Church Committee Report (Book II)
Church Committee Report (Book II)
Church Committee Report (Book II)
BOOK II
FINAL REPORT
OF THE
SELECT COMMITTEE
TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO
INTELLIGENCE ACTIVITIES
UNITED STATES SENATE
TOGETHER WITH
(I)
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 volume.
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 foresaw 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 have had 126 Full Committee 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 determina-
tion that the job be done fully and fairly.
John Tower's service as Vice Chairman was essential to our effee-
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 with 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)
IV
34-049 0 - 78 - 2
A. Intelligence Activity: A New Form of GovernmentalPower to Inw-
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 in
violence and criminal behavior, or in espionage and other hos-
tile foreign intelligence activity. Many of the intelligence programs
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.3
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 5 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.
5 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 office, 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,6 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
told me was going on. Now I did not believe it. have
"The trick now, as I see it, Mr. Chairman, is for this committee to be
to figure out how to persuade the people of this country that indeed able
go on. And how shall we insure that it will never happen again? But it did
happen repeatedly unless we can bring ourselves to understand it will
that it did go on." Senator Philip Hart, 11/18/75, Hearings, Vol. 6, p. and accept
41. -
As the Supreme Court noted in Miranda v. Arizona, 384 U.S. 436,
(1966), even before the Court required law officers to advise criminal 483, 486
of their constitutional rights before custodial interrogation, the suspects
FBI had "an
exemplary record" in this area-a practice which the Court
"emulated by state and local law enforcement said should be
agencies." This commendable FBI
tradition in the general field of law enforcement presents a sharp
contrast
widespread disregard of individual rights in FBI domestic intelligence to the
tions examined opera-
7 in the balance of this Report.
New York Time8, 5/13/24.
violence or identifying foreign spies, were expanded to what wit-
nesses characterized as "vacuum cleaners",8 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.9
In 1940, Attorney General Robert 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 about 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.o
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?
8
Mary Jo Cook testimony, 12/2/75, Hearings, Vol. 6, p. 111; James B. Adams
testimony, 12/2/75. Hearings, Vol. 6, p. 135.
Tom Charles Huston testimony, 9/23/75, Hearings, Vol. 2, p. 45.
xo"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 Problem .
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 by Domestic Intelligence
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.12 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 first 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.1
-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).15
-Millions 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.16
-An estimated 100,000 Americans were the subjects of
United States Army intelligence files created between the
mid-1960's and 1971.1
-Intelligence files on more than 11,000 individuals and
groups were created by the Internal Revenue Service between
n Memorandum from the FBI to the Senate Select Committee, 10/6/75.
12 Memorandum from the FBI to the Senate Select Committee, 10/6/75.
13 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.
17 See Military Surveillance Report: Section II, "The Collection of Information
34-049 0 - 78 - 3
-Targeting the New Mexico Free University for teaching "con-
frontation politics" and "draft counseling training".102
7. Cost and Value
Domestic intelligence is expensive. We have already indicated the
cost of illegal and improper intelligence activities in terms 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
103
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.o4 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 violation 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.100 Nevertheless, the most
sweeping domestic intelligence surveillance programs have produced
surprisingly few useful returns in view of their extent. For example:
In See COINTELPRO Report: Section III. "The Goals of COINTELPRO:
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
counterespionage. 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
06
the government of the United States.1 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 07
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-
08
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 09the 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."10
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
"0This 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 offices. (FBI memorandum to
Select Committee. 10/6/75.)
" Schackelford 2/13/76, p. 32. This official does not recall any targets of "sub-
versive" investigations having been even referred to a Grand Jury under these
statutes since the 1950s.
" "FBI Domestic Intelligence Operations-Their Purpose and Scope: Issues
That 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 related to
"such activities as speeches, demonstrations or meetings-all essentially non-
violent." (Ibid.. p. 144)
.Toseph 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.
Moreover, 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 politics 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- 112
trolled intelligence investigations in those narrow circumstances.
Concentration on imminent violence can avoid the wasteful dis-
persion of resources which has characterized the sweeping (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 Recommendations propose is the
need to protect the constitutional rights of Americans.
In light of the record of abuse 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 nccessary to vn: u-e
that domestic intelligence activity does not itself undermine the
democratic system it is intended to protect.
m An indication of the scope of the problem is the increasing number of official
representatives of communist governments in the United States. For example,
the number of Soviet officials in this country has increased from 333 in 1961 to
1,079 by early 1975. There were 2,683 East-West exchange visitors and 1.500 enm-
mercial visitors in 1974. (FBI Memorandum. "Intelligence Activities Within the
United States by Foreign Governments," 3/20/75.)
m According to the FBI, there were 89 bombings attributable to terrorist
activity in 1975, as compared with 45 in 1974 and 24 in 1973. Six persons died in
terrorist-elaimed bombings and 76 persons were injured in 1975. Five other deaths
were reported in other types of terrorist incidents. 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 amonDR q total of over
1,900 bombings, most of which were not, according to the FBI, attributable
clerly to terrorist activity. (FBI memorandum to Senate Select Committee,
2/23/76.)
II. THE GROWTH OF DOMESTIC INTELLIGENCE:
1936 TO 1976
A. SUMMARY
(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 Periodsof 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 War 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. 1936-1945
By presidential directive-rather than statute-the FBI and mili-
tary 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.
b. 1946-1963
Cold War fears and dangers nurtured the domestic intelligence pro-
grams of the FBI and military, 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 secrecy, the FBI instituted its COINTELPRO operations to
"disrupt" and "neutralize" "subversives". The National Security
Agency, the FBI, and the CIA re-instituted instrusive wartime sur-
veillance techniques in contravention of law.
c. 1964-1976
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
3 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 during 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 1, 10/4/38).
' Ree footnote 1. p. 21.
Letter from Justice Harlan Fiske Stone to Jack Alexander, 9/21/37, cited in
Alpheus T. Mason, HarlanFiske Stone: Pillar of the Law (New York, Viking,
1956), 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 1936-1945 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 formal 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. Domestic Intelligence Authority: Vague and Conflicting 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 Fi8ke Stone, at p. 151.
Although Hoover had served as head of the General Intelligence Division of the
Justice Department at the time of the "Palmer Raids" sand beenme an Assistant
Director of the Bureau in 1921, he persuaded Attorney General Stone and Roger
Baldwin of the American Civil Liberties Union that he had played an "unwill-
ing part" in the excesses of the past, and he aareed to disband the Bureau's
"radical division." Baldwin advised Stone, "I think we were wrong in our esti-
mate of his attitude." (Baidwin to Stone. 8/6/21. onoted in Donald Johnson,
The Challenge to American Freedom8 (University of Kentucky Press, 1963). pp.
174-175.)
In December 1924, Stone made Hoover Director of the Bureau of Investigation.
a. The Original 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
reference to "anti-racial" and "anti-American" activities having "any
possible connection with official representatives of the German gov-
ernment in the United States." 1
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
country 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.10
b. Orders in 1938-39: The Vagueness of "Subversive Activities"
and "Potential"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.
9 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 be "able at any time to paralyze the country");
(ii) "activities . . . inspired by Communists" 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 Smedley Butler.
10 Hoover stated that Secretary of State Hull "at the President's suggestion, re-
34-049 0 - 78 - 4
attempts by other agencies to "literally chisel into this type of
work." 5 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." 56
The military intelligence agencies were interested in intelligence
about civilian activity. In fact, they requested extensive information
about civilians from the FBI. In May 1939, for instance, the Army G-2
Military Intelligence Division (MID) transmitted a request for the
names and locations of "citizens opposed to our participation in war
and conducting anti-war propaganda." 5Despite 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 Attorney 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 1939.59 Director Hoover also asked Attorney General
Jackson in 1940 for policy guidance concerning the FBI's "suspect list
61Memorandum from J. 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 1938, the
FBI no longer relied for its intelligence authority on the statutory provision for
FBI investigations of "official 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.
5 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 Intelligcnce. Hearings before the
Senate Subcommittee on Constitutional Rights (1974), pp. 174-175.)
' Letter from Attorney General Cummings to the President, 10/20/38; letter
froni Attorney General Murphy to the President, 6/17/39. The confusion as to
whether Attornpv 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 necessary in the event
the United States becomes involved in war." 60
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
others, 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 risk 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." 61
After five months of negotiation, the FBI was ordered to transmit
its "dossiers" to the Justice Department Unit.62 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." 63 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." 65 Biddle observed:
the notion that it is possible to make a valid determination as
to how dangerous a person is in the abstract and without
reference to time, environment, and other relevant circum-
stances, is impractical, unwise, and dangerous.
Returning to the basic standard espoused by 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.6 6
3
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-
inent 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 receipt of this order, the FBI Director did not in fact abolish
its list. The FBI continued to maintain an index of persons "who
may be dangerous or potentially dangerous to the public safety or
internal security of the United States." In response 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 never be. mentioned in FBI reports or "discussed
with agencies or individuals outside the Bureau" except for military
intelligence agencies.67
This incident provides an example of the 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. Viretaps: A Strained Statutory Interpretation
In 1940, President Roosevelt authorized FBT 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." 68
This order was issued in the face of the Federal Communications
Act of 1934, which had prohibited wiretapping.69 However, the Attor-
ney General interpreted the Act of 1934 so as to permit government
wiretapping. Since the Act made it unlawful 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.] '0 Attorney General Jackson's questionable in-
terpretation was accepted by succeeding Attorneys General (until
1968) but never by the courts. 7 '
Jackson informed 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. Edgar Hoover to FBI Field Offices, Re: Dangerousness
Classification, 8/14/43. This is the only document pertaining to Director Hoover's
decision which appears in the material provided by the FBI to the Select Com-
mittee covering Bureau policies for the "Security Index." The FBI interpreted
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 Attorney General
Jackson. 5/21/10.
047 U.S.C. 605. The Supreme Court held that this Act made wiretap-obtained
evidence or the fruits thereof inadmissible in federal criminal cases. 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.
n E.g., United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), cert. denied
sub nom. Ivanov v. United States, 419 U.S. 881 (1974). The Court of Appeals held
in this case that warrantless wiretapping could only he 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. [Olnstead v. United
States, 275 U.S. 557 (1927); Katz v. United States, 389 U.S. 347 (1967).]
fenses as espionage and sabotage.7 2 Apparently relying upon Jackson's
statutory interpretation, Congress then dropped the matter, leaving
the authorization of wiretaps to Executive discretion, without either
statutory standards or the requirement of a judicial warrant..3
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.7 4
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 1941.7-
Materials located in Director Hoover's "Official and Confidential"
file indicate that President Roosevelt'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.7 6
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 reports included "transcripts of tele-
phone conversations between [the official] and Justice Felix Frank-
furter and between [the official] and Drew Pearson." 76a - -
From June 1945 until May 1948, General Vaughn received reports
from electronic surveillance of a former Roosevelt White 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. 7 6 b
71 Hearings before the House Judiciary Committee, To Authorize
Wiretapping,
77th Cong., 1st Sess. (1941), p. 112.
"Congress continued to refrain from setting wiretap standards until 1968
when the Ominbus Crime Control Act was passed. The 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 Biddle to J. Edgar Hoover, 11/19/41.
Biddle advised Hoover that wiretaps (or "technical surveillances") would not
he 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 J. Edgar Hoover to Attorney General Biddle, 10/2/41;
memorandum from Attorney General Biddle to J. Edgar Hoover, 10/22/41.
" Memorandum from FBI to Select Committee, 3/26/76 and enclosures.
"'Memorandum from D. M. Ladd to Hoover, 5/23/45.
Tab Hoover memorandum, 11/15/45; a memorandum headed "Summaries De-
livered to the White House" lists over 175 reports sent to General Vaughn from
this surveillance; memorandum from FBI to Select Committee, 3/26/76, and
enclosures.
b. Bugging, Mail Opening, and Surreptitious Entry.
Intrusive techniques such as bugging, mail opening and surreptitious
entry were used by the FBI without even the 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.78 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 1952.79
1o1 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.)
11 Memorandum from Clark 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.)
2"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.
o 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. Moreover, a confidential directive of
the National Security Council in 1949 granted authority to the FBI
and military intelligence for investigation of "subversive 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
Kennedy in 1964.
As with the earlier Roosevelt directives, these statements, orders
and authorizations failed to provide guidance on conducting or con-
trolling "subversive" investigations.
Under President Truman, the Interdepartmental Intelligence Con-
ference (JIC) "I 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." 112 [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.113
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. Hovard
McGrath 114 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.'15 [Emphasis added.]
nx In a March 1949 directive on coordination of internal security President
Truman approved the 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 with 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.
n'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. I to the Delimitation Agreement, 6/2/49.)
"' Letter from Attorney General McGrath to Charles S. Murphy, Counsel to
the President, 7/11/50.
mr'Statement of President Truman, 7/24/50.
Despite concern among his assistants,'15a 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
1 16
particular directives had not used this precise language.
Shortly after President Eisenhower took office in 1953, the FBI
advised the White 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." 117
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 ;" noand 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." 120
None of the directives, orders, or charters provided 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 known 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-
u"a One noted, "This is the most inscrutable Presidential statement I've seen
in a long time." Another asked, "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. (Murphy Papers, Harry S. Truman Library.)]
11. 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 were 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." 121
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 Investigations.-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. 2 2 An even larger number of in-
vestigative files were maintained at FBI field offices.1 2 3 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 was readily retrievable.
(2) Vague and Sweeping 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." 124
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." 126 One purpose of investigation was possible prosecu-
...Memorandum from J. Edgar Hoover to Attorney General Clark, 3/5/46.
m lemorandum 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 by the Comptroller General
of the United States, 2/24/76, pp. 118-119.
" Such investigations were conducted because the Communist Party had issued
instructions that "sleepers" should leave the Party and go "underground," still
maintaining secret links to the Party. (Memorandum from J. F. Bland to A. H.
Belmont, 7/30/58.)
"Refusal to cooperate" with an FBI agent's interview was "taken into con-
sideration alone with other facts" in determining whether to continue the in-
vestigation. (Memorandum from J. Edgar Hoover to Deputy Attorney General
Peyton Ford, 6/28/51.)
1960 FBI Manual Section 87, p. 5.
11960 FBI Manual Section 87, p. 5.
tion under the Smith Act. But no prosecutions were initiated under
the Act after 1957.127 The Justice Department advised the FBI in
1956 that such a prosecution required "an actual plan for a violent
revolution." 128 The Department's position in 1960 was2 9 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." 130
(3) COMIAFIL.-The FBI's broadest program for collecting intel-
ligence was carried out under the heading COMINFIL, or Communist
infiltration .1 3 The FBI collected intelligence about Communist "in-
fluence" under the following categories:
Political activities
Legislative activities
Domestic administration issues
Negro question
Youth matters
Women's matters
Farmers' Matters
Cultural activities
Veterans' matters
Religion
Education
Industry 132
FBI investigations covered "the entire spectrum of the social and
labor movement in the country." 133 The purpose-as publicly disclosed
in the Attorney General's Annual Reports-was pure intelligence:
to "fortify" the Government against "subversive pressures," m or to
"strengthen" the Government against "subversive campaigns." 135
In other words, the COMINFIL 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."36 The FBI said it was
not concerned with the "legitimate activities" of "nonsubversive
groups," but only with whether Communists were "gaining a dominant
127 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
be "advocacy of action." See Yates v. United States, 354 U.S. 298 (1957).
x"Memorandum from Assistant Attorney General Tompkins to Director, FBI,
3/15/56.
12 lemorandum from Assistant Attorney General Yeagley to Director, FBI,
5/17/60.
"' 1960 FBI ManualpSection 87, p. 5.
34-049 0 - 78 - 5
b. "RacialMatters" and "Hate Groups"
In the 1950s, the FBI also developed intelligence programs to inves-
tigate "Racial 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 COMINFIL program, however, the Bureau
used its "established sources" to monitor the activities of "hate groups"
which did not "qualify" under the "advocacy of violence" standard.4
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." 144
Under these programs, the FBI collected and disseminated intelli-
gence about the John Birch Society and its founder, Robert Welch,
in 1959.'45 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." 146
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.' 4 7
The FBI's "intelligence function" was to advise "appropriate" fed-
eral and local officials of "pertinent information" about "racial inci-
dents." 148
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.'14
14 1960 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 Welch, 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 officials." (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 J. Edgar Hoover to Robert
Cutler, Special Assistant to the President, 10/15/57, and 1/17/58. (Eisenhower
Library.)
171960 FBI Manual Section 122, pp. 5-6.
x41960 FBI Manual Section 122, pp. 5-6.
" "Racial Tensions and Civil 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.o5 0
President Truman and his aides received regular letters from Di-
rector Hoover labeled "Personal and Confidential" containing tidbits
of political intelligence. The letters reported on such subjects as:
inside information about the negotiating position of a non-Commu-
nist labor union; 151 the activities of a former Roosevelt aide who was
trying to influence the Truman administration's appointments; 152 a
report from a "confidential source" that a "scandal" was brewing which
would be "very embarrassing" to the Democratic administration; 15 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; 154 the contents of an
in-house communication from Newsweek magazine reporters to their
editors about a story they had obtained from the State Department,"'5
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 167 and
1 58
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,1 55 reports from Bureau "sources" on
the meetings of an NAACP delegation with Senators Paul Douglas
and Everett Dirksen of Illinois; 160 the report of an "informant" on
the role of the United Auto Workers Union at an NAACP confer-
ence,1 6 ' 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,162 a report of a "confidential source" on
plans of Mrs. Eleanor Roosevelt to hold a reception for the head of
'1 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.)
a Letter from J. Edgar Hoover to Maj. Gen. Harry H. Vaughn, Military Aide
to the President, 2/15/47. (Harry S. Truman Library.)
"3 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.)
m 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 President, 11/13/47. (Harry S. Truman Library.)
1" Letters from J. Edgar Hoover to Brig. Gen. Harry H. Vaughn, Military Aide
34-049 0 - 78 - 6
66
34-049 0 - 78 - 7
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.35 '
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 Roosevelt, Truman, Eisenhower,
and Kennedy.'2 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 1*
and for "photographic coverage" of a civil rights demonstration on
the 100th anniversary of the Emancipation Proclamation.3 5 4 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." 35 The Civil Rights Division pre-
pared regular summaries of information from the Bureau on "dem-
onstrations and other racial matters." 856
m 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 and 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.
(RF.L. Shackleford deposition, 2/13/76, pp. 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 0-2.
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
expanding 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." 35
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 1964.358 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." 3 9 None-
theless, internal Bureau instructions in 1965 and 1966 went far beyond
this limitation.360 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." 36'
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 Commission. 362 Director Hoover
also agreed to investigate "allegations of subversive influence, involve-
ment of out-of-state influences, and the like." 363
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.36
' Telegram from Attorney General Kennedy to U.S. Attorneys, 5/27/63.
mThe basis for the inquiry was explained in the most general terms: "Keeping
the peace in this country is essentially the responsibility of the state government.
Where 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 le National Advisory Com-
mission on Civil Disorders (1968), p. 537 (Bantam Books ed.)
mExecutive Order 11365, 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 intellizence about "vociferous rabble-
rousers." The creation thereafter of a "Rabble Rouser Index" is discussed at
pp. 89-90.
U' Memorandum from Attorney General Ramsey Clark to J. 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."*5
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."8 7
In response to the Attorney General's 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." 868
b. 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:
The 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." 69 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.a7 0
I Memorandum from Assistant Attorney General John Doar to Attorney Gen-
eral Clark, 9/27/67.
Memorandum from Clark to Hoover, 9/14/67.
Clark to Hoover, 9/14/67. The Department's establishment of a special unit
for intelligence evaluation Is discussed at pp. 115-116.
" SAC Letter 67-72, 10/17/67. The scope of the "ghetto informant program" is
desceribed at pp. 75-76.
" Memorandum from Joseph Califano 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 %taff Hqrold 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.)
85
34-049 0 - 78 - 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,
44 2
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."4 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.
b. CIA Intelligence About Dome8tic 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. 444 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.44 4 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 of44 its own
7
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.
R
"'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, there 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.44 8
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 appropirateoverseas
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 investi-
gaition abroad, but also for placement on the "watch list" of the CIA's
mail opening project. -Similar lists of names went from the FBI to the
National Security Agency, for use. on a "watch list" for moitoring
other channels of international communication.
(2) Operation 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. 67-6, 11/7/67.
CIA's foreign counterintelligence activities, although CIA officials
recognized from the outset that it had "definite domestic counterin-
telligence aspects." no
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 youi picked up any more
information on this subject?" -1
The first 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." 452
Following the consistent pattern of intelligence activities, 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.45 .
In response, CIA headquarters sent a directive to CIA sta-
tions seeking information on "illegal and subversive" connec-
tions between U.S. activists and "communist, communist
front, or other anti-American and foreign elements abroad.
Such connections might range from casual contacts ba8ed
merely on mutual interest to closely controlled channels for
party directives." [Emphasis added.] 45
-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.' " 4
-In 1969, President Nixon's White House required the
CIA to study foreign communist support of American protest
groups and stressed that "support" should be "liberally con-
strued" to include "encouragement" by Communist coun-
tries. 458
-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.457
43 Memorandum from Thomas Karamessines to James 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 Johnson, 11/15/67.
' VIA Cable from Acting DDP to various field stations, November 1967,
pp. 1-2.
40 CIA Cable from Thomas Karamessines to various field stations, July 1968,
p. 1.
O Memorandum from Tom Huston to the Deputy Director, CIA, 6/20/69, p. 1.
4 Cable from CIA headquarters to stations, November 1969.
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.458 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 .459 The CHAOS program also involved obtain-
ing information about Americans from the CIA mail opening project
and other domestic CIA components 460 and from a National Security
Agency international communications intercept program. 46 1
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.462
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
46 3
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 Marcules testimony, Rockefeller Commission, 3/10/75, pp. 1538-1547,
1566-1567: Ober, 9/24/75, p. 46. (For security reasons, the CHAOS agent case
officer testified as "Charles Marcules".)
"0 Marcules Contact Report, 4/17/71; Marcules, Rockefeller Commission, 3/10/
75. pp. 1556-1558.
' Memorandum from Richard Ober to Chief, CI Project, 2/15/72.
'Ober, 10/30,75. pp. 16-17.
Letter from Richard Helms to Henry Kissinger, 2/18/69.
a Richard Helms deposition, Rockefeller Commission, 4/24/75, p. 223.
erson could4 CIA "prove the negative" that none were under foreign
omination."
In 1972, the CIA Inspector General:found "general concern" among
the overseas stations "over what 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," 466 although the program was not terminated
until March 1974.467
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 women who were interested in
"women's liberation." 469
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." 4' 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. 471 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
country. 47 2 Among the techniques used were physical surveillance,
" Helms deposition, Rockefeller Commission, 4/24/75, p. 234; Ober deposition,
Rorkefeller Commission, 3/28/75, pp. 137-138.
' Memorandum from Inspector General to Executive Director-Comptroller,
11/9/72, p. 1.
*Memorandum from Executive Director-Comntroller to DDP, 12/20/72.
1 Cable from CIA Director William Colby to Field Stations, March 1974.
* Rockefeller Commission Report, p. 23.
'"Arent 1. Contact Report, Volume II, Agent 1 file.
47050 U.S.C. 403(d) (3).
" Lawrence Houston testimony, Rockefeller Commission, 3/17/75, pp. 1654--
1655.
'" Rockefeller Commission Report, pp. 162-166.
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. With 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
protest demonstrations which involved the CIA in domestic affairs
on the theory that doing so was necessary to safeguard CIA facilities
in the United States.47" Project 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 program
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 headquarters 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.
While 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 security 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. 477
'" 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 Intelligence, 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 Centrnl Intelligence. 6/10/64.) It was not terminated until 1975. (Memo-
random from John S. Warner. CIA Goneral Counsel, for the record. 1/31/75.)
'" These CIA activities, Projects MERRTMACK and RESTSTANCE. were de-
scribed in great detail by the Rockefeller Commission. (Rockefeller Commission
Renort. Chs. 12 and 13.)
' The Rockefeller Commission Report describes .... two cases in which tele-
phones of three newsmen were tapped . . . [One] occurred in 1962, apparently
with the knowledge and consent of Attorney General Kennedy." (Rockefeller
Commission Report, p. 164.)
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.471 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. . . 479
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." 4o
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 Technique8
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." 483 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.4 8 4 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.
disturbances or otherwise subvert the national security of the United
States. 485
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. Warrantles8 ElectronicSurveillance
(1) Executive Branch Restrictions on Electronic Surveillance:
19 65-1968.-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.'6
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." ' 7 This-standard was reiterated by Attorney General Katzen-
bach, for both wiretapping and microphone surveillances three months
later, and again in July 1966.487a
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." 488
In line with that policy, Katzenbach approved FBI requests for
wiretaps on the Student Non-Violent Coordinating Committee,'48 9
Students for a Democratic Society,490 the editor of an anti-communist
newsletter,'491 a Washington attorney with whom the editor was in
frequent contact,'49 2 a Klan official,'49 3 and a leader of the black Revolu-
tionary Action Movement.4" According to FBI records, Katzenbach
also initialed three memoranda informing him of microphone surveil-
lances of Dr. Martin Luther King, Jr.'9
' 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 light 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.
There were no similar electronic surveillance authorizations by
Attorney General Ramsey Clark in cases involving purely domestic
"national security" considerations. 9" 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.497
(2) Omnibus Crimw 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,498 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." 499 Although
Congress did not purport to define the President's power, 00 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." 9 0 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 3/1(1/68,
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 U.S., the Tanzanian Mission to the U.N.,
the office of the Agricultural Counselor at the Soviet Embassy and a correspondent
of TASS." [Statement of Former Attorney General Ramsey Clark, Hearings -
before the Rubcommittee on Administrative Practice and Procedure, Committee
on the Judiciary, United States Senate (1974).1
'" Katz v. United States, 397 U.-S. 347 (1967). This case explicitly left open
the question of warrantless electronic surveillance in "situation(s) Involving
the national secnrity." (397 U.S., at 358 n. 23.)
'18 U.S.C. 2511 (3).
See United States v. United States District Court. 407 U.S. 297 (1972).
m Memorandum from Hoover to Attorney General Mitchell, 3/16/70.
107
former executive official, and a relative of an executive official.' 502
There were numerous wiretaps and some microphones used against the
Black Panther Party and similar domestic groups.50 Attorney Gen-
eral John 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-
mittee503a
(3) Supreme Court Re8trictions on National Security Electronic
Surveillance: 1979.-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.5 0oThe 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." 505 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.50
b. 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." 507 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.
w3For 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 black 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.)
m* 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
discussed in Findings C and E in greater detail, pp. 183 and 225.
G United States v. United States District Court, 407 U.S. 297 (1972).
United States v. United States District Court, 407 U.S., at 300 (1972).
m Memorandum from William Olson to Elliott Richardson, June 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 believed to threaten the
United States' relations with that nation. [Zweibon v. Mitchell, 516 F. 2d 594
(D.C. Cir. 1975).]
" Memorandum from FBI/CIA Liaison Agent to D. J. Brennan, 1/16/69.
Traffic to and from Puerto Rico and the Virgin Islands
showing anti-U.S. or subversive sympathies.508
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. 09
Two years later. NSA issued an internal instruction intended to
ensure the secrecy of the fact that it was monitoring and disseminat-
ing communications to and from Americans.510 This memorandum
described the "Watch 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 U.S.," the memorandum indicated that the program
intercepted communications dealing with:
Information on U.S. organizations or individuals who are
engaged in activities which may result in civil disturbances
or otherwise subvert the national security of the U.S.51 '
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
m Routing Slip from J. Edgar Hoover to James Angleton (attachment),
3/10/72.
DOD Cable, Yarborough to Carter, 10/20/67.
moNSA's name, for example, was to be kept off any of the disseminated
"product.".
muMINARET Charter, 7/1/69.
intercepted communications were of a private or personal nature or
involved rallies and demonstrations that were public knowledge. 512
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 termed an invasion of privacy." 51 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 Subcommittee Investigation.-The Senate Subcom-
mittee was primarily investigating electronic surveillance 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.515 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 Attorney
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." 516
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. While it
misrht handicap us I doubt they are as valuable as some
m'W. R. Wannall (FBI Assistant Director for Intelligence), 10/3/75, p. 13.
"The feeling is that there was very little in the way of good product as a result of
our bving sumnlied names to NSA."
m Memorandum from Hoover to Katzenhach. 9/14/65. This memorandum dealt
snecifically with electronic surveillance and did not mention mail openings or
"Black Bag Jobs." Hoover said the FBI had "discontinued" microphone surveil-
lances (hugs). a restriction which Attorney General Katzenbach said went too
far. (Ktzenhaeh to Hoover. 9/27/65.)
MMemorndum from A. H. Belmont to Mr. Tolson, 2/27/65. Katzenbach testi-
monv. 12/3/75. Hearings, Vol. 6. p. 204.
5
Memorandum from A. H. Belmont to C. Tolson, 2/27/65.
believe and none warrant the FBI being used to justify
them.51'
Several days later, according to a memorandum of the FBI Director,
the Attorney Ueneral "advised that he had taiRed to 6enator Long,"
and that the senator "said he did not want to get into any national
security area." 51 Katzenbach has confirmed 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. 519
Again in 1966, the FBI took steps to, in the words of Bureau of-
ficial Cartha DeLoach, "neutralize" the "threat of being embarrassed
by the Long Subcommittee." o20This 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."5 2 The Bureau prepared such a statement for Senator
Long to release as his own, which apparently was not used. At
52 2
34-049 0 - 78 - 9
erage is illegal, and there are serious risks involved," he wrote. "How-
ever, the advantages to be derived from its use outweigh the risks." 546
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." 54
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. 4 8
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.549 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 politica.l 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 1966.550
Nevertheless, the FBI Director was not satisfied with Huston's
memorandum concerning the authorization of the plan.55' Hoover
went immediately to Attorney General Mitchell, who had not known
of the prior deliberations or the President's "decisions." 552 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."'6 (Huston deposition. 5/22/75, p. 69.)
" Huston deposition. 5/22/75, p. &
Memorandum from Tom Charles Huston to Intelligence Directors, 7/23/70.
OMemorandum from Sullivan to DeLoach, 4/14/70.
mnAn 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 too aides
Indicated "what a hot potato it was." (Staff summary of James Stillwell inter-
view, 5/21/75.)
mMitchell testimony, 10/24/75, Hearings, Vol. 4, p. 122.
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 ol 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.553
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." *5 Nonetheless, Mitchell advised the President to with-
draw his approval.5 55 Huston was told to rescind his memorandum,
and the White House Situation Room dispatched a message requesting
its return.556
(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.557 The directors
of the CIA and NSA also continued to explore means of expanding
55
their involvement in, and access to, domestic intelligence". A new
group, the Intelligence Evaluation Committee (IEC), was created by
Attorney General Mitchell within the Justice Department to consider
such expansion.555 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 about 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 discussed 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
both 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 flles
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 discussion with both Mitchell and
Laird on how NSA could assist with "intelligence bearing on domestic problems."
The memorandum mentioned the monitoring of foreign support 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, January 26, 1971.)
NSA official Benson Buffham recorded that he personally showed this memo-
randum to Mitchell and -had been told by the Military Assistant to Secretary
La-ird that the Secretary had read and agreed with it. (Memorandum for the
record by Benson K. Buffham, 2/3/71.)
m Memorandum from Assistant Attorney General Robert Mardian to Attorney
General Mitchell, 12/4/70.
each sent representatives to the IEC. NSA Director Gayler provided
the IEC with a statement of NSA's capabilities and procedures for
supplying domestic intelligence. 560 Although the IEC 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.561
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." 562 Two men who had participated in developing the "Huston
Plan" were promoted to positions of greater influence within the
Bureau. 5 6 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." 564
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." 565 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."5
b. Political Intelligence
The FBI practice of supplying political information to the White
House and, on occasion, responding to White House requests for
such information was established before 1964. However, under the
administrations of President Lyndon Johnson 567 and Richard Nixon,
this practice grew to unprecedented dimensions.
(1) Name Check Request.-White House aides serving under Presi-
dents Johnson and Nixon made numerous requests for "name checks"
5 Memorandum from Gayler to Laird and Mitchell, 1/26/71.
For a discussion of the FBI as "consumer," see pp. 107-109.
"'The resumption of mail covers is discussed above at footnote 528. FBI
field offices were Instructed that they could recruit 18-21 year-old informers in
September 1970. (SAC Letter No. 70-48, 9/15/70.) See. p. 76.
m"The head of the FBI Domestic Intelligence Division, William C. Sullivan,
was promoted to be Assistant to the Director for all investigative 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.
mBrennan testimony, 9/25/75, Hearings. Vol. 2, p. 108.
m The involvement of the Central Intelligence Agency in improper activities
for the White House is described In the Rockefeller Commission Report, Ch. 14.
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.5** President Johnson's assistants
also requested name checks on members of the Senate staff of Presi-
dential candidate Barry Goldwater in 1964,569 on Justice and Treasury
Department officiials responsible for a phase of the criminal investi-
gation of Johnson's former aide Bobby Baker,569a on the authors of
books critical of the Warren Commission report,5 7 0 and on prominent
newsmen.57' President Nixon's aides asked for similar name checks
on another newsman, the Chairman of Americans for Democratic
Action, and the producer of a film critical of the President. 5 7 2
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 Abernathy. 573
(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 would not be marred by civil disruption.
But it went beyond these functions to report political intelligence
to the White 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." *5 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.5 7 5
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.
r" Memorandum from Hoover to Marvin Watson, 11/8/66.
m See Finding on Political Abuse, p. 225.
r's Letter from J. Edgar Hoover to John D. Ehrlichman, 10/6/69; House
Judiciary Committee Hearings, Statement of Information (1974), Book VII,
p. 1111; Book VIII, p. 183. Director Hoover volunteered Information from
Bureau files to the Johnson White House on the author of a play satirizing the
President. (Memorandum from Hoover to Watson, 1/9/67.)
' Memorandum from Hoover to Tolson, et al., 5/18/70. Agnew admits having
received such information, but denies having asked for it. (Staff summary of
Spiro Agnew interview, 10/15/75.)
" Memorandum from C. D. DeLoach to Mr. Mohr, 8/29/64.
7
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, USA, was engaging in
eonsiderable activity. much in a leadership capacity in the Student Nonviolent
Coordinating Committee." (FBI summary memorandum. 1/30/75.) It is unclear,
however, whether this hug was even approved internally by FBI Headquarters,
as ordinarily required by Bureau procedures. DeLoach stated in a contempo-
raneous memorandum that the microphone surveillance of SNCC was instituted
(Continued)
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.57' 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.5'" DeLoach, moreover, has testified that he
is uncertain whether he ever informed Jenkins of these sources. 9
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.5so 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.58 1 More-
over, the 1975 Inspection Report 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 falls
to locate any memorandum containing [internal] authorization for same." (FBI
summary memorandum, 1/30/75.)
u 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 Bureau 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.
'8 Staff summary of Walter Jenkins interview, 12/1/75.
m DeLoach. 11/26/75. p. 114.
O Theodore White, Making of the President1964 (New York: Athenium. 1965),
pp. 277-280. Walter Jenkins also confirmed this characterization. (Staff sum-
mary of Jenkins interview, 12/1/75).
m Memorandum from DeLoach to Mohr, 8/29/64.
Senators, and Governors of States" were overheard on the King tap.5 82
According to both Cartha DeLoach and Walter 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. . . .583
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.58" 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.8 5
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. 5 8 6
(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 any 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].587
mMemorandum from H. N. Bassett to Mr. Callahan, 1/29/75.
DeLoach, 11/26/75, p. 139.
m Staff summary of Jenkins interview, 1/21/75.
Exhibit 68-2, Hearings, Vol. VI, p. 713.
FBI memoranda indicate that in 1968 Vice President Hubert Humphrey's
Executive Assistant, Bill Connell, asked the Bureau to send a "special team" to
the forthcoming 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, 8/7/68). After talk-
ing with Connell, Director Hoover advised the SAC 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 Marvin Watson "had informed
him of the great service performed by the FBI during the last Democratic Con-
vention." (Memorandum from DeLoach to Tolson, 8/22/68.)
_w FBI summary memorandum, 2/3/75.
As a result of the President's request, the FBI prepared a chronolog-
ical summary-apparently based in part on existing 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 legislators." *58A second sum-
mary, prepared on further contacts between Congressmen and foreign
officials, was transmitted to the White 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.589
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 "wanted 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 White 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) .50
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.59'
The electronic surveillance was authorized by Attorney General
Ramsey Clark on October 29, 1968, installed the same day, and con-
tinued until January 6, 1969.192 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 593distance
toll call records of Vice Presidential candidate Spiro Agnew.
FBI summary memorandum, 2/3/75.
FBI summary memorandum, 2/3/75.
moFBI summary memorandum, 2/3/75. See Findings on Political Abuse.
m FBI summary memorandum, 2/1/75.
mMemorandum from Director, FBI to Attorney General, 10/29/68; 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.)
m See Findings on Poltical Abuse, p. 225.
121
a. Developments in 1972-1974
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 1972.636 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." 637 Director Hoover
noted on a newspaper report of the testimony, "Prepare succinst memo
to him on our guidelines." 638
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.6 3M
Acting Director Gray postponed making any formal decisions on
this matter; he did not formally request advice from the Attorney
General. 6 40 Meanwhile, the Domestic Intelligence Division proceeded
(Continued)
security reasons because of their sensitivity." It was suggested, however, 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.
e3eAfter 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-affirma-
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 1953.
(Memorandum from Hoover to Mitchell, 9/30/71.) The Attorney General replied
with a general endorsement of FBI authority to investigate "subversive activ-
ities." (Memorandum from Mitchell to Hoover, 10/22/71.)
' Richard Kleindienst testimony, Senate Judiciary Committee, 2/24/72, p. 64
' FBI routing slip attached to Washington Po8t 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."
Thus. 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.)
' The background 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 officials; 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 revised so that It could not be "interpreted as
a means to circumvent repeal of the Emergency 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, "by citing the pertinent provision of the U.S. Code,
or other authority," and also 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. 6 41 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." 2
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.6 4 3
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.6"
After a series of regional conferences with field office supervisors,
the standards were revised to allow greater flexibility. 6 45 For the first
time in FBI history, a copy of the Manual section for "domestic sub-
versive investigations" was sent to the Attorney General.6"
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.)
MMemorandum from Smith to Miller, 8/29/72. The anticipated reduction was
from 15,259 (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 based 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 offices 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."
These 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, 8/7/73.)
" In a memorandum to the Attorney General, Director Kelley cited Senator
Sam J. Ervin's view that the FBI should be prohibited by statute "from investi-
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)
34-049 0 - 78 - 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."* 48 [Emphasis added.]
Director Kelley's request initiated a process of reconsideration of
FBI intelligence authority by the Attorney General.69
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, gave 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.650
Even at this stage, the Bureau resisted efforts by the Department to
look too deeply into its operations. Director Kelley advised the Acting
Attorney General that the Department should exclude from its review
the FBI's "extremely sensitive foreign intelligence collection tech-
niques."**1
(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 require-
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."
8"Memorandum from Kelley to Richardson, 8/7/73.
' Even before Kelley's request, Deputy Attorney General-Designate William
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-depth
examination of some of the problems facing the Bureau in the future." (Memo-
randum from Ruckelshaus to Kelley, 7/20/73.) The Ruckelshaus study was
interrupted by his departure in the "Saturday Night Massacre" of October 1973.
' Memorandum from Bork to Kelley, 12/5/73.
mThese 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 will 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 counterintelli-
gence operations. since the Bureau was aceountahle in this area directly to the
United States Intellience Board and the National Security Council. (Petersen
Committee Report. pp. 34-35.) The Petersen Committee sharply rejected this
view, especially beeanse the ad hoc equivalent of the U.S. Intelligence Board
had anproved the discredited "Huston plan" in 1970. The Committee declared:
"There can be no donbt that in the area of foreign counterintelligence, as in all
Its other functions. the FBI is subject to the power and authority of the Attorney
General." (Petersen Committee Report, p. 35.)
As a result, the Petersen committee's review of COINTELPRO did
not consider anything more than a brief FBI-prepared summary of
foreign counterintellgence operations.652 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.653
Thus, at the same time that the Bureau was 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.
b. 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.655
(1) Executive Order 10450, A8 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.656
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 Memorandum, "Overall Recommendations-Counterintelligence
Activity," Appendix to Petersen Committee Report.
0 Henry Petersen Testimony, 12/8/75, Hearings, Vol. 6, pp. 270-71.
a 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. B. Fulton to Mr. Wannall, 7/10/74. See pp. 42-44 for
discussion of the initiation of the program.
other functions, fundraising or recruiting activities on behalf
of the organization, contributions, etc.). 657
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, association which would still be considered in
evaluating prospective federal employees.65* 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 possible to set definite parameters covering the
initiation 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 determination 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." 659
34-049 0 - 78 - 13
surveillance of groups and individuals, no one is safe from the
inquisitive eye of the intelligence agency.
Subfindings (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 amount 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." 65 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." 66
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." 87 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.6 7a 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 they touch was
provided by an FBI informant in an antiwar group with only 55
Adams, 12/2/75, Hearings, Vol. 6, p. 135.
e 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.
0" Rowe, 12/2/75, Hearings, Vol. 6, p. 116.
regular 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.68 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.").69
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.
Subfinding (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 Intelligence Inve8tigation of the NAACP (1941-
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, 0 the investigation expanded to encompass
NAACP chapters in cities across the nation. Although the ostensible
purpose of this investigation was to determine if there was "Com-
munist infiltration" of the NAACP, the investigation constituted a
long-term monitoring of the NAACP'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.71
-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." 72
* Mary Jo 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, 5/28/69; memorandum from Baltimore Field Office, 5/11/70 to
FBI Headquarters. CIA agents in the United States also reported 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.)
o 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.
-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. 7 8
-As late as 1966, the FBI was obtaining NAACP chapter member-
ship figures 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.75 Later reports covered what transpired
at several of these meetings with Senators.76 Most significantly, all
these reports were sent to the White House.77
(ii) The FBI Intelligence Inve8tigation of the Socialist Workers
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.77a
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.78
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. 79 The informants also
have been reporting on SWP cooperation with other groups who are
not the subject of separate intelligence investigations."o
(iii) The Effort to Prove Negative.-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 1974,1 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; 82 in
1968, the CIA concluded that U.S. student protest was essentially
homegrown and not stimulated by an international conspiracy; 83an
in 1971 the CIA found "there is no evidence that foreign governments,
organizations, or intelligence services now control U.S. New Left
" Memorandum from New York Field Office to FBI Headquarters, 4/15/65.
7 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."
w Robert Shackelford testimony, 2/2/76; pp. 89-90.
7 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.
Movements .. . the U.S. New Left is basically self-sufficient and moves
under its own impetus." 84
The result of these repeated findings was not the termination of
CHAOS's surveillance of Americans, but its redoubling. 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.8 5
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 who had infiltrated domestic organizations for
other purposes supplied general information on the groups' activi-
ties. 6 Thus, the intelligence mission became one of continued surveil-
lance to prove a negative, with 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 Workers 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. 7 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 [ ]88 is not sympathetic to the
Party cause. While there may not be any evidence that f I
is a Communist neither is there any substantial evidence that
89
he is anti-Communist.
CIA Report, "Definition and Assessment of Existing Internal Security
Threat-Foreign," 1/5/71, pp. 1-3.
8 Richard Helms testimony, Rockfeller Commission, 4/28/75, pp. 2434-2435.
Helms further testified: "President Johnson 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, "Operations 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
34-049 0 - 78 - 14
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 every 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.52
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.53
Even where intelligence informants are used to infiltrate groups
where some members are suspected of violent activity, 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 leadership.5*
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
[VVAW] 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. 5 5
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 only 5 regular members."5 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.5
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.
7 Rowe, 12/2/75, Hearings, Vol. 6, p. 116.
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.5 8
-357 U.S. 449 (1958). Similarly, in Bate8 v. City of Little Rock, 361 U.S.
516 (1960), the Supreme Court held compulsory disclosure of group membership
lists was an unjustified interference with members' freedom of association.
.. 361 U.S. at 465.
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.
Gainesville (Florida) 8 . . . the Camden (New Jersey)
9 ... various documents from all of these groups." 'o
This informant also testified that she took the confidential mailing
list of the group she had penetrated and gave it to the FBI.7 1
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.72 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. Wiretappingand 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." 7
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 anyone else using the target's telephone) commu-
nicates.74 Microphones planted in the target's room or office inevitably
intercept all conversations in a particular area: anyone confer ing in
the room or office, not just the target, is overheard.
34-049 0 - 78 - 15
D. USING COVERT ACTION TO DISRUPT AND DISCREDIT
DOMESTIC GROUPS
MAJOR FINDING
The Committee finds that covert action programs 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.
Subfinding8
(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 Finding8
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. 2
1
Before 1956 the FBI engaged 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, althourh 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 unit 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 deficiencied
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)
They ended formally in 1971 with the threat of public exposure.,
Some of the findings discussed herein are related to the findings on
lawlessness, ovdrbreadth, 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.4 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 COINTELPRO was more than simply violating the law or
the Constitution. In COINTELPRO the Bureau secretly 6 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 violent, 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 techni qes 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
8 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, 11/8/75, p. 83.
"Field offices 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 origins of COINTELPRO] up and back to foreign intel-
ligence, particularly penetration 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 also testified that the "rough,
tough, dirty business" of foreign counterintelligence was "brought home against
aiy 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.8
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." 9
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).
*Whilethe 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 so 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." 12 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
a For example, parents and spou.se, 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.
1 Moore, 11/8/75, p. 37.
New Left supervisor, 10/28/75, p. 69.
U Black Nationalist Supervisor, 10/17/75, p. 12.
Activities Committee 14 and civil rights leaders allegedly under Com-
munist influence or not deemed to be "anti-Communist".15 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.'7 New Left targets ranged from the SDS '1 to the Inter-
University Committee for Debate on Foreign Policy,19 from Antioch
College ("vanguard of the New Left") 20 to the New Mexico Free
University and other "alternate" schools , and from underground
newspapers 22 to students protesting university censorship of a student
publication by carrying signs with four-letter words on them. 2 3
Subfinding (b)
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 office space to the "Citizens for Constitu-
tional Rights". (Memorandum from FBI Headquarters to Cleveland Field Office,
11/6/64.)
15 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.)
7 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.
2 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
IUCDFP. 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.
2 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, 3/19/69.) 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.
n Memorandum from FBI Headquarters to Minneapolis Field Office, 11/4/68.
215
Dr. King had attempted suicide twice as a child. [Time magazine, Jan. 4, 1964.]
mSeveral 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 Prize. (Memorandum from F. J. Baum-
gardner to William C. Sullivan, 11/12/64.)
222
United States, took steps to diminish support for a banquet and a
special "day" being planned in his honor."9
The Bureau's actions against Dr. King included attempts prevent
him from meeting with world leaders, receiving honors or tofavorable
publicity, and gaining financial support. When the Bureau learned
of a possible meeting between Dr. King and the Pope in Augst 1964,
the FBI asked Cardinal Spellman to try to arrange a cancellation of
the audience.O 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
at the schools to rescind their plans.n And when the Bureau officials
in October 1966 that the Ford Foundation might grant three learned
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.72
A magazine was asked not to publish favorable articles about him."
.Religious leaders and institutions were contacted to undermine their
support of him.7' Press conference questions were prepared and dis-
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.
Subfinding8
(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
mi ht 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.
Elaborationof 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 White 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 surveillance.,
xRemarks by Rep. Hale Boggs, 4/22/71, Congressional Riecord, Vol. 117, Part
9, p. 11565.
(225)
34-049 0 - 78 - 16
Information Tathered and disseminated to the White House ranged
from purely po itical 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-
ticians and public figures which the Bureau believed "of interest" to
the recipients.
Such participation in political machinations by an intelligence
agency is totallmproper. 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 which party was in power at the time. However, the
Bureau also used its powers to serve ideolo ical 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 contemprary 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 interven-
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.
Sub #nding (a)
White 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 White House aides have asked the FBI to provide
political or personal information on opponents and critics, including
"name checks" of Bureau files. 2 They have also asked the Bureau to
'A "name check" is not an investigation, but a search of existing FBI files
throungh the use of the Bureau's comprehensive general name index. 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." Deposition of Thomas E. Bishop,
former Assistant Director, Crime Records Division, 12/2/75, p. 144.)
227
' Former FBI executive Cartha DeLoach, who was FBI liaison with 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, 11/25/75, p. 28.) On at least one occasion,
when a White 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 the 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 dissemination" 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 permissible." But even if there had been a statute
laying down standards, Bishop said "it wouldn't have made a bit of difference
. . . when 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.
0
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.
Courtney Evans deposition, 12/1/75, p. 39.
See pp. 64-65. The tap authorized by Attorney General Kennedy on another
high executive official was not related to political considerations, nor appar-
ently 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
son White 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
26
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 Whitethat House
at the Request of the President, 2/3/75.) The FBI's reports indicated 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 In
critics. Rather, the Nixon request grew out of concern about "an increase
[foreign] Interest on Capitol Hill" which had been expressed totwo President Nixon
by at least one Senator; and the FBI's report "included examples of
[foreign] intelligence initiatives directed against Capitol 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, 4/8/67, enclosing memorandum from
Director, FBI to the Attorney General. 4/7/67. (LBJ Library.)
" Memoranda from Hoover to Watson, 2/15/65 and 5/29/65.
21
Memorandum from Hoover to Watson, 7/22/65.
* Memorandum from Hoover to Watson, 1/27/67.
Memorandum from Hoover to Watson, 4/6/66.
nMemorandum 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.
"Negotiation Now" in 1967, and his activity as chairman of Con-
necticut Citizens for McCarthy in 1968.2a
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
under consideration for an executive appointment.27 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." 28 (Agnew has denied that he made
such a request, but agrees that he received the information.) 29
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. 0 Kraft was also the target of physical surveillance by the
FBI.31 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. 32 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.33
a 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.
2 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.)
0 Staff summary of Spiro Agnew interview, 10/15/75.
'.Memoranda from Sullivan to Hoover, 6/30/69 and 7/2/69.
n Memorandum from Sullivan to DeLoach, 11/5/69. The Kraft surveillance Is
also discussed in Part II, pp. 121-122.
2 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 officials.
Attorney General Mitchell approved the first at the request of "higher authority."
(Memorandum from Hoover to Mitchell, 7/23/69.) The second was specifically
reoiested by H. R. Haldeman. (Memorandum from Hoover to Mitchell, 12/14/70.
" 3This tap was also apparently requested by White House officials other than
Kissinger or Haig. (Memorandum from Sullivan to DeLoach, 8/1/69.) The "17"
wiretaps are also discussed at p. 122.
Subfinding (b)
In some cases, political or personal information was not specifically
requested, but was 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." 4
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
White 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.
(i) The NAACP
In early 1956 Director Hoover sent the White House a memoran-
dum describing the "potential for violence" in the current "racial
situation".35 Later reports to the White 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 with
a planned Leadership Conference on Civil Rights to be held in
Washington under the sponsorship of the NAACP.36
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 by 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.3
Another report on the conference included an account of
what transpired at meetings between conference delegations
and Senators Paul Douglas and Everett Dirksen. 8
3
'IDeLoach. 12/3/75, Hearings, Vol. 6. p. 180.
33Memorandum from Hoover to Dillon Anderson, Special Assistant to the
President. 1/3/56. This report was also provided to the Attorney General, the
Seeretary of Defense, and military intelligence.
Memorandum from Hoover to Anderson, 3/2/56.
m Memorandum from Hoover to Anderson. 3/5/56.
" Memorandum from Hoover to Anderson, 3/6/56.
A report including the information that two New Jersey 39
congressmen would sign a petition to the Attorney General.
A presidential aide suggested that Hoover brief the Cabinet on
"developments in the South." 40 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.41
(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. 4 2 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 43
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." 44
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 Colored People to send instructed
delegations to high-ranking Government officials '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 Director. was "prepared to brief the Cabinet along the
general lines" of his written communications to the White House. (Memorandum
from J. Patrick Coyne to Anderson, 2/1/56.)
a 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 Riehts." 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.
0 The Americans include three Agriculture Department officials, 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 the microphone surveillance of the Congressman, see p. 61, note 233. One
of the wiretaps directed at a registered lobbying agent was placed on the office
telerhone of a Washington law firm. (See p. 201)
FBI memorandum, 6/15/62.
whom was 'dead set against us' 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." 4
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." 48
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 that one of
his associates "was planning to take [the two secretaries and
another Congressional aide] to Bermuda." 4 9
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.so
(iii) The 1964 DemocraticConvention
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. 5 1 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: 52
"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. Edgar Hoover to Robert Kennedy, 3/13/61.
Memorandum from J. Edgar Hoover to Robert Kennedy, 3/13/61.
0Memorandum 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. (DeLosch, 12/3/75, hearings, Vol. 6, p. 175.)
a 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." 5
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 White House directly and put pressure
on the White House in behalf of the MFDP." "
"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." 5
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." 5
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] thought of Hugh
[sic] Humphrey, and [the other leader] said Hugh Hum-
phrey is not going to get it, that Johnson needs a Catholic ...
and therefore the Vice-President will be Muskie of Maine." 5
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.58
(iv) The "17" Wiretape.
The Nixon White House learned a substantial amount of purely po-
litical intelligence from wiretaps to investigate "leaks" of classified
information placed on three newsmen and fourteen executive officials
during 1969-1971.59 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." 60
aMemorandum from DeLoach to Jenkins. 8/24/64.
"Memorandum from DeLoach to Jenkins, 8/25/64.
"Memorandum from DeLoach to Jenkins, 8/25/64.
Memorandum rom DeLoach to Jenkins, 8/25/64.
"Memorandum from DeLoach to Jenkins, 8/25/64.
"Blind memorandum from LBJ Library bearing handwritten date 8/26/64 and
the typewritten date 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 Presideney. See Part IT, p. 122.
* Memorandum from Hoover to Nixon, Kissinger, and Mitchell, 10/9/69.
Another target said that Senator Fulbright postponed con-
gressional hearings on Vietnam because he did not believe
they would be popular at that time.6 1
A well-known television news correspondent "was very
distressed over having been 'singled out' by the Vice Presi-
dent." 62
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].'." 65
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.67
One of the targets said Senator Mondale was in a "dilemma"
over the "trade bill." 68 1
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." 6'
There is at least one clear example of the political use of such
information. After the FBI Director informed the White House
that former Secretary of Defense Clark Clifford planned to write a
magazine article criticizing President Nixon's Vietnam policy,70 White
House aide Jeb Stuart Magruder advised John Ehrlichman and H. R.
Haldeman that "we are in a position to counteract this article in any
number of ways." 7 It is also significant that, after May 1970, the
FBI Director's letters summarizing the results of the wiretaps were
no longer sent to Henry Kissinger, the President's national security2
advisor, but to the President's political advisor, H. R. Haldeman.7
34-049 0 - 78 - 17
The Bureau also attempted to enforce its view of sexual morality.
For example, two students became COINTELPRO 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." 102 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 University 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." 103
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 immorality on certain college campuses." 104
As these examples demonstrate, 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.
(i) U8e 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 105 was responsible for covert liaison
with the media to advance two main domestic intelligence objectives: 106
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.
1"The field office also disapproved of the "hippy types" distributing the news-
paper, with their "unkempt clothes", "wild beards", and "other examples of their
nonconformity". Accordingly. an anonymous letter was sent to a state legislator
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,
5/23/69; memorandum from FBI Headquarters to Newark Field Office, 1/69.
1w The 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 Information 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 with an author intending
to write a book about the FBI (Bishop testimony, 12/2/75, pp. 6-8. 18.)
'6 Memoranda recommending use of the media for OOINTELPRO 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.)
(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. 0s Bishop and one
of his predecessors indicated that the FBI sometimes refused to co-
operate with reporters critical of the Bureau or its Director.19
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.n10 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.111
There are numerous examples of authorization for the preparation
and dissemination of unfavorable information to discredit generally
the activities and ideas of a target; 112
-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." Headquarters
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." 113
-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 Office,
10/22/68.
x"Bishop, 12/2/75, p. 33.
'0 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.)
Bishop 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. 135-136.
m 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.)
mMemorandum from C. D. Brennan to W. C. Sullivan, 5/22/68.
affiliated with "a radical New Left element" who had been "active in
showing films on the Black Panthers and police in action at various
universities during student rioting." The media contact had requested
material from the Bureau which 'would have a detrimental effect on
[the target's] activities." 114
-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. The directive from head-
quarters said: "As this publicity will be derogatory in nature and
might serve to neutralize the group, it is being approved." us
-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].2
One Bureau-inspired documentary on the NOI reached an audience
of 200,000."x' Although the public was to be convinced that the NOI
was "violent", the Bureau knew this was not in fact true of the or-
18
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 their 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 weaken the youth of target
countries." 1*
"' 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.)
"s Memorandum from FBI Headquarters to Boston Field Office, 1/13/68.
" Memorandum from FBI Headquarters to Boston Field Office, 2/27/68.
m.7Memorandum from Tampa Field Office to FBI Headquarters, 2/7/69.
1" 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.
-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." 120
-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." 21
-As part of the new Left COINTELPRO, 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." 122
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." 123 To further this objective, Headquarters authorized the
Miami 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." 12
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." 125
-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." 126
'" Memorandum from F. J. Baumardner to W. C. Sullivan, 8/9/65.
mMemorandum from F. J. Baumgardner 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 Offlee, 7/9/68.
' Memorandum from G. C. MoQre to W. C. Sullivan, 5/17/76.
'o 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 undergroid
communist organization" to take over SDS. This contact resulted in
an article headlined "Red Unit Seeks SDS Rule." 127
-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." '2 8
-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." 129
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 advantage of a close relationship
with a high official of a major national magazine, described in an FBI
' Memorandum from Chicago Field Office to FBI Headquarters, 6/18/69.
m 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)
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; "postponed pub-
lication" of an article on another FBI case; "forestalled publication"
of an article by Dr. Martin Luther King, Jr.; -and received informa-
tion about proposed editing of King's articles.130
The Bureau also attempted to influence public opinion by using
news media sources to discredit dissident groups 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 sponsorship of efforts to abolish the House Committee on
Un-American activities. This prompted 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.13 1
-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.132
-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; 133 furnishing infor-
mation to the media on the participation of the Communist Party
presidential candidate in the United Farm Workers' picket line; 134
"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;" 135 and furnishing information to the media
on Socialist Workers Party participation in the Spring Mobilization
Committee
36
to End the War in Vietnam to "discredit" the antiwar
group.a
(ii) 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.
M Memorandum from Cleveland Field Office to FBI Headquarters, 10/28/64;
memorandum from FBI Headquarters to Cleveland Field Office, 11/6/64.
MMemorandum 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 Headqiarters, 9/12/68: memorandum from FBI Headquarters to San Fran-
cisco Field Office, 9/13/68.)
Aemoranduih
M 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.
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." m
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.1 3 8
Other COINTELPRO programs also included attempts to disrupt
campaigns. For example, a Midwest lawyer running 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." m 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 hlis clients and his activities which it believed should
be asked.o4 0 The candidate was defeated. He later ran (successfully,
as it happened) for a judgeship. The 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.214
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.1"
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.
m 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.
..oMemorandum 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 Offlee, 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 because of "political ramifications."
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. . . .45
The Bureau's efforts to discredit Dr. King are discussed more fully
14
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.
(iii) ExaggeratingThe Threat
The Bureau also used its control over the information-gathering
process to shape the views of government officials and the public on the
1 The originating document for the "Black Nationalist" COINTELPRO ordered
field offices 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 offices 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.
1"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.
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. Sincethe Bureau was assigned to compile intelli-
gence on Communist activity, its estimate was 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." 147
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." 4s Another memorandum was
'therefore written to give the Director "what Hoover wanted to
hear." 140
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." -o
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." 1 51 Only someone with access to the underlying
information would note that the facts could be interpreted quite dif-
ferently.15ua
1 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.)
mHearings 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 1964 civil rights bill.
m 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: . I
"The Communist Party plan8 to use this conference to embarrass the Adminis-
tration by causing a rift between the Administration and Dixiecrats who have
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." 152 Hoover agreed, stating that upcoming
demonstrations in eighty-five cities were being planned 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." 153
Immediately after the meeting, however, 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." 154
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.] 155
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 rights leg-
aslation with the present Congress. The Party hopes through a rift to affect the
1956 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, Eisenhower, Brownell, and the Congress: The Tangled Origins of the
Civil Rights Bill of 1956-57 [University of Alabama Press, 1964], p. 34.)
" Memorandum from Hoover to subordinate FBI officials, 4/28/65.
' Hoover memorandum. 4/28/65.
' Hoover memorandum, 4/28/65.
n Letter from Hoover to McGeorge Bundy, Special Assistant to the
President (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 White House staff members relying on FBI reports, 56 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. 5 7 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 that: "the Communist Party and other organiza-
tions are continuing their efforts to force the United States to change its present
policy toward Vietnam."
mThe 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 8usceptible 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 opportunitiesunparalleled 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
"For example, in 1966 before the FBI had received any specific instructions
from the Attorney General to gather civil disturbance intelligence, Bureau Head-
quarters advised all Field Offices 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)
10These 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 the 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.
12The Agreements between the FBI and military intelligence have not been
revised to take account of the restrictions on Army surveillance imposed by the
Department of Defense in 1971. See DOD Directive 5200.27, 3/1/71.
'5Richard Ober, 10/28/75, pp. 67, 68.
" The FBI Manual stated that information concerning "proposed 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.)
'5For example, Reports on the ABM debate discussed on pp. 257-258.
"'Memorandum from D. W. Bacon to Director, FBI, 8/8/69.
The FBI, perceiving that SSS would "deal a blow to dissident ele-
ments," 7' 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.18 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." 9
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.20
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." 21
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 IDIU 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.22
-In 1970 the FBI disseminated to military intelligence and the
Secret Service (both locally and at Headquarters), as well as to the
Justice Department (IDIU, 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.
g SSS Bi-weekly Report, 8/29/69.
'Former FBI liaison with CIA deposition, 9/22/75, pp. 16-17.
n Former FBI liaison with CIA deposition, 9/22/75, pp. 16-17; memorandum
from Attorney General Tom Clark to J. Edgar Hoover, 12/5/47.
n Memorandum from Tampa Field Office to FBI Headquarters, 5/29/69.
ing 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," who supported the strike by
urging blacks to boycott white-owned stores in the community, might
cause "confrontations that might result in violence." 23
-The FBI dissiminated a report on Dr. Carl McIntyre'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," "Poetry Now," and
"Autobiography and the Image of Self." 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
25
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."
26
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-
SMemorandum from Charlotte Field Office to FBI Headquarters, 12/10/70.
" Letter from Acting Director, FBI, to Director, United States Secret Service,
5/25/72.
' Memorandum from Detroit Field Office, to FBI Headquarters, 4/15/66.
= Memorandum from Springfield Field Office to FBI Headquarters, 7/5/66.
34-049 0 - 78 - 18
Ballistic Missile. The only indication of "subversive" influence was
that one woman miarried 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.27
-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 resisters.
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.28
-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. 29
-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.30
The FBI does have an obligation to disseminate to local law en-
forcement agencies information about crimes within their jurisdic-
tion. Nevertheless, 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 3 ' Others were in response to
local police requests for "public source" information relating to "sub-
versive matters." 32 Experienced police officials confirmed that the term
" 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.)
a 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.)
r4 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
Measure8, 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.
sive; individuals contributing funds to subversive-type ac-
tivity; subversive or seditious publications; writers of articles
in subversive or seditious publications; bookstores specializing
in subversive-type publications and related types of informa-
tion. 5
The Committee has found that there are massive amounts of irrele-
vant and trivial information in these files.57 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.58
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."o
mMemorandum from FBI to Senate Select Committee, 5/22/75.
wCurrent FBI policies modify past practice with respect to the indexing of
unsolicited allegations, including those of "a personal nature," not requiring "in-
vestigative action." The Bureau no longer includes in its name index the name
of the person about 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 via 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
59
information in its files dating back as far as 1939.
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 Klux 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 Office has described regular Bureau procedures as follows:
"lOur] 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
34-049 0 - 78 - 19
employees whom it had determined were "almost certainly guilty of
violations of criminal statutes" when the CIA could "devise no
charge" under which they could be prosecuted that would not "require
revelation of highly classified information." 29 This practice was ter-
minated by the Justice Department in January, 1975.29a
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 Attorney 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 inquiry 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.o The Justice Department's concern
in recent years is a hopeful sign, but long overdue.
Subfinding (c)
Presidents, White House officials, and Attorneys General have
requested and received domestic political intelligence, thereby con-
tributing to and profitig 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.
"I 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.
Subfinding (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.31
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 rights 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." 32 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.3 4
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 perform 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.35
" One cabinet official, 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. 45.)
2Letter from FBI to the Senate Select committee, 11/6/75.
U 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 Interview, 12/1/75, pp. 1-2. Mr. Jenkins subsequently
said that he was unable to testify formally because of illness and has failed to
answer written interrogatories submitted to him by the Committee for response
under oath.
276
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 ;" 7 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; 80
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." 81 More recently, several questionable domestic intelli-
gence practices have been terminated at least in part as a result of
Congressional investigation.82
(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 "Aeserve[d] 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 therefore 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 State8, U.S. 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." 4/23/65.)
Despite 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 Office 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.)
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." S3
-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." "1
-On May 9, 1973, newly appointed CIA Director James Schle-
singer requested from CIA personnel an inventory of all "questionable
activities" which the Agency had undertaken. The 694 pages of memo-
randa received in response to this request-which became known at
the CIA as "The Family Jewels"-prompted the termination 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.8 '
-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, thit 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 by another IRS Division. (IRS
Memorandum, D. 0. 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 the 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 0. 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,
which is the only authorized province for NSA operations. ("Senior NSA official
deposition," 9/16/75, p. 10.) In June 1973 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 BNDD. In response to the Keith case
and to another case which threatened to disclose the existence of the NSA watch
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)
was "frozen" after the Inspector General questioned the morality and
lack of administrative control of the program. 5
-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."1
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
White House "plumber" E. Howard Hunt, Jr., about which Schlesinger had not
been briefed completely upon assuming his position. (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.)
85After 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 "necessary 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. . . . There 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
34-049 0 - 78 - 20
290
' Robert H. Jackson, The Supreme Court in the American Sy8ten of Govern-
ment (New York: Harper Torchbook, 1955, 1963), pp. 70-71.
The three main departures in the intelligence field from the consti-
tutional plan for controlling abuse of power have been:
(a) Excessive Executive Power.-In a sense the growth of domes-
tic intelligence activities mirrored the growth 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 by outsiders. Indeed, at times the power was seen as flowing not
from the law. but as inherent in the Presidency. Whatever the theory,
the fact was that intelligence activities were essentially exempted from
the normal system of checks and balances.
Such Executive power, not founded in law or checked by Congress
or the courts, contained the seeds of abuse and its growth was to be
expected.
(b) Excessive Secrew.-Abuse thrives on secrecy. Obviously, 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 intelligence, 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 key 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 Rule of Law.-Lawlessnes by Government
breeds corrosive cynicism among the people and erodes the trust upon
which 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. rationalizations were
fashioned to immunize them from the restraints of the Bill of Rights
and the snecific prohibitions of the criminal code. The experience of
our investigation leads us to conclude that such rationalizations are a
dangerous delusion.
B. Princivles Applied in Framing Recommendations and The Scope
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, we would ban tactics such as those used
in the FBI's COINTELPRO. But other activities present more com-
plex problems. We see a clear need to safeguard the constitutional
rights of speech, assembly, and privacy. At the same time, we do not
want to prohibit or unduly restrict necessary 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 privacy 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 infrinaes 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 interpreting 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
only 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.2
(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 reasonableness-the obtaining of a judicial warrant
upon probable cause from 'a neutral magistrate. Our proposed pro-
cedural checks range from judicial 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 must 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 Gregory v. New Hampshire,383 U.S. 825, 829 (1966) ; NAACP v. Alabama,
377 U.S. 288 (1964) ; Gibson v. FloridaLegislative Investigation Commission, 372
U.S. 539. 546 (1962) Shelton v. Tucker, 364 U.S. 479,488 (1960).
'Madison, Federalist No. 51. Madison made the point with grace:
"If men were angels, no government would be necessary. If angels were to
govern men, neither external nor internal controls on government would be neces-
sary. In framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to control the
governed; and in the next place oblige it to control itself. A dependence on the
people is, no doubt, the primary control on the government; but experience has
taught mankind the necessity of auxiliary precautions."
294
34-049 0 - 78 - 21
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
29
34-049 0 - 78 - 22
"soon to engage in terrorist activity or hostile foreign intelligence
activity". In both cases the FBI may focus on the group to determine
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 international 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
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 foreign 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
recruited 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 46.-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; 45a or
(ii) After such troops have been introduced.
Recommendation 46.-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. BackgroundInvestigations
Recommendation 47.-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
4s 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
(b) restrict the dissemination of information from name checks 47
of information related to suitability for employment.
5. Security Risk Inve8tigations
Recommendation 48.-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 Investigation8
Recommendation 49.-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.48 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. Little 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.
and in some cases to prior approval by the Attorney General's office,
as described in Recommendations 55 through 62.49
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 porwers, 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 abroad, then the dangerous doctrine of inherent
Executive power to target an American for electronic surveillance can
be put to rest at last.49 a 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 absence of probable cause to believe he might com-
mit a crime is unwise and unnecessary.
In Part X, the Committee recommends that Congress consider
amending the Espionage Act to cover modern 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. . . ." (Youngatown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952), Justice Jackson concurring.)
There are some differences between the Attorney General and the
Committee on the use of informants.5 o The Attorney General would
permit the FBI to make unrestricted use.of existing informants in a
preliminary intelligence 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 51 in the intelli-
gence investigation unless the Attorney General finds that there is
"probable cause" that the American will soon engage in terrorist or
hostile foreign intelligence activity, except that if the Attorney Gen-
eral finds compelling circumstances he may permit an additional
sixty 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-day extension. The remainder of the covert techniques
would be permitted in full intelligence 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 Attorney General or his designee to. authorize the initiation
of the full investigation and the use of covert techniques in the in-
vestigation.
1. Overt Technique8 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 days begins when the informant is in place and capable
of reporting.
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 human sources;
(v) mail surveillance;
(vi) review of tax returns and tax-related information;
(vii) other covert techniques-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. 5 2
b. Judicial WarrantProcedures (Electronic Surveillance,Mail
Opening, Search and Seiure,and SurreptitiousEntry)
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.
Reconmendation 5.-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
(a) There is probable cause that the target is an officer, employee,
or conscious agent of a foreign power.
(b) 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.
0 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.
(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 modern
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 54.-Unuthorized 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, Review of Tax Returns and Taw-Related In-
formation, and Other Covert Techniques)
Recommendation 55.-Covert human sources may not be directed 14
at an American except:
(1) In the course of a criminal investigation if nebessary 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 thatV, (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.
uA "covert human source" is an undercover 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.
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 5*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 Partiii. 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 57 (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 preliminary or full
preventive intelligence investigation.
Recommendation.60.-Covert techniques should be permitted at the
scene of a potential civil 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 techniques 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 69.-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.
0 The written finding must be 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.
techniques are consistent with Recommendation 55(1), 58(1) or 59.
With respect to security risks, Congress might consider authorizing
covert techniques, other than those requiring a judicial warrant, to be
directed at Americans in the. course of security risk 5 investigations,
but only upon a written finding of the Attorney General that (1) 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 Overhear8
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 information 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. Sealingor 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) Preventive 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 rwhere 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. Disemination
Recommendation 67.-Personally identifiable information on Amer-
icans from domestic security investiigations may be disseminated out-
side the Department of Justice as follows:
(a) Preventive intelligence investigations of terrorist activities-
personally identifiable information on Americans from preventive
criminal ;ntelligence investigations of terrorist activities may be dis-
seminated only to:
I If Coneress does not enact a security leak criminal statute. Congress might
consider authori'ine covert techniques in the same circumstances as security risk
investigations either as an interim measure or as an alternative to such a statute.
(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.
(b) 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.59
(d) Background investigations-to the maximum extent feasible,
the results of back-round 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 security investigations-to gov-
ernmental officials who are authorized to take action consistent with
the purpose of an investigation or who have statutory duties which
require the information.
4. Oversiaht Ace8
Recommewdation 68.-Officers of thp Exeentive branch. who are
made resnonsible by these recommendations for overseeing intelli-
gence activities, and appropriate congressional committees should
6 Personally identifl.able Informhtion on terrorist activity which perfains to a
civil disorder could still be disseminated pursuant to (a) above.
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 recommendations.
f. Attorney General Oversight of the FBI, Including Termination
of Investigationsand 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 -activity 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 Responsibility and Authority of the Attorney General
for Oversight of FederalDomestic Security Activities Must
Be Clarifiedand General Counsels and Inspectors 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 agencies. The Order also re-
quires the Oversight 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.
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:
Recommendation 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 reguli-
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 79.-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 74.-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.60 Each such agency head should also assure
his agency's cooperation with the Attorney General in investigations
of alleged violations.
b. General Counsel and Inspectore 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 determine their legality. They also provide a mechanism
O 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.
whereby the Inspector General or General Counsel of an intelligence
agency can, in extraordinary circumstances, 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.
Recommendation 75.-To assist the Attorney General and the
agency heads in the functions described in a. above, the FBI and each
other intelligence agency should have a General Counsel, nominated
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 past,
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 matter 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
heads of the FBI and of other intellioence agencies 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 Counsel and Inspector General
of the FBI and of each other intelligence agency should have un-
restricted access to all information in the possession of the agency2
and should have the authority to review all of the agency's activities.i
The Attorney 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 illeral activity.
Recommendation 79.-The General Counsel of the FBI and of each
other intelligence agency 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 circumstances. and if requested by an employee of the agency
providing information, to pass the Information directly to the Attorney General
and to notify the appropriate congres-zional committees withont informing the
head of the agency. Furthermore. nothing herein should prohibit an employee
from reporting on his own such information directly to the Attorney General
or an appropriate congressional oversight committee.
a The head of the agency should he required to provide to the appropriate
overslzbt committees of the Congress and the Exentive branch and the At-
torney General an immediate explanation, In writing, of any instance in
which the Inspector General or the General Counsel has been denied access to
information, has been instructed not to report on a particnlar activity or has
been denied the authority to investigate a particular activity.
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- 63
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 which
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 summary 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. Of)ece of Professional Responsibility
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
(b) Investigation, if requested by the Attorney General of alleged
violations by intelligence agencies of statutes enacted or regulations
64
promulgated pursuant to these recommendations.
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 84.-The Director of the FBI should be nominated
by the President and confirmed by the Senate to serve at the pleasure
of the President 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 Justioe.
" 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.
"'ItIs not proposed that this recommendation be enacted as a statute.
vi. Administrative Rulemaking and Increased Disclosure
Should Be Required
a. Administrative Rulemaking
Recommendation 86.-The Attorney General should approve all ad-
ministrative regulations required to implement statutes created 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 the 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:6
(a) Any CIA activities against Americans, as permitted in ii.a.
above;
(b) Military activities at the time of a civil 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.
b. Disclosure
Recommendation 89.-Each year the FBI -and other intelligence
agencies affected by these recommendations should be required to seek
annual statutory authorization for their programs.
Recommendation 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 will 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.6 5 a
vii. Civil Remedies Should Be Expanded
Recommendation 91 expresses the Committee's concern for estab-
lishing a legislative scheme which will 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 privacy 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.
6
*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.
which an injured citizen can seek relief-either monetary or injunc-
tive-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-Reconstruction 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; 6 but there is
no statute which extends the same remedies for identical injuries when
they are caused by a federal officer.
In the landmark Bivene case, the Supreme Court held that a federal
officer could be sued for money damages for violating a citizen's
Fourth Amendment rights."6 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.68
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 Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
"One means of structuring such a defense would be to create a rebuttable
presumption that an individual defendant acted so as to avail himself of this
defense when he proves that he acted in good faith reliance upon: (1) a written
order or directive by a government offlcer empowered to authorize him to take
action; or (2) a written assurance by an appropriate legal offlcer that his action
is lawful.
34-049 0 - 78 - 23
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.
Recomnendation 91.--Congress should enact a comprehensive oivil
remedies statute which would accomplish the following: 6*
(a) Any American with a substantial and specific claim 70 to an
actual or threatened injury by a violation of the Constitution by federal
intelligence officers or agents 71 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.72 If threatened injury
is proven in court, the Committee believes that equitable relief and
recovery of the costs of litigation should be available.
(b) 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 programs, 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) Whatever 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. riminal Penalties Should Be Enacted
Recommendation 99.-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 officers and agents. However, the
anomalies and lack of clarity in the present state of the law - (as 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 officer; 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 be was the target of illegal intelligence activity.
""Federal intelligence officers. or agents" should include a person who was
an intelligence officer, 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.
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.73
x. The Espio-nage StatuteShould be 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 94.-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.
xi. BroaderAcces8 to Intelligence Agency Files Should be Pro-
vided to GAO, as 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.
wii. CongressionalOversight 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.
iii. Definitions
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.g. Yates v. United States, 354 U.S. 298 (1957) ; Noto v. United States, 367
U.S. 290 (1961) ; Brandenburgv. Ohio, 395 U.S. 444 (1969).
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).
4 The term "clandestine intelligence activity" is Included in this defilnition 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 h 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.
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. 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.
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.
0. "Unauthorized entry" means. entry unauthorized by the target.
APPENDIX-A
94its CONGRIESS i
18T Susson
JANVAry 27,1975
Considered, amended, and agreed to
RESOLUTION
To establish a select committee of the Senate to conduct an in-
vestigation and study with respect to intelligence activities
carried oat by or on behalf of the Federal Government.
1 Resolved, To establish a select committee of the Senate
2 to conduct an investigation and study of governmental op-
3 erations with respect to intelligence activities and of the
4 extent, if any, to which illegal, improper, or unethical activ-
5 ities were engaged in by any agency of the Federal Govern-
6 ment or by any persons, acting individually or in combination
It with others, with respect to any intelligence activity carried
8 out by or on behalf of the Federal Government; be it further
9 Resolved, That (a) there is hereby established a select
10
34-049 0 - 78 - 24
354
12
I tained by the select committee during the course of its study
I and investigation, not authorized by the select committeq
a to be disclosed; and (2) the disclosure, outside the select
*4 coumittee, of any inforniation which would adversely affect
6 tho intelligence activities of the Central Intelligence Agency
6 in foreign countries or the intelligence activities in foreign
.7 countries of any other department or agency of the Federal
8 Government.,
9 SEc. 8. As a condition for employment as described in
10 seotion 3 of this resolution, each person shall agree not to
11 accept any honorarium, royalty or other payment for a.
1 speaking engagement, magazine article, book, or other en-
1S deavor connected with the investigation and study under-
&. taken by this committee.
30 SBC. 9. No employee of the select committee or any*
16 person engaged by contract or otherwise to perform services
17 for the select committee shall be given access to any classi-
18 hed infornation by the select committee uuiless such em-
30 ployco or person has received an. appropriate security clear-
20 ance as determined by the select committee. The type of
21 security clearanee to be required in the Nse of any such.
22 employee or person shall, within the determination of the
23 stlect -committee, be coninensurate with the sensitivity of.
2 the classieled inifOrmalion to which such employee or person.
'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.
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 the use of such an intrusive technique.3
To a great extent, our proposals for 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 fashion 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 the 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. (DeJong v. Oregon,299 U.S. 353, 365.)
Parnlr 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-establish 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
In 1776 the citizens of a new America, in declaring their independ-
ence from a Pepressive government, set forth the goals, ideals and
standards of their new government in the Declaration of Independ-
ence. As we prepare to celebrate the 200th anniversary of the birth of
our country later this year, we will reaffirm the beliefs 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 Committee 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 Committee 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 support
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 where 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 restricted 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 approaching 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 would 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
(363)
some cases, severely hampering the Committee's inquiry into impor-
tant and significant 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 rights of the targets
of the programs, a greater abuse was the belief fostered that the ofdi-
nary American citizen was not competent enough to, indenendently of
governmental actions, decide, given full knowledce 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 largely ignored. FBI action
was based, for example, on the assumption that all Americans op-
posed to this country's participation in the Vietnam War mi-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 remain 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 frm embracing what is cheap and false; we have
trusted the common sense of our people to choose the doctrine
true to our genius and 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 abve all else feared the political cenor.
We have wanted a land wheM 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
others, the elected epresentatives of the people must have knowl-
ge of governental action to properly determine which perceived
reats to our way of life are real, Justice Brandeis, in Olmtead v.
1.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 onestly with the problems
of our government.
ROnrr 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 functions prevents us, in varying degrees, from
rendering an unqualified endorsement 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 Cairman.
HoWARD H. BAKER, JR.
BAnRY M. GOLDWATER.
(867)
SEPARATE 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 congressional 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 Committee'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 unnecessarily limit the effective-
ness of the Nation's intelligence community.
In the area of foreign intelligence, the mmittee 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)
34-049 0 - 78 - 25
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.
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
myriad 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 with 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
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,5 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 reform, but we must accom.-
plish it by improving, not limiting, our intelligence productivity. I
am confident this can -be done.
(2) INFORMANTS
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 State8, 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
injury." 26 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
34-049 0 - 78 - 26
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