence and its conduct of investigations are to be confined strictly
to tax mattere. Moreover, programs of tax investigation, in which
targets are selected partly because of indications of tax violations and
partly because of reasons relating to domestic security, are prohibited
where they would erode constitutional rights. Where otherwise appro-
priate, such programs must be conducted under special safeguards to
prevent any advei'se effect on the exercise of those rights.

These recommendations should i^revent a recurrence of the excesses
associated with the Special Services Staff and the Intelligence Gather-
ing and Retrieval System.

Targeting of Persons or Groups for Investigations or
Intelligence-GatJiering hy IBS ^^

Recommendation 27. — The IRS should not, on behalf of any in-
telligence agency or for its own use, collect any information about the
activities of Americans except for the purposes of enforcing the tax
laws.

Recommendation 28. — IRS should not select any person or group
for tax investigation on the basis of political activity or for any other
reason not relevant to enforcement of the tax laws.

Recommendation 29. — Any program of intelligence investigation
relating to domestic security in which targets are selected by both tax
and non-tax criteria should only be initiated :

{a) Upon the written request of the Attorney General or the Secre-
tary of the Treasury, specifying the nature of the requested program
and the need therefore; and

(&) After the written certification by the Commissioner of the IRS
that procedures have been developed which are sufficient to prevent
the infringement of the constitutional rights of Americans; and

^ Based upon its study of the TRS, the rommittee helieves these reoommenda-
tions might properly be applied beyond the general domestic security scope of
the recommendations.

314

Disclosure Procedures

The Committee's review of disclosure of tax information by IRS
to the FBI and the CIA showed three principal abuses by those in-
telligence agencies : ( 1 ) the by-passing of disclosure procedures man-
dated by law, resulting in the agencies obtaining access to tax returns
and tax-related information through improper channels, and, some-
times, without a proper basis; (2) the failure to state the reasons
justifying the need for the information and the uses contemplated
so that IRS could determine if the request met the applicable criteria
for disclosure; and (3) the improper use of tax returns and informa-
tion, particularly by the FBI in COINTELPRO. Recommendations
30 through 35 are designed to prevent these abuses from occurring
again.

While general problems of disclosure are being studied by several
different congressional committees with jurisdiction over IRS, these
recommendations reflect this Committees focus on disclosure prob-
lems seen in the interaction between IRS and the intelligence agencies.

RecoTYhmendation 30. — No intelligence agency should request ^° from
the Internal Revenue Service tax returns or tax-related information
except under the statutes and regulations controlling such disclosures.
In addition, the existing procedures under which tax returns and tax-
related information are released by the IRS should be strengthened,
as suggested in the following five recommendations.

Recommendation SI. — All requests from an intelligence agency to
the IRS for tax returns and tax-related information should be in
writing, and signed by the head of the intelligence agency making
the request, or his designee. Copies of such requests should be filed
with the Attorney General. Each request should include a clear state-
ment of :

{a) The purpose for which disclosure is sought ;

(5) Facts sufficient to establish that the requested information is
needed by the requesting agency for the performance of an authorized
and lawful function ;

{c) The uses which the requesting agency intends to make of the
information ;

{(P) The extent of the disclosures sought ;

(e) Agreement by the requesting agency not to use the documents
or information for any purpose other than that stated in the request ;
and

(/) Agreement by the requesting agency that the information will
not be disclosed to any other agency or person except in accordance
with the law.

Recommendation 32. — IRS should not release tax returns or tax-
related information to any intelligence agency unless it has received
a request satisfying the requirements of Recommendation 31, and the
Commissioner of Internal Revenue has aj^proved the request in
writing.

Recommendation 33. — IRS should maintain a record of all such re-
quests and responses thereto for a period of twenty years.

*" "Request" as used in the recommendations concerning the Internal Revenue
Service should not include circumstances in which the agency is acting with the
informed written consent of the taxpayer.

315

Recommendation 3J^. — No intelligence agency should use the infor-
mation supplied to it by the IRS pursuant to a request of the agency
except as stated in a proper request for disclosure.

Recommendation -5-5.— All requests for information sought by the
FBI should be filed by the Department of Justice. Such requests
should be signed by the Attorney General or his designee, following
a determination by the Department that the request is proper under
the aj^plicable statutes and regulations.

h. Post Office {U.S. Postal Service)

These recommendations are designed to tighten the existing re-
strictions regarding requests by intelligence agencies for both inspec-
tion of the exteriors of mail ("mail cover') and inspection of the
contents of first class mail ("mail opening"). As to mail cover, the
Committee's recommendation is to centralize the review and approval
of all requests by requiring that only the Attorney General may au-
thorize mail cover, and to eliminate im justified mail covers by requir-
ing that the mail cover be fomid "necessary" to a domestic security
investigation. With respect to mail opening, the recommendations pro-
vide that it can only be done pursuant to court warrant.

Recommendation 36. — The Post Office should not permit the FBI or
any intelligence agency to inspect markings or addresses on first class
mail, nor should the Post Office itself inspect markings or addresses
on behalf of the FBI or any intelligence agency, on first class mail,
except upon the written approval of the Attorney General or his
designee. AVliere one of the correspondents is an American, the Attor-
ney General or his designee should only approve such inspection for
domestic security purposes upon a written finding that it is necessary
to a criminal investigation or a preventive intelligence investigation
of terrorist activity or ho^ile foreign intelligence activity.

Upon such a request, the Post Office may temporarily remove from
circulation such correspondence for the purpose of such inspection of
its exterior as is related to the investigation.

Recommendation 37. — The Post Office should not transfer the cus-
tody of any first class mail to any agency except the Department of
Justice. Such mail should not be transferred or opened except upon a
judicial search warrant.

{a) In the case of mail where one of the correspondents is an Amer-
ican, the judge must find that there is probable cause to believe that
the mail contains evidence of a crime. '*^

(&) In the case of mail where both parties are foreigners:

(1) The judge must find that there is probable cause to believe
that both parties to such correspondence are foreigners, and one of the
correspondents is an officer, emploj'ee or conscious agent of a foreign
poiwer; and

(2) The Attorney General must certify that the mail opening is
likely to reveal information necessaiy either (i) to the protection of
the nation against actual or potential attack or other hostile acts of
force of a foreign power; (ii) to obtain foreign intelligence informa-
tion deemed essential to the security of the United States; or (iii) to

" See recommendation 94 for the Committee's recommendation that Congress
consider amending the Espionage Act so as to cover modem forms of espionage
not now criminal.

316

protect national security information against hostile foreign intelli-
gence activity.

iv. Federal Domestic Security Activities Should Be Limited
and Controlled to Prevent Abuses Without Ha^npenng
Criminal Investigations or Investigations of Foreign
Espionage

The recommendations contained in this part are designed to accom-
plish two principal objectives: (1) prohibit improper intelligence ac-
tivities and (2) define the limited domestic security investigations
which should be permitted. As suggested earlier, the ultimate goal
is a statutory mandate for the federal government's domestic security
function that will ensure that the FBI, as the primary domestic secu-
rity investigative agency, concentrates upon criminal conduct as op-
posed to political rhetoric or association. Our recommendations would
vastly curtail the scope of domestic security investigations as they
have been conducted, by prohibiting inquiries initiated because the
Bureau regards a group as falling witliin a vaguely defined cate-
gory such as "subversive," "New Left," "Black Nationalist Hate
Groups," or "White Hate Groups." The recommendations also ban
investigations based merely upon the fact that a person or group is
associating with others who are being investigated (e.g., the Bureau's
investigation of the Southern Christian Leadership Conference be-
cause of alleged "Communist infiltration").

The simplest way to eliminate investigations of peaceful speech
and association would be to limit the FBI to traditional investigations
of crimes which have been committed (including the crimes of at-
tempt and conspiracy). The Committee found, however, that there are
circumstances where the FBI should have authority to conduct lim-
ited "intelligence investigations" of threatened conduct (terrorism and
foreign espionage) which is generally covered by the criminal law,
where the conduct has not yet reached the stage of a prosecuteable act.

The Committee, however, found that abuses were frequently associ-
ated even with such intelligence investigations. This led us also to
recommend : precise limitations upon the use of covert techniques
(Recommendations 51 to 60) ; restrictions upon maintenance and dis-
semination of information gathered in such investififations (Recom-
mendations 64 to 68) ; and a statutory requirement that the Attorney
General monitor these investiafations and terminate them as soon as
practical (Recommendation 69).

a. Centralize Supervision^ Investigative Responsibility, and the Use
of Covert Techniques

Investigations should be centralized within the Department of
Justice. It is the Committee's judgment that if former Attorneys Gen-
eral had been held accountable by the Congress for ensuring compli-
ance by the FBI and the intelligence agencies with laws designed to
protect the rights of Americans, the Department of Justice would
have been more likely to discover and enjoin improper acti^dties.
Furthermore, centralizing domestic security investigations within the
FBI will facilitate the xVttorney General's supervision of them.

Recortimendation 38. — All domestic security investia^ative activity,
including the use of covert techniques, should be centralized within the
Federal Bureau of Investigation, except those investigations by the

317

Secret Service designed to protect the life of the President or other
Secret Service protectees. Such investigations and the use of covert
techniques in those investigations should be centralized within the
Secret Service.

Recommendation 39. — All domestic security activities of the federal
government and all other intelligence agency activities covered by the
Domestic Intelligence Recommendations should be subject to Justice
Department oversight to assure compliance with the Constitution and
laws of the United States.

h. Prohibitions

The Committee recommends a set of prohibitions, in addition to its
later recommendations limiting the scope of and procedural controls
for domestic security investigations.

The following prohibitions cover abuses ranging from the political
use of the sensitive information maintained by the Bureau to the ex-
cesses of COIXTELPRO. They are intended to cover activities en-
gaged in, by, or on behalf of, the FBI. For example, in prohibiting
Bureau interference in lawful speech, publication, assembly, organiza-
tion, or association of Americans, the Committee intends to prohibit
a Bureau agent from mailing fake letters to factionalize a group as
well as to prohibit an informant from manipulating or influencing
the peaceful activities of a group on behalf of the FBI.

Subsequent recommendations limit the kinds of investigations which
can be opened and provide controls for those investigations. Specif-
ically, the Committee limits FBI authority to collect information on
Americans to enumerated circumstances; limits authority to maintain
information on political beliefs, political assocations, or private lives
of Americans; requires judicial warrants for the most intrusive covert,
collection techniques (electronic surveillance, mail opening, and sur-
reptitious entry) ; and proposes new restrictions upon the use of other
covert techniques, particularly informants.

Recommendation 46^.— The FBI should be prohibited from engaging
on its own or through informants or others, in any of the following
activities directed at Americans :

{a) Disseminating any information to the "\^niite House, any other
federal official, the news media, or any other person for a political or
other improper purpose, such as discrediting an opponent of the ad-
ministration or a critic of an intelligence or investigative agency.

{h) Interfering with lawful speech, publication, assembly, organi-
zational activity, or association of Americans.

(c) Harassing individuals through unnecessary overt investigative
techniques *- such as intervie^^■s or obvious physical surveillance for the
purpose of intimidation.

Recommendation Jfl. — The Bureau should be prohibited from main-
taining information on the political beliefs, political associations, or
private lives of Americans except that which is clearly necessary for
domestic security investigations as described in Part c.*^

*' "Overt investigative techniqiies" means the collection of information readily
available from public sources or to a private person (including interviews of the
subject or his friends or associates ) .

^ Thus, the Bureau would have an obligation to review any such information
before it is placed in files and to review the files, thereafter, to remove it if no
longer needed. This obligation does not extend to files sealed under Recom-
mendation 65.

318

c. Authorized Scope of Domestic Security Investigations

The Committee sought three objectives in defining the appropriate
jurisdiction of the FBI. First, we sought to carefully limit any investi-
gations other than traditional criminal investigations to five defined
areas: preventive intelligence investigations (in two areas closely re-
lated to serious criminal activity — terrorist and hostile foreign in-
telligence activities) , civil disorders assistance, background investiga-
tions, security risk investigations, and security leak investigations.

Second, we sought substantially to narrow, and to impose special
restrictions on the conduct of, those investigations which involved the
most flagrant abuses in the past: preventive intelligence investigations
and civil disorders assistance. Third, we sought to provide a clear sta-
tutory foundation for those investigations which the Connnittee
believes are appropriate to fill the vacuum in FBI legal authority.

Achieving the first and second objectives will have the most signif-
icant impact upon the FBI's domestic intelligence program and in-
deed, could eliminate almost half its workload. Recommendations 44
through 46 impose two types of restrictions upon the conduct of in-
telligence investigations and civil disorders assistance. First, the scope
of intelligence investigations is limited to terrorist activities or espio-
nage and the scope of civil disorder assistance is limited to civil
disorders which may require federal troops. Second, the Committee
suggests that the threshold for initiation of a full intelligence investi-
gation be "reasonable suspicion." ** Preliminary intelligence investiga-
tions— limited in scope, duration, and investigative technique — could
be opened upon a "specific allegation or specific or substantiated in-
formation." A written finding by the Attorney General of a likely need
for federal troops is required for civil disorders assistance.

The Committee's approach to FBI domestic security investigations
is basically the same as that adopted by the Attorney General's guide-
lines for domestic security investigations. Both are cautious about
any departures from former Attorney General Stone's maxim that
the FBI should only conduct criminal investigations. For example,
neither the Committee nor the Attorney General would condone in-
vestigations which are totally unrelated to criminal statutes (e.g., the
FBI'S 1970 investigation of all black student unions) .

However, the Committee views its recommendations as a somewhat
more limited departure from fomier Attorney General Stone's line
than the present Attorney General's guidelines. Firet, the Committee
would only permit intelligence investigations with respect to hostile
foreign intelligence activity and terrorism. The Attorney General's
guidelines have been read by FBI officials as authorizing intelligence
investigations of "subversives" (individuals who may attempt to
overthrow the government in the indefinite future). '\ATiile the Justice
Department, under its current leadership, might not adopt such an
interpretation, a different Attorney General might. Second, the guide-
lines on their face appear to permit investigating essentially local
civil disobedience (e.g.. "use of force" to interfere with state or local
government which could be construed too broadly).

** "Reasonable suspicion" is based upon the Supreme Court's decision in the
case of Terry v. Ohio, 392 U.S. 1 (1968), and means specific and articulable facts
which taken together with rational inferences from those facts, give rise to a
reasonable suspicion that specified activity has occurred, is occurring, or is about
to occur.

319

There are two reasons why the Committee would prohibit intel-
ligence investigations of "subversives" or local civil disobedience.
First, those investigations inherently risk abuse because they in-
evitably require surveillance of lawful speech and association rather
than criminal conduct. The Committee's examination of forty years
of investigations into "subversion" has found the term to be so vague
as to constitute a license to investigate almost any activity of prac-
tically any group that actively opposes the policies of the adminis-
tration in power.

A second reason for prohibiting intelligence investigations of "sub-
version" and local civil disobedience is that both can be adequately
handled by less intrusive methods without unnecessarily straining
limited Bureau resources. Any real threats to our form of government
can be best identified through intelligence investigations focused on
persons who may soon commit illegal violent acts. Local civil dis-
obedience can be best handled by local police. Indeed, recent studies
by the General Accounting Office suggest that FBI investigations
in these areas result in very few prosecutions and little information
of help to authorities in preventing violence.

The FBI now expends more money in its domestic security program
than it does in its organized crime program, and, indeed, twice
the amount on "internal security" informant operations as on orga-
nized crime informant coverage. "Subversive investigations" and
"civil disorders assistance" represent almost half the caseload of the
FBI domestic security program. The national interest would be better
served if Bureau resources were directed at terrorism, hostile foreign
intelligence activity, or organized crime, all more serious and pressing
threats to the nation than "subversives" or local civil disobedience.

For similar reasons, the Committee, like the Attorney General's
guidelines, requires "reasonable suspicion" for preventive intelligence
investigations which extend beyond a preliminary stage. Investiga-
tions of terrorism and hostile foreign intelligence activity which are
not limited in time and scope could lead to the same abuses found in
intelligence investigations of subversion or local civil disobedience.
However, an equally important reason for this standard is that it
should increase the efficiency of Bureau investigations. The General
Accounting Office found that when the FBI initiated its investiga-
tions on "soft evidence" — evidence which probably would not meet
this "reasonable suspicion" standard — it usually wasted its time on
an innocent target. When it initiated its investigation on harder evi-
dence, its ability to detect imminent violence improved significantly.
The Committee's recommendations limit preventive intelligence in-
vestigations to situations where information indicates that the pro-
hibited activity will "soon" occur, whereas the guidelines do not require
that the activity be imminent. This limit is essential to prevent a
return to sweeping, endless investigations of remote and speculative
"threats," The Committee's intent is that, to open or continue a full
investigation, there should be a substantial indication of terrorism
or hostile foreign intelligenci^ activity in the near future.

The Committee's restrictions are intended to eliminate unnecessary
investigations and to provide additional protections for constitutional
rights. Shifting the focus of Bureau manpower in domestic security
investigations from lawful speech and association to criminal conduct

320

by terrorists and forei^i spies provides further protection for consti-
tutional rights of Americans as well as serving the nation's interest
in security.

1. Investigations of Comonitted or Inriminent Offenses
Recommendation- 4^. — The FBI should be permitted to investigate
a committed act which may violate a federal criminal statute pertain-
ing to the domestic security to determine the identity of the perpetrator
or to determine whether the act violates such a statute.

Recommendation Jf3. — The FBI should be permitted to investigate
an American or foreigner to obtain evidence of criminal activity
where there is "reasonable suspicion" that the American or foreigner
has committed, is committing, or is about to commit a specific act
which violates a federal statute pertaining to the domestic security.^'

2. Preventive Intelligence Investigations

Recommendation 4^. — The FBI should be permitted to conduct a
preliminary preventive intelligence investigation of an American or
foreigner where it has a specific allegation or specific or substantiated
information that the American or foreigner will soon engage in ter-
rorist activity or hostile foreign intelligence activity. Such a prelim-
inary investigation should not continue longer than thirty days from
receipt of the information unless the Attorney General or his designee
finds that the information and any corroboration which has been ob-
tained warrants investigation for an additional period which may not
exceed sixty days. If, at the outset or at any time during the course
of a preliminary investigation the Bureau establishes "reasonable
suspicion" that an American or foreigner will soon engage in terrorist
activity or hostile foreign intelligence activity, it may conduct a full
preventive intelligence investigation. Such full investigation should
not continue longer than one year except upon a finding of com-
pelling circumstances by the Attorney General or his designee.

In no event should the FBI open a preliminaiy or full preventive
intelligence in vest i .oration based upon information that an American
is advocating political ideas or engaging in lawful political activities
or is associating with others for the purpose of petitioning the govern-
ment for redress of grievances or other such constitutionally protected
purpose.

The second parasrraph of Recommendation 44 will serve as an im-
portant safeofnard if enacted into any statute authorizing preventive
intellifrence investi orations. It would supplement the protection that
would be afforded by limiting the FBI's intelligence investigations to
terrorist and hostile foreign intellifrence activities. It re-emphasizes the
Committee's intent that the investiofations of peaceful protest groups
and other lawful associations should not recur. It seiwes as a further
reminder that advocacy of political ideas is not to be the basis for gov-
ernmental surveillance. At the same time Recommendation 44 permits
the initiation of investigations where the Bureau possesses information
consisting of a "specific allegation or specific or substantiated informa-

* This includes conspiracy to violate a federal statute pertaining to the domes-
tie security. The Committee, however, recommends repeal or amendment of the
Smith Act to make clear that "conspiracy" to engage in political advocacy cannot
be investigated. (See Recommendation 93.)

321

tion that [an] American or forei^ier will soon engage in terrorist
activity or hostile foreign intelligence activity."

This recommendation has been among the most difficult of the
domestic intelligence recommendations to draft. It was difficult be-
cause it represents the Committee's effort to draw the fine line between
legitimate investigations of conduct and illegitimate investigations of
advocacy and association. Originall}' the Committee was of the view
that a threshold of "reasonable suspicion" should apply to initiating
even limited preliminary intelligence investigations of terrorist or
hostile foreign intelligence activities. However, the Committee was
persuaded by the Department of Justice that, having narrowly defined
terrorist and hostile foreign intelligence activities, a "reasonable sus-
picion" threshold might be unworkable at the preliminary stage. Such
a threshold might prohibit the FBI from investigating an allegation
of extremely dangerous activity made by an anonymous source or a
source of unknown reliability. The "reasonable suspicion" standard re-
quires that the investigator have confidence in the reliability of the
individual providing the information and some corroboration of the
information.

However, the Committee is cautious in proposing a standard of
"specific allegation or specific or substantiated information" because it
permits initiation of a preliminary investigation which includes the
use of physical surveillance and a survej^ of, but not targeting of, exist-
ing confidential human sources. The Committee encourages the
Attorney General to work with the Congress to improve upon the
language we recommend in Recommendation 44 before including it in
any legislative chai-ter. If adopted, both the Attorney General and the
appropriate ovei"sight committees should periodically conduct a care-
ful review of the application of the standard by the FBI.

The ultimate goal which Congress should seek in enacting such
legislation is the development of a standard for the initiation of intel-
ligence investigations which permits investigations of credible allega-
tions of conduct which if uninterrupted will soon result in terrorist
activities or hostile foreign intelligence activities as we define them.
It must not permit investigations of consitutionally protected activi-
ties as the Committee described them in the last paragraph of Recom-
mendation 44. The following are examples of the Committee's intent.

Recommendation 44 would prohibit the initiation of an investigation
based upon "mere advocacy :"

— An investigation could not be initiated, for example, when the
Bureau receives an allegation that a member of a dissident group has
made statements at the group's meeting that "America needs a Marx-
ist-Leninist government and needs to get rid of the fat cat capitalist
pigs."

The Committee has found serious abuses in past FBI investigations
of groups. In the conduct of these investigations, the FBI often failed
to distinguish between members who were engaged in criminal activity
and those who were exercising their constitutional rights of associa-
tion. The Committee's recommendations would only permit investiga-
tion of a group in two situations : first, where the FBI receives infor-
mation that the avowed purpose of the group is "soon to engage in ter-
rorist activity or hostile foreign intelligence activitv" ; or second, where
the FBI has information that unidentified members of a group are

68-786 O - 22

322

"soon to engage in terrorist activity or hostile foreign intelligence
activity". In both cases the FBI may focus on the group to deteiTnine
the identity of those members who plan soon to engage in such activity.
However, in 'both cases the FBI should minimize the collection of in-
formation about law-abiding members of the group or any lawful
activities of the group.

— Where the FBI has information that certain chapters of a political
organization had "action squads," the purpose of which was to com-
mit terrrorist acts, the FBI could investigate all members of a partic-
ular "action squad" where it had an allegation that this "action squad"
planned to assassinate, for example, Members of Congress.

— An investigation could be initiated based upon specific informa-
tion obtained by the FBI that unidentified members of a Washington,
D.C., group are planning to assassinate Members of Congress.

The Committee's recommendations would not permit investigation of
mere association :

— The FBI could not investigate an allegation that a member of
the Klan has lunch regularly with the mayor of a southern community.

— The FBI could not investigate the allegation that a U.S. Senator
attended a cocktail party at a foreign embassy where a foreign intel-
ligence agent was present.

However, when additional facts are added indicating conduct which
might constitute terrorist activity or hostile foreign intelligence
activity, investigation might be authorized :

— The FBI could initiate an investigation of a dynamite dealer
who met with a member of the "action squad" described above.

— Likewise, the FBI could initiate an investigation of a member
of the National Security Council staff who met clandestinely with a
known foreign intelligence agent in an obscure Paris restaurant.

Investigations of contacts can become quite troublesome when the
contact takes place within the context of political activities or associa-
tion for the purpose of petitioning the government. Law-abiding
American protest groups may share common goals with groups in
other countries. The obvious example was the widespread opposition
in the late 1960's, at home and abroad, to America's role in Vietnam.

Furthermore, Americans should be free to communicate about such
issues with persons in other countries, to attend international confer-
ences and to exchange views or information about planned protest
activities with like-minded foreign groups. Such activity, in itself,
would not be the basis for a preliminary investigation under these
recommendations :

— The FBI could not open an investigation of an anti-war group
because "known communists" were also in attendance at a group meet-
ing even if it had reason to believe that the communists' instructions
were to influence the group or that the group shared the goals of the
Soviet Union on ending the war in Vietnam.

—The FBI could not open an investigation of an anti-war activist
who attends an inteinational peace conference in Oslo where foreign
intelligence agents would be in attendance even if the FBI had reason
to believe that they might attempt to recruit the activist. Of course, the
CIA would not be prevented from surveillance of the foreign agent's
activities.

However, if the Bureau had additional information suggesting that
the activities of the Americans in the above hypothetical cases were

323

more than mere association to petition for redress of grievances, an
investigation would be legitimate.

— Where the FBI had received information that the anti-war activ-
ist traveling to Oslo intended to meet with a person he knew to be a
foreign intelligence agent to receive instructions to conduct espionage
on behalf of a hostile foreigii country, the FBI could open a prelimi-
nary investigation of the activist.

The Committee cautions the Department of Justice and FBI that
in opening investigations of conduct occurring in the context of politi-
cal activities, it should endeavor to ensure that the allegation prompt-
ing the investigation is from a reliable source.

Certainly, however, where the FBI has received a specific allega-
tion or specific or substantiated information that an American or
foreigner will soon engage in hostile foreign intelligence activity
or terrorist activity, it may conduct an investigation. For example, it
could do so :

— Where the FBI receives information that an American has been
reciTiited by a hostile intelligence service;

— Where the FBI receives information that an atomic scientist has
had a number of clandestine meetings with a hostile foreign intelli-
gence agent.

Recommendation Jf5. — The FBI should be permitted to collect in-
formation to assist federal, state, and local officials in connection with
a civil disorder either —

(i) After the Attorney General finds in writing that there is a clear
and immediate threat of domestic violence or rioting which is likely
to require implementation of 10 U.S.C. 332 or 333 (the use of federal
troops for the enforcement of federal law or federal court orders), or
likely to result in a request by the governor or legislature of a state
pursuant to 10 U.S.C. 331 for the use of federal militia or other federal
armed forces as a countermeasure ; *^^ or

(ii) After such troops have been introduced.

Recom^mendation 4.6. — FBI assistance to federal, state, and local
officials in connection with a civil disorder should be limited to collect-
ing information necessary for

( 1 ) the President in making decisions concerning the introduction
of federal troops ;

(2) military officials in positioning and supporting such troops ; and

(3) state and local officials in coordinating their activities with such
military officials.

4: Background Investigations

Recom^mendation 1^7. — The FBI should be permitted to participate
in the federal government's program of background investigations of
federal employees or employees of federal contractors. The authority
to conduct such investigations should not, however, be used as the basis
for conducting investigations of other persons. In addition, Congress
should examine the standards of Executive Order 10450, which serves
as the current authority for FBI background investigations, to deter-
mine whether additional legislation is necessary to :

{a) modify criteria based on political beliefs and associations unre-
lated to suitability for employment; such modification should make

^^ This recommendation does not prevent the FBI from conducting criminal
investigations or preventive intelligence investigations of terrorist acts in
connection with a civil disorder.

324

those criteria consistent with judicial decisions regarding privacy of
political association ; *^ and

(h) restrict the dissemination of information from name checks *^
of information related to suitability for employment,

5. Security Risk Investigations

Recommendation ItS. — Under regulations to be formulated by the
Attorney General, the FBI should be permitted to investigate a spe-
cific allegation that an individual within the Executive branch with ac-
cess to classified information is a security risk as described in Execu-
tive Order 10450. Such investigation should not continue longer than
thirty days except upon written approval of the Attorney General or
his designee.

6. Security Leak Investigations

Recommendation J^. — Under regulations to be formulated by the
Attorney General, the FBI should be permitted to investigate a spe-
cific allegation of the improper disclosure of classified information by
employees or contractors of the Executive branch.*^ Such investigation
should not continue longer than thirty days except upon written ap-
proval of the Attorney General or his designee.

d. Authorized Investigative Techniques

The following recommendations contain the Committee's proposed
controls on the use of investigative techniques in domestic security
investigations which would be authorized herein. There are three
types of investigative techniques: (1) overt techniques (e.g., inter-
views), (2) name checks (review of existing government files), and
(3) covert techniques (which range, for example, from electronic sur-
veillance and informants to the review of credit records) .

The objective of these recommendations, like the Attorney General's
domestic security guidelines, is to ensure that the more intrusive the
technique, the more stringent the procedural checks that will be ap-
plied to it. Therefore, the recommendation would permit overt tech-
niques and name checks in any of the investigative areas described
above.

With respect to covert technique, the Committee decided upon pro-
cedures to apply to the use of a particular covert technique based upon
three considerations : (1) its potential for abuse, (2) the practicability
of applying the procedure to the technique, and (3) the facts and cir-
cumstances giving rise to the request for use of the technique (whether
the facts warrant a full investigation or only a preliminary investiga-
tion). The most intrusive covert techniques (electronic surveillance,
mail opening, and surreptitious entry) would be permissible only if
a judicial warrant were obtained as required in Recommendations 51
through 54. FBI requests to target paid or controlled informants, to
review tax returns, to use mail covers, or to use any other covert tech-
niques in domestic security investigations would be subject to review

^For example. NAACP v. Alabama, 357 U.S. 449 (1958) ; Bates v. Utile Rock,
361 U.S. 516 (1960).

" See definition of "name checks" at p. 340.

" If Congress enacts a security leak criminal statute, this additional investi-
gative authority would be unnecessary. Security leaks would be handled as tra-
ditional criminal investigations as described in Recommendations 42 and 43
above.

325

and in some cases to prior approval by the Attorney General's office,
as described in Recommendations 55 through 62.*^

The judicial warrant requirement the Committee recommends for
electronic surveillance is similar in many respects to the Administra-
tion's bill, which is a welcome departure from past practice. The Com-
mittee, like the Administration, believes that there should be no elec-
tronic surveillance within the United States which is not subject to a
judicial warrant procedure. Both would also authorize warrants for
electronic surveillance of foreigners who are officers, agents, or em-
ployees of foreign poiwei-s, even though the government could not
point to probable cause of criminal activity.

However, while the constitutional issue has not been resolved, the
Committee does not believe that the President has inherent power to
authorize the targeting of an American for electronic surveillance
without a warrant, as suggested by the Administration bill. Certainly,
if Congress requires a warrant for the targeting of an American for
traditional electronic surveillance or for the most sophisticated NSA
techniques, at home or albroad, then the dangerous doctrine of inherent
Executive power to target an American for electronic surveillance can
be put to rest at last.'*^^ The Committee also would require that no
American be targeted for electronic surveillance except upon a judi-
cial finding of probable criminal activity. The Administration bill
would permit electronic surveillance in the absence of probable crime
if the American is engaged in (or aiding or abetting a person engaged
in) "clandestine intelligence activity" (an undefined term) under the
direction of a foreign power. Targeting an American for electronic
surveillance in the aJbsence of probable cause to believe he might com-
mit a crime is unwise and umiecessary.

In Part X, the Committee recommends that Congress consider
amending the Espionage Act to cover modem forms of industrial,
technological, or economic espionage not now prohibited. At the same
time, electronic surveillance targeted at an American should be author-
ized where there is probable cause to believe he is engaged in such
activity. Thus, the Committee agrees with the Attorney General that
such activity may subject an American to electronic surveillance. But,
as a matter of principle, the Committee believes that an American
ought not to be targeted for surveillance unless there is probable cause
to believe he may violate the law. The Committee's record suggests that
use of undefined terms, not tied to matters sufficiently serious to be
the subject of criminal statutes, is a dangerous basis for intrusive
investigations.

The paid and directed informant was a principal source of excesses
revealed in our record. However, we do not propose the application
of a judicial warrant procedure to informants. Instead, we propose
a requirement of approval by the Attorney General based upon a
probable cause standard. Because of the potential for abuse, however,
we believe the warrant issue should be thoroughly reviewed after two
years' experience.

*® Review of tax returns and mail covers would also be subject to the Post
Office and IRS procedures described in earlier recommendations.

«« <'When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb. . . ." (Youngstown Sheet
d Tube Co. V. Sawyer, 343 U.S. 579, 637 (1952), Justice Jackson concurring.)

326

There are some differences between the Attorney General and the
Committee on the use of informants.^° The Attorney General would
permit the FBI to make unrestricted use .of existing informants in a
preliminary intelljorence investigation. The Committee recognizes the
legitimacy of using existing informants for certain purposes — for
example, to identify a new subject who has come to the attention of
the Bureau. However, the Committee believes there should be certain
restrictions for existing informants. Indeed, almost all of the infor-
mant abuses — overly broad reporting, the ghetto informant program,
agents provocateur, etc. — involved existing informants.

The real issue is not the development of new informants, but the
sustained direction of informants, new or old, at a new target. There-
fore, the restrictions suggested in Recommendations 55 through 57
are designed to impose standards for the sustained targeting of in-
formants against Americans.

The Committee requires that before an informant can be targeted
in an intelligence investigation the Attorney General or his designee
must make a finding that he has considered and rejected less intrusive
techniques and that targeting the informant is necessary to the inves-
tigation. Furthermore, the Committee would require that the infor-
mant cannot be targeted for more than ninety days ^^ in the intelli-
gence investigation unless the Attornev General finds that there is
"probable cause" that the American will soon engage in terrorist or
hostile foreign intelligence activity, except that if the Attornev Gen-
eral finds compelling circumstances he may permit an additional
Rixty days.

Other than the restrictions upon the use of informants, the Com-
mittee would permit basically the same techniques in preliminary and
full investigations as the Attorney General's guidelines, although the
Committee would require somewhat closer supervision by the At-
torney General or his designee. Interviews (including interviews of
existing informant's) , name checks (including checks of local police in-
telligence files), and physical surveillance and review of credit and
telephone records would be permitted during the preliminary investi-
gation. The Attorney General or his designee would have to review that
investigation within one month. Under the guidelines, preliminary in-
vestigations do not require approval by the Attorney General or his
designee and can continue for as long as ninety days with an addi-
tional ninety-dav extension. The remainder of the covert techniques
would be permitted in full intellisfence investigations. Under the
Attorney General's guidelines, the Attorney General or his designee
only become involved in the termination of such investigations (at the
end of one year) , while the Committee's recommendations would re-
quire the Attornev General or his designee to authorize the initiation
of the full investigation and the use of covert techniques in the in-
vestigation.

1. Overt Techniques and Name Checks

Recommendation 50. — Overt techniques and name checks should be
permitted in all of the authorized domestic security investigations

^ The Attorney General is considering additional guidelines on informants.
^ The period of ninety da.vs begins when the informant is in jyiace and capable
of reporting.

327

described above, including preliminary and full preventive intelligence
investigations.

2. Covert Techniques

a. Covert Techniques Covered
This section covers the standards and procedures for the use of the
following covert techniques in authorized domestic security
investigations :

(i) electronic surveillance;

( ii ) search and seizure or surreptitious entry ;

(iii) mail opening;

( iv) informants and other covert hum'an sources ;

(v) mail surveillance ;

(vi) review of tax returns and tax-related information;

(vii) other covert tecliniques — including physical surveil-
lance, photographic surveillance, use of body recorders and
other consensual electronic surveillance, and use of sensitive
records of state and local government, and other institutional
records systems pertaining to credit, medical history, social
welfare history, or telephone calls.^-

h. Judicial Wari^ant Procedures {Electronic Surveillance^ Mail
Opening^ Search and Seimire^ and Surreptitious Entry)

The requirements for judicial warrants, set forth below, are not
intended to cover NSA communication intercepts. Recommendations
14 through 18 contain the Committee's recommendations pertaining
to NSA intercepts, the circumstances in which a judicial warrant is
required and the standards applicable for the issuance of such a
warrant.

Recommendation 51. — All non-consensual electronic surveillance,
mail-opening, and unauthorized entries should be conducted only
upon authority of a judicial warrant.

Recommendation 52. — All non-consensual electronic surveillance
should be conducted pursuant to judicial warrants issued under au-
thority of Title III of the Omnibus Crime Control and Safe Streets
Act of 1968.

The Act should be amended to provide, with respect to electronic
surveillance of foreigners in the United States, that a warrant may
issue if

(«) There is probable cause that the target is an officer, employee,
or conscious agent of a foreign power.

(6) The Attorney General has certified that the surveillance is
likely to reveal information necessary to the protection of the nation
against actual or potential attack or other hostile acts of force of a
foreign power; to obtain foreign intelligence information deemed
essential to the security of the United States ; or to protect national
security information against hostile foreign intelligence activity.

{c) With respect to any such electronic surveillance, the judge
should adopt procedures to minimize the acquisition and retention of
non-foreign intelligence information about Americans.

^ The Committee has not taken extensive testimony on these "other covert
techniques" and therefore, aside from the general administrative procedures
contained in c. below, makes no recommendations designed to treat these tech-
niques fully.

328

(d) Such electronic surveillance should be exempt from the dis-
closure requirements of Title III of the 1968 Act as to foreigners gen-
erally and as to Americans if they are involved in hostile foreign
intelligence activity.^^

As noted earlier, the Committee believes that the espionage laws
should be amended to include industrial espionage and other modem
forms of espionage not presently covered and Title III should incor-
porate any such amendment. The Committee's recomendation is that
both that change and the 'amendment of Title III to require warrants
for all electronic surveillance be promptly made.

Recommendation 53. — Mail opening should be conducted only pur-
suant to a judicial warrant issued upon probable cause of criminal
activity as described in Recommendation 37.

Recommendation 5]^,. — Unauthorized entry should be conducted only
upon judicial warrant issued on probable cause to believe that the
place to be searched contains evidence of a crime, except unauthorized
entry, including surreptitious entry, against foreigners who are officers,
employees, or conscious agents of a foreign power should be permit-
ted upon judicial warrant under the standards which apply to elec-
tronic surveillance described in Recommendation 52.

c. Administrative Procedures {Covert Human Sources., Mail
Surveillance, Revieiv of Tax Returns and Tax-Related In-
formation., and Other Covert Techniques)
Recom^onendation 55. — Covert human sources may not be directed ^*
at an American except :

(1) In the course of a criminal investigation if necessary to the
investigation provided that covert human sources should not be di-
rected at an American as a part of an investigation of a committed act
unless there is reasonable suspicion to believe that the American is
responsible for the act and then only for the purpose of identifying
the perpetrators of the act.

(2) If the American is the target of a full preventive intelligence
investigation and the Attorney General or his designee makes a written
finding that ^■' (i) he has considered and rejected less intrusive tech-
niques; and (ii) he believes that covert human sources are necessary
to obtain information for the investigation.

Recommendation 56. — Covert human sources which have been di-
rected at an American in a full preventive intelligence investigation
should not be used to collect information on the activities of the Ameri-
can for more than 90 days after the source is in place and capable of
reporting, unless the Attorney General or his designee finds in writing

^ Except where disclosure is called for in connection with the defense in the
case of criminal prosecution.

" A "covert human source" is an underc^over agent or informant who is paid
or otherwise controlled by the agency. A cooperating citizen is not ordinarily
a covert human source. A covert human source is "directed" at an American
when the intelligence agency requests the covert human source to collect new
information on the activities of that individual. A covert human source is not
"directed" at a target if the intelligence agency merely asks him for information
already in his possession, unless through repeated inquiries, or otherwise, the
agency implicitly directs the informant against the target of the investigation.

^^ The written finding must be made prior to the time the covert human source
is directed at an American, unless exigent circumstances make application im-
possible, in which case the application must be made as soon thereafter as
possible.

329

either that there are "compelling circumstances" in which case they
may be used for an additional 60 days, or that there is probable cause
that the American will soon engage in terrorist activities or hostile
foreign intelligence activities.

Recommendation 57. — All covert human sources used by the FBI
should be reviewed by the Attorney General or his designee as soon
as practicable, and should be terminated ^® unless the covert human
source could be directed against an American in a criminal investi-
gation or a full preventive intelligence investigation under these
recommendations.

Recommendation 58. — Mail surveillance and the review of tax re-
turns and tax-related information should be conducted consistently
with the recommendations contained in Part iii. In addition to restric-
tions contained in Part iii, the review of tax returns and tax-related
information, as well as review of medical or social history records,
confidential records of private institutions and confidential records of
Federal, state, and local government agencies other than intelligence
or law enforcement agencies may not be used against an American
except :

( 1 ) In the course of a criminal investigation if necessary to the in-
vestigation ;

(2) If the American is the target of a full preventive intelligence
investigation and the Attorney General or his designee makes a written
finding that ^^ (i) he has considered and rejected less intrusive tech-
niques; and (ii) he believes that the covert technique requested by the
Bureau is necessary to obtain information necessary to the investiga-
tion.

Recommendation 59. — The use of physical surveillance and review
of credit and telephone records and any records of governmental or
private institutions other than those covered in Recommendation 58
should be permitted to be used against an American, if necessary, in
the course of either a criminal investigation or a preliminaiy or full
preventive intelligence investigation.

Recommendation 60. — Covert techniques should be permitted at the
scene of a potential q\\\\ disorder in the course of preventive criminal
intelligence and criminal investigations as described above. Non-war-
rant covert techniques may also be directed at an American during a
civil disorder in which extensive acts of violence are occurring and
Federal troops have been introduced. This additional authority to
direct such covert tecliniques at Americans during a civil disorder
should be limited to circumstances where Federal troops are actually
in use and the technique is used only for the purpose of preventing
further violence.

Recommendation 61. — Covert techniques should not be directed at
an American in the course of a background investigation without the
informed written consent of the American.

Recommendation 62. — If Congress enacts a statute attaching crimi-
nal sanctions to security leaks, covert techniques should be directed at
Americans in the course of security leak investigations only if such

" Termination requires cessation of payment or any other form of direction or
control.

"The written finding must he made prior to the time the technique is used
against an American, unless exigent circumstances make application impossible,
in which case the application must be made as soon thereafter as possible.

330

techniques are consistent with Recommendation 55(1), 58(1) or 59.
With respect to security risks, Congress might consider authorizing
covert tediniques, other than those requiring a judicial warrant, to be
directed at Americans in the course of security risk ^^ investigations,
hut only upon a written finding of the Attorney General that (i) there
is reasonable suspicion to believe that the individual is a security risk,
(ii) he has considered and rejected less intrusive techniques, and (iii)
he believes the technique requested is necessary to the investigation.

{d) Incidental Overhears
Recommendation 63. — Except as limited elsewhere in these recom-
mendations or in Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, information obtained incidentally through an au-
thorized covert technique about an American or a foreigner who is not
the target of the covert technique can be used as the basis for any au-
thorized domestic security investigation.

e. Maintenance and Dissemination of Information

The following limitations should apply to the maintenance and
dissemination of inf onnation collected as a result of domestic security
investigations.

1. Relevance

Recommendation 64- — Information should not be maintained except
where relevant to the purpose of an investigation.

2. Sealing or Purging

Recommendation 65. — Personally identifiable information on
Americans obtained in the following kinds of investigations should be
sealed or purged as follows (unless it appears on its face to be necessary
for another authorized investigation) :

{a) PreventiA^e intelligence investigations of terrorist or hostile for-
eign intelligence activities — as soon as the investigation is terminated
by the Attorney General or his designee pursuant to Recommendation
45 or 69.

(b) Civil disorder assistance — as soon as the assistance is termi-
nated by the Attorney General or his designee pursuant to Recom-
mendation 69, provided that where troops have been introduced such
information need be sealed or purged only within a reasonable period
after their withdrawal.

Recommendation 66. — Information previously gained by the FBI
or any other intelligence agency through illegal techniques should be
sealed or purged as soon as practicable.

3. DisseTTiination

Recommendation 67. — Personally identifiable information on Amer-
icans from domestic seruritv in vesti orations may be disseminated out-
side the Department of Justice as follows :

{a) Preventive intellio;ence investigations of terrorist activities —
personallv identifiable information on Americans from preventive
criminal intellisrence investigations of terrorist activities may be dis-
seminated only to :

^ If Conerpss dops not enncf a seonrity leak criminal statute. Congress misht
consider anthori^ins: covert techniques in the same circumstances as security risk
investigations either as an interim measure or as an alternative to such a statute.

331

(1) A foreign or domestic law enforcement agency which has
jurisdiction over the criminal activity to which the information re-
lates ; or

(2) To a foreign intelligence or military agency of the United
States, if necessary for an activity permitted by these recommenda-
tions ; or

(3) To an appropriate federal official with authority to make per-
sonnel decisions about the subject of the information ; or

(4) To a foreign intelligence or military agency of a cooperating
foreign power if necessary for an activity permitted by these recom-
mendations to similar agencies of the United States ; or

(5) Where necessary to warn state or local officials of terrorist ac-
tivity likely to occur within their jurisdiction ; or

(6) Where necessary to warn any person of a threat to life or prop-
erty from terrorist activity.

(h) Preventive intelligence investigations of hostile foreign intelli-
gence activities — personally identifiable information on Americans
from preventive criminal intelligence investigations of hostile intelli-
gence activities may be disseminated only :

(1) To an appropriate federal official with authority to make per-
sonnel decisions about the subject of the information ; or

(2) To the National Security Council or the Department of State
upon request or where appropriate to their administration of U.S.
foreign policy ; or

(3) To a foreign intelligence or military agency of the United
States, if relevant to an activity permitted by these recommendations ;
or

(4) To a foreign intelligence or military agency of a cooperating
foreign power if relevant to an activity permitted by these recom-
mendations to similar agencies of the United States.

(c) Civil disorders assistance — personally identifiable information
on Americans involved in an actual or potential disorder, collected
in the course of civil disorders assistance,, should not be dissemi-
nated outside the Department of Justice except to military officials
and appropriate state and local officials at the scene of a civil disorder
where federal troops are present.''^

(d) Background investigations — to the maximum extent feasible,
the results of backcroimd investigations should be segregated within
the FBI and only disseminated to officials outside the Department of
Justice authorized to make personnel decisions with respect to the
subiect.

(e) All other authorized domestic securitv investigations — to gov-
ernmental officials who nre authorized to take action consistent with
the purpose of an investigation or who have statutory duties which
require the information.

i. Oi>ersrnht Access
Rpcomm^m/Jnf^on 6S. — Officers of thp F,vprnfive branr^h. who are
made resnoTisible bv these recommendations for overpeeins: intelli-
gence activities, and appropriate congressional committees should

"PfrsoTially idpntifahle Inform'ati'on on tprrorist activitT which pertains to a
civil disorder corild 5?till he disseminated pursnant to (a) ahove.

332

have access to all information necessary for their functions. The com-
mittees should adopt procedures to protect the privacy of subjects of
files maintained by the FBI and other agencies affected by the domes-
tic intelligence reconunendations.

/. Attorney General Oversight of the FBI^ Including Termination
of Investigations and Covert Techniques
Recommendation 69. — The Attorney General should :
{a) Establish a program of routine and periodic review of FBI
domestic security investigations to ensure that the FBI is complying
with all of the foregoing recommendations ; and

(b) Assure, with respect to the following investigations of Amer-
icans, that :

(1) Preventive intelligence investigations of terrorist activity or
hostile foreign intelligence activity are terminated within one year,
except that the Attorney General or his designee may grant exten-
sions upon a written finding of "compelling circumstances";

(2) Covert techniques are used in preventive intelligence investiga-
tions of terrorist activity or hostile foreign intelligence activitv only
so long as necessary and not beyond time limits established by the
Attorney General except that the Attorney General or his designee
may grant extensions upon a written finding of "compelling circum-
stances" ;

(3) Civil disorders assistance is terminated upon withdrawal of
federal troops or, if troops were not introduced, within a reasonable
time after the finding by the Attorney General that troops are likely
to be requested, except that the Attorney General or his designee may
grant extensions upon a written finding of "compelling circum-
stances."

v. The ResponsihiJity and Authority of the Attorney General
for Oversight of Federal Domestic Security Activities Must
Be Clarified and General Counsels and Inspecto7's General of
Intelligence Agencies Strengthened
The Committee's Recommendations give the Attorney General
broad oversight responsibility for federal domestic security activities.
As the chief legal officer of the United States, the Attorney General is
the most appropriate official to be charged with ensuring that the in-
telligence agencies of the United States conduct their activities in
accordance with the law. The Executive Order, however, places pri-
mary responsibility for oversight of the intelligence agencies with the
newly created Oversight Board.

Both the Recommendations and the Order recognize the Attorney
General's primary responsibility to detect, or prevent, violations of
law by any employee of intelligence agencies. Both charge the head
of intelligence agencies with the duty to report to the Attorney Gen-
eral information which relates to possible violations of law by any
employee of the respective intelligence a.q^encios. The Order also re-
quires the Oversig'lit Board to report periodically, at least quarterly,
to the Attorney General on its findings and to report, in a timely man-
ner, to the Attorney General, any activities that raise serious questions
about legality.

333

a. Attorney General Responsibility and Relationship With Other
Intelligence Agencies

These recommendations are intended to implement the Attorney
General's responsibility to control and supervise all of the domestic
security activities of the federal government and to oversee activities
of any agency affected by the Domestic Intelligence Recom-
mendations :

Reco7nmendatio7i 70. — The Attorney General should review the
internal regulations of the FBI and other intelligence agencies engag-
ing in domestic security activities to ensure that such internal regula-
tions are proper and adequate to protect the constitutional rights of
Americans.

Recommendation 71. — The Attorney General or his designee (such
as the Office of Legal Counsel of the Department of Justice) should
advise the General Counsels of intelligence agencies on interpreta-
tions of statutes and regulations adopted pursuant to these recommen-
dations and on such other legal questions as are described in b. below.

Recommendation 72. — The Attorney General should have ultimate
responsibility for the investigation of alleged violations of law re-
lating to the Domestic Intelligence Recommendations.

Recommendation 73. — The Attorney General should be notified of
possible alleged violations of law through the Office of Professional
Responsibility (described in c. below) by agency heads, General
Counsel, or Inspectors General of intelligence agencies as provided
in B. below.

Recommendation 7Jf-. — The heads of all intelligence agencies affected
by these recommendations are responsible for the prevention and de-
tection of alleged violations of the law by, or on behalf of, their re-
spective agencies and for the reporting to the Attorney General of
all such alleged violations.*"' Each such agency head should also assure
his agency's cooperation with the Attorney General in investigations
of alleged violations.

h. General Counsel and Inspectors General of Intelligence

The Committee recommends that the FBI and each other intelli-
gence agency should have a general counsel nominated by the Presi-
dent and confirmed by the Senate. There is no provision in the Execu-
tive Order making General Counsels of intelligence agencies subject to
Senate confirmation. The Committee believes that the extraordinary
responsibilities exercised by the General Counsel of these agencies
make it very important that these officials are subject to examination
by the Senate prior to their confirmation. The Committee further be-
lieves that making such positions subject to Presidential appointment
and senatorial confirmation will increase the stature of the office and
will protect the independence of judgment of the General Counsel.

The Committee Recommendations differ from the Executive Order
in two other important respects. The Recommendations provide that
the General Counsel should review all significant proposed agency
activities to detennine their legality. They also provide a mechanism

^'This recommendation must be read along with recommendations contained
in Part ii, limiting the authority of foreign intelligence and military agencies
to investigate security leaks or security risks involving their employees and
centralizing those investigations in the FBI.

334

whereby the Inspector General or General Counsel of an intelligence
afjency can, in extraordinary circiimstances, and if requested by an
employee of the Agency, provide information directly to the Attorney
General or appropriate congressional oversight committees without
informing the head of the agency.

The Committee Recommendations also go beyond the Executive
Order in requiring agency heads to report to appropriate committees
of the Congress and the Attorney General on the activities of the Office
of the General Counsel and the Office of the Inspector General. The
Committee believes that the reporting requirements will facilitate
oversight of the intelligence agencies and of those important offices
within them.

Rccom,m,endntion 75. — To assist the Attorney General and the
agency heads in the functions described in a. abov-e, the FBI and each
other intelligence agency should have a General Counsel, nojninated
by the President and confirmed by the Senate, and an Inspector Gen-
eral appointed by the agency head.

Recommendation 76. — Any individual having information on pavSt,
current, or proposed activities which appear to be illegal, improper,
or in violation of agency policy should be required to report the mat-
ter immediately to the Agency head. General Counsel, or Inspector
General. If the mntter is not initially reported to the General Counsel,
he should be notified by the Agency head or Inspector General. Each
agency should regularly remind employees of their obligation to report
such information.

Recommendation 77. — As provided in Recommendation 74, the
head^s of the FBI and of other intellip-ence a.qencies are responsible
for reporting to the Attorney General alleged violations of law. When
such reports are made, the appropriate congressional committees
should be notified.®^

Recommendation 78. — The General Comisel and Inspector General
of the FBI and of ench other intelligence agency should have un-
restricted nccess to all information in the possessioTi of the aq-ency
and should have the authority to review all of the agency's activities.*'^
The Attornev General, or the Office of Professional Responsibility on
his behalf, should have access to all information in the possession of
an agency which, in the opinion of the Attorney General, is necessary
for an investigation of illegal activity.

Recommendation 79. — The General Counsel of the FBI and of each
other intelligence agencv should review all significant proposed agency
activities to determine their legality and constitutionality.

'"■ The Inspector General and General Counsel should have authority, in ex-
traordinary cirrum stances, and if requested hv an employee of the agency
providing information, to pass the information dire^^tly to the Attorney General
and to notify the apni-onriate congressional committees without informing the
head of the agency. Furthermore, nothing herein should prohihit an employee
from reporting on his own such information directly to the Attorney General
or an appropriate congressional oversight committee.

*^The head of the age^icy .should he reoui'-ed to provide to the appropriate
oversight committees of the Congress and the Executive branch and the At-
torney General an immediate explanation, in writing, of any in.stance in
wliicli the Inspector General or the General Counsel has been denied access to
information, has been instructed not to report on a particular activit.v or has
been denied the authority to investigate a particular activity.

335

Recommendation 80. — The Director of the FBI and the heads of
each other intelligence agency should be required to report, at least
annually, to the appropriate committee of the Congress, on the activi-
ties of the General Counsel and the Office of the Inspector General.^^

Recommendation 81. — The Director of the FBI and the heads of
each other intelligence agency should be required to report, at least
annually, to the Attorney General on all reports of activities wliich
appear illegal, improper, outside the legislative charter, or in violation
of agency regulations. Such reports should include the General Coun-
sel's findings concerning these activities, a summai-y of the Inspector
General's investigations of these activities, and the practices and pro-
cedures developed to discover activities that raise questions of legality
or propriety.

c. 0-fflce of Professional Responstbility

Recommendation 82. — The Office of Professional Responsibility
created by Attorney General Levi should be recognized in statute. The
director of the office, appointed by the Attorney General, should
report directly to the Attorney General or the Deputy Attorney Gen-
eral. The functions of the office should include :

(a) Serving as a central repository of reports and notifications
provided the Attorney General ; and

(h) Investigation, if requested by the Attorney General of alleged
violations by intelligence agencies of statutes enacted or regulations
promulgated pursuant to these reconunendations.^^

d. Director of the FBI and Assistant Directors of the FBI
Recommendation 83. — The Attorney General is responsible for all

of the activities of the FBI, and the Director of the FBI is responsible
to, and should be under the supervision and control of, the Attorney
General.

Recommendation 8Jf. — The Director of the FBI should be nominated
by the President and confirmed by the Senate to serve at the pleasure
of the Pi'esident for a single term of not more than eight years.

Recommendation 85. — ^The Attorney General should consider exer-
cising his power to appoint Assistant Directors of the FBI. A maxi-
mum term of years should be imposed on the tenure of the Assistant
Director for the Intelligence Division.^*^

"^The report should include: (a) a summary of all agency activities that
raise questions of legality or propriety and the General Counsel's findings con-
cerning these activities; (b) a summary of the Inspector General's investiga-
tions concerning any of these activities; (c) a summary of the practices and
procedures developed to discover activities that raise questions of legality or
propriety ; (d) a summary of each component, program or issue survey, including
the Inspector General's recommendations and the Director's decisions; and (e)
a summary of all other matters handled by the Inspector General.

The report should also include discussion of: (a) major legal problems facing
the Agency; (b) the need for additional statutes; and (c) any cases referred
to the Department of .Tusticp.

^ The functions of the Office should not include : (a) exercise of routine super-
vision of FBI domestic security investigations; (b) making requests to other
agencies to conduct investigations or direct covert techniques at Americans ;
or (c) involvement in any other supervisory functions which it might ultimately
be required to investieate.

"' It is not proposed that this reciomTnendation be enacted as a statute.

336

vi. Administrative Rulemaking and Increased Disclosure
Should Be Required

a. Administrative RulemaMng

Recommendation 86. — The Attorney General should approve all ad-
ministrative regulations required to implement statutes cremated pur-
suant to these recommendations.

Recommendation 87. — Such regulations, except for regulations con-
cerning investigations of hostile foreign intelligence activity or other
matters which are properly classified, should be issued pursuant to the
Administrative Procedures Act and should be subject to the approval
of tlie Attorney General.

Recommendation 88. — The effective date of regulations pertaining
to the following matters should be delayed ninety days, during which
time Congress would have the opportunity to review such regula-
tions : ^^

(a) Any CIA activities against Americans, as permitted in ii.a.
above ;

(b) Military activities at the time of a ciAal disorder;

(c) The authorized scope of domestic security investigations, au-
thorized investigative techniques, maintenance and dissemination of
information by the FBI ; and

(d) The termination of investigations and covert techniques as de-
scribed in Part iv.

h. Disclosure

Recommendation 89. — Each year the FBI and other intelligence
agencies affected by these recommendations should be required to seek
annual statutoiy authorization for their programs.

RecoTnmendation 90. — The Freedom of Information Act (5 U.S.C.
552(b) ) and the Federal Privacy Act (5 U.S.C. 552(a) ) provide im-
portant mechanisms by which individuals can gain access to informa-
tion on intelligence activity directed against them. The Domestic In-
telligence Recommendations assume that these statutes wnll continue
to be vigorously enforced. In addition, the Department of Justice
should notify all readily identifiable targets of past illegal surveillance
techniques, and all COINTELPRO victims, and third parties who had
received anonymous COINTELPRO communications, of the nature
of the activities directed against them, or the source of the anonymous
communication to them.*'^*

vii. Civil Reinedies Should Be Expanded

Recommendation 91 expresses the Committee's concern for estab-
lishing a legislative scheme which wull afford effective redress to people
who are injured by improper federal intelligence activity. The recom-
mended provisions for civil remedies are also intended to deter im-
proper intelligence activity without restricting the sound exercise of
discretion by intelligence officers at headquarters or in the field.

As the Committee's investigation has shown, many Americans have
suffered injuries from domestic intelligence activity, ranging from de-
privation of constitutional rights of pr'ivacy and free speech to the
loss of a job or professional standing, break-up of a marriage, and
impairment of physical or mental health. But the extent, if any, to

" This review procedure would be similar to the procedure followed with re-
spect to the promulgation of the Federal Rules of Criminal and Civil Procedure.
'^^ It is not proposed that this recommendation be enacted as a statute.

337

which an injured citizen can seek relief — either monetai'y or injunc-
tiv^e — from the government or from an individual intelligence officer is
far from clear under the present state of the law.

One major disparity in the current state of the law is that, under
the Eeconstriiction era Civil Rights Act of 1871, the deprivation of
constitutional rights by an officer or agent of a state government pro-
vides the basis for a suit to redress the injury incurred ; '^^ but there is
no statute which extends the same remedies for identical injuries when
they are caused by a federal officer.

In the landmark Bivens case, the Supreme Court held that a federal
officer could be sued for money damages for violating a citizen's
Fourth Amendment rights.*^' Whether monetary damages can be ob-
tained for violation of other constitutional rights by federal officers
remains unclear.

While we believe that any citizen with a substantial and specific
claim to injury from intelligence activity should have standing to sue,
the Committee is aware of the need for judicial protection against
legal claims which amount to harassment or distraction of government
officials, disruption of legitimate investigations, and wasteful ex-
penditure of government resources. We also seek to ensure that the
creation of a civil remedy for aggrieved persons does not impinge upon
the proper exercise of discretion by federal officials.

Therefore, we recommend that where a government official — as op-
posed to the government itself — acted in good faith and with the
reasonable belief that his conduct was lawful, he should have an affirm-
ative defense to a suit for damages brought under the proposed statute.
To tighten the system of accountability and control of domestic intel-
ligence activity, the Committee proposes that this defense be struc-
tured to encourage intelligence officers to obtain written authorization
for questionable activities and to seek legal advice about them.^®

To avoid penalizing federal officers and agents for the exercise of
discretion, the Committee believes that the government should in-
demnify their attorney fees and reasonable litigation costs when they
are held not to be liable. To avoid burdening the taxpayers for the
deliberate misconduct of intelligence officers and agents, we believe
the government should be able to seek reimbursement from those
who willfully and knowingly violate statutory charters or the
Constitution.

Furthermore, we believe that the courts will be able to fashion dis-
covery procedures, including inspection of material in chambers, and to
issue orders as the interests of justice require, to allow plaintiffs with
substantial claims to uncover enough factual material to argue their
case, while protecting the secrecy of governmental information in
which there is a legitimate security interest.

The Committee recommends that a legislative scheme of civil reme-
dies for the victims of intelligence activity be established along the

"42 U.S.C. 1983.

" Bivens v. Six Unknmmi Fed. Narcotics Agents, 403 U.S. 3S8 (1971).

^ One means of .structuring such a defen.se would be to create a rebuttable
presumption that an individual defendant acted so as to avail him.self of this
defense when he proves that he acted in good faith reliance upon : (1) a written
order or directive by a government officer empowered to authorize him to take
action : or (2) a written assurance by an appropriate legal officer that his action
is lawful.

68-786 O - 76 - 23

338

following lines to clarify the state of the law, to encourage the respon-
sible execution of duties created by the statutes recommended herein
to regulate intelligence agencies, and to provide relief for the victims of
illegal intelligence activity.

Recommendation 91. — ^Congress should enact a comprehensive oivil
remedies statute which would accomplish the following: ^^

(a) Any American with a substantial and specific claim '^^ to an
actual or threatened injury by a violation of the Constitution by federal
intelligence officers or agents "^ acting under color of law should have
a federal cause of action against the government and the individual
federal intelligence officer or agent responsible for the violation, with-
out regard to the monetary amount in controversy. If actual injury
is proven in court, the Committee believes that the injured person
should be entitled to equitable relief, actual, general, and punitive
damages, and recovery of the costs of litigation.'^^ If threatened injury
is proven in court, the Committee believes that equitable relief and
recovery of the costs of litigation should be available.

{h) Any American with a substantial' and specific claim to actual
or threatened injury by violation of the statutory charter for intel-
ligence activity (as proposed by these Domestic Intelligence Recom-
mendations) should have a cause of action for relief as in (a) above.

( c) Because of the secrecy that surrounds intelligence progi'ams, the
Committee believes that a plaintiff should have two years from the
date upon which he discovers, or reasonably should have discovered,
the facts which give rise to a cause of action for relief from a constitu-
tional or statutory violation.

{d) Wliatever statutory provision may be made to permit an indi-
vidual defendant to raise an affirmative defense that he acted within
the scope of his official duties, in good faith, and with a reasonable
belief that the action he took was lawful, the Committee believes
that to ensure relief to persons injured by governmental intelligence
activity, this defense should be available solely to individual defend-
ants and should not extend to the government. Moreover, the defense
should not be available to bar injunctions against individual
defendants.

viii. Criminal Penalties Should Be Enacted
Recommendation 92. — The Committee believes that criminal penal-
ties should apply, where appropriate, to willful and knowing

" Due to the scope of the Committee's mandate, we have taken evidence only
on constitutional violations by intelligence oflBcers and agents. However, the
anomalies and lack of clarity in the present state of the law fas discussed
above) and the breadth of constitutional violations revealed by our record,
suggest to us that a general civil remedy would be appropriate. Thus, we urge
consideration of a statutory civil remedy for constitutional violations by any
federal oflBcer; and we encourage the appropriate committees of the Congress
to take testimony on this subject.

'"The requirement of a substantial and specific claim is intended to allow
a judge to screen out frivolous claims where a plaintiff cannot allege specific
facts which indicate that he was the target of illegal intelligence activity.

■^ "Federal intelligence oflBcers or agents" should include a person who was
an intelligence oflBcer, employee, or agent at the time a cause of action arose.
"Agent" should include anyone acting with actual, implied, or apparent authority.

^The right to recover "costs of litigation" is intended to include recovery of
reasonable attorney fees as well as other litigation costs reasonably incurred.

339

violations of statutes enacted pursuant to the Domestic Intelligence
Recommendations.

ix. The Smith Act and the Voorhis Act Should Either Be
Repealed or Amended
Recommendation 93. — Congress should either repeal the Smith Act
(18 U.S.C. 2385) and the Voorhis Act (18 U.S.C. 2386), which on
their face appear to authorize investigation of "mere advocacy" of
a political ideology, or amend those statutes so that domestic security
investigations are only directed at conduct which might serve as the
basis for a constitutional criminal prosecution, under Supreme Court
decisions interpreting these and related statutes/^

sc. The Espionage Statute Shoidd he Modernized
As suggested in its definition of "hostile foreign intelligence ac-
tivity" and its recommendations on warrants for electronic surveil-
lance, the Committee agrees with the Attorney General that there may
be serious deficiencies in the Federal Espionage Statute (18 U.S.C.
792 et seq.). The basic prohibitions of that statute have not been
amended since 1917 and do not encompass certain forms of industrial,
technological, or economic espionage. The Attorney General in a recent
letter to Senator Kennedy (Reprinted on p. S3889 of the Congres-
sional Record of March 23, 1976) describes some of the problem areas
of the statute, including industrial espionage (e.g., a spy obtaining
information on computer technology for a foreign power). The Com-
mittee took no testimony on this subject and, therefore, makes no
specific proposal other than that the appropriate committees of the
Congress explore the necessity for amendments to the statute.

Recommendation 9Ji-. — The appropriate committees of the Congress
should review the Espionage Act of 1917 to determine whether it
should be amended to cover modern forms of foreign espionage, in-
cluding industrial, technological or economic espionage.

ad. Broader Access to Intelligence Agency Files Should he Pro-
vided to GAO^ 05 an Investigative Arm, of the Congress
Recommendation 95. — The appropriate congressional oversight
committees of the Congress should, from time to time, request the
Comptroller General of the United States to conduct audits and re-
views of the intelligence activities of any department or agency of the
United States affected by the Domestic Intelligence Recommendations.
For such purpose, the Comptroller General, or any of his duly au-
thorized representatives, should have access to, and the right to ex-
amine, all necessary materials of any such department or agency.

xii. Congressional Oversight Should Be Intensified
Recommendation 96. — The Committee reendorses the concept of
vigorous Senate oversight to review the conduct of domestic security
activities through a new permanent intelligence oversight committee.

xiii. Definition's
For the purposes of these recommendations :
A. "Americans" means U.S. citizens, resident aliens and unincor-
porated associations, composed primarily of U.S. citizens or res-

'^E.ff. Yates v. United States, 354 U.S. 298 (1957) ; Noto v. United States, 367
U.S. 290 (1961) ; Brandenburg v. Ohio, 395 U.S. 444 (1969).

340

ident aliens; and corporations, incorporated or having their
principal place of business in the United States or having majority
ownership by U.S. citizens, or resident aliens, including foreign
subsidiaries of such corporations provided, however, "Americans"
does not include corporations directed by foreign governments or
organizations.

B. "Collect" means to gather or initiate the acquisition of informa-

tion, or to request it from another agency.

C. A "covert human source" means undercover agents or informants
who are paid or otherwise controlled by an agency.

D. "Covert techniques" means the collection of information, includ-

ing collection from record sources not readily available to a pri-
vate person (except state or local law enforcement files) , in such
a manner as not to be detected by the subject.

E. "Domestic security activities" means governmental activities

against Americans or conducted within the United States or its
territories, including enforcement of the criminal laws, intended
to:

1. protect the United States from hostile foreign intelligence
activity including espionage ;

2. protect the federal, state, and local governments from
domestic violence or rioting ; and

3. protect Americans and their government from terrorists.

F. "Foreign communications," refers to a communication between, or

among, two or more parties in which at least one party is outside
the United States, or a communication transmitted between points
within the United States if transmitted over a facility which is
under the control of, or exclusively used by, a foreign government.

G. "Foreigners" means persons and organizations who are not

Americans as defined above.

H. "Hostile foreign intelligence activities" means acts, or conspiracies,
by Americans or foreigners, who are officers, employees, or con-
scious agents of a foreign power, or who, pursuant to the direction
of a foreign power, engage in clandestine intelligence activity,^*
or engage in espionage, sabotage or similar conduct in violation
of federal criminal statutes.

I. "Name checks" means the retrieval by an agency of information
already in the possession of the federal government or in the
possession of state or local law enforcement agencies.

J. "Overt investigative techniques" means the collection of informa-
tion readily available from public sources, or available to a private
person, including interviews of the subject or his friends or
associates.

K. "Purged" means to destroy or transfer to the National Archieves
all personally identifiable information (including references in
any general name index) .

'* The term "rfandestine intelligence activity" is included in this definition at
the suggestion of officials of the Department of Justice. Certain activities engaged
in by the conscious agents of foreign powers, such as some forms of industrial,
technological, or economic espionage, are not now prohibited by federal statutes.
It would be preferable to amend the espionage laws to cover such activity and
eliminate this term. As 'a matter of principle, intelligence agencies should not
investigate activities of Americans which are not federal criminal statutes.

Therefore, the Committee recommends (in Recommendation ) that Congress

immediately consider enacting such statutes and then eliminating this term.

341

L. "Sealed" means to retain personally identifiable information and
to retain entries in a general name index but to restrict access to
the information and entries to circumstances of "compelling ne-
cessity."

M. "Reasonable suspicion" is based upon the Supreme Court's decision
in the case of Terry v. OMo^ 392 U.S. 1 (1968) , and means specific
and articulable facts which taken together with rational inferences
from those facts, give rise to a reasonable suspicion that specified
activity has occurred, is occurring, or is about to occur.

N. "Terrorist activities" means acts, or conspiracies, which: (a) are
violent or dangerous to human life; and (b) violate federal or
state criminal statutes concerning assassination, murder, arson,
bombing, hijacking, or kidnapping; and (c) appear intended to,
or are likely to have the effect of :

(1) Substantially disrupting federal, state or local govern-
ment ; or

(2) Substantially disrupting interstate or foreign commerce
between the United States and another country ; or

(3) Directly interfering with the exercise by Americans, of
Constitutional rights protected by the Civil Rights Act of 1968, or
by foreigners, of their rights under the laws or treaties of the
United States.

O. "Unauthorized entry" means entry unauthorized by the target.

Utk congress

l6x Sessiox

APPENDIX-A

S. RES. 21

m THE SENATE OE THE UNITED STATES

January 21, 1973

MkPastoke submitted the following resolution ; which was ordered to be placed
on the calendar (under general orders)

January 27, 1975
Considered, amended, and agreed to

RESOLUTION

To establisli a select committee of the Senate to conduct an in-
vestigation and study with respect to intelhgence activities
carried out by or on behalf of the Federal Government.

X Hesolved, To establish a select committee of the Senate

2 to conduct an investigation and stud}' of governmental op-

3 erations with respect to intelligence activities and of the
4: extent, if an}-, to which illegal, improper, or unethical activ-

5 ities were engaged in Ity any agency of the Federal Govern-

6 jnent or by any persons, acting individually or in combination

7 v^'ith others, with respect to any intelligence activity carried.

8 out by or on behalf of the Federal Government; be it further
B Hesolved, That (a) there is hereby estabhshed a select

IQ committee of the Senate which may be called^ for coil-

(343)

344

2[ venience of expression, tlic Select Committee To Stucly

2 Grovermncntnl Oj)erAti()ii.s Witli Respect to Intelligence Ac-

3 tivities to conduct an investigationjind study of the .extent, if

4 aiiy, fo which illegal, inipro])er, or unethical activities W£re

5 engaged in by any agency or l»y any })ersons, acting either
g individually or in conihinatiou with others, in carrjung oufc

7 any intelligence ov surveillance activities hy or on behalf

8 of any agency of the Federal Government.

9 (b) The select committee created by this resolution-

10 sliall consist of eleven Members of the JSenate, six. to be

11 appointed by the I'rc.^idcnt of the Senate from the majority

12 Members of the Senate upon the reconnnendation of the

13 majority leader of the Senate, and five minority Members of

14 the Senate to be appointed by the President of the Senate

15 upon the reconnnendation of the minority leader of the

16 Senate. For tlie purposes of paragraph G of' rule XXV of the

17 Stiinding Eules of the Senate, service of a Senator as a

18 member, chairman, or vice chainnan of the select committee

19 sliaJl not be taken into account.

20 (c) The majority members of the conimittce shall select;
2X it chauman and the minority meml)ers shall select; a vice
22- chairman and the connnittee shall adopt rides and procediu'es

23 to govern its- proceedings. The vice chairman shall preside

24 over meetings of the select committee during the absence
23 of the chairman, and discharge such other responsibilities

345

1 .as may be assigned to him by the select committee or thb

2 chairman. Vacancies in the membership of the select com-

3 mittee shall not affect the authority of the remaining mem*
4: "bers to execute the functions of the select committee and

5 sball be filled in the same manner as original appointmejxt?

6 to it are made.

7 (d) A majority of the members of the select committ$.0

8 shall constitute a quorum for the transaction of business hufc

9 the select committee may affix a lesser number as a quorum
10 for the purpose of taking testimony or depositions.

X* Sec. 2. The select conniiittee is authorized and directed

12 to do everything necessary or appropriate to make the ia-

13 vestigations and study specified in subsection (,a} of tlie
•^^ fii'st section. Without abridging in any way the authority
•'•^ conferred upon the select committee by the p.recedimg
•^ sentence, the Senate further expressly authorizes and directs
*^' the select committee to make a complete investigation auft
'^° study of the activities of any agency or of any and afl persons
19 or gi"oups of persons or organizations of any kind "wlii(&
^^ have any tendency to reveal the full facts with respect id
^^ the following matters or questions :

^ (1) ^yhether the Central Intelligence Agency IiftS

^ conducted an illegal domestic intelligence operation m

^ the XJnited States,

346

^ (2) The conduct of domestic intelligence or cona-

g terintelligen'ce operaitions against United States citizens

3 l)y tlie ^Federal Bureau of Investigation or any oilier

^ federal agency.

5 (3) The origin and disposition of the so-called HuS-

g -ton Plan to apply United States intelligence agency

»f caipahilities against individuals or organizations within

8 ihe United States.

Q (4) The extent to which the Federal Bureau, of la-

10 vestigation, the Central Intelligence Agency, and other

Xt [Federal law enforcement or intelligence agencies coordi-

12 3iate their respective activities, any agreements' whicli

JLs govern that coordination, and the extent to which a lack

14 of coordination has contributed to activities or actions

3S "which are illegal, improper, inefficient, unethical, or coa-

3C6 ti'ary to the intent of Congi-ess.

IT (5) The extent to which the opemtion of domestic

3S initelligence or counterintelligence activities and. th^

19 operation of an}' other activities within the United States

20 T)y the Central Intelligence Agenc}'^ confomis to the leg-
SL asMve charter of that Agency anid the intent of the
^ Congress.

SA I>irector of Central Intelligence of the responsibility "So

SS iprotect intelligence sources and methods as it relates fo

347

X Ite proYision m section 102 (d) (3) of tlie iNationjEl

2 Security Act of 1947 (50 U.S.C; 403*(d> (3) ) thth

3 ^'. . . that the agency shall have no police> subpena, law
ft enforcement powers, or internal securit}'' functions. • • ,*'

6 (7) N'ature and extent of executive branch, oyefw
6- Sight of all United States intelligence activities.

7 (8) The need for specific legislative authority to

8 govern the operations of any intelligence agencies 6i
"Q the Federal Government now existing without th^

10 explicit statutory authority, including but not limited to-
ll agencies such as the Defense Intelligence Agency anil
1^ the Kational Security xVgency.

13 The nature and extent to which Federal agencies-

1* cooperate and exchange intelligence information aii^

I'' the adequac}^ of an}' regulations or statutes "whiclt

1" govern such cooperation and exchange of intelligence'

■** information.

IS (9) The extent to which United States mtelllgen6&

•^ agencies are governed by Executive orders, rules, #]>

^^ icgulations either pu])lislied or secret arid the extcftfe

^ to which those Execiitivc orders, rules; or regulation^

^ interpret, expand, or are in conflict with specific legKI-
lative authority.

•(10) The violation or suspected vJolattOJi of VS^

^^ State or Federal statute by any intelligence age»cy W^

348

Jt l)y any person by or on Ijehalf of any intelligence agency

^ of tlie federal Govermnent including but not limited

$ .t^ surreptitious entries, surveillance, wiretaps, or eaves-

^ 'dropping, illegal opening of the United States mail, ODf

$ the monitoring of the United States mail.

6 (11) The need for improved, strengthened, or conr

7 solida-ted oversight of United States inteUigence ac-

5 tivities bj' the Congress.

6 (12) Whether any of the existing la"ws of tlie
30f United States are inadequate, either in their provisions

31 or "manner of enforcement, to safeguard the rights of

32 American citizens, to improve executive and legislative
3S control of intelligence and related activities, and to IQ"
3i solve uncertainties as to the autliority of United States
3S jntell'igence and related agencies.

*6 (13) Whether there is unnecessary dupUcation <rf

37 expenditure and effort in the coUectiou and processijlg^

38 of intelligence infonnation by United States agencies,

39 (14) The extent and necessity of overt and covert*
2^ intelligence activities m the United States and abroa^r
^ (15) Such other related matters as the committed
22^ deems necessary in order to cany out its responsibiliti^-
^ under section (a) .

^ Sec. 3. (a) To enable the select committee to mafes
** the investigation and study authorized and directed by thiif.

349

3 resolution, the Senate liereljy empowers the selecfe CQmiiufte^

2- as an agency of the Senate (1) to empk)}^ and fix the COiU-

3 penstition of such ck-ncal, invistigatory, legal, technical,

4 "Unci other assistants as it deenis necipssnry or appropriate^

5 Inifc it may not exceed the noiinal Senate ?akiy sc}iedules.y

6 (2) to sit and act at an}' time or place during sessions,

7 recesses,, and adjournment periods of the Senate;. (3) to liold,

8 hearings for takino- testimony on oath or to receive docu^

9 mentaiy or physical evidence relating to the matters an4
10 .(j^uestions it is authorized to investigate or study; (4) to
3.1 j'equire hy suhpena or otherwise the attendance as witne^ses-

12 of any persons who the select committee heHeves have-

13 knowledge or information concerning any of the mattets-
1* or .j[uestioiis it is authorized to investigate and study; (5)
15 to rc<pilre hy sul^pena or order any department, agency^
1^ officer, or emiiloyee of the executive bi'anch of the Uri'ItecE
*' States Government, or any private person, firm, or coi'pora*
•^° tion, to produce for its consideration or for use as evidence^
^9 in its investigation and study any books, checks, canceled
^0 cliecks, correspondence, communications, document, papers,

21 physical evidence, records, recordings, tapes, or materials" re-

22 l{\ting to any of the matters or questions it is authorized to

23 investigate and study which they or any of thcni may h&Ye

24 2)X their custody or under their control; (6) to make to tltd
2^ Senate any recommendations it deems appropriate in respect

350

3L to lire "willful failure or refusal of any person to answer qu6S*

2 tions or give testimony in his character as a Avitness daring

3 his appearance before it or in respect to the willful faiIiir-0
A or refusal of any officer or einplo3'ee of the executive hran(^

5 of the United States Government or any person, firm, or

6 eorporation to produce before the committee any books,

7 checks; canceled checks, correspondence, communications,
S document, iinancial records, papers, physical evidence,
S orecords, recordings, tapes, or materials in obedience to uriy

10 subpena or order; (7) to take depositions and other testl*

XL mony on oath anywhere within the United States or in any

13 other country; (8) to procure the temporary or inteiiuifc*

13 tent services of individual consultants, or organizations therfe*

1^ of, in the same manner and under the same conditions ^'

^^ a standing committee of the Senate may procure such serv-

^^ ices under section 202(1) of the Legislative Eeorganiza-

^'^ tion Act of 1946; (9) to use on a reimbursable, basis, •^vitk
•^^' the prior consent of the Committee on Eules and Adminis""* .

1^ tration, the services of personnel of any such department

^^ or agency; (10) to use on a reimbursable basis OrotllCI>

2^ "wise •with the prior consent of the t-hairman -of any Sill)*'

^^ committee of any committee of the Senate the facilities eft:

^^ ^services of any memljers of the staffs of such- other Senate

^* conimittces or any subcommittees of such olhcr Senate SOBd**
iiiittee>s whenever the .sclijct committee or its cliainnan.jflgeuiS' '

351

i-het such' action is necessary or appropriate to enaMe tlio

^ select committee to make the investigation and study author-

„ feed and directed I>y tliis resolution; (11) to have dlreofc

, access through tlie agency of any members of the selecfe

- committee or any of its investigatoiT or legal assistants'

g dtisignated by it or its chairaian or the ranking minoi'Itjr

J- member to any data, evidence, information, report, analysi'^i

g or document or papers, relating to any of the mattei's oK

Q quest-ions which it is authorized and directed to investigate

^Q and study in the custody or under the control of any departs*

^jL inent, .igcncy, officer, or employee of the cxccntFve branck

•j^2 oi the United States Government, including any department!,

-|^3 agency, officer, or employee of the United iStates Goveru-

14 ment having the power under the laws of the United ^ates

15 to investigate any aHeged criminal activities or to prosecute.
I'O* persons charged with crinies against the United States anil
17 anj^ department, agency, officer, or employee of the ITiiited
IS States OovciTiment having the authoiity to conduct intelli-

19 5'cncc or surveillance within or outside the United States;

20 "wllhonl; regard lo Iho jurisdiclion or authority of any othpr

21 Senate commiltee, which, will aid tlio .select committee t-0

22 prepare for or coiuluct (lie investigation and study authorlzoJ.

23 ami directed by this i-esolution; and (.12) to expend to tlj.e.

24 e^UM il delerinines necessary or appropriate any moneys:

352

- ma'de available' to it by the Senate to perfomi tlicdntics

2 and exercise tlic po.wer-s conferred upon it by this lesolutioa

g and "to make tlie investigation and study it is autliorized- by

A this riisolution to make.

« (b) Siiibpenas may be issued by the select, comm.ittco'

M feting ^tbi'ougli the chaimian orany other member^ designated.

1^ l)y ])i*m^ ami may be. served by any person designated- bj''

g such .chairman or other member anywhere Avitliin.the bonders

Q of flic United States. The chairman of the select committee,

2(^ 01* any other member thereof, is hereby authorized to admin-

23^ htev oatlis to any witnesses appearing. before the committee*

«l<g (c) In preparing for or conducting the investigation.

^3 Xind study .authorized and directed by this resolution, tho-

1^ select committee shall be empowered to exercise the j^owcrs-

15 conferred upon committees of the Senate by section 6002 of

16 title 18, United States Code, or any other Act of Congress

17 regulating the granting of immimity to witnesses.

IB Sec. 4. The select committee shall have authority tO

19 recommend the enactment o^ any new legislation or the

20 amendment of any existing statute which it considers neces-

21 "sary or desirable to strenghen or clarify the national secHlr

22 rity, intelligence, or surveillance activities of the United

23 States and to protect tlic rights of United States citizens.
2^ with regard to those activities.

353

3[ ■Sec. 5. The select committee .shall make a final report

2 of -the results of the inves'tigation and study conducted by

3 it- pursuant to this resolution, together Avith its findings and

4 its recommendations as to new congressional legislation it

5 deems necessaiy or desirable, to tlie Senate at the earliest
^ practicahle date, hut no later tiian Septcmhcr 1, 1975.. Tho

7 select committee may also submit to the Senate such interim

8 reports as it considers approprlnic. After suhmission of afcs

9 final report, the select connniltcc sliall have three cdendar

10 months to close its afl'airs, and on the expiration of- suck

11 three calendar months shall cease to exist.

12 Sec. 6. The expenses of the select connnittco tlu'-ougll

13 September 1, 1975, under ibis lesolutlon shall not exceed

14 $750,000 of which amount not (o ex«,>eed 8100,000 shallbe

15 available for the i)rocurement of the services of individlKd

17 paid from the contingent fund of the Senate upon voiiclicrs.

18 approved by the chairman of the select committee.

19 Sec. 7. The select conmiittee shall institute and eany

20 out such rules and procedures as it may deem necessary to

21 prevent (1) the disclosure, outside the select committee, of*
22- any information relating to the activities of the Central In«

23 telHgence Agency or any other department or agency of ti^

24 Federal Government engaged in intelligence activities, ^-^

68-786 O - 76 - 24

354

3. tained by tlie select committee during the course of its study

2, and investigation, not authorized by the select committer

3 to be disclosed; and (2.) the disclosure, outside the select

•4 committee, of any infonnation which would adversely affetefc

5 the intelligence activities of the Central Intelligence Agency

6 in foreign countries or the intollig(pnce activities in foreign
.7 countries of any other department or agency of the Federal

8 Government.

9 Sec. 8. As a condition for cmployincnt as described in
3L0 section 3 of this resolution, each person shall agree not to

11 accept any honorarium, loj^illy or other payment for a

12 speaking engagement, magazine article, bouk, or other en-
18 deavor connected with the Investigation and study under-
14; taken by this committee.

1^ Sec. 9. No employee of the i^cloct committee or any

16 jpersou engaged by conti-act or otherwise to perform services

17 for the select committee shall be given access to any classi-

18 fied information !)}'■ the select committee unless such em-

19 ploycc or person lins received an appropriate security clear-

20 ancc as delerniined l)y the select comniillce. The type of

21 security clearance t(i l>o rooiiirod in tlic case of any such-

22 employee or person slinll, within llic determination of the

23 select -comniittee, ])o conimcnsuratc with tlio sensitivity ot.
24. the classified infonnalinn lo wliich sncli (Mnplo^'cc or person.
25 "will be given access l)y tlic select roniinittcc,

APPENDIX B

Previously Issued Reports and Hearings of the Senate Select

Committee

A. Reports

1. Senate Report : "Alleged Assassination Plots Involving For-

eign Leaders", November 20, 1975.

2. Staff Report: "Covert Action in Chile, 1963-1973".

December 18, 1975.

B. Hearings

1. "Unauthorized Storage of Toxic Agents", Volume 1, Septem-

ber 16, 17 and 18, 1975.

2. "Huston Plan", Volume 2, September 23, 24 and 25, 1975.

3. "Internal Revenue Sendee", Volume 3, October 2, 1975.

4. "Mail Opening", Volume 4, October 21, 22 and 24, 1975.

5. "The National Security Agency and Fourth Amendment

Rights", Volume 5, October 29 and November 6, 1975.

6. "Federal Bureau of Investigation", Volume 6, November 18

and 19, December 2, 3, 9, 10 and 11, 1975.

7. "Covert Action", Volume 7, December 4 and 5, 1975.

(355)

APPENDIX C

Staff Acknowledgments: Final Report on Intelligence Activi-
ties AND the Rights of Americans

The volume of the final report which summarizes the Committee's
inquiry into domestic intelligence activity and sets forth its findings
and recommendations was written and edited, along with the supple-
mentary detailed reports, under the supervision of Chief Counsel
Frederick A. O. Schwarz, Jr., and Counsel to the Minority Curtis R.
Smothers. The work of the entire staff of the Committee — over the
long course of investigation, research and hearings — was channeled
into the final report. The staff members listed below made major con-
tributions to the writing and editing of this volume.

Principal Authors

John Elliff
Frederick Baron
Barbara Ranoff
Grordon Rhea

Frederick Baron
Rhett Dawson
John Elliff
Michael Madigan
Elliot Maxwell

Thomas Dawson

James Dick
Mark Gitenstein
Robert Kelley

General Editors

Paul Michel
Andrew Postal
Walter Ricks
Burton Wides

Research Coordination

Lawrence Kieves

Contributing Authors^ Editors^ and Investigators

John Bayly Jim Johnston

Sam Bouchard Chris Pyle

Barry Carter Eric Richard

Joseph Dennin Lester Seidel

Mary DeOreo Patrick Shea

Michael Epstein Elizabeth P. Smith

Peter Fenn John Smith

Arthur Harrigan Britt Snider

Arthur Jefferson Athan Theoharris

Loch Johnson Paul Wallach

Edward Griessing
Daniel Dwyer

Research Assistance

Phebe Zimmerman
James Turner

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358

Supplementary Detailed Reports

Principal Staff Authors
COINTELPRO : The FBI's Co- Barbara Banoff, assisted by Phebe

vert. Action Programs Against
American Citizens.

The FBI's Efforts to Disrupt and
Neutralize the Black Panther
Party.

Dr. ISIartin Luther King, Jr., Case

Study.

CIA and FBI Mail Opening.

Electronic Surveil-

Zimmerman and Mary DeOreo.
Arthur Jefferson, Gordon Rhea.

Michael Epstein, Gordon Rhea, as-
sisted by Mai-y DeOreo and Dan
McCorkle.

James Dick, Paul Wallach, as-
sisted by Thomas Dawson and
Edward Griessing.

James Dick, John Elliff.

Robert Kelley, assisted by Jeffrey
Kay den and Thomas Dawson.

Frederick Baron.

Warrantless
lance.

The Use of Informers in FBI In-
telligence Investigations.

Warrantless Surreptitious En-
tries : FBI "Black Bag" Break-
ins and Microphone Installa-
tions.

The Development of FBI Domes- John Elliff
tic Intelligence Investigations.

The Internal Revenue Service : An Walter Ricks, Arthur Harrigan,
Intelligence Resource and Col- assisted by Thomas Dawson,
lector.

National Security Agency Surveil- Peter Fenn, Britt Snider, James
lance Affecting Americans. Turner, assisted by Judi Mason.

Improper Surveillance of Private Britt Snider, assisted by James
Citizens by the Military. Turner.

CIA Intelligence Collection About Burton Wides, assisted by Jeffrey
Americans: The CHAOS Pro- Kayden.
gram and the Office of Security.

National Security, Civil Liberties, Loch Johnson, assisted by Mar-
aud the Collection of Intel- garet Carpenter and Daniel
ligence : A Report on the Huston Dwyer.
Plan.

General Staff Editors : Detailed Reports

Paul Michel
Rhett Dawson
Michael Madigan

Elliot Maxwell
Andrew Postal

ADDITIONAL VIEWS OF SENATOE PHILIP A. HART

The Committee's proposal on domestic intelligence is a carefully
crafted system of controls to prevent abuse and preserve vigorous dis-
sent in America. The report lays out the issues, notes the problems, and
suggests solutions. Committee members and staff, under Senator Mon-
dale's conscientious leadership, grappled with the exceedingly dif-
ficult task of shaping broad principles into workable safeguards.

The recommendations would narrow tlie scope of permissible in-
telligence, set standards and time limits for investigations, control
dissemination, and provide civil remedies for improprieties.

This comprehensive scheme may be the best we can do to set the
delicate balance wheel between liberty and security. It is a consider-
able accomplishment, and I endorse its consideration by the appropri-
ate legislative committees. I do so, however, with misgivings that
the Committee's record fails to justify even this degree of preventive
intelligence investigation of American citizens.

Unlike investigation of committed crimes, "preventive intelligence"
means investigating persons thought likely to commit particularly se-
rious acts ; it is intended to prevent them. Providing, for the first time,
statutory authorization of such surveillance is a dramatic and danger-
ous step. Congress should take that step with the utmost caution.

It is appealing to say we should let the FBI do evervthing possible
to avert bombing of the Capitol or other terrorist acts. But in America
we must refuse to let the Government "do everything possible." For
that would entail spying on every militant opponent of official policy,
just in case some of them may resort to violence. We would become
a police state. The question, then, is whether a limited form of pre-
ventive intelligence, consistent with preserving our civil liberties, can
be justified by the expected benefits and can also be kept under effec-
tive control.

Thp Committee was reluctant to authorize any investigations ex-
cept those of committed or imminent criminal acts. Nevertheless, our
Report concludes that some preventive intelligence is justified because
it might prevent a significant amount of terrorist activity without
posing unacceptable risks for a free society.

However, the shocking record of widespread abuse suggests to me
that before Congress endorses a blueprint for preventive mtelligence,
we need a more rigorous presentation of the case for it than was of-
fered to this Committee.

The FBI only provided the Committee with a handful of substanti-
ated cases — out of the thousands of Americans investigated — in which
preventive intelligence produced warning of terrorist activity. Fur-
ther, most of those few investigations which did detect terrorism could

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seo

not have been opened under the Committee's proposed restrictions.^
In short, there is no substantial record before the Committee that pre-
ventive intelligence, under the restrictions we propose, would enable
the Government to thwart terrorism.

Essentially, we are asking the American people to accept the risks
of preventive intelligence on the hypothetical possibility that the worst
imaginable terrorist acts might be averted. Faced with the specter of
bombings or assassination plots, we may be in danger of sanctioning
domestic spying without any significant prospect that such intelligence
activities will in fact prevent them.

It might be argued that with adequate restraints to focus on hard
core terrorism, preventive intelligence should be authorized even
though we cannot demonstrate it is likely to prevent much violence.
In that view, some insurance would be worth the limited cost.

Assuming that premise, there are two overriding issues :

— When may the Government investigate the activities of

Americans engaged in political dissent ; and
— When may the Government use informants to spy on those

Americans?

If we are to have a preventive intelligence program at all, then I believe
the Committee's recommendations on both these issues require refine-
ment.

The Committee found that most improper investigations have been
commenced merely on the basis of political advocacy or association,
rather than on specific information about expected terrorist activity.
The recommendations would preclude mere advocacy or association as
a predicate for investigating Americans. In practice, however, that
would simply require specific allegations that an unpopular dissident
group was planning terrorist violence.

Of course, if the FBI receives a tip that John Jones may resort to
bombing to protest American involvement in Vietnam, the Bureau
should not be forced to sit on its hand until the blast. But our pro-
posals would pemiit more than review of federal and local records
on John Jones aid interviews of his associates, even in a preliminary
investigation. On the basis of an anonymous letter, with no supporting
information — let alone any indication of the source's reliability— the
FBI could conduct secret physical surveillance and ask existing in-
formants about him for up to three months, with the Attorney Gen-
eral's approval.

The Committee was concerned about authorizing such extensive
investigations before there is even a "reasonable basis of suspicion"
the subject will engage in terrorism. The Report offers examples of
how this recommendation would work, and indicates our desire to

^ In most of those cases warning came through informant penetration of local
chapters of a national organization undertaken because some of the national lead-
ers had indicated a willingness to use violent means. The Committee's guidelines
preclude investigating an organization's entire membership throughout the coun-
try on the basis of specific information about some individuals.

In the most sinister terrorist conspiracies, onlv penetration of the inner circle
is likely to provide advance warning of an assassination or kidnapping plot. Our
record suggests that the only way for the FBI to have much chance to detect
such x>lots in advance wouM be blanket penetration of evprv militant protest
group in the country. And that would mean a return to precisely the kind of Big
Brother government which was attempted in the past.

361

insulate lawful political activity from investigation of violent ter-
rorism. But these very examples illustrate how inextricable the two
may be at the outset of an inquiry into an allegation or ambiguous
information. The task of finding out whether a dissident is contem-
plating violence or is only involved in vigorous protest inevitably
requires investigation of his protest activities. In the process, the FBI
could follow the organizers of a Washington peace rally for three
months on the basis of an allegation they might also engage in vio-
lence.

The second major issue is the use of paid Government informants
to spy upon Americans. The great majority of abuses uncovered in
domestic intelligence involved the pervasive use of informants against
dissident political groups. The Committee defei-s the question of
whether judicial approval should be required for targeting inform-
ants, until review by the Attorney General alone has been tested.

In my view, control of informants and control of wiretapping can
be distinguished only on the basis of present constitutional doctrine;
the Supreme Court has not found the use of informants to violate
Fourth Amendment guarantees against Government intrusion. How-
ever, in terms of the values underlying both the First and Fourth
Amendments, our record shows that the use of informants can, if
anything be even more intrusive and more easily abused than electronic
surveillance. As a matter of policy, they should be stringently con-
trolled.

From the prosecutor's viewpoint, a wiretap is more precise and
reliable than an informant. The accuracy of an informant witness may
be vulnerable to challenge. But as a source of intelligence, informants
can be directed at all of the subject's associates. They can follow the
subject from place to place and can even be asked to elicit information
through specific questions. In effect, a well-placed informant can be
a "walking, thinking 'bug'." The use of such informants is at the heart
of the chilling effect which preventive intelligence has on political
dissent.

"Wliether informant penetrations are to be approved by the Attorney
General or by a judge, the Committee report recognizes the great
dangers they pose.^ We recommend a high standard for their use:
Probable cause to believe the target soon will engage in terrorist
activity. My concern is that, in an effort to accommodate the realities
of preventive intelligence, our proposals may render this standard
illusory.

The FBI argued that, in the case of tightly knit conspiracies, it
could not meet that standard without the initial resort to informants.

" Some of the "practical" reasons advanced against judicial warrants for in-
formants do not bear close scrutiny. The Committee was told there is no fixed
point when a potential source becomes an "informant," comparable to installa-
tion of a wiretap. It was also urged that full supervision of an informant re-
quires day-to-day monitoring of his activities ; and that the Attorney General
could exercise more comprehensive control. But our proposals do identify a
specific event, targeting the informant on particular persons, which requires
a decision by the Attorney General. The basic wisdom of the Fourth Amend-
ment is its insistence that a disinterested party apply the appropriate standard
rather than the head of an investigative agency. The Attorney General's ongoing
supervision of informant use could supplement the threshold decision of a neutral
magistrate, just as it would for wiretaps. There is no need to choose between
them.

362

Therefore, the Committee would permit "temporary" targeting of
informants for up to five months. In effect, the FBI could bootstrap its
investigation by employing informants to collect enough information
to justify their use. The Committee does require that this use of in-
formants be terminated if probable cause cannot be established within
five months. But it is doubtful that such termination would be ef-
fective to provide the high standard of protection the Committee feels
is necessary for tlie use of such an intrusive technique.^

To a great extent, our proposals foi controlling preventive intel-
ligence ultimately rely upon the Attorney General and congressional
oversight committees. In view of the performances of the Congress
and the Justice Department for the past two decades, it is not easy to
have full confidence in their ability to prevent abuses of domestic
intelligence without precise detailed statutory prohibitions.

Moreover, our task is not to fasliion legislation which seems adequate
for the present period of national calm and recent revelations of
intelligence abuses. We do not need to draft safeguards for an
Attorney General who makes clear — as Attorney General Levi has
done — his determination to prevent abuse. We must legislate for the
next periods of social turmoil and passionate dissent, when tlie current
outrage has faded and those in power may again be tempted to in-
vestigate their critics in the name of national security.

In a time of crisis, acts of violence by a tiny minority of those
engaged in political protest will again place intense pressures on
officials in the Department of Justice to stretch any authority we
provide to its limits. For these reasons we must be extremely careful
not to build too much flexibility and discretion into a system of preven-
tive intelligence which can be used against domestic dissidents. As the
Supreme Court has wisely observed :

The greater the importance of safeguarding the community
from incitements to the overthrow of our institutions by
force and violence, the more imperative is the need to preserve
inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for
free political discussion, to the end that government may be
responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional
government. {Be Jong v. Oregon, 299 U.S. 353, 365.)

Philip A. Hart.

' The informant would still be in a position to report and the FBI could con-
tinue to ask him questions, as they could of any citizen. Indeed, he might vol-
unteer information in order to re-estahlish a paying relationship. The only con-
straint is that the FBI could no longer give him direction. After five months,
however, even the most unsophisticated informant would be aware of those sub-
jects and targets in which the Bureau was interested.

ADDITIONAL STATEMENT OF SENATOR
ROBERT MORGAN

111 1776 the citizens of a new America, in declarinf^ tlieir independ-
ence from a rei:)ressive govermnent, set forth the j^oals, ideals and
standards of their new <j^overnment in the Dechiration of Independ-
ence. As we prepare to celebrate the 200th anniversary of the birth of
our country later this year, we will reaffiim the Ijeliefs of our fore-
fathers that America will be a free country, with a government of laws
and not one of men. That the Senate Select Connnittee on Intelligence
has completed its year-long investigation into the secret activities of
this country's intelligence agencies and is releasing this Report is a
great testament to the freedom for which America stands.

During the course of the past year, the Connnittee has discovered
and revealed to the American people many actions of agencies of our
government which were undertaken in complete disregard for the
principles of our democratic society. The Committee's Report docu-
ments many of these abuses, basing its findings directly on the ad-
missions of officials of the governmental agencies being investigated
and upon information taken directly from the files of those agencies.

The Report also analyzes those findings and recommends guidelines
and procedures designed to protect the rights of American citizens in
the future, while at the same time ensuring that our intelligence agen-
cies maintain the capability to function effectively. I fully su])port
the findings, analyses and recommendations, and make this additional
statement only for the purpose of sharing with the readers of this
Report some of my personal thoughts on the significance of the Com-
mittee's work and w^iei-e we go from here.

The Committee has approached the performance of its obligation
mandated by Sen. Res. 21 with an abundance of caution. Many of
the Committee's executive session hearings, because of the sensitive
nature of the subject matter, were even i-estricted to Members and
only those staff who were assigned specific duties relevant to the
inquiry. Because of the dedication of the Members and staff to the
seriousness of the undertaking, we are a])proaching the completion
of our work with a remarkably clean record as far as leaks of classified
material detrimental to the security of the country are concerned.

From the beginning of our work until the end, the Committee has
gone beyond the dictates of normal congressional investigation to try
to accommodate concerns of the agencies under investigation for the
security of material requested by the Committee. To this end, long
hours were spent negotiating over what material would be made avail-
able to the Committee in response to its requests and in what form
that material w^ould be given to the Committee once access to it had
been acquired. Nevertheless, on many occasions the Committee re-
ceived material from which significant details had been deleted, ne-
cessitating further negotiations with the responsible agencies and, in

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364

some cases, severely hampering the Committee's inquiry into impor-
tant and signilicant areas.

While it is understandable that executive agencies whose very oper-
ations are secret would be in some respect resistant to senatorial in-
quiry into their activities, I can only interpret the strong resistance
to some Committee demands and inquiries as being symptomatic of
the atmosphere within the agencies which contributed to the occur-
rence of abuse in the first instance — one of the basic distrusts of the
actions of fellow American citizens who have as their goals the
strengthening of this nation's ideals, of its moral fiber.

Just as the American citizen was denied the right to decide for
himself what was or was not in the best interest of the country, or
what actions of a foreign government or domestic dissident threatened
the national security, the impression has been generated by some that
the Congress cannot be trusted with the nation's crucial secrets. As
the elected representative of the citizens of my state, I am entrusted
with the right and duty to properly conduct the business of our
government. Without knowledge of governmental actions or effective
means of overseeing those actions, my efforts to fulfill the require-
ments of that obligation are, at least, severely hampered; at most,
impossible, and the successful implementation of an adequate system
of checks and balances, as set forth in our Constitution, is effectively
negated.

The Committee's Report contains clear examples of the denial of
the rights of American citizens to determine the course of American
history. While the FBI's counterintelligence activities directed at
American citizens on many occasions violated the risrhts of the targets
of the programs, a greater abuse was the belief fostered that the ordi-
nary American citizen was not competent enoviafh to, independently of
governmental actions, decide, given full knowledge of all facts, what
was in his or her best interest or in the best interest of the country.
The judicial process, to which we turn for settlement of our disputes
and punishment of criminals, was also largelv ignored. FBI action
was based, for example, on the assumption that all Americans op-
posed to this country's participation in the Vietnam War mis:ht one
day take to the streets in violent protest, thereby threatening our
national security. It was assumed, for example, that right-wing,
anti -communist groups in the 1960s would gain the sympathies of
too many Americans thereby impeding policies of the then admin-
istration, so their taxes were checked. It was assumed, for example,
that every black student on every college campus in America would
resort to violence, so procedures were undertaken to establish files
on all of them.

All of these actions deny Americans the right to decide for them-
selves what will not be tolerated in a free society. Justice Douglas,
defending the freedom of speech in his dissenting opinion in Dennis
V. U.S.^ 341 U.S. 494, spoke words which vividly reflect the necessity
that we, to rem'ain free, must hold high this basic right of self-
determination which has enabled us to attain the strength and pros-
perity that we as a nation now enjoy. Justice Douglas wrote.

Full and free discussion has indeed been the first article of
our faith. We have founded our political system on it. It has
been the safeguard of every religious, political, philosophical,
economic, and racial group amongst us. We have counted on

365

it to keep us from embracing what is cheap and false ; we have
trusted the common sense of our people to choose the doctrine
true to our genius an/i to reject the rest. This has been the out-
standing tenet that has made our institutions the symbol of
freedom and equality. We have deemed it more costly to lib-
erty to suppress a despised minority than to let them vent
their spleen. We have above all else feared the political censor.
We have wanted a land where our people can be exposed to
all the diverse creeds and cultures of the world. [Emphasis
added.]

Furthermore, just as the American citizen must be given the right
to validly assess the significance and merit of political change sought
by othere, the elected representatives of the people must have knowl-
edge of governmental action to properly determine which perceived
threats to our way of life are real, Justice Brandeis, in Olmstead v.
U.S.., 277 U.S. 438, said, "The greatest dangers to liberty lurk in in-
sidious encroachment by men of zeal, well-meaning but without
understanding."

The continued existence of our democracy demands that we zeal-
ously protect the inherent right of all Americans to be free from
unwarranted intrustion into their lives by governmental action.
History has demonstrated, from the time of the founding of Chris-
tianity through the founding of these United States, through today,
that there is a place for differences of opinion among our citizenry ;
for new, bold and innovative ideas. Thomas Jefferson wrote that "the
republican is the only form of government which is not eternally at
open or secret war with the rights of mankind." To maintain our
Republic, we must be willing to tolerate the right of every American
citizen to, within the confines of the law, be different.

Throughout the existence of the Committee, I have often said that
while the occurrence of the events which gave rise to the investiga-
tion were unfortunate and are, in many instances, embarrassing to
our country and some of its agencies, public disclosure was necessary
in order to clear the air so that the agencies could devote their full
attention to properly carrying out their important duties. I feel the
Committee as a whole shares this view and has attempted to enhance
the performance of the functions of the agencies by making specific
recommendations which, when implemented and coupled with the
establishment of an effective oversight committee, will guarantee
that our country will not be subverted, nor subvert its ideals in the
name of national security or other improperly perceived threats. It is
my sincere hope that our citizens will view this Report as one of the
many expressions of freedom we will make this year and that it will
rekindle in each of us the belief that perhaps our greatest strength lies
in our ability to deal frankly, openly, and honestly with the problems
of our government.

Robert Morgan.

INTRODUCTION TO SEPARATE VIEWS OF SENATORS
JOHN TOWER, HOWARD H. BAKER, JR., AND BARRY
M. GOLDWATER

Our mutual concern that certain remedial measures proposed by
this Committee threaten to impose undue restrictions upon vital and
legitimate intelligence fimctions prevents us, in varying degrees, from
rendering an unqualified endoi-sement to this Committee's findings and
recommendations in their entirety. We also perceive a need to empha-
size areas of common agreement such as our unanimous endorsement
of intelligence reforms heretofore outlined by the President.

Therefore, we have elected to articulate our common concerns and
observations, as viewed from our individual perspectives, in separate
views which follow.

John Tower, Vice CTiairman.

Howard H. Baker, Jr.

Barry M. Goldwater.

(867)

SEPAKATE VIEWS OF SENATOR JOHN G. TOWER,
VICE CHAIRMAN

When the Senate mandated this Committee to conduct an investiga-
tion and study of activities of our Nation ^s intelligence community, it
recognized the need for congi-essional participation in decisions which
impact virtually every aspect of American life. The gravamen of our
charge was to examine the Nation's intelligence needs and the per-
formance of agencies charged with intelligence responsibilities, and to
make such assessments and recommendations as in our judgment are
necessary to maintain the delicate balance between individual liberties
and national security. I do not believe the Conunittee's reports and
accompanying staff studies comply fully with the charge to maintain
that balance. The Committee's recommendations make significant
departures from an overriding lesson of the American experience —
the right of American citizens to be free is inextricably bound to their
right to be secure.

I do not question the existence of intelligence excesses — the abuses
of power, both foreign and domestic, are well documented in the Com-
mittee's report.

Nor do I question the need for expanded legislative, executive, and
judicial involvement in intelligence policy and practices — ^the "uncer-
tainties as to the authority of United States intelligence and related
agencies" were explicitly recognized by Senate Resolution 21.

Nevertheless, I question, and take exception to, the Committee's
report to the extent that its recommendations are either unsupported
by the factual record or unduly restrict attainment of valid intel-
ligence objectives.

I believe that the 183 separate recommendations proposing new
detailed statutes and reporting procedures not only exceed the number
and scope of documented abuses, but represent over-reaction. If
adopted in their totality, they would unnecessarilj'^ limit the effective-
ness of the Nation's intelligence community.

In the area of foreign intelligence, the Committee was specifically
mandated to prevent ". . . disclosure, outside the Select Committee, of
any information which would adversely affect the intelligence activi-
ties ... of the Federal Government." In his separate view. Senator
Barry Goldwater clearly points up the damage to our efforts in Latin
America occasioned by release of the "staff report" on covert action
in Chile. I objected to releasing the Chile report and fully support
Senator Goldwater's assessment of the adverse impact of this "ironic"
and ill-advised disclosure.

(369)

68-786 O - 76 - 25

370

Another unfortunate aspect of the Committee's foreign report is
its response to incidents of lack of accountability and control by rec-
ommending the imposition of a layering of Executive Branch reviews
at operational levels and needless bifurcation of the decisionmaking
process. The President's reorganization which centralizes foreign
intelligence operations and provides for constant review and oversight,
is termed "ambiguous." Yet the Committee's recommended statutory
changes would [in addition to duplication and multiplication of
decisions] add little except to insure that the existing functions set
up by the President's program were "explicitly empowered," "re-
affirmed" or provided with "adequate staff." By concentration upon
such details as which cabinet officer should chair the various review
groups or speak for the President, the Committee's approach un-
necessarily restricts Presidential discretion, without enhancing ef-
ficiency, control, or accountability. The President's reorganization
is a thorough, comprehensive response to a long-standing problem. It
should be supported, not pilloried with statutory amendments amount-
ing to little more than alternative management techniques. It is far
more appropriate for the Congress to place primary legislative em-
phasis on establishing a structure for Congressional Oversight which
IS compatible with the Executive reorganization while eliminating the
present proliferation of committees and subcommittee's asserting
jurisdiction over intelligence activities.

Another area in which I am unable to agree with the Committee's
approach is covert action. It would be a mistake to attempt to require
that the Congress receive prior notification of all covert activities.
Senator Howard Baker repeatedly urged the Committee to adopt the
more realistic approach of obligating the Executive to keep the Con-
gress "fully and currently informed". I believe any attempt by the
legislative branch to impose a strict prior notification requirement
upon the Executive's foreign policy initiatives is neither feasible nor
consistent with our constitutionally mandated separation of powers.

On the domestic front the Committee has documented flagrant
abuses. Of particular concern were the political misuses of such
agencies as the Federal Bureau of Investigation and the Internal
Revenue Service. However, while thoroughly probing these repre-
hensible activities and recommending needed changes in accounta-
bility mechanisms, the Committee's "corrective" focus is almost
exclusively on prohibitions or limitations of agency practices. I
hope this approach to remedial action will not be read as broad crit-
icism of the overall performance of the intelligence community or a
minimization of the Committee's own finding that "... a fair assess-
ment must place a major part of the blame upon the failures of senior
executive officials and Congress." In fact, I am persuaded that the
failure of high officials to investigate these abuses or to terminate
them when they learned of them was almost as reprehensible as the
abuses themselves.

371

A further objectionable aspect of the Committee's approach is the
scope of the proposed limitations on the use of electronic surveillance
and informants as investigative techniques. With respect to electronic
surveillance of Americans suspected of intelligence activities inimical
to the national interest, the Committee would limit authority for such
probes to violations of specific criminal statutes. This proposal fails
to address the real problem of utilizing electronic surveillance against
myi'iad forms of espionage. A majority of the Committee recom-
mended this narrow standard while acknowledging that existing
statutes offer inadequate coverage of "modern forms of espionage."
The Committee took no testimony on revision of the espionage laws
and simply proposed that another committee "explore the necessity
for amendments." To prohibit electronic surveillance in these cases
pending such revision is to sanction an unnecessary risk to the national
security. In adopting this position the Committee not only ignores the
fact that appellate courts in two federal circuits have upheld the
Executive's inherent authority to conduct such surveillance, but also
fails to endorse the Attorney General's comprehensive proposal to
remedy objection to current practices. The proposed safeguards, which
include requirements for the Attorney General's certification of hostile
foreign intelligence involvement and issuance of a judicial warrant
as a condition precedent to electronic surveillance, represent a signif-
icant expansion of civil liberties protections. The proposal enjoys
bi-partisan support in Congress and I join those members urging
prompt enactment.

I am also opposed to the methods and means proposed by the Com-
mittee to regulate the use of informants. Informants have been in the
past and will remain in the future a vital tool of law enforcement. To
adopt the Committee's position and impose stringent, mechanical time
limits on the use of informants — particularly regarding their use
against terrorist or hostile foreign intelligence activities in the United
States — would be to place our faith in standards which are not only
illusory, but unworkable.

In its overly broad approach to eliminating intelligence abuses, the
Committee report urges departure from the Congress' role as a partner
in national security policy and comes dangerously close to being a
blueprint for authorizing Congressional management of the day-to-
day affairs of the intelligence community. Whether this management
is attempted through prior notification of a shopping list of prohibi-
tive statutes and regulations, it is a task for which the legislative
branch of government is ill-suited. I believe the adverse impact which
would be occasioned by enactment of all the Committee recommenda-
tions would be substantial.

Substantial segments of the Committee's work product will assist
this Congress in proceeding wnth the task of insuring the conduct of
necessary intelligence activities in a manner consistent with our obli-
gation to safeguard the rights of American citizens. However, we must
now step back from the klieg lights and abuse-dominated atmosphere,
and balance our findings and recommendations with a recognition that
our intelligence agencies and the men and women who serve therein
have been and will always be essential to the existence of our nation.

372

This Committee was asked to provide a constitutionally acceptable
framework for Congress to assist in that mission. We were not man-
dated to render our intelligence systems so constrained as to be fit for
employment only in an ideal world.

In addition to the above remarks I generally endorse the positions
set forth in Senator Baker's individual views. I specifically endorse :

His views stating the need for legislation making it a
criminal offense to publish the name of a United States intel-
ligence officer stationed abroad under cover.

His position that there must be a system of greater account-
ability by our intelligence operations to the United States
Congress and the American people.

His concern that the Congress exercise caution to insure
that a proper predicate exists before any recommendations
for permanent reforms are enacted into law.

His view that there be careful study before endorsing the
Committee's far reaching recommendations calling for an
alteration of the intelligence community structure. I also
support the individual views of Senator Goldwater.

Further, I specifically endorse :

His assessment that only a small segment of the American
public has ever doubted the integrity of our Nation's intelli-
gence agencies.

His opinion that an intelligence system, however secret,
does not place undue strain on our nation's constitutional
government.

His excellent statement concerning covert action as an
essential tool of the President's foreign policy arsenal.

His opposition to the publication of an annual aggregate
figure for United States intelligence and his reasons therefor.

His views and comments on the Committee's recommenda-
tions regard the National Security Council and the Office of
the President. Specifically, comments number 12, 13 and 14.

His views challenging the proposed limitations concerning
the recruitment of foreigners by the Central Intelligence
Agency.

His views and general comments concerning the right of
every American, including academics, clergymen, business-
men and others, to cooperate with his government in its law-
ful pursuits.

For the reasons stated above, I regret that I am unable to sign the
final report of the Select Committee to Study Governmental Opera-
tions With Respect to Intelligence Activities.

John G. Towee,

Vice Chairman.

SEPARATE VIEWS OF SENATOR HOWARD H. BAKER, JR.

At the close of the Senate Watergate Committee, I felt that there
was a compelling need to conduct a thorough examination of our in-
telligence agencies, particularly the CIA and the FBI. Congress
never had taken a close look at the structure or programs of either
the CIA or the FBI, since their inception in 1947 and 1924, respec-
tively.^

Moreover, there never had been a congressional review of the
intelligence community as a whole. Therefore, I felt strongly that
this Committee's investigation was necessary. Its time had come. Like
the Watergate investigation, however, for me it was not a pleasant
assigmnent. I say that because our investigation uncovered many
actions by agents of the FBI and of the CIA that I would previously
have not thought possible (e.^., crude FBI letters to break up mar-
riages or cause strife between Black groups and the CIA assassination
plots) in our excellent intelligence and law enforcement institutions.
Despite these unsavory actions, however, I do not view either the FBI
or CIA as evil or even basically bad. Both agencies have a long and
distinguished record of excellent service to our government. With the
exception of the worst of the abuses, the agents involved truly believed
they were acting in the best interest of the country. Nevertheless, the
abuses uncovered can not be condoned and should have been investi-
gated long ago.

I am hopeful, now that all these abuses have been fully aired to the
American people through the Committee's Hearings and Report, that
this investigation will have had a cathartic effect; that the FBI and
CIA will now be able to grow rather than decline. Such growth with a
healthy respect for the rule of law should be our goal ; a goal which
I am confident can be attained. It is important for the future of this
country that the FBI and CIA not be cast as destroyers of our con-
stitutional rights but rather as protectors of those rights. With the
abuses behind us this can be accomplished.

Long-Term Improvement of Intelligence Community

On balance, I think the Committee carried out its task responsibly
and thoroughly. The Committee's report on both the Foreign and
Domestic areas are the result of extensive study and deliberation, as
well as bipartisan cooperation in its drafting. The Report identifies
many of the problems in the intelligence field and contains positive sug-
gestions for reform. I support many of the proposed reforms, while
differing, at times, with the means we should adopt to attain those
reforms. In all candor, however, one must recognize that an investiga-
tion such as this one, of necessity, will cause some short-term damage
to our intelligence apparatus. A responsible inquiry, as this has been,
will in the long run result in a stronger and more efficient intelligence
community. As my colleague Senator Morgan recently noted at a Com-
mittee meeting, such short-term injury will be outweighed by long-
term benefits gained from the re -structuring of the intelligence com-

^Upon the expiration of the Watergate (Committee in September 1974, I had
the privilege to consponsor with Senator Weicker, S. 4019, which would have
created a joint committee on Congress to oversee all intelligence activities.

(373)

374

munity with more efficient utilization of our intelligence resources.
Former Director William Colby captured this sentiment recently
in a New York Times article :

Intelligence has traditionally existed in a shadowy field
outside the law. This year's excitement has made clear that
the rule of law applies to all parts of the American Govern-
ment, including intelligence. In fact, this will strengthen
American intelligence. Its secrets will be understood to be
necessary ones for the protection of our democracy in tomor-
row's world, not covers for mistake or misdeed. The guide-
lines within which it should and should not operate will be
clarified for those in intelligence and those concerned about
it. Improved supervision will ensure that the intelligence
agencies will remain within the new guidelines.

The American people will understand and support their
intelligence services and press their representatives to give
intelligence and its officers better protection from irrespon-
sible exposure and harassment. The costs of the past year
were high, but they will be exceeded by the value of this
strengthening of what was already the best intelligence serv-
ice in the world.^

The Committee's investigation, as former Director Colby points
out, has probed areas in which reforms are needed not to prevent
abuses, but to better protect and strengthen the intelligence services.
For example, it is now clear that legislation is needed to make it a
criminal offense to publish the name of a United States intelligence
officer stationed abroad.^ Moreover, the Committee's investigation
convinced me that the State Department should revise its publication
of lists from which intelligence officers overseas predictably and often
easily can be identified.

Yet we have not been able, in a year's time, to examine carefully all
facets of the United States' incredibly important and complex intel-
ligence community.* We have established that in some areas problems
exist which need intensive long-term study. Often these most im-
portant and complex problems are not ones which lend themselves to
quick or easy solutions. As Ambassador Helms noted in his testimony
during the Committee's public hearings :

... I would certainly agree that in view of the statements
made by all of you distinguished gentlemen, that some result
from this has got to bring about a system of accountability
that is going to be satisfactory to the U.S. Congress and to
the American people.

^ New York Times, Jan. 26, 1976.

" I intend to propose an amendment to S. 400 to make it a criminal offense to
publisli the name of a United States intelligence officer who is operating in a
cover capacity overseas.

■■ For many months, the Committee thoroughly and exhaustively investigated
the so-called "assassination plots" which culminated with the filing of our report
on November 18, 1975. This investigation was vitally important in order to clear
the air and set the record straight. And, it was instructive as to how "sensitive"
operations are conducted within our intelligence structure. But, it neces-
sarily shortened the time available to the Committee to investigate the intelli-
gence community as a whole.

375

Now, exactly how you work out that accountability in a
secret intelligence organization, I think, is obviously going to
take a good deal of thought and a good deal of work and I
do not have any easy ready answer to it because I assure you
it is not an easy answer. In other words, there is no quick fix.
(Hearings, Vol. I, 9/17/75, p. 124).

Thorough Study Necessary in Several Areas

The areas which concern me the most are those on which we as a Com-
mittee have been able to spend only a limited amount of time,^ i.e.,
espionage, counterintelligence, covert action, use of informants, and
electronic surveillance. It is in these areas that I am concerned that
the Committee be extremely careful to ensure that the proper thorough
investigatory predicate exist before any permanent reform recom-
mendations be enacted into law.

Our investigation, however, has provided a solid base of evidence
from which a permanent oversight committee can and should launch
a lengthy and thorough inquiry into the best way to achieve permanent
restructuring in these particularly sensitive areas. It is my view that
such a study is necessary before I am able to endorse some of the Com-
mittee's recommendations which suggest a far reaching alteration of
the structure of some of the most important facets of our intelligence
system.

Therefore, while I support many of the Committee's major recom-
mendations, I find myself unable to agree with all the Committee's
findings and recommendations in both the foreign and domestic areas.
Nor am I able to endorse every inference, suggestion, or nuance con-
tained in the findings and supporting individual reports which to-
gether total in the thousands of pages. I do, however, fully support
all of the factual revelations which our report contains concerning
the many abuses in the intelligence field. It is important to disclose
to the American people all of the instances of wrongdoing we dis-
covered. With such full disclosure, it is my hope that we can turn the
corner and devote our attention in the future to improving our intelli-
gence gathering capability. We must have ref onii, bat we must accom-
plish it by improving, not limiting, our intelligence productivity. I
am confident this can be done.

Cumulative Effect or Recommendations

With regard to the totality of the Committee's recommendations, I
am afraid that the cumulative effect of the numerous restrictions
which the report proposes to place on our intelligence community may
be damaging to our intelligence eifort. I am troubled by the fact
that some of the Committee's recommendations dip too deeply into
many of the operational areas of our intelligence agencies. To do so,
I am afraid, will cause practical problems. The totality of the proposals
may decrease instead of increase our intelligence product. And, there

^ The Committee's mandate from Congress dictated that the abuses at home
and abroad be given detailed attention. And, there are only a finite number of
important problems which can be examined and answered conclusively in a
year's time.

376

may be serious ramifications of some proposals which will, I fear,
spawn problems which are as yet unknown. I am unconvinced that the
uncertain world of intelligence can be regulated with the use of rigid
or inflexible standards.

Specifically, I am not convinced that the answers to all our problems
are found by establishing myriad Executive Branch boards, commit-
tees, and subcommittees to manage the day-to-day operations of the
intelligence community. We must take care to avoid creating a Rube
Goldberg maze of review procedures which might result in a bureau-
cratic morass which would further increase the burden on our
already heavily overburdened tax dollar.

We should not over-reform in response to the abuses uncovered.
This is not to say that we do not need new controls, because we do.
But, it is to say that the controls we impose should be well reasoned
and add to, not detract from the efficiency of our intelligence gather-
ering system.

Increased Executive Branch controls are only one-half of the solu-
tion. Congress for too long has neglected its role in monitoring tlie
intelligence community. That role should be significant but not all-
encompassing. Congress has a great many powers which in the past
it has not exercised. We must now do our share but, at the same time,
we must be careful, in reacting to the abuses uncovered, that we not
swing the pendulum back too far in the direction of Congress. Both
wisdom and the constitutional doctrine of separation of powers dictate
that Congress not place itself in the position of trying to manage
and control the day-to-day business of the intelligence operations of
the Executive Branch. Vigorous oversight is needed, but it should be
carefully structured in a new powerful oversight committee. I be-
lieve this can be achieved if we work together to attain it.

In moving toward improving our intelligence capability, we must
also streamline it. It is in this approach that my thoughts are some-
what conceptually different from the approach the Committee is rec-
ommending. I am concerned that we not overreact to the past by
creating a plethora of rigid "thou shalt not" statutes, which, while
prohibiting the specific hypothetical abuse postured in the Report,
cast a wide net which will catch and eliminate many valuable intel-
ligence programs as well.

The Committee Report recommends the passage of a large number
of new statutes to define the functions of and further regulate the
intelligence community. I am troubled by how much detail should be
used in spelling out the functions and limitations of our intelligence
agencies for all the world to see. Do we want to outline for our adver-
saries just how far our intelligence agencies can go? Do we want to
define publicly down to the last detail what they can and cannot do ?
I am not sure we do. I rather think the answer is found in establishing
carefully structured charter? for the intelligence agencies with ac-
countability and responsibility in the Executive Branch and vigilant
oversight within the Legislative Branch.

377

President's Program

It is my view that we need to take both a moderate and efficient course
in reforming our intelligence gathering system. In that regard, I think
President Ford's recent restructuring of the intelligence community
was an extraordinarily good response to the problems of the past. The
President's program effected a massive reorganization of our entire
intelligence community. It was a massive reaction to a massive prob-
lem which did not lend itself to easy solution. I am pleased that many
of the Committee's recommendations for intelligence reform mirror
the President's program in format. Centralizing the command and
control of the intelligence community, as the President's program does,
is the best way to ensure total accountability and yet not compromise
our intelligence gathering capability.

Therefore, I endorse the basic framework of intelligence reform,
outlined by President Ford, as embodying: (1) a single permanent
oversight committee in Congress, with strong and aggressive staff, to
oversee the intelligence community;'' (2) the Committee on Foreign
Intelligence to manage the day-to-day operation of the intelligence
community; (3) the re-constituted Operations Advisory Group to re-
view and pass upon all significant covert actions projects;^ and (4)
the Intelligence Oversight Board to monitor any possible abuses in the
future, coordinating the activities and repoi-ts of what I am confident
will be the considerably strengthened offices of General Coimsel and
Inspector General. This framework will accomplish the accountability
and responsibility we seek in the intelligence community with both
thoroughness and efficiency. Within this framework, Attorney General
Levi's new guidelines in the Domestic Security area will drastically
alter this previously sparsely supervised field. These guidelines will
centralize responsibility for domestic intelligence within the Depart-
ment of Justice and will preclude abuses such as COINTELPRO from
ever reoccurring.*

Specific Reforms

Within this basic framework, we must look to how we are going to
devise a system that can both effectively oversee the intelligence com-
munity and yet not impose strictures which will eliminate its produc-
tivity. It is to this end that I suggest we move in the following
direction :

'My original support for a single joint committee of Congress has evolved,
somewhat as affected by the events of this past year's House Intelligence Com-
mittee investigation, to support for a single Senate committee. However, I also
favor the mandate of the new committee including, as does the present S. 400, a
charge to consider the future option of merging into a permanent joint committee
upon consultation with and action by the House of Representatives. The moment
for meaningful reform is now and we must not lose it by waiting for a joint com-
mittee to be approved by both Houses of Congress.

'' I think a rule of reason should apply here. All significant projects certainly
should receive careful attention from the Group. On the other hand, I would not
require a formal meeting with a written record to authorize the payment of 2
sources in X country at $50 per month to be changed to the payment of 3 sources
in X country at $40 per month.

* I applaud the detailed guidelines issued by the Attorney General to reform the
Department's entire domestic intelligence program I think he is moving in the
right direction by requiring the FBI to meet a specific and stringent standard for
opening an intelligence investigation, i.e., the Terry v. Ohio standard.

378

(1) Demand responsibility and. accountability from the Executive
Branch by requiring all major policy decisions and all major intelli-
gence action decisions be in writing, and therefore retrievable.^

(2) I recommend, as I have previously, that Congress enact a varia-
tion of S. 400, which I had the privilege to cosponsor. S, 400 is the
Government Operations Coimnittee bill which would create a perma-
nent oversight committee to review the intelligence community.
The existing Congressional oversight system has provided infrequent
and inelfectual review. And, many of the abuses revealed might have
been prevented had Congress been doing its job. The jurisdiction of the
new committee should include both the CIA and the FBI, and the com-
mittee should be required to review and report periodically to the
Senate on all aspects of the intelligence community's operations. In
particular, I recommend that the Committee give specific careful
attention to how we might improve as well as control our intelligence
capability in the counterintelligence and espionage areas.

(3) Simultaneously w4th the creation of a permanent oversight
committee, Congress should amend the Hughes-Ryan Amendment
to the 1974 Foreign Assistance Act, § 662, which now requires the
intelligence community to brief 6 committees of the Congress on
each and every major intelligence action. Former Director Colby
strikes a responsive chord when he complains that the present system
will lead to leaking of vital intelligence information. We must put a
stop to this. This can be done by allowing the intelligence community
to report only to a single secure committee,

(4) Concomitantly with improved oversight, we in Congress must
adopt stringent procedures to prevent leaks of intelligence informa-
tion. In this regard, I recommend we create a regular remedy to pre-
vent the extraordinary remedy of a single member of Congress dis-
closing the existence of a covert intelligence operation with which he
does not agree. Such a remedy could take the form of an appeal proce-
dure within the Congress so that a single member, not satisfied with a
Committee's determination that a particular program is in the na-
tional interest, will be provided with an avenue of relief. This proce-
dure, however, must be coupled with stringent penalties for any mem-
ber of Congress who disregards it and discloses classified information
anyway. I intend to offer an amendment to institute such a remedy
when S. 400 reaches the Senate floor.^°

(5) The positions of General Counsel and Inspector General in the
intelligence agencies should be elevated in importance and given in-
creased powers. I feel that it is extraordinarily important that these

" Never again should we be faced with the dilemma we faced in the assassina-
tion investigation. We climbed the ladder of authority only to reach a point
where there were no more written rungs. Responsibility ceased ; accountability
ceased ; and. in the end, we could not say whether some of the most drastic
actions our intelligence community or certain components of it had ever taken
against a foreign country or foreign leader were approved of or even known
of by the President who was in office at the time.

^^ I would favor a procedure, within the Congress, which would in effect create
an avenue of appeal for a member dissatisfied with a Committee determination
on a classification issue. Perhaps an appeal committee made up of the Majority
and Minority leaders and other appointed members would be appropriate. Leaving
the meclianics aside, however, I believe the concept is important and can be
implemented.

379

positions, particularly that of General Counsel, be upgraded. For that
reason, I think that it is a good idea to have the General Counsel, to
both the FBI and the CIA, subject to Senate confirmation. This adds
another check and balance which will result in an overall improvement
of the system.^- Additionally, I feel that it is equally important to pro-
vide both the General Counsel and Inspector General with unrestricted
access to all raw files within their respective agencies.^^* This was not
always done in the past and will be a healthy addition to the intra-
agency system of checks and balances.

(6) I am in favor of making public the aggregate figure for the
budget of the entire intelligence community. I believe the people of
the United States have the right to know that figure.^^ The citizens of
this country have a right to know how much of their money we are
spending on intelligence production. But, they also want to get their
money's worth out of that tax dollar. They do not want to spend that
money for intelligence production which is going to be handicapped ;
which is going to produce poor or inaccurate intelligence. Therefore, I
am opposed to any further specific delineation of the intelligence com-
munity budget. Specifically, I am opposed to the publication of the
CIA's budget or the NSA's budget. It seems to me we are dealing with
the world of the unknown in predicting what a foreign intelligence
service can or cannot extrapolate from these budget figures. We re-
ceived no testimony which guaranteed that, if Congress were to publish
the budget figure for the CIA itself, a hostile intelligence organization
could not extrapolate from that figure and determine much more ac-
curately what the CIA capabilities are in any number of vital areas.
Without such testimony, I am not prepared to go that far. The public's
right to know must be balanced with the efficiency and integrity of
our intelligence operations. I think we can accomplish both by taking
the middle road ; publishing the aggi'egate figure for the entire intelli-
gence community. It is this proposal that I have voted in favor of.

There are a number of other specific findings and recommendations,
supported by a majority of the Committee, which require additional
brief comment.

^ I differ with the Committee in that I would not have the General Counsel and
Inspector General file reports and/or complaints concerning possible abuses with
the Attorney General. Rather, I think the more appropriate interface in a new
oversight system would be for both to take complaints to the Intelligence Over-
sight Board and the new congressional oversight committee. The Attorney Gen-
eral would remain the recipient of any and all complaints regarding possible
violations of law.

^' I sui)port the Committee's recommendation that agency employees report
any irregularities directly to the Inspector General without going through the
chain of command, i.e. through the particular division chief involved.

" I do not feel that, despite my personal view that the aggregate budget
figure should be disclosed to the public, only six to eleven members of the Senate
have the right to release unilaterally the actual budget figures. A majority of
both Houses of Congress should be necessary to release such information. And,
while I would cast my vote in favor of the release of the aggregate budget figure,
I am troubled that there may be no such vote. I am not sure the "right" result,
justifies the "wrong" procedures, because the next time the wrong procedure
can just as easily be utilized to reach the wrong result.

380

Foreign Intelligence Recommendations
(1) covert action

I believe the covert action capability of our intelligence community
is vital to the United States. We must maintain our strength
in this capacity, but, we must also control it. The key and difficult
question, of course, is how we can control it without destroying or
damaging its effectiveness. In my view, the best way to both maintain
strength and yet insure accountability is to have strict control of the
covert action progi'ams through the Operations Advisory Group, with
parallel control and supervision by the proposed permanent congres-
sional oversight committee.

Covert action is a complex United States intelligence capability.
Covert action provides the United States with the ability to react to
changing situations. It is built up over a long period of time. Potential
assets are painstakingly recruited all over the world. Having reviewed
the history of covert action since its inception, I do not look upon the
intelligence agents involved in covert action as a modern day group of
bandits who travel the world murdering and kidnapping people.
Rather, a vast majority of covert action programs are not only valu-
able but well thought approaches through media placement and agents
of influence which produce positive results.

Covert action programs cannot be mounted instantly upon a crisis. It
is naive to think that our intelligence community will be able to ad-
dress a crisis without working years in advance to establish sources
in the various countries in which a crisis might occur. These sources
provide what is referred to as the "infrastructure," which must neces-
sarily be in place throughout the world so that the United States can
^predict and "prevent actions abroad which are inimical to our national
interest.^* I believe that, were we to completely abolish covert action or
attempt to remove it from the CIA and place it in a new separate
agency, these sources would dry up ; and, when a crisis did come, our
intelligence community would not be able to meet it effectively. Not
only do I question the effectiveness a new separate agency for covert
action would have, but such a re-structuring would unnecessarily in-
crease our already burgeoning bureaucracy.

I think that it is important to realize that covert action cannot be
conducted in public. We cannot take a Gallup Poll to determine
whether we should secretly aid the democratic forces in a particular
country. I do not defend some of the covert action which has taken place
in Chile. But, the fact remains that we cannot discuss publicly the
many successes, both major and minor, which the United States has
achieved through the careful use of covert action programs. Many in-
dividuals occupy positions of power in the world today as a direct re-
sult of aid given through a covert action program. Unfortunately, we
cannot boast of or even mention these significant achievements. In
short, we cannot approach covert action from a public relations point
of view. We should not forget that we must deal with the world as
it is today — with our adversaries employing their equivalent of covert

"For example, testimony before the Committee established that the CIA's
failure to act more positively in Portugal was a direct result of an absence of suf-
ficient clandestine infrastructure. William E. Colby testimony, 10/23/75 ; William
Nelson testimony, 11/7/75.

381

action. We must either say that the intelligence community should
have the power to address world problems in this manner, under the
strict control of the President and Congress, or we should take away
that power completley. I cannot subscribe to the latter.

Finally, the issue remains as to how we can best control covert ac-
tion through statutory reform. First, I believe the Executive Branch
can and should carefully review each significant covert action pro-
posal. This will be accomplished through the Operations Advisory
Group under the program outlined by President Ford.

Second, Congress can control covert action by passing legislation
requiring that the new oversight committee be kept "fully and cur-
rently informed." This, I believe, is the appropriate statutory language
to apply to covert action . I do not agree with the Committee's recom-
mendation that "prior notice" be given to Congress for each and every
covert action project. As a matter of practice, the important and signif-
cant covert action programs will be discussed with the oversight com-
mittee in a form of partnership ; and this is the way it should be. "Fully
and currently informed" is language which has served us well in the
atomic energy area. It has an already existing body of precedent that
may be used as a guide for the future. It is flexible, like the Constitution,
and provides a strong, broad base to work from. I am not prepared to
say, however, that in the years ahead there may not be some vitally sen-
sitive situation of which Congress and the oversight committee should
not be told in advance. While the likelihood of this occurring is not
great, we should never foreclose with rigid statutory language possi-
bilities which cannot be foreseen today. Our statutory language must
be flexible enough to encompass a variety of problems and potential
problems, yet rigid enough to ensure total accountability. "Fully and
currently informed" accomplishes both purposes.

(2) CIA PUBLISHING RESTRICTIONS

In the area of restrictions on the CIA's publishing of various mate-
rials, I am in complete agreement that anything published in the
United States by the CIA, or even sponsored indirectly by the CIA
through a proprietary, front, or any other means, must be identified
as coming from the CIA. Publications overseas are another matter.
We should allow the Agency the flexibility, as we have in our recom-
mendations, to publish whatever they want to overseas and to publish
under whatever subterfuge is necessary and thought advisable.^^

Domestic Intelligence Recommendations

While the Committee's Domestic Intelligence Report represents an
excellent discussion of the problems attendant to that field of intel-
ligence, I feel several of the recommendations may present practical
problems. Although our objective of achieving domestic intelligence
reforms is the same, I differ with the majority of the Committee in
how^ best to approach the achievement of this goal.

^^ I do not view the "domestic fallout" as a real problem. To be sure, some
publications by the CIA abroad will find their way back to the United States.
However, to try to impose severe restrictions to prevent such fallout would cause
unnecessary damage to the CIA's valid production of propaganda and other
publications abroad.

382

(1) INVESTIGATIVE STANDAKDS

Scope of Domestic Security Investigations

At the outset, I note that most of my concern with the standards
for investigations in the domestic security area stem from the fact
that "domestic security" is defined by the Committee to include both
the "terrorism" and "espionage" areas of investigation. Severe limita-
tions, proscribing the investigation of student groups, are more readily
acceptable when they do not also apply to terrorist groups and foreign
and domestic agents involved in espionage against the United States.
To include these disparate elements within the same "domestic secu-
rity" rubric, it seems to me, will create unnecessary problems when it
comes to the practical application of the theoretical principles enun-
ciated in the Committee's recommendations.

(a) Preventive intelligence investigations — The Committee's rec-
ommendations limit the FBI's permissible investigations in these
critical areas of terrorism and espionage under standards for
what the Committee delineates as preventive intelligence investiga-
tions. Under these standards the FBI can only investigate where :

it has a specific allegation or specific or substantiated informa-
tion that (an) American or foreigner will soon engage in
terrorist activity or hostile foreign intelligence activity
[emphasis added.] ^®

In am not convinced that this is the best way to approach the real
problem of limiting domestic intelligence investigations. Wliile in
theoretical terms the standards of the recommendations may seem
appropriate, I fear the inherent practical consequences of their
application to the cold, real world of terrorism and espionage. The
establishment of an imminency requirement by not permitting a7iy
investigation by the FBI unless the allegation or information received
establishes that the person or group will "soon engage" in certain
activity might prohibit any number of legitimate and necessary FBI
investigations. For example, an allegation of an assassination attempt
on a public figure at an unspecified date in the future could be pre-
cluded from investigation; or, vague information received by the
FBI that there was a plan to obtain some nuclear components, but no
indication of when or how, could also be prohibited from investigation.
Surely, matters such as these should be the valid subjects of investiga-
tion— no matter how vague or piecemeal the information is.^''

(b) Time limits — The Committee's recommendations would limit
any preliminary FBI investigation of an allegation of wrongdoing
in the Domestic Security area to 30 days from the receipt of the infor-
mation, unless the Attorney General "finds'' ^^ that the investigation
need be extended for an additional 60 days. The FBI investigation may
continue beyond 90 days only if the investigatory efforts establish
"reasonable suspicion" that the person or group "will soon engage in"

^^ Committee Domestic Report, p. 320.

" My experience dictates that many investigations are begun with very limited
or sketchy information. FBI agents and investigators in general are not always
or even often immediately presented with information which constitutes probable
cause of a crime. Probable cause is often established only through painstaking
investigation ; putting bits and pieces together. I think we must take this into
consideration when formulating threshold investigatory standards.

^ It is unclear what standard is to be the predicate for any such finding.

383

terrorist or foreign espionage activities.^^ And, even a full preventive
intelligence investigation is not permitted to continue beyond "one
year," except upon a finding by the Attorney General of "compelling
circumstances." ^°

While well-intentioned, I am not persuaded that these are workable
standards. I just don't think we can categorize all investigations into
these rigid time frames. Investigations just are not conducted that way.
Thirty days, for example, is probably not even enough time to obtain a
license check return from some states. Moreover, limiting an investiga-
tion to one year may not be realistic when it applies to investigating a
violence prone group like the SLA or a Soviet Union espionage ring.
These investigations are not easily or quickly accomplished. I do not
believe that the creation of artificial time limits is the best way to ap-
pi'oach the real concern of the Committee, which is that we establish
institutional controls on domestic security investigations. I would
prefer approaching the control and accountability problems by pro-
viding periodic Department of Justice reviews of all categories of
domestic intelligence investigations; not by imposing specific time
limits upon all investigations.

(2) INFORMANTS

The Committee recommends broad new restrictions on the use of
informants by the FBI. While ovir investigation has established that,
in the domestic intelligence field, there have been numerous abuses
in the use of informants, I do not think that the proposed recommen--
dations are the best vehicles to achieve the needed reform. I cannot
subscribe to recommendaitons limiting the use of informants to
stringent time standards.^^ To limit use of informants to periods of "90
days" ^^ unless the Attorney General finds "probable cause" that an
American will "soon" engage in terrorist or hostile foreign intelligence
activity is impractical and unworkable. When groups such as the SLA
attempt to rob, kill, or blow up buildings, it is clearly necessary to
cultivate informants who may provide some advance w^arning. I am
concerned that the Committee's recommendations will preclude this
vital function of the FBI. Moreover, specific time limits, it seems to
me, will prove to be impractical. For example, at the end of the pre-
scribed time, with not enough evidence for arrests, will informant X
be terminated and replaced by informant Y who starts anew, or are
informants thereafter banned from penetrating the particular group —
even if violence prone or involved in espionage ?

It should be remembered that informants are the single most im-
portant tool of the FBI, and local police for that matter, in the fight
against terrorism and espionage, as well as organized crime, nar-
cotics, and even the ever pervasive street crimes of murder, rape, and
robbery. Indeed, they are the very lifeblood of such investigations.
Moreover, informants are involved in a wide spectrum of activities

^' Committee Domestic Report, pp. 320-323.

^^ Compelling circumstances is not further defined, so it is unclear what stand-
ards should be applied in making such a determination.

"^ My concerns here parallel those I have with respect to the general investi-
gatory standards recommended.

^The Committee allows an additional 60 days if the Attorney General finds
"compelling circumstances."

384

from attending public meetings to actual penetration attempts. I am
concerned that theoretical and abstract restrictions designed only for
"domestic intelligence", if enacted, would soon limit our legitimate
law enforcement efforts in many other fields as well. People and actions
do not always fit nicely in neat little boxes labeled "domestic intelli-
gence," particularly in the terrorist and espionage areas to which the
proposed restrictions on informants would apply. Congress should
carefully consider the scope and ramifications of any recommendations
with respect to informants.

It is my view that the better way to approach the problems en-
countered in the use of informants is to put their use imder strict
supervision of the Department of Justice. Creation of a special staff or
committee for this purpose, centralized in the Department of Justice,
would provide eft'ective controls over the potential abuses in the use
of informants, yet not hamstring their legitimate and valuable use.-'

(3) ELECTRONIC SURVEILLANCE

I wholeheartedly support S. 3197, the new electronic surveillance
bill sent to the Congress by President Ford.^* It needs consolidated bi-
partisan support because it represents a significant advance from
existing practice. For the first time, it will bring all governmental
electronic surveillance under the scrutiny of judicial warrant pro-
cedures. I commend the efforts of President Ford in taking this ex-
traordinary step forward in the regulation of electronic surveillance.

In supporting S. 3197, I do not regard the existing wiretaps pres-
ently maintained under the direction and control of Attorney General
Levi as being in violation of the Constitution. The present practice
of electronic surveillance authorization and implementation rests upon
a long-standing body of precedent which provides a firm constitutional
base for their continued maintenance. The President's approach is to
move from the present practice toward better practices and procedures
for authorization. The abuses of electronic surveillance of the past
clearly dictate a need for a system of judicial warrant approval. Under
the President's proposal the American people will be able to rest easy —
assured that electronic surveillance will be employed carefully, yet
when needed to combat serious criminal and espionage activity.

I differ with a majority of the Committee insofar as they recommend
that before a judge can issue a warrant for electronic surveillance he
must find more than that an American is a conscious agent of a foreign
power engaged in clandestine intelligence activities. The Committee
would require that probable cause be established for "criminal ac-
tivity" before a wiretap can be authorized. I think this departure
from the S. 3197 standard would be a dangerous one because it would
eliminate certain areas of espionage, particularly industrial espionage,

^ Attorney General Tjevi is in the process of establishing guidelines to regu-
late the use of informants. I recommend, however, that these guidelines be en-
forced through some appropriate form of Department of Justice review of the
FBI's use of informants.

^ The bill enjoyed a bipartisan co-sponsorship of Senators.

385

from electronic surveillance. Many areas of espionage do not involve
clearly criminal activity. Indeed, forms of espionage may not con-
stitute a criminal offense, but should be the valid target of an espionage
investigation. For example, a situation such as American oil company
executives providing unclassified but important oil reserve informa-
tion to a Soviet agent might not be a permissible subject of electronic
surveillance if "criminal activity," rather than hostile foreign intelli-
gence, were the standard.-^ I think the Committee proposed standard
would harm the FBI's espionage efforts and would therefore be a
mistake.

(4) CIVIL REMEDIES STATUTE

I oppose any broad new civil remedies statute in the field of domestic
intelligence as both dangerous and unnecessary. It is dangerous be-
cause it could easily open the flood gates for numerous lawsuits filed
seeking injunctive relief in the courts to thwart legitimate investiga-
tions. It is unnecessary because any substantial actions are already per-
mitted under present Supreme Court decisions, such as Bivens v.
United States^ for violation of constitutional rights. There is simply
no valid reason to carve out a broad new category of lawsuits for those
not only injured by domestic intelligence methods but "threatened with
injuiy." ^^ No such statutory provisions are available for "victims" in
any other specific category of activity. The present avenues of relief
provided by law today are clearly sufficient to address any future
abuses in the domestic intelligence field. I note that we have not had the
benefit of any sworn testimony from the many constitutional and crim-
inal law experts in the country, either pro or con such a proposal. With-
out the benefit of an adequate record and with my concern about the
practical results of such a statute, I cannot support its enactment.

(5) CIVIL DISORDERS

A final recommendation which requires brief comment in the Com-
mittee's proposed standards permitting the FBI to assist "federal,
state, and local officials in connection with a civil disorder." The Com-
mittee's recommendation will not allow any investigation by the F.B.I.,
not even preliminary in nature, unless the Attorney General finds in
writing that "there is a clear and immediate threat of domestic
violence" which will require the use of Federal troops.

My reservation about this recommendation is that I think it deprives
the "Attorney General of the necessary flexibility in dealing with

*^ Those involved in the obtaining of information about our industrial proc-
esses, vital to our national security, for our adversaries should be the legitimate
subject of electronic surveillance, notwithstanding that no criminal statute is
violated. I do not think we can afford to wait for exhaustive reform of our
espionage laws. I note that the section of the proposed S.l dealing with espion-
age reform has presented great difficulty to the drafters. Indeed, drafting espion-
age into a criminal statute presents some of the same overbreadth problems
that the Committee has been concerned with in the domestic intelligence area.

^* For example, would a cause of action exist simply becau,se X notices a federal
agent following him in an automobile, notwithstanding the nature or status of
the particular investigation?

-786 O - 76 - 26

386

these delicate matters (i.e., civil disturbances) and might tend to
exacerbate a possibly explosive situation. If the Attorney General is
not allowed to dispatch FBI agents to the scene of disorders it seems
to me that we deprive him of the very means he needs to make the
extraordinarily important decision as to whether Federal troops are
likely to be used.

I believe the better practice would be to permit preliminary investi-
gation by the FBI of potentially volatile situations so that the Attor-
ney General might make the most reasoned decision possible with
respect to what I consider the drastic step of deploying Federal troops
to quell a civil disorder in one of our cities.

WATERGATE-RELATED INQUIRY

Finally, I wish to address briefly an area of the Committee's
investigation which I pursued for the most part independently. At
the close of the Senate Watergate investigation I filed a report as part
of my individual views -^ which outlined remaining areas of investiga-
tion with respect to the relationships between the Central Intelligence
Agency and the former CIA employees who participated in the Water-
gate break-in."* By virtue of my membership on this Select Committee,
I have been able to pursue a further inquiry into these matters, and
wish to thank the Chairman and the Vice Chairman for the staff
assistance and latitude provided me to pursue this area of investigation.

Many of the concerns raised in the Watergate Committee investiga-
tion have been overtaken by time and events. For example, the reported
references to illegal CIA domestic activities have now been confirmed,
as described in detail in the Committee's Report. The reference to the
CIA maintaining a file on Jack Anderson "^ proved to be part of a
lengthy investigation and physical surveillance of Anderson by the
CIA during a "leak" inquiry. Similarly, the detailing of Howard
Hunt's post-retirement contacts with the CIA has been supplemented
with still more such contacts.^° Since July 1974, we have witnessed a
variety of other disclosures relative to the CIA's domestic activities ;
indeed, the creation of our Senate Select Committee on Intelligence
Activities was due in part to the continuing public concern about these
matters.

Unlike the Watergate Committee investigation of CIA activities,
which largely was terminated because of the refusal of the CIA to turn
over documents,^^ this investigation was conducted in an atmosphere of
cooperation. After some initial difficulties, which the Committee en-

^^ Senate Watergate Committee Final Report, S. Res. 93-981, pp. 1105-1165.

28 rpj^g "Action Required" section of the report, at pages 1150-1157, enumerated
unresolved matters and identified materials not provided to the Watergate
Committee by the CIA.

^ Senate Watergate Committee Final Report, p. 1128.

™ For example this disclosure of personal correspondence (detailing certain
of Hunt's activities in 1971 and 1972) between Hunt and the CIA secretary sta-
tioned in Paris vphom Hunt sought to have reassigned to work for him at the
White House.

^^ By letter of March 7, 1974, former Director Colby informed the Senate Water-
gate Committee that certain items of requested information would not be made
available to that committee. Sucli a withholding of timely information, including
that which was totally exculpatory, unnecessarily focused an aura of suspicion
and guilt.

387

countered in a variety of areas, the cooperation afforded by the CIA
was exemplary. In particular, I especially want to express my appre-
ciation to former Director William Colby and present Director George
Bush for cooperating to the fullest extent in this investigation. I also
want to thank Ambassador Richard Helms and former Counter-
intelligence Chief James Angleton for their patience and extensive
assistance in numerous conferences, in trying to reconstruct the elusive
details of this significant period.

In pursuing this area of inquiry, the Committee staff examined a
great volume of highly sensitive material, much of which contained
speculative matters and a multitude of information of marginal rele-
vance. This information, which had not been made available in large
part to the Separate Watergate Committee, was examined in raw form
and without sanitization deletions. Because of the sensitivity of the
material, it was reviewed on the Central Intelligence Agency premises.
Thus, it was in a spirit of cooperation that this examination was ac-
commodated ; and, this experience indicates that the Congress and the
intelligence community can cooperate in an investigation without in-
curring unauthorized disclosure of sensitive information.^^

At the close of this Committee's examination of the available record,
I wish to state my belief that the sum total of the evidence does not
substantiate a conclusion that the CIA per se was involved in the range
of events and circumstances known as Watergate. ^^ However, there was
considerable evidence that for much of the post-Watergate period the
CIA itself was uncertain of the ramifications of the various involve-
ments, witting or otherwise, between members of the Watergate
burglary team and members or components of the Agency. Indeed,
the CIA was apparently at times as perplexed as Congressional inves-
tigators.^* It should be noted that the Agency undertook an extensive
internal inquiry in an effort to resolve these micertainties.

The investigation of Watergate and the possible relationship of the
Central Intelligence Agency thereto, produced a panoply of puzzle-
ment. "Wliile the available information leaves nagging questions and
contains bits and pieces of intriguing evidence, fairness dictates that
an assessment be rendered on the basis of the present record. An im-
partial evaluation of that record compels the conclusion that the CIA,
as an institution, was not involved in the Watergate break-in.

HowAED H. Baker, Jr.

'^ For example, the staff was given access to the Martinez contact reports (to
which access was refused during the Watergate Committee investigation) in their
entirety. This review was accomplished in secure facilities at the CIA, and no
notes were taken of sensitive information contained in the reports not related
to Hunt or in some other way relevant to the Committee's inquiry. I cite this as
an example of how a Congressional investigation can be thorough and yet not
threaten the integrity of CIA secret documentation, containing names of oflBcers
and other highly classified information.

'^ I am filing with the Committee the detailed results of this investigation in
the form of classified memoranda. These memoranda will be turned over to the
successor permanent oversight committee to be kept in its secure files. No useful
purpose would be served in further publicizing the contents, because much of it
is fragmentary and its sum total reinforces the findings stated herein.

'* For example, a Colby to Helms letter of 28 January, 1974. references seven to
nine communications from Hunt while he was at the WTiite House to Helms'
secretary, with the query : "Can you give us some idea as to what they were
about?"

INDIVIDUAL VIEWS OF SENATOR GOLDWATER

For over a year the Senate Select Committee on Intelligence Activi-
ties has been conducting hearings and taking testimony. Almost six
months of this time was frittered away in an miproductive investiga-
tion into alleged assassinations (see my individual views accompany-
ing the foreign section of this report) .

Thanks to extensive and often sensationalized public hearings, the
deficiencies of our domestic intelligence agencies have now been ex-
posed, labelled, and largely admitted to. In response, the individual
agencies have undertaken substantial reforms and the Administration
itself has piloted corrections by a thoughtful and detailed Executive
Order 11905, 2/18/76.

Not satisfied, however, the Select Committee's Report sets forth a
voluminous and rambling treatise which pillories the nation's domestic
intelligence agencies, fixes individual culpability, ignores agency ef-
forts at reform, and urges the adoption of recommendations and find-
ings unsubstantiated by fact.

The Report sets forth frequent and unfounded criticism of "execu-
tive power." Ignoring both past and present efforts by the Executive
to provide guidance and reform, the Report voices theoretical objection
to the conduct of intelligence activities by the "Chief Executive and
his surrogates." Unhappily, the sweeping dissatisfaction of theore-
ticians and academicians is not reflected in the record of the Select
Committee's proceedings and is almost wholly unsupported by testi-
mony. The pronouncements within the Report deal in a high-handed
manner with matters that received little or no attention by the Com-
mittee and are, consequently, utterly devoid of an adequate record.

The free-wheeling, self-righteous, and frequently moralizing thrust
of the Report therefore assures recommendations which are bottomed
in wish and speculation rather than in fact or testimony. Recommenda-
tions, for example, that civil remedies be expanded to cover parties
alleging "injuries" from domestic intelligence activity; that statutes
be enacted to create a cause of action for those allegedly so aggrieved;
that criminal sanctions be enacted for willful violation of recom-
mended statutes ; and that the Smith and Voorhis Acts be repealed or
amended, are all glibly presented without so much as a shred of evi-
dence having been entered into the record in their support.

Although the Report has flatly assured its readers that "the scope
of our recommendations coincides with the scope of our investigation",
such assurances are clearly hollow when, for instance, the Report af-
firms in preamble to certain recommendations that the President has no
inherent power to conduct a wiretap without a warrant. Repeatedly and
without qualification, the Report reiterates such a proposition, without
referring to the unsettled state of the case law, the views of legal
scholars, or the relative silence of the Supreme Court on the matter.
When, further, the Report counsels restrictions on, say, the use of

(389)

390

informants or the surveillance of foreign intelligence activities, it goes
beyond restrictions already in the Attorney General's Guidelines with
scant attention to the effectiveness of the guidelines or their applica-
tion.

Again and again the Report makes far-reaching recommendations
which are imsubstantiated by the evidence. Thus the Report urges that
the FBI not attempt frustration of hostile foreign intelligence ac-
tivities by "specialized" techniques unless approved by the Attorney
General upon advice of the Secretary of State. What the Report omits,
however, is any showing that the Attorney General or the Secretary of
State is available, capable, or prepared, to undertake such a role.

In similar fashion, the Report's Recommendations are frequently
critical of the Executive Order's determination to repose all domestic
oversight in a Board rather than vest it exclusively or principally
with the Attorney General. The apparent basis for the Report's
preference (and hence its criticism of the Administration's Executive
Order) is the brief and fairly bald conclusion that the Attorney Gen-
eral is the "most appropriate official cliarged with ensuring that the
intelligence agencies of the United States conduct their activities in
accordance with the law." No examination of feasibility, organization,
or jurisdiction, buttresses the Report's conclusion in this respect.

The Report likewise recommends almost wholesale enactment of
legislation to prevent recurrence of abuses and repetition of impro-
prieties in the domestic area. In this respect tlie Report exhibits a
decidedly hasty and almost exclusive preference for statute where
Order, Rule, or Regulation would provide more expeditious, more
particularized, and more flexible remedies. In view of the tentative
and even halting nature of so many of the Committee's conclusions,
the clamor for statutes is premature and ill-advised. To urge the quick
enactment of criminal provisions is even more injudicious, and, in
some cases, verges on the fatuous.

To be precise : the Select Committee has endorsed Recommendation
52, which reads: "All non-consensual electronic surveillance should
be conducted pursuant to warrants issued under authority of Title III
of the Omnibus Crime Control and Safe Streets Act of 1968." At the
same time, however, the Select Committee admits that "industrial
espionage and other modern forms of espionage (are) not presently
covered" by the criminal law, and that "there may be serious deficien-
cies in the Federal Espionage Statute (18 U.S.C. 792 et seq.)." In fact,
the Report is constrained to admit that it "took no testimony on this
subject." Nonetheless, in the very teeth of its own admission, the Select
Committee endorses a Recommendation that would restrict al7 elec-
tronic surveillance to the narrow and exclusive confines of the criminal
law. At Select Committee direction, our counter-intelligence efforts
would be forbidden by law to avail themselves of electronic surveil-
lance in the as yet undefined, but admittedly vital, areas of economic,
technological, and industrial espionage. With virtual impunity an
American could pass, deliver, or sell to the agent of a hostile foreign
power any and all secrets of industrv or technology — however impor-
tant to the nation's economy or well-bein.o; — while the FBI would be
effectively precluded from action. As criminal sanctions do not at-
tach— and, in fact, may very well be incapable of attachino-— to "indus-
trial espionage", electronic surveillance would be denied the nation's

391

intelligence agencies in any effort to forestall, prevent or even moni-
tor, hostile foreign intelligence activity in the economic or technologi-
cal sphere. While the Report blithely recommends that the espionage
laws be modernized to include technological or industrial espionage,
it nowhere confronts the massive practical difficulties in such a sug-
gestion.

Federal Bureau or Investigation

During the last decade or so of Mr. Hoover's tenure abuses crept
into the operations of the Bureau. Because these are thoroughly ven-
tilated, if not overdrawn, in the Majority Report, I shall not dwell on
them here, with one exception : at times, suggestions from the White
House or the conjectures of Presidential aides directly sparked eaves-
dropping and interference with the political process.

Ahnost invariably, however. Bureau impropriety can be attributed —
whether directly or by implication — to higher authority. As in the
foreign sector, the record of domestic abuse and excess is a commentary
on improper or deficient guidance. While particular programs or per-
sonnel cannot be spared their proportionate share of responsibility
for impropriety, ultimate accountability for Bureau excesses must rest
with a negligent Executive and an inattentive Congress.

While I concur in the general objectives of the Committee to insure
no repetition of abuses of which the FBI may have been guilty in the
past, I strongly disagree with certain specific recommendations in the
Committee's report.

I do not feel the best interests of this coimtry would be served by
imposing extraordinary curbs on the FBI or by opening additional
channels through which political influence could flow into the inner
workings of the FBI. And to a certain extent, the recommendations
I find objectionable would tend to accomplish exactly that.

I refer specifically to Recommendation 85, which encourages the
Attorney General to exercise his authority to appoint executives in
the FBI at the level of Assistant Director.

The Attorneys General, with rare exceptions, have historicially been
political supporters of the President and his party. By exhorting an
Attorney General to by-pass the Director of the FBI and appoint
Assistant Directors, we nm the risk of further extending "V^Tiite House
intrusion into the daily operations of the FBI. FBI Assistant Direc-
tors take part in administrative decisions and policy-making, and they
exercise day-to-day authority over the operations of their respective
divisions. Traditionally, they have been professionals who advanced
through the ranks of the FBI. Their law enforcement expertise, com-
bined Avith administrative ability, are qualities needed by the Director
of the FBI in discharging his duties. Moreover, any chief executive
officer of a line agency should have flexibility in choosing his principal
assistants.

The Office of the General Counsel of the FBI is a career position ;
and the person who occupies that office has traditionally been selected
by the Director. No valid reasons have been given to require his nomi-
nation by the President and confirmation by the Senate. As a general
rule, the Director or Administrator of a bureau or agency is permitted
to choose his own General Counsel.

392

Personal integrity cannot be assured through such measures as Eec-
ommendation 85. Proper supervision by the Attorney General and
effective Congressional oversicrht can, and should, hoAvever, serve to
discouraofe abuses of the sort that concern all of us.

I take exception, also, to Recommendations 45, 55-A and 55-B. that
impose constraints on preventive intellio;ence investigations and use of
informants. The work of the FBI in this area is far too vital to the
security of the American people to impose such stringently restrictive
requirements and time limitations on its investigative efforts.

With domestic terrorism burgeoning in this country, I submit it is
very risky to forbid the FBI to conduct preliminary investigations of
foreigners or citizens unless there is a "specific allegation" or proof
that such individuals "will soon engage in terrorist activity or hostile
foreign intelligence activity." Here, again, as in some of the foreign
recommendations we seem to be saying. "Don't put out tlie fire while it
is small : wait until it becomes a conflagration."

Hostile forces at home and abroad are bound by no such chains.
And, I don't want to be party in hamstringing the FBI so that it can-
not effectively frustrate those who would espouse the bomb and the gun
to impose their evil will on America.

How in the world is the FBI to substantiate information that ter-
rorists and enemy agents will act against Americans without at least
preliminary investigation ? To require them to have such proof in hand
before even initiating investigation seems unrealistic and is potentially
injurious to our security.

The recommendation also states that such preliminary investigation
must be concluded within 30 days, unless the Attorney General or his
designee finds that the facts warrant additional investigation up to
60 days.

Are we truly prepared to say to the FBI : you must conclude your
preventive intelligence investigations within 80 or 90 days unless you
establish "reasonable suspicion" that individuals will in fact commit
a terrorist act or engage in hostile foreign intelligence activity?

And, even then, a time limit of one year is recommended for a full
preventive intelligence investigation, barring a finding of "compelling
circumstances" by the Attorney General. Can we be assured that our
enemies Avill be so obliging as to commit an act within the time span we
prescribe ?

And I questio'n the effectiveness of the recommended measures in
preventing abuses of Americans' privacy or in assuring non-violent
dissenters in our country that they will not be inhibited by FBI
actions.

I submit that effective and proper Congressional oversight and
supervision by the Attorney General obviates the necessity of stringent
standards and time limitations where a quick response by the FBI
mav be needed to avert disaster.

While I tend to agree with the motiA^es and objectives of my col-
leagues on the Committee on Recommendations 5,5-A and B, I main-
tain the requirements and limitations imposed on the FBI's use of
informants go beyond what is necessary.

HoAA- can Ave possibly expect the FBI to develop instant security
informants, use them for 90 days, and then turn them off like a light
switch ?

393

Are we truly qualified to dictate to a professional law enforcement
agency under what circumstances it can use security informants and
for how long? The value of such informants has been demonstrated
over and over again. Good, stable, effective informants with proved
credibility are not easy to come by.

The fact is that their cooperation must be cultivated. Their credi-
bility must be tested. Their stability must be evaluated. Time and
patience are essential. Does it make sense to state exactly under what
circumstances and for how long a period the FBI will be permitted
to accomplish these aims?

The stakes are too high to risk imposing unworkable or cumber-
some restrictions — the stakes being human lives and the security of
our country.

I have misgivings regarding Kecommendation 90-B, which pro-
vides a new civil action recourse to Americans who feel that their
Constitutional rights have suffered actual or even threatened viola-
tion by Federal officers or agents in intelligence investigations. This
provision would have the effect of injecting the courts into the investi-
gative process, even at early stages of investigations when attempts
are being made to substantiate or disprove specific allegations of
actions requiring legitimate investigation.

We would open the way for individuals and agents hostile to our
country and its lawful government to impede and tie up in prolonged
litigation investigations required to preserve national security and
prevent violence.

Turmoil, upheaval, and readjustment have taken their toll of the
FBI. Fortunately for the nation, the many high-caliber and patriotic
men and women who are the FBI have continued to serve with dedica-
tion and loyalty.

Internal Revenue Service

Nowhere has the perversion of domestic intelligence been more viv-
idly demonstrated than in the Select Committee's investigation of the
Internal Revenue Service. With much relish but no excuse, IRS func-
tionaries have pried and spied on countless organizations and
activities. Intelligence components of the IRS have indiscriminately
investigated hundreds of thousands of taxpayers and have amassed
reams of information wholly irrelevant to the IRS's narrow respon-
sibility for collecting the taxes. IRS agents have for decades con-
ducted intrusive campaigns of snooping virtually without let or
hindrance, and certainly without justification in fact or in law.

In 1961, for instance, the IRS initiated a prosram to conduct a
test audit of various "right-wing" organizations. Termed the "Ideo-
logical Organizations Audit Program." the project attempted inten-
sive investigation of 10,000 tax-exempt organizations that was far
removed from even-handed enforcement of the internal rcA'enue laws.
Precedent having been established, a Special Services Staff was or-
ganized in 1969 to conduct audits of "activist" and "ideological'' tax-
payers. Audits were run without reference to established tax criteria
and the "special service" rendered the nation was the unwarranted tar-
geting of 18,000 individuals and 3,000 groups. Its insatiable appetite

394

still unsatisfied, the IRS next established an "Information Gathering
and Retrieval System" (IGRS) in order to garner still more general
intelligence. IGRS was hatched in 1973, and, during its two years of
life, proceeded to gather and store infonnation in voracious fashion.
Some 465,442 individuals or organizations were examined before the
program was terminated in 1975.

Operating secretly and without standards or safeguards, IGRS was
typical of the arrogance of the tax collectors. Abuses uncovered in
connection with the IRS's Operation Leprechaun (1969-1972) merely
represent the expected and logical extension of policies which are as
profoundly contemptuous of the American taxpayer as they are char-
acteristic of the IRS's perennial ejfforts to transform itself into a re-
pository of domestic intelligence.

I have refused to sign the final report of the Select Committee on
Intelligence Operations in the belief that it can cause severe embarrass-
ment, if not grave harm, to the Nation's foreign policy. The domestic
part of the report has a strong dose of 20-20 hindsight. It will raise
more questions than it answers. Reputations will suffer and little will
have been gained.

When the resolution creating the Select Committee was presented to
the Senate, I endorsed it because I felt it was necessary to conduct
such an investigation into any possible abuses on tlie privacy of Ameri-
can citizens. I thoroughly expected that the Committee would con-
centrate its efforts in this particular field, but very little work was
done on it. Not much can be gained from reading the report as a result
of this, and I am, frankly, disappointed that Ave don't know more
today than we did a year and a half ago about questions raised on this
subject.

Barry Goldwater.

Supplemental Views of Senator Charles McC. Mathias, Jr.

I fully support the Final Report and the Findings and Recom-
mendations of the Select Committee on Intelligence.

The reaffirmation of Constitutional goverimient requires more than
rhetoric. It involves, at a minimum, the rendering of accounts by
those who ha\'e held public ti-ust. It also demands that we renew those
principles that are at the center of our democracy. In my view, the
Select Committee's Report is a critical contribution to the process of
Constitutional government.

Those who won our independence 200 years ago understood the
need to ensure "domestic tranquility" and to "provide for the common
defense." Our intelligence services have played a valuable role in the
attainment of those goals.

The Founders of our Nation also understood the need to place gov-
ernmental power under the rule of law. They knew that power car-
ried with it the seed of abuse. In framing the Constitution, they cre-
ated a system of checks and balances that would preclude the exercise
of arbitrary power. For they recognized that the exercise of power
by individuals must be constrained. As Jefferson wrote, "In questions
of power, let no more be heard of confidence in man, but bind him
down by the chains of the Constitution."

When Senator Mansfield and I first proposed the creation of a Select
Committee on Intelligence in the wake of Watergate, we were not seek-
ing to weaken the nation's intelligence service but to strengthen it.
Effective government rests on the confidence of the people. In the
aftermaitih of Watergate and charges of domestic spying and misuse
of the intelligence agencies, that confidence was severely strained. And
in the face of excessive claims of presidential prerogative. Congress
had abdicated its Constitutional responsibilities to oversee and check
the exercise of executive power in the intelligence operations of the
government.

Secrecy and democratic government are uneasy partners. Intelli-
gence operations are in essence secret operations. But that does not
mean that they can be immune from the rule of law and the standards
our system of government places on all government operations.

If we can lose our liberties from a too- powerful Government intrud-
ing into our lives through burdensome taxes or an excess of regula-
tions, we can surely lose them from government agencies that collect
vast amounts of information on the lawful activities of citizens in the
interest of "domestic intelligence." The excessive breadth of domestic
intelligence operations investigated by the Committee and many of
the techniques used against Americans can severely chill First Amend-
ment rights and deeply infringe upon personal privacy.

The Framers of our Constitution recognized that the vitality of our
civil life depends on free discussion. They also recognized that the
right of privacy is fundamental to the sanctity of the individual. That
is why we have the First and Fourth Amendments. Speech and poli-
tical ideas are often unsettling. But it is only through free debate and

(395)

.396

the free exchange of ideas that the people can inform themselves and
make their government responsive. And it is through the protection
of privacy that we nourish the individual spirit. These are the char-
acteristics that set us apart from totalitarian regimes.

In this, our Bicentennial year, Americans have a special oppor-
tunity to reaffirm the values of our forebears. We have emerged from
the dangers of the post-war era and the trauma of the last decade not
by forsaking those values but by adhering to them. To be worthy of
our forebeai's and ourselves, we need only have the courage to keep
to the course. By bringing the intelligence arm of the government
within our constitutional system, correcting abuses, and checking
excesses, we will enable the proper range of intelligence activity to
go forward under law in the service of the country.

Charles McC. Mathias, Jr.

BOSTON PUBLIC LIBRARY

3 9999 06313 991 7

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Full text of "Final report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate : together with additional, supplemental, and separate views"

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