Title: Intelligence Activities and the Rights of Americans
Subtitle: Book II, Final Report of the Select Committee to Study Governmental Operations With Respect to Intelligence Activities Together with Additional, Supplemental, and Separate Views
Date: April 26 (legislative day, April 14), 1976
Source: S. Rep. No. 755, Book II, 94th Congress, Second Session. <intelligence.senate.gov/sites/default/files/94755_II.pdf>

  Letter of Transmittal


    A. The Committee’s Mandate

    B. The Major Questions

    C. The Nature of the Committee’s Investigation

      1. Selection of Agencies, Programs and Cases To Emphasize

      2. Limitations and Strengths

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


  I. Introduction and Summary

    A. Intelligence Activity: A New Form of Governmental Power to Impair Citizens’ Rights

    B. The Questions

    C. Summary of the Main Problems

      1. The Number of People Affected by Domestic Intelligence Activity

      2. Too Much Information Is Collected For Too Long

      3. Covert Action and the Use of Illegal or Improper Means

      4. Ignoring the Law

      5. Deficiencies in Accountability and Control

      6. The Adverse Impact of Improper Intelligence Activity

      7. Cost and Value

  II. The Growth of Domestic Intelligence: 1936 To 1976

    A. Summary

      1. The Lesson: History Repeats Itself

      2. The Pattern: Broadening Through Time

      3. Three Periods of Growth for Domestic Intelligence

        a. 1936–1945

        b. 1946–1963


    B. Establishing a Permanent Domestic Intelligence Structure:

      1. Background. — The Stone Standard

      2. Main Developments of the 1936–1945 Period

      3. Domestic Intelligence Authority: Vague and Conflicting Executive Orders

        a. The Original Roosevelt Orders

        b. Orders in 1938–39: The Vagueness of “Subversive Activities” and “Potential” Crimes

        c. Orders 1940–43: The Confusion Continues

      4. The Role of Congress

        a. Executive Avoidance of Congress

        b. Congress Declines to Confront the Issue

      5. Scope of Domestic Intelligence

        a. Beyond Criminal Investigations

        b. “Infiltration,” Investigations

        c. Partisan Use

        d. Centralized Authority: FBI and Military Intelligence

      6. Control by the Attorney General: Compliance and Resistance

      7. Intrusive Techniques: Questionable Authorization

        a. Wiretaps: A Strained Statutory Interpretation

        b. Bugging, Mail Opening and Surreptitious Entry.

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

      1. Main Developments of the 1946–1963 Period

        a. Domestic Intelligence Authority

        b. Scope of Domestic Intelligence

        c. Accountability and Control

        d. Intrusive Techniques

        e. Domestic Covert Action

      2. Domestic Intelligence Authority

        a. Anti-Communist Consensus

        b. The Federal Employee Loyalty-Security Program

        c. Executive Directives: Lack of Guidance and Controls

      3. Scope of Domestic Intelligence

        a. “Subversive Activities”

        b. “Racial Matters”and “Hate Groups”

        c. FBI Political Intelligence for the White House

        d. IRS Investigations of Political Organizations

      4. Accountability and Control

        a. The Emergency Detention Act

        b. Withholding Information

        c. CIA Domestic Activity

      5. Intrusive Techniques

        a. Communications Interception: CIA and NSA

        b. FBI Covert Techniques

        c. Use of FBI Wiretaps

      6. Domestic Covert Action

        a. COINTELPRO: Communist Party

        b. Early Expansion of COINTELPRO

    D. Intelligence and Domestic Dissent: 1964–1976

      1. Main Developments of the 1964–1976 Period

        a. Scope of Domestic Intelligence

        b. Domestic Intelligence Authority

        c. Domestic Covert Action

        d. Foreign Intelligence and Domestic Dissent

        e. Intrusive Techniques

        f. Accountability and Control

        g. Reconsideration of FBI Authority

      2. Scope of Domestic Intelligence

        a. Domestic Protest and Dissent: FBI

        b. FBI Informants

        c. Army Surveillance of Civilian Political Activity

        d. Federal Encouragement of Local Police Intelligence

        e. The Justice Department’s Interdivision Information Unit (IDIU)

        f. COMINFIL Investigations: Overbreadth

      3. Domestic Intelligence Authority

        a. FBI Intelligence

        b. Army Intelligence

        c. FBI Interagency Agreements

      4. Domestic Covert Action

        a. COINTELPRO

        b. FBI Target Lists

        c. Internal Revenue Service Program

      5. Foreign Intelligence and Domestic Dissent

        a. Origins of CIA Involvement in “Internal Security Functions”

        b. CIA Intelligence About Domestic Political Groups

        c. CIA Security Operations Within the United States: Protecting “Sources” and “Methods”

        d. NSA Monitoring

      6. Intrusive Techniques

        a. Warrantless Electronic Surveillance

        b. CIA Mail Opening

        c. Expansion of NSA Monitoring

        d. FBI Cutbacks

      7. Accountability and Control

        a. The Huston Plan: A Domestic Intelligence Network

        b. Political Intelligence

        c. The Justice Department’s Internal Security Division

        d. The FBIs Secret “Administrative Index”

      8. Reconsideration of FBI Authority

        a. Developments in 1972–1974

        b. Recent Domestic Intelligence Authority

  III. Findings

    A. Violating and Ignoring the Law

      Major Finding


        Elaboration of findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

        Subfinding (d)

        Subfinding (e)

        Subfinding (f)

        Subfinding (g)

    B. The Overbreadth of Domestic Intelligence Activity

      Major Finding

      Elaboration of Findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

        Subfinding (e)

    C. Excessive Use of Intrusive Techniques

      Major Finding


        Elaboration of Findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

    D. Using Covert Action to Disrupt and Discredit Domestic Groups

      Major Finding


        Elaboration of the Findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (d)

    E. Political Abuse of Intelligence Information

      Major Finding


        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

        Subfinding (d)

    F. Inadequate Controls on Dissemination and Retention

      Major Finding


        Elaboration of Findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

        Subfinding (d)

    G. Deficiencies in Control and Accountability

      Major Finding


        Elaboration of Findings

        Subfinding (a)

        Subfinding (b)

        Subfinding (c)

        Subfinding (d)

        Subfinding (e)

        Subfinding (f)

        Subfinding (g)

  IV. Conclusions and Recommendations

    A. Conclusions

    B. Principles Applied in Framing Recommedations and The Scope of the Recommendations.

    C. Recommendations

      i. Intelligence Agencies Are Subject to the Rule of Law

      ii. United States Foreign and Military Agencies Should Be Precluded from Domestic Security Activities

        a. Central Intelligence Agency

        b. National Security Agency

        c. Military Service and Defense Department Investigative Agencies

      iii. Non-Intelligence Agencies Should Be Barred From Domestic Security Activity

        a. Internal Revenue Service

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

      iv. Federal Domestic Security Activities Should Be Limited and Controlled to Prevent Abuses Without Hampering Criminal Investigations or Investigations of Foreign Espionage

        a. Centralize Supervision, Investigative Responsibility, and the Use of Covert Techniques

        b. Prohibitions

        c. Authorized Scope of Domestic Security Investigations

        d. Authorized Investigative Techniques

        a. Covert Techniques Covered

        b. Judicial Warrant Procedures (Electronic Surveillance, Mail Opening, Search and Seizure, and Surreptitious Entry)

        f. Attorney General Oversight of the FBI, Including Termination of Investigations and Covert Techniques

      v. The Responsibility and Authority of the Attorney General for Oversight of Federal Domestic Security Activities Must Be Clarified and General Counsels and Inspectors General of Intelligence Agencies Strengthened

        a. Attorney General Responsibility and Relationship With Other Intelligence Agencies

        b. General Counsel and Inspectors General of Intelligence

        c. Office of Professional Responsibility

        d. Director of the FBI and Assistant Directors of the FBI

      vi. Administrative Rulemaking and Increased Disclosure Should Be Required

        a. Administrative Rulemaking

        b. Disclosure

      vii. Civil Remedies Should Be Expanded

      viii. Criminal Penalties Should Be Enacted

      ix. The Smith Act and the Voorhis Act Should Either Be Repealed or Amended

      x. The Espionage Statute Should be Modernized

      xi. Broader Access to Intelligence Agency Files Should be Provided to GAO, as an Investigative Arm of the Congress

      xii. Congressional Oversight Should Be Intensified

      xiii. Definitions


    Appendix A: Senate Resolution 21

    Appendix B: Previously Issued Reports and Hearings of the Senate Select Committee

      A. Reports

      B. Hearings

    Appendix C: Staff Acknowledgments

      Final Report on Intelligence Activities and the Rights of Americans

      Supplementary Detailed Reports

    [Additional Views]

      Additional Views of Senator Philip a. Hart

      Additional Statement of Senator Robert Morgan

      Introduction to Separate Views of Senators John Tower, Howard H. Baker Jr., and Barry M. Goldwater

      Separate Views of Senator John G. Tower, Vice Chairman

      Separate Views of Senator Howard H. Baker, Jr.

        Long-Term Improvement of Intelligence Community

        Thorough Study Necessary in Several Areas

        Cumulative Effect of Recommendations

        President’s Program

        Specific Reforms

        Foreign Intelligence Recommendations

        Scope, of Domestic Security Investigations

        Watergate-related Inquiry

      Individual Views of Senator Goldwater

        Federal Bureau of Investigation

        Internal Revenue Service

      Supplemental Views of Senator Charles McC. Mathias, Jr.

    [Missing footnotes]

Frank Church, Idaho, Chairman
John G. Tower, Texas, Vice Chairman

Philip A. Hart, Michigan
Howard H. Baker, Ja., Tennessee
Walter F. Mondale, Minnesota
Barry Goldwater, Arizona
Wailler D. Huddleston, Kentucky
Charles Mcc. Mathias, Ja., Maryland
Robert Morgan, North Carolina
Richard S. Schweiker, Pennsylvania
Gary Hart, Colorado

William G. Miller, Staff Director
Frederick A O. Schwarz, Jr., Chief Counsel
Curtis R. Smothers, Counsel to the Minority
Audrey Hatby, Clerk of the Committee

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 intelligence 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 Committee’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 Committee’s inquiry: The root cause of the excesses which our record amply demonstrates has been failure to apply the wisdom of the constitutional 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 unchecked power. This has been demonstrated in the intelligence field where, too often, constitutional principles were subordinated to a pragmatic 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 taking of testimony, and over 40 subcommittee meetings devoted to drafting the two volumes of our final report. I thank each and everyone of my colleagues for their hard work and for their determination that the job be done fully and fairly.

John Tower’s service as Vice Chairman was essential to our effectiveness from start to finish. This inquiry could have been distracted by partisan argument over allocating the blame for intelligence excesses. Instead, we have unanimously concluded that intelligence problems 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 subcommittee 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 domestic subcommittee colleagues—Senator Howard Baker, as ranking Minority member, and Senators Philip Hart, Robert Morgan and Richard Schweiker—deserve great credit for the complete and compelling draft which they presented to the Full Committee.

The staff of the Committee has worked long, hard and well. Without their work over the past year—and during many long nights and weekends—the Committee could not have come close to coping with ’ its massive job. I commend and thank them all. The staff members whose work was particularly associated with this volume and its supplementary detailed reports are listed in Appendix C.

Frank Church,


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

conduct an investigation and study of governmental operations with respect to intelligence activities and the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency of the Federal Government.[1]

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

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

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

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

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

Having concluded its investigation, the Committee issues its reports[2] for the purposes of:

providing a fair factual basis for informed Congressional and public debate on critical issues affecting the role of governmental intelligence activities in a free society; and recommending such legislative and executive action as, in the judgment of the Committee, is appropriate to prevent recurrence of past abuses and to insure adequate coordination, control and oversight of the nation’s intelligence resources, capabilities, and activities.

A. The Committee’s Mandate

In elaboration of the broad mandate set forth at the outset of this Report, the Senate charged the Committee with investigating fourteen specific “matters or questions” and with reporting the “full facts” on them. The fourteen enumerated matters and questions concern: (i) what kind of activities have been—and should be—undertaken by intelligence agencies; (ii) whether those activities conform to law and the Constitution; and (iii) how intelligence agencies have been— and should be—coordinated, controlled and overseen.[3]

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

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

B. The Major Questions

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

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

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

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

The Committee fully subscribes to the premise that intelligence agencies perform a necessary and proper function. The Preamble to the Constitution states that our government was created, in part, to “insure domestic tranquility [and] provide for the common defense.” Accurate and timely intelligence can and does help meet those goals. The Committee is also mindful, however, of the danger which intelligence collection, and intelligence operations, may pose for a society grounded in democratic principles. The Preamble to our Constitution also declares that our government was created to “secure the blessings of liberty” and to “establish justice”. If domestic intelligence agencies ignore those principles, they may threaten the very values that form the foundation of our society. Similarly, if the government conducts foreign intelligence operations overseas which are inconsistent with our national ideals, our reputation, goals, and influence abroad may be undercut.

C. The Nature of the Committee’s Investigation

1. Selection of Agencies, Programs and Cases To Emphasize

Necessarily, the Committee had to be selective. To investigate everything relevant to intelligence—and even everything relevant to the fundamental issues on which we had decided to focus—would take forever. Our job was to discover—and suggest solutions for—the major problems “at the earliest practical date”.[4]

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

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

The Federal Bureau of Investigation; The Central Intelligence Agency; The National Security Agency; The national intelligence components of the Defense Department (other than NS A); and The National Security Council and its component parts.[5]

The agencies upon which the Committee concentrated are those whose powers are so great and whose practices were so extensive that they must be understood in order fairly to judge whether the intelligence system of the United States needs reform and change.

Having selected the agencies to emphasize, the Committee also had to select representative programs and policies on which to concentrate. There were many more possible issues and allegations to investigate than could be covered fully and fairly. The principles which guided our choices were:

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

  2. Cases most likely to produce general lessons should receive the most attention.

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

2. Limitations and Strengths

(a) The Focus on Problem Areas

The intelligence community has had broad responsibilitv for activities beyond those which we investigated as possibly “illegal, improper, or unethical”. Our reports primarily address problem areas and the command and control question generallv. However, the intelligence community performs vital tasks outside the areas on which our investigation concentrated. This point must be kept in mind in fairness to the agencies, and to their employees who have devoted their careers to the nation’s service. Moreover, one of many reasons for checking intelligence excesses is to restore the confidence, good name, and effectiveness of intelligence agencies so that they may better serve the nation in the future.[6]

(b) Caution on Questions of Individual “Guilt” or “Innocence”

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

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

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

(c) Ability to See the Full Scope of the Problem

This Committee examined a very broad range of issues and compiled a huge factual record which covers:[7]

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

(ii) intelligence activities both at home and abroad; and

(iii) the programs and practices of the several most important intelligence agencies.

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

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

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

The central goal of the Committee is to make informed recommendations—based upon a detailed and balanced factual investigation—about:

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

  2. what controls and organizational structure are needed to keep intelligence operations both effective and consistent with this country’s most basic values and fundamental interests.

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

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

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

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


Letter of Transmittal



A. Intelligence Activity: A New Form of Governmental Power to Impair Citizens’ Rights

B. The Questions

C. Summary of the Main Problems

1. The Number of People Affected by Domestic Intelligence Activity

2. Too Much Information Is Collected For Too Long

3. Covert Action and the Use of Illegal or Improper Means

a. Covert Action


(2) Martin Luther King, Jr

b. Illegal or Improper Means

(1) Mail Opening

(2) NSA Monitoring

(3) Electronic Surveillance

(4) Political Abuse

(5) Surreptitious Entries

(6) Informants

4. Ignoring the Law

5. Deficiencies in Accountability and Control

6. The Adverse Impact of Improper Intelligence Activity

a. General Efforts to Discredit

b. Media Manipulation

c. Distorting Data to Influence Government Policy and Public Perceptions

d. “Chilling” First Amendment Rights

e. Preventing the Free Exchange of Ideas

7. Cost and Value


1. The Lesson: History Repeats Itself

2. The Pattern: Broadening Through Time

3. Three Periods of Growth for Domestic Intelligence

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

1. Background: The Stone Standard

2. Main Developments of the 1936–1945 Period

3. Domestic Intelligence Authority: Vague and Conflicting Executive Orders

a. The Original Roosevelt Orders

b. Orders in 1938–39: The Vagueness of “Subversive Activities” and “Potential” Crimes.

c. Orders 1940–43: The Confusion Continues

4. The Role of Congress

a. Executive Avoidance of Congress

b. Congress Declines to Confront the Issue

5. Scope of Domestic Intelligence

a. Beyond Criminal Investigations

b. “Infiltration” Investigations

c. Partisan Use

d. Centralized Authority: FBI and Military Intelligence

6. Control by the Attorney General: Compliance and Resistance

7. Intrusive Techniques: Questionable Authorization

a. Wiretaps: A Strained Statutory Interpretation

b. Bugging, Mail Opening, and Surreptitious Entry

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

1. Main Developments of the 1946–1963 Period

2. Domestic Intelligence Authority

a. Anti-Communist Consensus

b. The Federal Employee Loyalty-Security Program

(1) Origins of the Program

(2) Breadth of Investigations

(3) FBI Control of Loyalty-Security Investigations

c. Executive Directives: Lack of Guidance and Controls

3. Scope of Domestic Intelligence

a. “Subversive Activities”

(1) The Number of Investigations

(2) Vague and Sweeping Standards


(4) Exaggeration of Communist Influence

b. “Racial Matters” and “Hate Groups”

c. FBI Political Intelligence for the White House

d. IRS Investigation of Political Organizations..

Accountability and Control

a. Emergency Detention Act

b. Withholding Information

c. CIA Domestic Activity

(1) Vague Controls on CIA

(2) Drug Testing and Cover Programs..

Intrusive Techniques

a. Communication Interception: CIA and NSA.

b. FBI Covert Techniques

(1) Electronic Surveillance

(2) “Black Bag” Jobs

(3) Mail Opening

c. Use of FBI Wiretaps

6. Domestic Covert Action

a. COINTELPRO: Communist Party

b. Early Expansion of COINTELPRO./

D. Intelligence and Domestic Dissent: 1964–1976

1. Main Points During the 1964–1976 Period

2. Scope of Domestic Intelligence

a. Domestic Protest and Dissent: FBI

(1) Racial Intelligence

(2) “New Left” Intelligence

b. FBI Informants

(1) Infiltration of the Klan

D. Intelligence and Domestic Dissent: 1964–1976

2. Scope of Domestic Intelligence
b. FBI Informants

(2) “Listening Posts” in the Black Community

(3) Infiltration of the “New Left”

c. Army Surveillance of Civilian Political Activity

d. Federal Encouragement of Local Police Intelligence

e. The Justice Department’s Interdivision Information Unit (IDIU)

f. COMINFIL Investigations: Overbreadth

3. Domestic Intelligence Authority

a. FBI Intelligence

b. Army Intelligence

c. FBI Interagency Agreements

4. Domestic Covert Action


(1) Klan and “White Hate”

(2) “Black Nationalist” COINTELPRO

(3) “New Left” COINTELPRO

b. FBI Target Lists

(1) “Rabble Rouser/Agitator” Index

(2) “Key Activist” Program

(3) “Key Black Extremist” Program

(4) Security Index

c. Internal Revenue Service Programs

(1) Misuse by FBI and CIA

(2) The Special Service Staff: IRS Targeting of Ideological Groups

5. Foreign Intelligence and Domestic Dissent

a. Origins of CIA Involvement in “Internal Security Functions”

b. CIA Intelligence About Domestic Political Groups

(1) CIA Response to FBI Requests

(2) Operation CHAOS

c. CIA Security Operations Within the United

States: Protecting “Sources” and “Methods”

d. NSA Monitoring

‘ 6. Intrusive Techniques

a. Warrantless Electronic Surveillance

(1) Executive Branch Restrictions on Electronic Surveillance: 1965–68

(2) Omnibus Crime Control Act of 1968

(3) Supreme Court Restrictions on National Security Electronic Surveillance: 1972

b. CIA Mail Opening

c. Expansion of NSA Monitoring

d. FBI Cutbacks

(1) The Long Subcommittee Investigation

(2) Director Hoover’s Restrictions

7. Accountability and Control

a. The Huston Plan: A Domestic Intelligence Network

(1) Intelligence Community Pressures

(2) The Interagency Committee Report

(3) Implementation

D. Intelligence and Domestic Dissent: 1964–1976

7. Accountability and Control

b. Political Intelligence

(1) Name Check Requests

(2) Democratic National Convention, Atlantic City, 1964

(3) By-Product of Foreign Intelligence Coverage

(4) The Surveillance of Joseph Kraft (1969)

(5) The “17” Wiretaps

c. The Justice Department’s Internal Security Division

(1) The “new” Internal Security Division

(2) The Sullivan-Mardian Relationship

d. The FBI’s Secret “Administrative Index”

8. Reconsideration of FBI Authority

a. Developments in 1972–1974

b. Recent Domestic Intelligence Authority


A. Major Finding: Violating and Ignoring the Law


(a) Violating Statutory Law and Constitutional Rights

(b) Ignoring Illegal Issues

(c) Continuing Legal Activities

(d) Tightening Security for Illegal Activities

(e) Concealing Illegal Activities

(f) Weakness of Internal Inspection

(g) Weakness of Oversight by Senior Administration Officials


F. Major Finding: Inadequate Controls on Dissemination and Retention


(a) Volunteering Irrelevant Information and responding Unquestioningly to Requests

(b) Excessive Dissemination

(c) Federal Employee Security Program

(d) FBI Retention of Sensitive, Derogatory, and

Illegally Obtained Information

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

(a) Presidential Failure to Limit and Control Intelligence Activities

(b) Attorneys General Failure to Limit and Control FBI Intelligence Activities

(c) Encouraging Political Intelligence

(d) Executive Failures to Inquire

(e) Congressional Failure to Oversee Intelligence Activity and Exert Legislative Control

(f) Intelligence Agencies Act with Insufficient Authorization

(g) Termination of Abusive Operations


A. Conclusions

B. Principles Applied in Framing Recommendations and the

Scope of Recommendations

C. Recommendations

1. Intelligence Agencies Are Subject to the Rule of Law (Recommendations 1–3)

2. United States Foreign and Military Agencies Should Be Precluded From Domestic Security Activities (Recommendations 4–27)

a. Central Intelligence Agency (Recommendations 4–13)

b. National Security Agency (Recommendations 14–19)

c. Military Service and Defense Department Investigative Agencies (Recommendations 20–26)

3. Non-Intelligence Agencies Should Be Barred From Domestic Security Activity (Recommendations 27–37)

a. Internal Revenue Service (Recommendations 27–35)

b. Post Office (U.S. Postal Service) (Recommendations 36–37)

4. Federal Domestic Security Activities Should Be Limited and Controlled to Prevent Abuses Without Hampering Criminal Investigations or Investigations of Foreign Espionage (Recommendations 38–69)

a. Centralize Supervision, Investigative Responsibility, and the Use of Covert Techniques (Recommendations 38–39)

b. Prohibitions (Recommendations 40–41)

c. Authorized Scope of Domestic Security Investigations (Recommendations 42–49)

d. Authorized Investigative Techniques (Recommendations 50–63)

e. Maintenance and Dissemination of Information (Recommendations 64–68)

f. Attorney General Oversight of the FBI, Including Termination of Investigations and Covert Techniques (Recommendation 69)


C. Recommendations

5. The Responsibility and Authority of the Attorney General for Oversight for Federal Domestic Security Activities must be clarified and General Counsel and Inspectors General of Intelligence Agencies Strengthened (Recommendations 70–86)

a. Attorney General Responsibility and Rela- ship With Other Intelligence Agencies (Recommendations 70–74)

b. General Counsel and Inspectors General of Intelligence Agencies (Recommendations 75–81)

c. Office of Professional Responsibility (Recommendation 82)

d. Director of the FBI and Assistant Directors

of the FBI (Recommendations 83–85)

6. Administrative Rulemaking and Increased Disclosure Should Be Required (Recommendations 86–89)

a. Administrative Rulemaking (Recommendations 86–88)

b. Disclosure (Recommendations 89–90)

7. Civil Remedies Should Be Expanded (Recommendation 91)

8. Criminal Penalties Should Be Enacted (Recommendation 92)

9. The Smith Act and the Voorhis Act Should Either Be Repealed or Amended (Recommendation 93)

10. The Espionage Statute Should Be Modernized (Recommendation 94)

11. Broaden Access to Intelligence Agency Files Should Be Provided to GAO, as an Investigative Arm of the Congress (Recommendation 95)

12. Congressional Oversight Should Be Intensified (Recommendation 96)

13. Definitions

Appendix A: Senate Resolution

Appendix B: Previously Issued Hearings and Reports of Senate Select Committee

Appendix C: Staff Acknowledgments

Additional Views:

Philip A. Hart

Robert Morgan

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

H. Baker, Jr., and Barry Goldwater

John G. Tower

Howard H. Baker, Jr

Barry Goldwater

Charles McC. Mathias, Jr

I. Introduction and Summary

The resolution creating this Committee placed greatest emphasis on whether intelligence activities threaten the “rights of American citizens.”[8]

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

Americans have rightfully been concerned since before World War II about the dangers of hostile foreign agents likely to commit acts of espionage. Similarly, the violent acts of political terrorists can seriously endanger the rights of Americans. Carefully focused intelligence investigations can help prevent such acts. But too often intelligence has lost this focus and domestic intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression. Unless new and tighter controls are established by legislation, domestic intelligence activities threaten to undermine our democratic society and fundamentally alter its nature.

We have examined three types of “intelligence” activities affecting the rights of American citizens. The first is intelligence collection — such as infiltrating groups with informants, wiretapping, or opening letters. The second is dissemination of material which has been collected. The third is covert action designed to disrupt and discredit the activities of groups and individuals deemed a threat to the social order. These three types of “intelligence” activity are closely related in the practical world. Information which is disseminated by the intelligence community[9] or used in disruptive programs has usually been obtained through surveillance. Nevertheless, a division between collection, dissemination and covert action is analytically useful both in understanding why excesses have occurred in the past and in devising remedies to prevent those excesses from recurring.

A. Intelligence Activity: A New Form of Governmental Power to Impair 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 hostile foreign intelligence activity. Many of the intelligence programs reviewed in this report were established for those purposes. Intelligence work has, at times, successfully prevented dangerous and abhorrent 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 development in our nation’s history. In 1798, for example, shortly after the Bill of Rights was added to the Constitution, the Allen and Sedition Acts were passed. These Acts, passed in response to fear of proFrench “subversion”, made it a crime to criticize the Government.[10] During the Civil War, President Abraham Lincoln suspended the writ of habeas corpus. Hundreds of American citizens were prosecuted 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,[11] 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 generally 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. Intelligence activity, on the other hand, is generally covert. It is concealed from its victims[12] and is seldom described in statutes or explicit executive orders. The victim may never suspect that his misfortunes are the intended result of activities undertaken by his government, and accordingly 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 consequences of crime. Essential to the balancing process are the rules of criminal law which circumscribe the techniques for gathering evidence[13] 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 information 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 dangerous 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 because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.[14]

Our investigation has confirmed that warning. We have seen segments 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 violence or identifying foreign spies, were expanded to what witnesses characterized as “vacuum cleaners”,[15] 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 investigative 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 coordinated 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 susceptible to political considerations as opposed to national security considerations, or would construe political considerations 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.[16]

In 1940, Attorney General Robert Jackson saw the same risk. He recognized that using broad labels like “national security” or “subversion” 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.” Jackson added:

Activities which seem benevolent or helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle 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 activities of any of those who would bring about a change of administration. 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 denote persons of radical tendencies that were ‘subversive’ of the order of things then dominant.[17]

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, following questions:

Which governmental agencies have engaged in domestic spying?

How many citizens have been targets of Governmental intelligence activity?

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

Where have the targets fit on the spectrum between those who commit 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 excessive 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 controlled intelligence agencies and held them accountable?

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

C. Summary of the Main Problems

The answer to each of these questions is disturbing. Too many people have been spied upon by too many Government agencies and to much information has been 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 primarily 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 organizations — 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 standards 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 occasionally 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 established 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 substantially 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 number of American citizens and domestic organizations. FBI headquarters alone has developed over 500,000 domestic intelligence files,[18] 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.[19] 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 information 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 domestic 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.[20]

— — At least 130,000 first class letters were opened and photographed by the FBI between 1940–1966 in eight U.S. cities.[21]

— — Some 300,000 individuals were indexed in a CIA computer 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).[22]

— — 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.[23]

— — An estimated 100,000 Americans were the subjects of United States Army intelligence files created between the mid 1960’s and 1971.[24]

— — Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the basis of political rather than tax criteria.[25]

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

2. Too Much Information Is Collected For Too Long

Intelligence agencies have collected vast amounts of information about the intimate details of citizens’ lives and about their participation in legal and peaceful political activities. The targets of intelligence activity have included political adherents of the right and the left, ranging from activitist to casual supporters. Investigations have been directed against proponents of racial causes and women’s rights, outspoken apostles of nonviolence and racial harmony; establishment politicians; religious groups; and advocates of new life styles. The widespread targeting of citizens and domestic groups, and the excessive scope of the collection of information, is illustrated by the following examples:

(a) The “Women’s Liberation Movement” was infiltrated by informants who collected material about the movement’s policies, leaders, and individual members. One report included the name of every woman who attended meetings,[27] and another stated that each woman at a meeting bad described “how she felt oppressed, sexually or otherwise”.[28] Another report concluded that the movement’s purpose was to “free women from the humdrum existence of being only a wife and mother”, but still recommended that the intelligence investigation should be continued.[29]

(b) A prominent civil rights leader and advisor to Dr. Martin Luther ing, Jr., was investigated on the suspicion that he might be a Communist “ sympathizer”. The FBI field office concluded he was not.[30] Bureau headquarters directed that the investigation continue using a theory of “guilty until proven innocent:”

The Bureau does not agree with the expressed belief of the field office that -----------[31] is not sympathetic to the Party cause. While there may not be any evidence that ----------- is a Communist neither is there any substantial evidence that he is anti-Communist.[32]

(c) FBI sources reported on the formation of the Conservative American Christian Action Council in 1971.[33] In the 1950’s, the Bureau collected information about the John Birch Society and passed it to the White House because of the Society’s “scurillous attack” on President Eisenhower and other high Government officials.[34]

(d) Some investigations of the lawful activities of peaceful groups have continued for decades. For example, the NAACP was investigated to determine whether it “had connections with” the Communist Party. The investigation lasted for over twenty-five years, although nothing was found to rebut a report during the first year of the investigation that the NAACP had a “strong tendency” to “steer clear of Communist activities.”[35] Similarly, the FBI has admitted that the Socialist Workers Party has committed no criminal acts. Yet the Bureau has investigated the Socialist Workers Party for more than three decades on the basis of its revolutionary rhetoric-which the FBI concedes falls short of incitement to violence-and its claimed international links. The Bureau is currently using its informants to collect information about SWP members’ political views, including those on “U.S. involvement in Angola,” “food prices,” “racial matters,” the “Vietnam War,” and about any of their efforts to support non-SWP candidates for political office.[36]

(e) National political leaders fell within the broad reach of intelligence investigations. For example, Army Intelligrnce nee maintained files on Senator Adlai Stevenson and Congressman Abner Mikva because of their participation in peaceful political meetings under surveillance by Army agents.[37] A letter to Richard Nixon, while he was a candidate for President in 1968, was intercepted under CIA’s mail opening program.[38] In the 1960’s President Johnson asked the FBI to compare various Senators’ statements on Vietnam with the Communist Party line[39] and to conduct name checks on leading antiwar Senators.[40]

(f) As part of their effort to collect information which “related even remotely” to people or groups “active” in communities which had “the potential” for civil disorder, Army intelligence agencies took such steps as: sending agents to a Halloween party for elementary school children in Washington, D.C., because they suspected a local “dissident” might be present; monitoring protests of welfare mothers’ organizations in Milwaukee; infiltrating a coalition of church youth groups in Colorado; and sending agents to a priests’ conference in Washington, D.C., held to discuss birth control measures.[41]

(g) In the, late 1960’s and early 1970s, student groups were subjected to intense scrutiny. In 1970 the FBI ordered investigations of every member of the Students for a Democratic Society and of “every Black Student Union and similar group regardless of their past or present involvement in disorders.”[42] Files were opened on thousands of young men and women so that, as the former head of FBI intelligence explained , the information could be used if they ever applied for a government job.[43]

In the 1960’s Bureau agents were instructed to increase their efforts to discredit “New Left” student demonstrators by tactics including publishing photographs (“naturally the most obnoxious picture should be used”),[44] using “misinformation” to falsely notify members events had been cancelled,[45] and writing “tell-tale” letters to students’ parents.[46]

(h) The FBI Intelligence Division commonly investigated any indication that “subversive” groups already under investigation were seeking to influence or control other groups.[47] One example of the extreme breadth of this “infiltration” theory was an FBI instruction in the mid-1960’s to all Field Offices to investigate every “free university” because some of them had come under “subversive influence.”[48]

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

— — President Roosevelt asked the FBI to put in its files the names of citizens sending telegrams to the White House opposing his “national defense” policy and supporting Col. Charles Lindbergh.[49]

— — President Truman received inside information on a former Roosevelt aide’s efforts to influence his appointments,[50] labor union negotiating plans,[51] and the publishing plans of journalists.[52]

— — President Eisenhower received reports on purely political and social contacts with foreign officials by Bernard Baruch,[53] Mrs. Eleanor Roosevelt,[54] and Supreme Court Justice William O. Douglas.[55]

— — The Kennedy Administration had the FBI wiretap a Congressional staff member,[56] three executive officials,[57] a lobbyist,[58] and a, Washington law firm.[59] Attorney General Robert F. Kennedy received the fruits of a FBI “tap” on Martin Luther King, Jr.[60] and a “bug” on a Congressman both of which yielded information of a political nature.[61]

— — President Johnson asked the FBI to conduct “name checks” of his critics and of members of the staff of his 1964 opponent, Senator Barry Goldwater.[62] He also requested purely political intelligence on his critics in the Senate, and received extensive intelligence reports on political activity at the 1964 Democratic Convention from FBI electronic surveillance.[63]

-- President Nixon authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security, including information about a Supreme Court justice.[64]

3. Covert Action and the Use of Illegal or Improper Means

(a) Covert Action. — Apart from uncovering excesses in the collection of intelligence, our investigation has disclosed covert actions directed against Americans, and the use of illegal and improper surveillance techniques to gather information. For example:

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

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

— — Anonymously mailing letters to the spouses of intelligence targets for the purpose of destroying their marriages;[65]

— — Obtaining from IRS the tax returns of a target and then attempting to provoke an IRS investigation for the express purpose of deterring a protest leader from attending the Democratic National Convention;[66]

— — Falsely and anonymously labeling as Government informants members of groups known to be violent, thereby exposing the falsely labelled member to expulsion or physical attack;[67]

— — Pursuant to instructions to use “misinformation” to disrupt demonstrations, employing such means as broadcasting fake orders on the same citizens band radio frequency used by demonstration marshalls to attempt to control demonstrations,[68] and duplicating and falsely filling out forms soliciting housing for persons coming to a demonstration, thereby causing “long and useless journeys to locate these addresses”;[69]

— — Sending an anonymous letter to the leader of a Chicago street gang (described as “violence-prone”) stating that the Black Panthers were supposed to have “a hit out for you”. The letter was suggested because it “may intensify ... animosity” and cause the street gang leader to “take retaliatory action”.[70]

(ii) From “late 1963” until his death in 1968, Martin Luther King, Jr., was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King, “No holds were barred.”[71]

The FBI gathered information about Dr. King’s plans and activities through an extensive surveillance program, employing nearly every intelligence-gathering technique at the Bureau’s disposal in order to obtain information about the “private activities of Dr. King and his advisors” to use to “completely discredit” them.[72]

The program to destroy Dr. King as the leader of the civil rights movement included efforts to discredit him with Executive branch officials, Congressional leaders, foreign heads of state, American ambassadors, churches. universities, and the press.[73]

The FBI mailed Dr. King a tape recording made from microphones hidden in his hotel rooms which one agent testified was an attempt to destroy Dr. King’s marriage.[74] The tape recording was accompanied by a note which Dr. King and his advisors interpreted as threatening to release the tape recording unless Dr. King committed suicide.[75]

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

-- At the August 1963 March on Washington, Dr. King told the country of his “dream” that:

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

The Bureau’s Domestic Intelligence Division concluded that this “demagogic speech” established Dr. King as the “most dangerous and effective Negro leader in the country.”[76] Shortly afterwards, and within days after Dr. King was named “Man of the Year” by Time magazine, the FBI decided to “take him off his pedestal,” reduce him completely in influence,” and select and promote its own candidate to “assume the role of the leadership of the Negro people.”[77]

-- In early 1968, Bureau headquarters explained to the field that Dr. King must be destroyed because he was seen as a potential “messiah” who could “unify and electrify” the “black nationalist movement”. Indeed, to the FBI he was a potential threat because he might “abandon his supposed ‘obedience’ to white liberal doctrines (non-violence).”[78] In short, a non-violent man was to be secretly attacked and destroyed as insurance against his abandoning non-violence.

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

  1. For approximately 20 years the CIA carried out a program of indiscriminately opening citizens’ first class mail. The Bureau also had a mail opening program, but cancelled it in 1966. The Bureau continued, however, to receive the illegal fruits of CIA’s program. In 1970, the heads of both agencies signed a document for President Nixon, which correctly stated that mail opening was illegal, falsely stated that it had been discontinued, and proposed that the illegal opening of mail should be resumed because it would provide useful results. The President approved the program, but withdrew his approval five days later. The illegal opening continned nonetheless. Throughout this period CIA officials knew that mail opening was illegal, but expressed concern about the “flap potential” of exposure, not about the illegality of their activity.[79]

  2. From 1947 until May 1975, NSA received from international cable companies millions of cables which had been sent by American citizens in the reasonable expectation that they would be kept private.[80]

  3. Since the early 1930’s, intelligence agencies have frequently wiretapped and bugged American citizens without the benefit of judicial warrant. Recent court decisions have curtailed the use of these techniques against domestic targets. But past subjects of these surveillances have included a United States Congressman, a Congressional staff member, journalists and newsmen, and numerous individuals and groups who engaged in no criminal activity and who posed no genuine threat to the national security, such as two White House domestic affairs advisers and an anti Vietnam War protest group. While the prior written approval of the Attorney General has been required for all warrantless wiretaps since 1940, the record is replete with instances where this requirement was ignored and the Attorney General gave only after-the-fact authorization.

    Until 1965, microphone surveillance by intelligence agencies was wholly unregulated in certain classes of cases. Within weeks after a 1954 Supreme Court decision denouncing the FBI’s installation of a microphone in a defendant’s bedroom, the Attorney General informed the Bureau that he did not believe the decision applied to national security cases and permitted the FBI to continue to install microphones subject only to its own “intelligent restraint”.[81]

  4. In several cases, purely political information (such as the reaction of Congress to an Administration’s legislative proposal) and purely personal information (such as coverage of the extra-marital social activities of a high- level Executive official under surveillance) was obtained from electronic surveillance and disseminated to the highest levels of the federal government.[82]

  5. Warrantless break-ins have been conducted by intelligence agencies since World War II. During the 1960’s alone, the FBI and CIA conducted hundreds of break-ins, many against American citizens and domestic organizations. In some cases, these break-ins were to install microphones; in other cases, they were to steal such items as membership lists from organizations considered “subversive” by the Bureau.[83]

  6. The most pervasive surveillance technique has been the informant. In a random sample of domestic intelligence cases, 83% involved informants and 5% involved electronic surveillance.[84] Informants have been used against peaceful, law-abiding groups; they have collected information about personal and political views and activities.[85] To maintain their credentials in violence- prone groups, informants have involved themselves in violent activity. This phenomenon is well illustrated by an informant in the Klan. He was present at the murder of a civil rights worker in Mississippi and subsequently helped to solve the crime and convict the perpetrators. Earlier, however, while performing duties paid for by the Government, he had previously “beaten people severely, had boarded buses and kicked people, had [gone] into restaurants and beaten them [blacks] with blackjacks, chains, pistols.”[86] Although the FBI requires agents to instruct informants that they cannot be involved in violence, it was understood that in the Klan, “he couldn’t be an angel and be a good informant.”[87]

4. Ignoring the Law

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

Question. Was there any person who stated that the activity recommended, which you have previously identified as being illegal opening of the mail and breaking and entry or burglary — was there any single person who stated that such activity should not be done because it was unconstitutional?

Answer. No.

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

Answer. No.[88]

Similarly, the man who for ten years headed FBI’s Intelligence Division testifed that:

... never once did I hear anybody, including myself, raise the question: “Is this course of action which we have agreed upon lawful, is it legal, is it ethical or moral.” We never gave any thought to this line of reasoning, because we were just naturally pragmatic.[89]

Although the statutory law and the Constitution were often not “[given] a thought”,[90] there was a general attitude that intelligence needs were responsive to a higher law. Thus, as one witness testified in justifying the FBI’s mail opening program:

It was my assumption that what we were doing was justified by what we had to do ... the greater good, the national security.[91]

5. Deficiencies in Accountability and Control

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

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

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

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

6. The Adverse Impact of Improper Intelligence Activity

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

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

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

— — A Bureau Field Office reported that the anonymous letter it had sent to an activist’s husband accusing his wife of infidelity “contributed very strongly” to the subsequent breakup of the marriage.[92]

— — Another Field Office reported that a draft counsellor deliberately, and falsely, accused of being an FBI informant was “ostracized” by his friends and associates.[93]

— — Two instructors were reportedly put on probation after the Bureau sent an anonymous letter to a university administrator about their funding of an anti-administration student newspaper.[94]

— — The Bureau evaluated its attempts to “put a stop” to a contribution to the Southern Christian Leadership Conference as “quite successful.”[95]

— — An FBI document boasted that a “pretext” phone call to Stokeley Carmichael’s mother telling her that members of the Black Panther Party intended to kill her son left her “shocked”. The memorandum intimated that the Bureau believed it had been responsible for Carmichael’s flight to Africa the following day.[96]

— b) Media Manipulation. — The FBI has attempted covertly to influence the public’s perception of persons and organizations by dissemminating derogatory information to the press, either anonymously or through “friendly” news contacts. The impact of those articles is generally difficult to measure, although in some cases there are fairly direct connections to injury to the target. The Bureau also attempted to influence media reporting which would have any impact on the public image of the FBI. Examples include:

— — Planting a series of derogatory articles about Martin Luther King, Jr., and the Poor People’s Campaign.[97]

For example, in anticipation of the 1968 “poor people’s march on Washington, D.C.,” Bureau Headquarters granted authority to furnish “cooperative news media sources” an article “designed to curtail success of Martin Luther King’s fund raising.”[98] Another memorandum illustrated how “photographs of demonstrators” could be used in discrediting the civil rights movement. Six photographs of participants in the poor people’s campaign in Cleveland accompanied the memorandum with the following note attached: “These [photographs] show the militant aggressive appearance of the participants and might be of interest to a cooperative news source.”[99] Information on the Poor People’s Campaign was provided by the FBI to friendly reporters on the condition that “the Bureau must not be revealed as the source.”[100]

— — Soliciting information from Field Offices “on a continuing basis” for “prompt ... dissemination to the news media ... to discredit the New Left movement and its adherents.” The Headquarters directive 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 embarrassment must be vigorously and enthusiastically explored.”[101]

— — Ordering Field Offices to gather information which would disprove allegations by the “liberal press, the bleeding hearts, and the forces on the left”[102] that the Chicago police used undue force in dealing with demonstrators at the 1968 Democratic Convention.[103]

— — Taking advantage of a close relationship with the Chairman of the Board — described in an FBI memorandum as “our good friend”-- of a magazine with national circulation to influence articles which related to the FBI. For example, through this relationship the Bureau: “squelched” an “unfavorable article against the Bureau” written by a free-lance writer about an FBI investigation; “postponed publication” of an article on another FBI case; “forestalled publication” of an article by Dr. Martin Luther King, Jr.; and received information about proposed editing of King’s articles.[104]

(c) Distorting Data to Influence Government Policy and Public Perceptions

Accurate intelligence is a prerequisite to sound government policy. However, as the past head of the FBI’s Domestic Intelligence Division reminded the Committee:

The facts by themselves are not too meaningful. They are something like stones cast into a heap.[105]

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

For example, the FBI’s Domestic Intelligence Division initially discounted as an “obvious failure” the alleged attempt’s of Communists to influence the civil rights movement.[106] Without any significant change in the factual situation, the Bureau moved from the Division’s conclusion to Director Hoover’s public congressional testimony characterizing Communist influence on the civil rights movement as “vitally important.”[107]

FBI reporting on protests against the Vietnam War provides another example, of the manner in which the information provided to decision-makers can be skewed. In acquiescence with a judgment already expressed by President Johnson, the Bureau’s reports on demonstrations against the War in Vietnam emphasized Communist efforts to influence the anti-war movement and underplayed the fact that the vast majority of demonstrators were not Communist controlled.[108]

(d) “Chilling” First Amendment Rights. — The First Amendment protects the Rights of American citizens to engage in free and open discussions, and to associate with persons of their choosing. Intelligence agencies have, on occasion, expressly attempted to interfere with those rights. For example, one internal FBI memorandum called for “more interviews” with New Left subjects “to enhance the paranoia endemic in these circles” and “get the point across there is an FBI agent behind every mailbox.”[109]

More importantly, the government’s surveillance activities in the aggregate — whether or not expressly intended to do so — tends, as the Committee concludes at p. 290 to deter the exercise of First Amended Rights by American citizens who become aware of the government’s domestic intelligence program.

(e) Preventing the Free Exchange of Ideas. — Speakers, teachers, writers, and publications themselves were targets of the FBI’s counterintelligence program. The FBI’s efforts to interfere with the free exchange of ideas included:

— — Anonymously attempting to prevent an alleged “Communist-front” group from holding a forum on a midwest campus, and then investigating the judge who ordered that the meeting be allowed to proceed.[110]

— — Using another “confidential source” in a foundation which contributed to a local college to apply pressure on the school to fire an activist professor.

— — Anonymously contacting a university official to urge him to “persuade” two professors to stop funding a student newspaper, in order to “eliminate what voice the New Left has” in the area.

— — Targeting the New Mexico Free University for teaching “confrontation politics” and “draft counseling training”.[111]

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 the amount it spends on informants against organized crime.[112] The aggregate budget for FBI domestic security intelligence and foreign counterintelligence is at least $80 million.[113] 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 protecting 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 terrorist groups and through the inclusion in Bureau files of the names of persons actively involved with such groups.[114] Nevertheless, the most sweeping domestic intelligence surveillance programs have produced surprisingly few useful returns in view of their extent. For example:

— — Between 1960 and 1974, the FBI conducted over 500,000 separate investigations of persons and groups under the “subversive” category, predicated on the possibility that they might be likely to overthrow the government of the United States.[115] Yet not a single individual or group has been prosecuted since 1957 under the laws which prohibit planning or advocating action to overthrow the government and which are the main alleged statutory basis for such FBI investigations.[116]

— — A recent study by the General Accounting Office has estimated that of some 17,528 FBI domestic intelligence investigations of individuals in 1974, only 1.3 percent resulted in prosecution and conviction, and in only “about 2 percent” of the cases was advance knowledge of any activity — legal or illegal — obtained.[117]

— — One of the main reasons advanced for expanded collection of intelligence about urban unrest and anti-war protest was to help responsible officials cope with possible violence. However, a former White House official with major duties in this area under the Johnson 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 intelligence” about the geography of major cities, and that the attempt to “predict violence” was not a “successful undertaking”[118]

— — Domestic intelligence reports have sometimes even been counterproductive. 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 unevaluated 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 unwarranted credibility, and had been submitted by the Director of the FBI to the President of the United States. They seemed to present a convincing picture of impending holocaust.[119]

In considering its recommendations, the Committee undertook an evaluation of the FBI’s claims that domestic intelligence was necessary to combat terrorism, civil disorders, “subversion,” and hostile 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 departs from this standard raises grave risks of undermining the democratic 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 international adversaries continue to attempt to conduct clandestine espionage operations within the United States.[120] 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 controlled intelligence investigations in those narrow circumstances.[121]

Concentration on imminent violence can avoid the wasteful dispersion of resources which has characterized the sweeping (and fruitless) domestic intelligence investigations of the past. But the most important reason for the fundamental change in the domestic intelligence 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 Committee is not satisfied with the position that mere exposure of what has occurred in the past will prevent its recurrence. Clear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect.

II. The Growth of Domestic Intelligence: 1936 To 1976

A. Summary

1. The Lesson: History Repeats Itself

During and after the First World War, intelligence agencies, including the predecessor of the FBI, engaged in repressive activity.[122]

A new Attorney General, Harlan Fiske Stone, sought to stop the investigation of “political or other opinions.”[123] This restraint was embodied only in an executive pronouncement, however. No statutes were passed to prevent the kind of improper activity which had been exposed. Thereafter, as this narrative will show, the abuses returned in a new form. It is now the responsibility of all three branches of government to ensure that the pattern of abuse of domestic intelligence activity does not recur.

2. The Pattern: Broadening Through Time

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

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

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

3. Three Periods of Growth for Domestic Intelligence

The expansion of domestic intelligence activity can usefully be divided 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 military intelligence agencies were authorized to conduct domestic intelligence investigations. These investigations included a vaguely defined mission to collect intelligence about “subversive activities” which were sometimes unrelated to law enforcement. Wartime exigencies encouraged 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 programs 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 surveillance techniques in contravention of law.


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 domestic activity by American citizens. These techniques were utilized against peaceful civil rights and antiwar protest activity, and thereafter in reaction to civil unrest, often without regard for the consequences 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 disregarded the law in their conduct of massive surveillance and aggressive counterintelligence operations against American citizens. In the past few years, some of these activities were curtailed, partly in response to the moderation of the domestic crisis; but all too often improper 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:

1. Background. — The Stone Standard

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

The Justice Department’s Bureau of Investigation (as the FBI was then known), military intelligence, other federal investigative agencies, and the volunteer American Protective League were involved in these programs.[124] In the period immediately following World War I, the Bureau of Investigation took part in the notorious Palmer Raids and other activities against persons characterized as “subversive.”[125]

Harlan Fiske Stone, who became Attorney General in 1924, described the conduct of Justice Department and the Bureau of Investigation before he took office as “lawless, maintaining many activities which were without any authority in federal statutes, and engaging in many practices which were brutal and tyrannical in the extreme.”[126]

Fearing that the investigative activities of the Bureau could invade privacy and inhibit political freedoms, Attorney General Stone announced:

There is always the posibility that a secret police may become a menace to free government and free institutions, because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood.... It is important that its activities be strictly limited to the performance of those functions for which it was created and that its agents themselves be not above the law or beyond its reach.... The Bureau of Investigation is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only with such conduct -as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to cherish.[127]

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

The activities of the Bureau are to be limited strictly to investigations of violations of law, under my direction or under the direction of an Assistant Attorney General regularly conducting the work of the Department of Justice.[128]

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 activities 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 authorized to preempt the field, although the military engaged in some investigation of civilians.

The FBI’s domestic intelligence jurisdiction went beyond investigations of crime to include a vague mandate to investigate foreign involvement 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 — initially 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 General’s policy directive.

However important these developments were in themselves, the enduring 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 conflicting. 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.

a. The Original Roosevelt Orders

In 1934, according to a memorandum by J. Edgar Hoover, President Roosevelt ordered an investigation of “the Nazi movement in this country.” In response, the FBI conducted a onetime investigation, 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 government in the United States.”[129]

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 Fascism 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.[130] 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 assistant.[131]

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:

information dealing with various forms of activities of either a subversive or so-called intelligence type.[132]

Despite the references in Director Hoover’s 1938 memorandum to “subversive-type” investigations, an accompanying letter to the President from Attorney General Homer Cummings made no mention of “subversion” and cited only the President’s interest in “the so-called espionage situation.”[133] Cummings’ successor, Attorney General Frank Murphy, appears to have abandoned the term “subversive activities.”[134] Moreover, when Director Hoover provided Attorney General Frank Murphy a copy of his 1938 plan, he described it, without mentioning “subversion,” as a program “intended to ascertain the identity of persons engaged in espionage, counterespionage, and sabotage of a nature not within the specific provisions of prevailing statutes.”[135] [Emphasis added.] Murphy thereafter recommended to the President that he issue an order concentrating “investigation of all espionage, counterespionage, and sabotage matters” in the FBI and military intelligence.[136]

President Roosevelt agreed and issued an order which, like Murphy’s letter, made no mention of “subversive,” or general intelligence:

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

No investigations should be conducted by any investigative agency of the Government into matters involving actually or potentially any espionage, counterespionage, or sabotage, except by the three agencies mentioned above. [Emphasis added.][137]

Precisely what the President’s reference to “potential” espionage or sabotage was intended to cover was unclear. Whatever it meant, it was apparently intended to be consistent with Director Hoover’s earlier description of the FBI program to Attorney General Murphy.[138]

Three months later, after the outbreak of war in Europe, Director Hoover indicated his concern that private citizens might provide information to the “sabotage squads” which local police departments were creating rather than to the FBI. Hoover urged the Attorney General to ask the President to request local officials to give the FBI all information concerning “espionage, counterespionage, sabotage, subversive activities, and neutrality regulations.”[139]

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

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

On the other hand, the President concluded by adding “subversive activities” to the list of information local law enforcement officials should relay to the FBI.[140]

c. Orders 1940–43: The Confusion Continues

President Roosevelt used the term “subversive activities” in a secret directive to Attorney General Robert Jackson on wiretapping in 1940. Referring to activities of other nations engaged in “propaganda of so-called ‘fifth columns” and “preparation for sabotage.” He directed the Attorney General to authorize wiretaps “of persons suspected of subversive activities against the Government of the United States, including suspected spies.” The President instructed that such wiretaps be limited “insofar as possible” to aliens.[141] Neither the President nor the Attorney General subsequently clarified the scope of the FBI’s authority to investigate “subversive activity.”

The confusion as to the breadth of President Roosevelt’s authorization reappeared in Attorney General Francis Biddle’s description of FBI jurisdiction in 1942 and in a new Presidential statement in 1943.

Biddle issued a lengthy order defining the duties of the various parts of the Justice Department in September 1942. Among other things, the FBI was charged with a duty to “investigate” criminal offenses against the United States. In contrast, the FBI was to function as a “clearing house” with respect to “espionage, sabotage, and other subversive matters.”[142]

Four months later, President Roosevelt renewed his public appeal for cooperation by police and other “patriotic organizations” with the FBI. In this statement, he described his September 1939 order as granting “investigative” authority to the FBI for “espionage, sabotage, and violation of the neutrality regulations.” The President did not adopt Attorney General Biddle’s “clearing-house” characterization, nor did he mention “subversion.”[143]

4. The Role of Congress

a. Executive Avoidance of Congress

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

Attorney General Cummings cautioned that the plan for domestic intelligence “should be held in the strictest confidence.”[144] Director Hoover contended that no special legislation should be sought “in order to avoid criticism or objections which might be raised to such an expansion by either ill-informed persons or individuals with some ulterior motive.” [Emphasis added.] Hoover thought it “undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counterespionage drive of any great magnitude” because the FBI’s intelligence activity was already “much broader than espionage or counterespionage.”[145]

Director Hoover contended that the FBI had authority to engage in intelligence activity beyond investigating crimes at the request of the Attorney General or the Department of State. He relied on an amendment to the FBI Appropriations Act, passed before World War I, authorizing the Attorney General to appoint officials not only to “detect and prosecute” federal crimes but also to:

conduct such other investigations regarding official matters under the control of the Department of Justice, or the Department of State, as may be directed by the Attorney General.[146]

After conflicts with the State Department in 1939, however, the FBI no longer relied upon this vague statute for its authority to conduct intelligence investigations, instead relying upon the Executive orders.[147]

b. Congress Declines to Confront the Issue

Even though Executive officials originally avoided Congress to prevent criticism or objections, after the President’s proclamation of emergency in 1939 they began to inform Congress of FBI intelligence activities In November 1939, Director Hoover told the House Appropriations Committee that the Bureau had set up a General Intelligence Division, “by authority of the President’s proclamation.”[148] And in January 1940, he told the same Committee that the FBI had authority, under the President’s September 6, 1939 statement to investigate espionage, sabotage, neutrality violations, and “any other subversive activities.”[149]

There is no evidence that the Appropriations Committee objected or inquired further into the meaning of that last vague term, although members did seek assurance that FBI intelligence could be curtailed when the wartime emergency ended.[150]

In 1940, a joint resolution was introduced by New York City Congressman Emmanuel Celler which would have given the FBI broad jurisdiction to investigate, by wiretapping or other means, or “frustrate” any “interference with the national defense” due to certain specified crimes (sabotage, treason, seditious conspiracy, espionage, and violations of the neutrality laws) or “in any other manner.”[151] Although the resolution failed to reach the House floor, it seems likely that, rather than opposing domestic intelligence investigations, Congress was simply choosing to avoid the issue of defining the FBI’s intelligence jurisdiction. This view is supported by Congress’ passage in 1940 and 1941 of two new criminal statutes: the Smith Act made it a crime to advocate the violent overthrow of the Government;[152] and the Voorhis Act required “subversive” organizations advocating the Government’s violent overthrow and having foreign ties to register or be subject to criminal penalties.[153]

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

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

The Federal Bureau of Investigation will confine its activities to the investigation of violation of Federal statutes, the collecting of evidence in cases in which the United States is or may be a party in interest, and the service of process issued by the courts.[154]

The FBI was, in fact, doing much more than that and had informed the Appropriations Committee of its practice in general terms. Attorney General Jackson himself stated later that the FBI was conducting “steady surveillance” of persons beyond those who had violated federal statutes, including persons who were a “likely source” of federal law violation because the were “sympathetic with the systems or designs of foreign dictators.”[155]

5. Scope of Domestic Intelligence

a. Beyond Criminal Investigations

According to Director Hoover’s account of his meeting with President Roosevelt in 1936, the President wanted “a broad picture” of the impact of Communism and Fascism on American life.[156] Similarly, the FBI Director described his 1938 plan as “broader than espionage” and covering “in a true sense real intelligence.”[157] Thus it appears that one of the first purposes of FBI domestic intelligence was to perform the “pure intelligence” function of supplying executive officials with information believed of value for making policy decisions. This aspect of the assignment to investigate “subversion” was entirely unrelated to the enforcement of federal criminal laws. The second purpose of FBI domestic intelligence gathering was essentially “preventive,” in compliance with the President’s June 1939 directive to investigate “potential” espionage or sabotage.[158] As war moved closer, preventive intelligence investigations focused on individuals who might be placed on a Custodial Detention List for possible internment in case of war.[159]

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

Directives implementing the general preventive intelligence instruction to investigate “potential” espionage or sabotage were vague and sweeping. In 1939, for instance, field offices were told to investigate persons of German, Italian, and Communist “sympathies” and any other persons “whose interests may be directed primarily to the interest of some other nation than the United States.” FBI offices were directed to report the names of members of German and Italian societies, “whether they be of a fraternal character or of some other nature,” and members of any other groups “which might have pronounced Nationalistic tendencies.” The Bureau sought lists of subscribers and officers of German, Italian, and Communist foreign language newspapers, as well as of other newspapers with “notorious Nationalistic sympathies.”[160] The FBI also made confidential inquiries regarding “various so-called radical and fascist organizations” to identify their “leading personnel, purposes and aims, and the part they are likely to play at a time of national crisis.”[161]

The criteria for investigating persons for inclusion on the Custodial Detention List was similarly vague. In 1939, the FBI said its list included persons with “strong Nazi tendencies” and “strong Communist tendencies.”[162] FBI field offices were directed in 1940 to gather information on individuals who would be considered for the list because of their “Communistic, Fascist, Nazi, or other nationalistic background.”[163]

b. “Infiltration,” Investigations

The FBI based its pure intelligence investigations on a theory of subversive “infiltration” which remained an essential part of the rationale for domestic intelligence after the war: anyone who happened to associate with Communists or Fascists or was simply alleged to have such associations became the subject of FBI intelligence reports.[164] Thus, “subversive” investigations produced intelligence about a wide variety of lawful groups and law-abiding citizens. By 1938, the FBI was investigating alleged subversive infiltration of:

the maritime industry;
the steel industry;
the coal industry;
the clothing, garment, and fur industries;
the automobile industry;
the newspaper field;
educational institutions;
organized labor organizations;
youth groups;
Government affairs;
and the armed forces.[165]

This kind of intelligence was transmitted to the White House. For example, in 1937 the Attorney General sent the President an FBI report on a proposed pilgrimage to Washington to urge passage of legislation to benefit American youth. The report stated that the American Youth Congress, which sponsored the pilgrimage, was understood to be strongly Communistic.[166] Later reports in 1937 described the Communist Party’s role in plans by the Workers Alliance for nationwide demonstrations protesting the plight of the unemployed, as well as the Alliance’s plans to lobby Congress in support of the federal relief program.[167]

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

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

A synopsis of the report stated, “No indications of Communist activities.”[168]

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

for the purpose of developing neighborhood political units to help in the reelection of President Roosevelt, and the election of progressive congressmen. Apparently, IVI endorsed or aided Democrats for the most part, although it was stated to be “independent.” It does not appear that it entered its own candidates or that it endorsed any Communists. IVI sought to help elect those candidates who would favor fighting inflation, oppose race and class discrimination, favor international cooperation, support a “full employment” program, oppose Facism, etc.[169]

Thus, in its search for subversive “influence,” the Bureau gathered extensive information about the lawful activities of left-liberal political groups. At the opposite end of the political spectrum, the activities of numerous right-wing groups like the Christian Front and Christian Mobilizers (followers of Father Coughlin), the American Destiny Party, the American Nationalist Party, and even the less extreme “America First” movement were reported by the FBI.[170]

c. Partisan Use

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

As the telegrams all were more or less in opposition to national defense, the President thought you might like to look them over, noting the names and addresses of the senders.[171]

Additional telegrams expressing approval of a speech by one of the President’s leading critics, Colonel Charles Lindbergh, were also referred to the FBI.[172][173] A domestic intelligence program without clearly defined boundaries almost invited such action.

d. Centralized Authority: FBI and Military Intelligence

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

Twenty years ago, inhuman and cruel things were done in the name of justice; sometimes vigilantes and others took over the work. We do not want such things done today, for the work has now been localized in the FBI.[174]

Centralization of authority for domestic intelligence also served the FBI’s bureaucratic interests. Director Hoover complained about attempts by other agencies to “literally chisel into this type of work.”[175] He exhorted: “We don’t want to let it slip away from us.”[176]

Pursuant to President Roosevelt’s 1939 directive authorizing the FBI and military intelligence to conduct all investigations of “potential” 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 “investigation of all activities coming under the categories of espionage, subversion 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 connected with subversive activities.”[177]

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 antiwar propaganda.”[178] Despite the Delimitation Agreement, the MID’s Counterintelligence Corps collected intelligence on civilian “subversive activity” as part of a preventive security program using volunteer informers and investigators.[179]

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 General Murphy in 1939.[180] Director Hoover also asked Attorney General Jackson in 1940 for policy guidance concerning the FBI’s “suspect list of individuals whose arrest might be considered necessary in the event the United States becomes involved in war.”[181]

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.”[182]

After five months of negotiation, the FBI was ordered to transmit its “dossiers” to the Justice Department Unit.[183] 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.”[184] Thus, from 1941 to 1943, the Justice Department had the machinery to oversee at least this aspect of FBI domestic intelligence.[185]

In 1943, however, Attorney General Biddle ordered that the Custodial Detention List should be abolished as “impractical. unwise, and dangerous.” His directive stated that there was “no statutory authority 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.”[186] 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 circumstances, 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 dangerousness.[187]

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.[188]

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 “dangerousness” list continued to be kept, and investigations in support of that list continued to be a significant part of the, Bureau’s work.

7. Intrusive Techniques: Questionable Authorization

a. Wiretaps: A Strained Statutory Interpretation

In 1940, President Roosevelt authorized FBI wiretapping against “persons suspected of subversive activities against the United States, including suspected spies,” requiring the specific approval of the Attorney General for each tap and directing that they be limited “insofar as possible to aliens. “[189]

This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping.[190] However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to “intercept and divulge” communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added][191] Attorney General Jackson’s questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts.[192]

Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was “of considerable importance” because of the “gravity” to “national safety” of such offenses as espionage and sabotage.[193] 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.[194]

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 connecting the Chamber of Commerce with espionage, I think the surveillance should be discontinued.[195]

However, in another case Biddle disapproved an FBI request to wiretap a Philadelphia bookstore “engaged in the sale of Communist literature” and frequented by “important Communist leaders” in 1941.[196]

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 all unidentified target were sent to Hopkins in May and July 1945, when he served as an aide to President Truman.[197]

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 telephone conversations between [the official] and Justice Felix Frankfurter and between [the official] and Drew Pearson.”[198]

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 particularly 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 memorandum did not indicate what these “activities” were.[199]

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 Presidential 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.[200] The practice of surreptitious entry — or breaking-and-entering — was also used by the FBI in wartime intelligence operations.[201] 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 hypothetical basis, until 1952.[202]

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

1. Main Developments of the 1946–1963 Period

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

Despite Director Hoover’s statement that the intelligence structure could be “discontinued or very materially curtailed” with the termination of the national emergency, after the war intelligence operations were neither discontinued nor curtailed.[203] Congressional deference to the executive branch, the broad scope of investigations, the growth of the FBI’s power, and the substantial immunity of the Bureau from effective outside supervision became increasingly significant features of domestic intelligence in the United States. New domestic intelligence functions were added to previous responsibilities. No attempt was made to enact a legislative charter replacing the wartime emergency orders, as was done in the foreign intelligence field in 1947.

The main developments during the Cold War era may be summarized as follows:

a. Domestic Intelligence Authority

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

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

b. Scope of Domestic Intelligence

The breadth of the FBIs investigation of “subversive infiltrationcontinued to produce intelligence reports and massive files on lawful groups and law-abiding citizens who happened to associate, even unwittingly, with Communists or with socialists unconnected with the Soviet Union who used revolutionary rhetoric. At the same time, the scope of FBI intelligence expanded to cover civil rights protest activity as well as violent “Klan-type” and “hate’ “ groups, vocal anticommunists, and prominent opponents of racial integration. The vagueness of the FBI’s investigative mandate and the overbreadth of its collection programs also placed it in position to supply theh White House with numerous items of domestic political intelligence apparently desired by Presidents and their aides.

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

c. Accountability and Control

Pervasive secrecy enabled the FBI and the Justice Department to disregard as “unworkable” the Emergency Detention Act intended to set standards for aspects of domestic intelligence. The FBI’s independent position also allowed it to withhold significant information from a Presidential commission and from every Attorney General, and no Attorney General inquired fully into the Bureau’s operations.

During the same period, apprehensions about having a “security police” influenced Congress to prohibit the Central Intelligence Agency from exercising law enforcement powers or performing “internal security functions.” Nevertheless, in secret and without effective internal controls, the CIA undertook programs for testing chemical and biological agents on unwitting Americans, sometimes with tragic consequences. The CIA also used American private institutions as “cover” and used intrusive techniques affecting the rights of Americans.

d. Intrusive Techniques

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

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

e. Domestic Covert Action

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

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

2. Domestic Intelligence Authority

a. Anti-Communist Consensus

During the Cold War era, the strong consensus in favor of governmental action against Communists was reflected in decisions of the Supreme Court and acts of Congress. In the Korean War period, for instance, the Supreme Court upheld the conviction of domestic Communist Party leaders under the Smith Act for conspiracy to advocate violent overthrow of the government. The Court pinned its decision upon the conspiratorial nature of the Communist Party of the United States and its ideological links with the Soviet Union at a time of stress in Soviet-American relations.[204]

Several statutes buttressed the FBI’s claim of legitimacy for at least some aspects of domestic intelligence. Although Congress never directly authorized Bureau intelligence operations, Congress enacted the Internal Security Act of 1950 over President Truman’s veto. Its two main provisions were: the Subversives Activities Control Act, requiring the registration of members of communist and communist “front” groups; and the Emergency Detention Act, providing for the internment in an emergency of persons who might engage in espionage or sabotage. In this Act, Congress made findings that the Communist Party was “a disciplined organization” operating in this nation “under Soviet Union control” with the aim of installing “a Soviet style dictatorship.”[205] Going even further in 1954, Congress passed the Communist Control Act, which provided that the Communist Party was “not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States.”[206]

In 1956, the Supreme Court recognized the existence of FBI intelligence aimed at “Communist seditious activities.”[207] The basis for Smith Act prosecutions of “subversive activity” was narrowed in 1957, however, when the Court overturned the convictions of second-string Communist leaders, holding that the government must show advocacy “of action and not merely abstract doctrine.”[208] In 1961. the Court sustained the constitutionality under the First Amendment of the requirement that the Communist Party register with the Subversive Activities Control Board.[209]

The consensus should not be portrayed as monolithic. President Truman was concerned about risks to constitutional government posed by the zealous anti-Communism in Congress. According to one White House staff member’s notes during the debate over the Internal Security Act:

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

Truman announced that he would veto the Internal Security Act “regardless of how politically unpopular it was — election year or no election year.”[210] But President Truman’s veto was overridden by an overwhelming margin.

b. The Federal Employee Loyalty-Security Program

(1) Origins of the Program. — President Truman established a federal employee loyalty program in 1947.[211] Its basic features were retained in the federal employee security program authorized by President Eisenhower in public Executive Order 10450, which, with some modifications, still applies today.[212]

Although it had a much broader reach, the program originated out of well-founded concern that Soviet intelligence was then using the Communist Party as a vehicle for the recruitment of espionage agents.[213] President Truman appointed a Temporary Commision on Employee Loyalty in 1946 to examine the problem. FBI Director Hoover submitted a memorandum on the types of activities of “subversive or disloyal persons” in government service which would constitute a “threat” to security. As Hoover saw it, however, the danger was not limited to espionage or recruitment for espionage. It extended to “influencing” government policies in favor of “the foreign country of their ideological choice.” Consequently, he urged that attention be given to the associations of government employees with “front” organizations, including “temporary organizations, ‘spontaneous’ campaigns, and pressure movements so frequently used by subversive groups.”[214]

The President’s Commission accepted Director Hoover’s broad view of the threat, along with the view endorsed by a Presidential Commission on Civil Rights that there also was a danger from “those who would subvert our democracy by ... destroying the civil rights of some groups.”[215] Consequently, the Executive Order included, as an indication of disloyalty, membership in or association with groups designated on an “Attorney General’s list” as:

totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force, or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.[216]

The Executive Order was used to provide a legal basis for the FBI’s investigation of allegedly “subversive” organizations which might fall within these categories.[217] Such investigations supplied a body of intelligence data against winch to check the names of prospective federal employees.[218]

(2) Breadth of the Investigations. — By the mid-1950s, the Bureau believed that the Communist Party was no longer used for Soviet espionage; it represented only a “potential” recruiting ground for spies.[219] Thereafter, FBI investigations of Communist organizations and other groups unconnected to espionage but falling within the standards of the Attorney General’s list frequently became a means for monitoring the political background of prospective federal employees by means of the “name check” of Bureau files. These investigations also served the “pure intelligence” function of informing the Attorney General of the influence and organizational affiliations of socalled “subversives.”[220]

No organizations were formally added to the Attorney General’s list after 1955.[221] However, the FBI’s “name check” reports on prospective employees were never limited to information about listed organizations. The broad standards for placing a group on the Attorney General’s list were used to evaluate an employee’s background, regardless of whether or not lie was a member of a group on the list.[222] If a “name check” uncovered information about a prospective employee’s association with a group which might come within those standards, the FBI would report the data and attach a “characterization” of the organization relating tothe standards.[223]

(3) FBI Control of Loyalty-Security Investigations — President Eisenhower’s 1953 order specifically designated the FBI as responsible for “a full field investigation” whenever a “name check” or a background investigation by the Civil Service Commission or any other agency uncovered information indicating a potential security risk.[224] President Truman had refused to give the Bureau this exclusive power initially, but he fought a losing battle.[225]

Director Hoover had objected that President Truman’s order did not give the FBI exclusive power and threatened “to withdraw from this field of investigation rather than to engage in a tug of war with the Civil Service Commission.”[226] President Truman was apprehensive about the FBI’s growing power. The notes of one presidential aide on a meeting with the President reflect that Truman felt “very strongly anti-FBI” on the issue and wanted “to be sure and hold FBI down, afraid of ‘Gestapo.’ “[227]

Presidential assistant Clark Clifford reviewed the situation and came down on the side of the FBI as “better qualified” than the Civil Service Commission.[228] But the President insisted on a compromise which gave Civil Service “discretion” to call on the FBI “if it wishes.”[229] Director Hoover protested this “confusion” about the FBI’s jurisdiction.[230] When Justice Department officials warned that Congress would “find flaws” with the compromise, President Truman noted on a memorandum from Clifford:

J. Edgar will in all probability get this backward looking Congress to give him what he wants. It’s dangerous.[231]

President’s Truman’s prediction was correct. His budget request of $16 million for Civil Service and $8.7 million for the FBI to conduct loyalty investigations was revised by Congress to allocate $7.4 million to the FBI and only $3 million to Civil Service.[232] The issue was finally resolved to the FBI’s satisfaction when the President issued a statement declaring that there were “to be no exceptions” to the rule that the FBI would make all loyalty investigations.”[233]

c. Executive Directives: Lack of Guidance and Controls

Two public presidential statements on FBI domestic intelligence authority — by President Truman in 1950 and by President Eisenhower in 1953 — specifically declared that the FBI was authorized to investigate “subversive activity,” electing the broader interpretation of the directive of 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 supervision 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 controlling “subversive” investigations.

Under President Truman, the Interdepartmental Intelligence Conference (IIC)[234] 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.”[235] [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.[236]

In 1050, after the outbreak of the Korean war and in the midst of Congressional consideration of new internal security legislation, Director Hoover recommended that Attorney General J. Howard McGrath[237] 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.[238] [Emphasis added.]

Despite concern among his assistants,[239] President Truman’s statement clearly placed him on the record as endorsing FBI investigations of “subversive activities.” The statement said that such investigations had been authorized initially by President Roosevelt’s “directives” of September 1939 and January 1943. However, those particular directives had not used this precise language.[240]

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 saving that it had authorized “investigative work” related to “subversive activities.”[241]

In December 1953 President Eisenhower issued a statement reiterating President Truman’s “directive” and extending the FBI’s mandate to investigations under the Atomic Energy Act.[242]

President Kennedy issued no public statement comparable to the Roosevelt, Truman, and Eisenhower “directives.” However, in 962 he did transfer the Interdepartmental Intelligence Conference to “the supervision of the Attorney General;”[243] and in 1964 Attorney General Robert Kennedy reissued the IIC charter, citing as authority the President’s 1962 order and retaining the term “subversion.” The ‘charter added that it did not “modify” or “affect” the previous “Presidential 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.”[244]

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 suspected 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 sympathy for Communist objectives and policies.” Members of “non-Stalinist” revolutionary socialist groups were investigated because, even though they opposed the Soviet regime, the FBI viewed them as regarding the Soviet Union “as the center for world revolution.”[245] 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. Bet Between 1960 and 1963 an additional 9,000 such files were opened.[246] An even larger number of investigative files were maintained at FBI field offices.[247] 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 continuing 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.”[248]

The FBI Manual stated that it was “not possible to formulate any hard-and-fast standards for measuring “the dangerousness of individual members or affiliates of revolutionary organizations.” Persons could be investigated if they were “espousing the line” of “revolutionary movements”. Anonymous allegations could start an investigation 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.[249]

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.”[250] One purpose of investigation was possible prosecution under the Smith Act. But no prosecutions were initiated under the Act after 1957.[251] The Justice Department advised the FBI in 1956 that such a prosecution required “an actual plan for a violent revolution.”[252] The Department’s position in 1960 was that “incitement to action in the foreseeable future” was needed.[253] Despite the strict requirements for prosecution, the FBI continued to investigate “subversive” organizations “from an intelligence viewpoint” to appraise their “strength” and “dangerousness.”[254]

(3) COMINFIL. — The FBI’s broadest program for collecting intelligence was carried out under the heading COMINFIL, or Communist infiltration.[255] The FBI collected intelligence about Communist “influence” under the following categories:

Political activities
Legislative activities
Domestic administration issues
Negro question
Youth matters
Women’s matters
Farmers’ Matters
Cultural activities
Veterans’ matters

FBI investigations covered “the entire spectrum of the social and labor movement in the country.”[257] The purpose — as publicly disclosed in the Attorney General’s Annual Reports — was pure intelligence: to “fortify” the Government against “subversive pressures,”[258] or to “strengthen” the Government against “subversive campaigns.”[259]

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 determining whether Communists were involved.[260] The FBI said it was not concerned with the “legitimate activities” of “nonsubversive groups,” but only with whether Communists were “gaining a dominant role.”[261] Nevertheless, COMINFIL reports inevitably described “legitimate activities” totally unrelated to the alleged “subversive activity.” This is vividly demonstrated by the COMINFIL reports on American’s leading civil rights group in this period, the NAACP.[262] The investigation continued for at least twenty-five years in cities throughout the nation, although no evidence was ever found to rebut the observation that the NAACP had a “strong tendency” to “steer clear of Communist activities.”[263]

(4) Exaggeration of Communist Influence. — The FBI and the Justice D partment justified the continuation of COMINFIL investigations, despite the Communist Party’s steady decline in the fifties and early sixties, on the theory that the Party was “seeking to repair its losses” with the “hope” of being able to “move in” on movements with “laudable objectives.”[264]

The FBI reported to the White House in 1961 that the Communist Party had “attempted” to take advantage of “racial disturbances” in the South and had “endeavored” to bring “pressure to bear” on government officials “through the press, labor unions, and student groups.” At that time the FBI was investigating “two hundred known or suspected communist front and communist-infiltrated organizations. “[265] By not stating how effective the “attempts” and “endeavors” of the Communists were, and by not indicating whether they were becoming more or less successful, the FBI offered a deficient rationale for its sweeping intelligence collection policy.

William C. Sullivan, a former head of the FBI Intelligence Division, has testified that such language was deliberately used to exaggerate the threat of Communist influence. “Attempts” and “influence” were “very significant words” in FBI reports, he said. These terms obscured what he felt to be the more significant criterion — the degree of Communist success. The Bureau “did not discuss this because we would have to say that they did not hit the target, hardly any.”[266]

A distorted picture of Communist “infiltration” later served to justify the FBI’s intensive investigations of the groups involved in protests against the Vietnam War and the civil rights movement, including Dr. Martin Luther King, Jr., and the Southern Christian Leadership Conference.

b. “Racial Matters”and “Hate Groups”

In the 1950s, the FBI also developed intelligence programs to investigate “Racial Matters” and “hate organizations” unrelated to “revolutionary-type” subversives. “Hate organizations” were investigated if they had “allegedly adopted a policy of advocating, condoning, or inciting 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.[267]

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.”[268]

Under these, programs, the FBI collected and disseminated intelligence about the John Birch Society and its founder, Robert Welch, in 1959.[269] The activities of another rightwing 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.”[270]

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 “developments” included:

proposed or actual activities of individuals, officials, committees, legislatures, organizations, etc., in the racial field.[271]

The FBI’s “intelligence function” was to advise “appropriate” federal and local officials of “pertinent information” about “racial incidents.”[272]

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.[273]

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.[274]

President Truman and his aides received regular letters from Director 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-Communist labor union;[275] the activities of a former Roosevelt aide who was trying to influence the Truman administration’s appointments;[276] a report from a “confidential source” that a “scandal” was brewing which would be “very embarrassing” to the Democratic administration;[277] a report from a “very confidential source” about a meeting of newspaper representatives in Chicago to plan publication of stories exposing organized crime and corrupt politicians;[278] the contents of an in-house communication from Newsweek magazine reporters to their editors about a story they had obtained from the State Department,[279] and criticism of the government’s internal security programs by a former Assistant to the Attorney General.[280]

Letters discussing Communist “influence” provided a considerable amount of extraneous information about the legislative process, including lobbying activities in support of civil rights legislation[281] and the political activities of Senators and Congressmen.[282]

President Eisenhower and his aides received similar tid-bits of political intelligence, including an advance text of a speech to be delivered by a prominent labor leader,[283] reports from Bureau “sources” on the meetings of an NAACP delegation with Senators Paul Douglas and Everett Dirksen of Illinois;[284] the report of an “informant” on the role of the United Auto Workers Union at an NAACP conference,[285] 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,[286] a report of a “confidential source” on plans of Mrs. Eleanor Roosevelt to hold a reception for the head of a civil rights group,[287] and reports on the activities of Robert Welch and the John Birch Society.[288]

The FBI also volunteered to the White House information from its most “reliable sources” On purely political or social contacts with foreign government officials by a Deputy Assistant to the President,[289] Bernard Baruch,[290] Supreme Court Justice William 0. Douglas,[291] and Mrs. Eleanor Roosevelt.[292]

Director Hoover sent to the White House a report from a “confidential informant” on the lobbying activities of a California group called Women for Legislative Action because its positions “paralleled” the Communist line.[293]

As in the prior administrations, requests also flowed from the Eisenhower White House to the FBI.[294] For example, a presidential aide asked the FBI to check its files on Rev. Carl McIntyre of the International Council of Christian Churches.[295]

The pattern continued during the Kennedy administration. A summary of material in FBI files on a prominent entertainer was volunteered to Attorney General Kennedy because Hoover thought it “may be of interest.”[296] Attorney General Kennedy sent to the President an FBI memorandum on the purely personal life of Dr. Martin Luther King, Jr.[297] Director Hoover supplied Attorney General Kennedy with background information on a woman who told an Italian newspaper that she had once been engaged to marry President Kennedy[298] and on the husband of a woman who was reported in the press to have stated that the President’s daughter would enroll in a cooperative nursery with which she was connected.[299] The FBI Director also passed on information from a Bureau “source” r egarding plans of a group to publish allegations about the President’s personal life.[300]

In 1962 the FBI complied unquestioningly with a request from Attorney General Kennedy to interview a Steel Company executive and several reporters who had written stories about the Steel executive. The interviews were conducted late at night and early in the morning because, according to the responsible FBI official, the Attorney General indicated the information was needed for a White House meeting the next day.[301]

Throughout the period, the Bureau also disseminated reports to high executive officials to discredit its critics. The FBI’s Inside information on plans of the Lawyers Guild to denounce Bureau surveillance in 1949 gave the Attorney General the opportunity to prepare a rebuttal well in advance of the expected criticism.[302] When the Knoxville Area Human Relations Council charged in 1960 that the FBI was practicing racial discrimination, the FBI did “name checks” on members the Council’s board of directors and sent the results to the Attorney General. The name checks dredged up derogatory allegations from as far back as the late thirties and early forties.[303]

d. IRS Investigations of Political Organizations

The IRS program that came to be used against the domestic dissidents of the 1960s was first used against Communists in the 1950s. As part of its COINTELPRO against the Communist Party, the FBI arranged for IRS investigations of Party members, and obtained their tax returns.[304] In its efforts against the Communist Party, the FBI had unlimited access to tax returns: it never told the IRS why it wanted them, and IRS never attempted to find out.[305]

In 1961, responding to White House and congressional interest in right-wing organizations, the IRS began comprehensive investigation of right-wing groups to identify contributors and ascertain whether or not some of them were entitled to their tax exempt status.[306] Left-wing groups were later added, in an effort to avoid charges that such IRS activities were all aimed at one part of the political spectrum. Both right- and left-wing groups were selected for review and investigation because of their political activity and not because of any information that they had violated the tax laws.[307]

While the IRS efforts begun in 1961 to investigate the political activities of tax exempt organizations were not as extensive as later programs in 1969–1973, they were a significant departure by the IRS from normal enforcement criteria for investigating persons or groups on the basis of information indicating noncompliance. By directing tax audits at individuals and groups solely because of their political beliefs, the Ideological Organizations Audit Project (as the 1961 program was known)[308] established a precedent for a far more elaborate program of targeting “dissidents.”[309]

4. Accountability and Control

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

a. The Emergency Detention Act

In 1946, four years before the Emergency Detention Act of 1950 was passed, the FBI advised Attorney General Clark that it had secretly compiled a security index of “potentially dangerous” persons.[310] The Justice Department then made tentative plans for emergency detention based on suspension of the privilege of the writ of habeas corpus.[311] Department officials deliberately avoided going to Congress, advising the FBI in a “blind memorandum:”

The present is no time to seek legislation. To ask for it would only bring on a loud and acrimonious discussion.[312]

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

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

The Act did not authorize the suspension of the privilege of the writ of habeas corpus, and it provided that detained persons could appeal to a review board and to the courts.[313]

Shortly after passage of the Detention Act, according to a Bureau document, Attorney General J. Howard McGrath told the FBI to isregard it and to “Proceed with the program as previously outlined.” Department officials stated that the Act was “in conflict with” their plans, and was “unworkable.” FBI officials agreed that the statutory procedures — such as “recourse to the courts” instead of suspension of habeas corpus — would “destroy” their program.[314] Moreover, the Security Index used broader standards to determine “potential dangerousness” than those prescribed in the statute; and, unlike the Act, Department plans provided for issuing a Master Search Warrant and a Master Arrest Warrant.[315] Two subsequent Attorneys General endorsed the decision to ignore the Emergency Detention Act.[316]

b. Withholding Information

Not only did the FBI and the Justice Department jointly keep their noncompliance with the Detention Act secret from Congress, but the FBI withheld important aspects of its program from the Attorney General. FBI personnel had been instructed in 1949 that :

no mention must be made in any investigative report relating to the

classifications of top functionaries and key figures, nor to the Detcom and Comsab Programs, nor to the Security Index or the Communist Index. These investigative procedures and administrative aides are confidential and should not be known to any outside agency.[317]

FBI documents indicate that only the Security Index was made known to the Justice Department.

In 1955, the FBI tightened formal standards for the Security Index, reducing its size from 26,174 to 12,870 by 1958.[318] However, there is no indication that the FBI told the Department that it kept the names of persons taken off the Security Index on a Communist, Index, because the Bureau believed such persons remained “potential threats.”[319] The secret Communist Index was renamed the Reserve Index in 1960 and expanded to include “influential” persons deemed likely to “aid subversive elements” in an emergency because of their “subversive associations and ideology.” Such individuals fell under the following categories:

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

Persons on the Reserve Index would receive “priority consideration” for “action” after detention of Security Index subjects. The breadth of this list is illustrated by the inclusion of the names of author Norman Mailer and a professor who merely praised the Soviet Union to his class.[320]

In addition to keeping these programs secret, the FBI withheld information about espionage from the Justice Department on at least two occasions. In 1946 the FBI had “identified over 100 persons” whom it “suspected of being in the Government Communist Underground.” Neither this number nor any names from this list were given to the Department because Director Hoover feared “leaks,” and because the Bureau conceded in its internal documents that it did “not have evidence, whether admissible or otherwise, reflecting actual membership in the Communist Party.”[321] Thus the Bureau’s “suspicions” were not tested by outside review by the Justice Department and the investigations could continue. In 1951 the FBI again withheld from the Department names of certain espionage subjects “for security reasons,” since disclosure “would destroy chances of penetration and control.”[322]

Even the President’s Temporary Commission on Employee Loyalty could not get highly relevant information from the Bureau. FBI Assistant Director D.M. Ladd told the Commission in 1946 that there was a “substantial” amount of Communist “infiltration of the government.” But Ladd declined to answer when Commission members asked for more details of FBI intelligence operations and the information which served as the basis for his characterization of the extent of infiltration.[323] The Commission prepared a list of questions for the FBI and asked that Director Hoover appear in person. Instead, Attorney General Clark made an “informal” appearance and supplied a memorandum stating that the number of “subversives” in government had “not yet reached serious proportions,” but that the possibility of “even one disloyal person” in government service constituted a “serious threat.”[324] Thus, the President’s Commission chose not to insist upon making a serious evaluation of FBI intelligence operations or the extent of the danger.

The record suggests that executive officials were forced to make decisions regarding security policy without full knowledge. They had to depend on the FBI’s estimate of the problem, rather than being able to make their own assessment on the basis of complete information. It is also apparent that by this time outside officials were sometimes unwilling to oppose Director Hoover or to inquire fully into FBI operations.[325]

c. CIA Domestic Activity

(1) Vague Controls on CIA. — The vagueness of Congress’s prohibitions of “internal security functions” by the CIA left room for the Agency’s subsequent domestic activity. A restriction against “police, law enforcement or internal security functions” first appeared in President Truman’s order establishing the Central Intelligence Group in 1946.[326]

General Vandenburg, then Director of Central Intelligence, testified in 1947 that this restriction was intended to “draw the lines very sharply between the CIG and the FBI” and to “assure that the Central Intelligence Group can never become a Gestapo or security police.”[327] Secretary of the Navy James Forrestal testified that the CIA would be “limited definitely to purposes outside of this country, except the collection of information gathered by other government agencies.” The FBI would be relied upon “for domestic activities.”[328]

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

is strictly in the field of secret foreign intelligence — what is known as clandestine intelligence. They have no right in the domestic field to collect information of a clandestine military nature. They can evaluate it; yes.[329]

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

shall have no police, subpoena, law-enforcement powers, or internal security functions.[330]

However, the 1947 Act also contained a vague and undefined duty to protect intelligence “sources and methods” which later was used to justify domestic activities ranging from electronic surveillance and break-ins to penetration of protest groups.[331]

(2) Drug Testing and Cover Programs. — In the early 1950s, the CIA began a program of surreptitiously testing, chemical and biological materials, which included drug testing on unwitting Americans. The existence of such a program was kept secret because, as the CIA’s Inspector General wrote 1957, it, was necessary to “protect operations from exposure” to “the American public” as well as “enemy forces.” Public knowledge of the CIA’s “unethical and illicit activities” was thought likely to have serious “political repercussions.”[332] CIA drug experimentors disregarded instructions of their superiors within the Agency and failed to take “reasonable precautions” when they undertook the test which resulted in the death of Dr. Frank Olsen.[333]

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

Military intelligence also administered drugs to volunteer subjects who were unaware of the purpose or nature of the tests in which they were participating.[334]

The CIA’s drug research was conducted in part through arrangements with universities, hospitals, and “private research organizations” in a manner which concealed “from the institution the interests of the CIA,” although “key individuals” were made witting of Agency sponsorship.[335] There were similar covert relationships with American private institutions in other CIA intelligence activities.[336]

5. Intrusive Techniques

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

a. Communications Interception: CIA and NSA

During the 1950s the Central Intelligence Agency instituted a major program for opening mail between the United States and the Soviet Union as it passed through postal facilities in New York City.[337] Two other short-term CIA projects in the fifties also involved the opening of international mail within the United States, through access to Customs Service facilities.[338] Moreover, in the late 1940s the Department of Defense made arrangements with several communications companies to receive international cable traffic, reinstating a relationship that had existed during World War II.[339] These prorams violated not only the ban on internal security functions by foreign intelligence agencies in the 1947 Act, but also specific statutes protecting the privacy of the mails and forbidding the interception of Communications.[340]

While their original purpose was to obtain foreign intelligence, the programs frequently did not distinguish between the messages of foreigners and of Americans.[341] Furthermore, by the late fifties and early sixties, the CIA and NSA were sharing the “take” with the FBI for domestic intelligence purposes.[342]

In this period, the CIA opened mail to and from the Soviet Union largely at random, intercepting letters of Americans unrelated to foreign intelligence or counterintelligence.[343] After the FBI learned of the CIA program, it levied requests in certain categories. Apart from foreign counterintelligence criteria, the Bureau expressed interest in letters from citizens professing “pro-Communist sympathies”[344] and “data re U.S. peace groups going to Russia.”[345]

The secret arrangements with cable companies to obtain copies of international traffic were initially authorized by Secretary of Defense James Forrestal and Attorney General Tom Clark, although it is not clear that they knew of the interception of American as well as foreign messages.[346] They developed no formal legal rationale, and their later successors were never consulted to renew the authorization.[347]

The CIA sought no outside authorization before instituting its mail opening program. Several Post Office officials were misled into believing that the CIA’s request for access to the mail only involved examining the exterior of the envelopes.[348] President Kennedy’s Postmaster General, J. Edward Day, testified that he told CIA Director Allen Dulles he did not want to “know anything about” what the CIA was doing.[349] Beyond undocumented assumptions by CIA officials, there is no evidence that the President or the Attorney General was ever informed about any aspect of CIA mail-opening operations in this period.[350]

b. FBI Covert Techniques

(1) Electronic Surveillance.

(a) The Question of Authority: In 1946 Attorney General Toni Clark asked President Truman to renew the authorization for warrantless wiretapping issued by President Roosevelt in 1940. Clark’s memorandum, however, did not refer to the portion of the Roosevelt directive which said wiretaps should be limited “insofar as possible to aliens.” It stressed the danger from “subversive activity here at home,” and requested authority to wiretap “in cases vitally affecting the domestic security.”[351] The President gave his approval. Truman’s aides later discovered Attorney General Clark’s omission and the President considered, but decided against, returning to the terms of Roosevelt’s authorization.[352]

In 1954 the Supreme Court denounced the Fourth Amendment violation by police who placed a microphone in a bedroom in a local gambling case.[353]

Soon thereafter, despite this decision — and despite his predecessor’s ruling that trespassory installation of bugs was in the “area” of the Fourth Amendment — Attorney General Herbert Brownell authorized the “unrestricted use” in the “national interest” of “trespass in the installation of microphones.”[354]

From 1954 until 1965, when Attorney General Nicholas Katzenbach reconsidered the policy and imposed stricter regulations,[355] the FBI bad unsupervised discretion to use microphone surveillance and to conduct surreptitious entries to install microphones. Thus, the safeguard of approval by the Attorney General for each wiretap had been undercut by the FBI’s ability to intrude into other, often more intimate conversations by microphone “bugging.”

(b) Extensive Bugging: In May 1961, Director Hoover advised Deputy Attorney General Byron White that the FBI was using “microphone surveillances” involving “trespass” for “intelligence purposes” in the “internal security field.” He called White’s attention to the 1954 Brownell memorandum, although he said microphones were used “on a restricted basis” and cited as examples only “Soviet intelligence agents and Communist Party leaders.”[356]

In fact, the FBI had already used microphone surveillance for broader coverage than Communists or spies. Indeed, it had “bugged” a hotel room occupied by a Congressman in February 1961. There is no evidence that Attorney General Kennedy or Deputy Attorney General White were specifically informed of this surveillance. But the Attorney General received information which came from the “bug” and authorized a wiretap of the Congressman’s secretary.[357][358]

Furthermore, FBI records disclose that the FBI conducted warrantless microphone surveillances in 1960–1963 directed at a “black separatist group,” “black separatist group functionaries” and a “(white) racist organization.”[359] There may have been others for purely domestic intelligence purposes.[360]

The FBI maintained no “central file or index” to record all microphone surveillances in this period, and FBI records did not distinguish “bugs” involving trespass.[361]

(2) “Black Bag Jobs.” — There is no indication that any Attorney General was informed of FBI “black bag” jobs, and a “Do Not File” procedure was designed to preclude outside discovery of the FBI’s use of the technique.

No permanent records were kept for approvals of “black bag jobs,” or surreptitious entries conducted for purposes other than installing a “bug”. The FBI has described the procedure for authorization of surreptitious entries as requiring the approval of Director Hoover or his Assistant Clyde Tolson. The authorizing memorandum was filed in the Director’s office under a “Do Not File” procedure, and thereafter destroyed. In the field office, the Special Agent in Charge maintained a record of approval in his office safe. At the next yearly field office inspection, an Inspector would review these records to ensure that the SAC had secured FBI headquarters approval in conducting surreptitious entries. Upon completion of the review, these records were destroyed.[362]

The only internal FBI memorandum found discussing the policy for surreptitious entries confirms that this was the procedure and states that “we do not obtain authorization from outside the Bureau” because the technique was “clearly illegal.” The memorandum indicates that “black bag jobs” were used not only “in the espionage field” but also against “subversive elements” not directly connected to espionage activity. It added that the techniques resulted “on numerous occasions” in obtaining the “highly secret and closely guarded” membership and mailing lists of “subversive” groups.[363]

(3) Mail Opening. — The FBI did not seek outside authorization when it reinstituted mail opening programs in the fifties and early sixties. Eight programs were conducted for foreign intelligence and counterespionage purposes, and Bureau officials who supervised these programs have testified that legal considerations were simply not raised at the time.[364]

Beyond their original purpose, the FBI mail opening programs produced some information of an essentially domestic nature. For example, during this period one program supplied “considerable data” about American citizens who expressed pro-Communist sympathies or made “anti-U.S. statements.”[365] Some of the mail-opening by-product regarding Americans was disseminated to other agencies for law enforcement purposes, with the source disguised.[366]

c. Use of FBI Wiretaps

The authorization for wiretapping issued by President Truman in 1946 allowed the Attorney General to approve wiretaps in the investigation of “subversive activity” to protect the “domestic security.”[367]

A wiretap on an official of the Nation of Islam, originally authorized by Attorney General Herbert Brownell in 1957, continued thereafter without re-authorization until 1965.[368] Attorney General Robert Kennedy approved FBI requests for wiretaps on an Alabama Klan leader in 1963[369] and on black separatist group leader Malcolm X in 1964.[370] Kennedy also authorized wiretap coverage requested by the Warren Commission in 1964.[371] Kennedy’s approval of FBI requests for wiretaps on Dr. Martin Luther King and several of his associates are discussed in greater detail elsewhere in the Committee’s report.[372]

In addition, Attorney General Kennedy approved wiretaps on four American citizens during investigations of “classified information leaks.” The taps failed to discover the sources of the alleged “leaks” and involved procedural irregularities. In 1961 Attorney General Kennedy told Director Hoover that the President wanted the FBI to determine who was responsible for an apparent “leak” to Newsweek reporter Lloyd Norman, author of an article about American military plans in Germany.[373] But the Attorney General was not asked to approve a wiretap on Norman’s residence until after it was installed.

According to contemporaneous Bureau memoranda, wiretaps in 1962 on the residence of New York Times reporter Hanson Baldwin and his secretary to determine the source of an article about Soviet missile sites were also instituted without prior written approval of the Attorney General; and one of them — the tap on the secretary — was instituted without the Attorney General’s prior knowledge.[374] Kennedy’s written approval was obtained, however, three days after the Baldwin tap was installed and four days after the tap on the secretary was installed.[375]

The pattern, including ex post facto approval, was repeated for wiretaps of a former FBI agent who disclosed “confidential” Bureau information in a public forum. The first tap lasted for eight days in 1962, and it was reinstituted in 1963 for an undetermined period.[376] Attorney General Kennedy was advised that the FBI desired to place the initial coverage; but he was not informed that it had been effected the day before, and he did not grant written approval until the day it was terminated.[377] It appears that only oral authorization was obtained for reinstituting the tap in 1963.[378]

In February 1961, Attorney General Kennedy requested the FBI to initiate an investigation for the purpose of developing:

intelligence data which would provide President Kennedy a picture of what was behind pressures exerted on behalf of [a foreign country] regarding sugar quota deliberations in Congress ... in connection with pending sugar legislation.[379]

This investigation lasted approximately nine weeks, and was reinstituted for a three-month period in mid-1962.

According to an FBI memorandum, the Attorney General authorized the wiretaps in 1961 on the theory that “the administration has to act if money or gifts are being passed by the [representatives of a foreign country].”[380] Specifically, he approved wiretaps on several American citizens: three officials of the Agriculture Department (residences only);[381] the clerk of the House Committee on Agriculture who was also secretary to the chairman (residence only);[382] and a registered agent of the foreign country (both residence and business telephones).[383] After passage of the Administration’s own sugar bill in April 1961, these wiretaps were discontinued.[384]

The investigation was reinstituted in June 1962, when the Bureau learned that representatives of the same foreign country again might be influencing congressional deliberations concerning an amendment to the sugar quota legislation.[385] Attorney General Kennedy approved wiretaps on the office telephone of an attorney believed to be an agent of the foreign country and, again, on the residence telephone of the Clerk of the House, Agriculture Committee.[386] The latter tap continued for one month, but the former apparently lasted for three months.[387]

These wiretaps in 1961 and 1962 were arguably related to “foreign intelligence” — but not to “subversive activity” unless that term is interpreted beyond its conventional meaning.[388] More important, they generated information which was potentially useful to the Kennedy administration for purely political purposes relating to the legislative process.[389]

The wiretap authorized by Attorney General Kennedy on another high executive official in this period did not relate to political considerations, but to concern about possible disclosure of classified information to a foreign government.[390] There is no indication that the wiretap authorized by Attorney General Katzenbach in 1965 on the editor of an anticommunist newsletter was related in any way to the book he had written in 1964 alleging personal impropriety by Attorney General Kennedy.[391]

6. Domestic Covert Action

In its COINTELPRO operation, the FBI went beyond excessive information-gathering and dissemination to the use of secret tactics designed to “disrupt” and “neutralize” domestic intelligence targets. At the outset, the target was the Communist Party, U.S.A. But, consistent with the pattern revealed in other domestic intelligence activities, the program widened to other targets, increasingly concentrating on domestic dissenters. The expansion of COINTELPRO began in the Cold War period and accelerated in the latter part of the 1960s.

a. COINTELPRO: Communist Party

The COINTELPRO program, authorized by Director Hoover against the Communist Party in 1956, had its roots in two lines of Bureau policy going back to the 1940s. The first was the accepted FBI practice of attempting to disrupt “subversive” organizations. A former head of the FBI Intelligence Division has testified:

We were engaged in COINTELPRO tactics, to divide, confuse, weaken, in diverse ways, an organization. We were engaged in that when I entered the Bureau in 1941.[392]

The memorandum recommending the institution of COINTELPRO stated that the Bureau was already seeking to “foster factionalism” and “cause confusion” within the Communist Party.[393]

The second line of pre-existing Bureau policy involved propaganda to discredit the Communist Party publicly. For example, in 1946, an earlier head of the FBI Intelligence Division proposed that efforts be made to release “educational material” through “available channels” to influence “public opinion.” The “educational” purpose was to undermine Communist support among “labor unions,” “persons prominent in religious circles,” and “the Liberal elements,” and to show “the basically Russian nature of the Communist Party in this country.”[394] By 1956, a propaganda effort was underway to bring the Party and its leaders “into disrepute before the American public.”[395]

The evidence indicates that the FBI did not believe that the Communist Party, when the COINTELPRO program was formalized in 1956, constituted as serious a threat in terms of actual espionage as it had in the 1940s.[396] Nevertheless, the FBI systematized its covert action program against the Communist Party in part because the surfacing of informants in legal proceedings had somewhat limited the Bureau’s coverage of Party activities, and also to take advantage of internal conflicts within the Party.[397] Covert “disruption” was also designed to make sure that the Party would not reorganize under a new label and thus would remain an easier target for prosecution.[398]

In the years after 1956, the purpose of the Communist Party COINTELPRO changed somewhat. Supreme Court decisions substantially curbed criminal prosecution of Communists.[399] Subsequently, the FBI “rationale” for COINTELPRO was that it had become “impossible to prosecute Communist Party members” and some alternative was needed “to contain the threat.”[400]

b. Early Expansion of COINTELPRO

From 1956 until 1960, the COINTELPRO program was primarily aimed at the Communist Party organization. But, in March 1960, participating FBI field offices were directed to make efforts to prevent Communist “infiltration” of “legitimate mass organizations, such as Parent-Teacher Associations, civil organizations, and racial and religious groups.” The initial technique was to notify a leader of the organization, often by “anonymous communications,” about the alleged Communist in its midst.[401] In some cases, both the Communist and the “infiltrated” organization were targeted.

This marked the beginning of the progression from targeting Communist Party members, to those allegedly under Communist “influence,” to persons taking positions supported by the Communists. For example, in 1964 targets under the Communist Party COINTELPRO label included a group with some Communist participants urging increased employment of minorities[402] and a non-Communist group in opposition to the House Committee on UnAmerican Activities.[403]

In 1961, a COINTELPRO operation was initiated against the Socialist Workers Party. The originating memorandum said it was not a “crash” program; and it was never given high priority.[404] The SWP’s support for “such causes as Castro’s Cuba and integration problems arising in the South” were noted as factors in the FBI’s decision to target the organization. The Bureau also relied upon its assessment that the SWP was “not just another socialist group but follows the revolutionary principles of Marx, Lenin, and Engels as interpreted by Leon Trotsky” and that it was “in frequent contact with international Trotskyite groups stopping short of open and direct contact with these groups.[405] The SWP had been designated as “subversive” on the “Attorney General’s list” since the 1940s.[406]

D. Intelligence and Domestic Dissent: 1964–1976

1. Main Developments of the 1964–1976 Period

Beginning in the mid-sixties, the United States experienced a period of domestic unrest and protest unparalleled in this century. Violence erupted in the poverty-stricken urban ghettos, and opposition to American intervention in Vietnam produced massive demonstrations.

A small minority deliberately used violence as a method for achieving political goals -ranging from the brutal murder and intimidation of black Americans in parts of the South to the terrorist bombing of office buildings and government-supported university facilities. But three Presidential commissions found that the larger outbreaks of violence in the ghettos and on the campuses were most often spontaneous reactions to events in a climate of social tension and upheaval.[407]

During this period, thousands of young Americans and members of racial minorities came to believe in civil disobedience as a vehicle for protest and dissent.

The government could have set an example for the nation’s citizens and prevented spiraling lawlessness by respecting the law as it took steps, to predict or prevent violence. But agencies of the United States, sometimes abetted by public opinion and government officials, all too often disregarded the Constitutional rights of American in their conduct of domestic intelligence operations.

The most significant developments in domestic intelligence activity during this period may be summarized as follows:

a. Scope of Domestic Intelligence

FBI intelligence reports on protest activity and domestic dissent accumulated massive information on lawful activity and law-abiding citizens for vaguely defined “pure intelligence” and “preventive intelligence” purposes related only remotely or not at all to law enforcement or the prevention of violence. The FBI exaggerated the extent of domestic Communist influence, and COMINFIL investigations improperly included groups with no significant connections to Communists.

The FBI expanded its use of informers for gathering intelligence about domestic political groups, sometimes upon the urging of the Attorney General. No significant limits were placed on the kind of political or personal information collected by informers, recorded in FBI files, and often disseminated outside the Bureau.

Army intelligence developed programs for the massive collection of information about, and surveillance of, civilian political activity in the United States and sometimes abroad.

In contrast to previous policies for centralizing domestic intelligence investigations, the Federal Government encouraged local police to establish intelligence programs both for their own use and to feed into the Federal intelligence-gathering process. This greatly expanded the domestic intelligence apparatus, making it harder to control.

The Justice Department established a unit for storing and evaluating intelligence about civil disorders which was designed to use non-intelligence agencies as regular sources of information, which, in fact, drew on military intelligence as well as the FBI, and which transmitted its computer list of citizens to the CIA and the IRS.

b. Domestic Intelligence Authority

Intelligence gathering related to protest activity was generally increased in response to vague requests by Attorneys General or other officials outside the intelligence agencies; such increases were sometimes ratified retroactively by such officials.

The FBIs exclusive control over civilian domestic intelligence at the Federal level was consolidated by formal agreements with the Secret Service regarding protective intelligence and with the Bureau of Alcohol, Tobacco, and Firearms regarding terrorist bombings.

c. Domestic Covert Action

The FBI developed new covert programs for disrupting and discrediting domestic political groups, using the techniques originally applied to Communists. The most intensive domestic intelligence investigations, and frequently COINTELPRO operations, were targeted against persons identified not as criminals or criminal suspects, but as “rabble rousers,” “agitators,” “key activists,” or “key black extremists” because of their militant rhetoric and group leadership. The Security Index was revised to include such persons.

Without imposing adequate safeguards against misuse, the Internal Revenue Service passed tax information to the FBI and CIA, in some cases in violation of tax regulations. At the urging of the White House and a Congressional Committee, the IRS established a program for investigating politically active groups and individuals, which included auditing their tax returns.

d. Foreign Intelligence and Domestic Dissent

A 1966 agreement concerning “coordination” between the CIA and the FBI permitted CIA involvement in internal security functions. Under pressure from the Johnson and Nixon White Houses to determine whether there was “foreign influence” behind anti-war protests and black militant activity, the CIA began collecting intelligence about domestic political groups.

The CIA also conducted operations within the United States under overly broad interpretations of responsibility to protect the physical security of its facilities and to protect intelligence “sources” and “methods.” These operations included surreptitious entry, recruitment of informers in domestic political groups, and at least one instance of warrantless wiretapping approved by the Attorney General.

In the same period, the National Security Agency monitored international communications of Americans involved in domestic dissent despite the fact that its mission was supposed to be restricted to collecting foreign intelligence and monitoring only foreign communications.

e. Intrusive Techniques

As domestic intelligence operations broadened and focused upon dissenters, the Government increased the use of many of its most intrusive surveillance techniques. During the period from 1964 to 1972, the standards and procedures for warrantless electronic surveillance were tightened, but actual practice was sometimes at odds with the articulated policy. Also during these years, CIA mail opening expanded at the Bureau’s request, and NSA monitoring expanded to target domestic dissenters. However, the FBI cut back use of certain techniques under the pressure of Congressional probes and changing public opinion.

f. Accountability and Control

During this period several sustained domestic intelligence efforts illustrated deficiencies in the system for controlling intelligence agencies and holding them accountable for their actions.

In 1970, presidential approval was temporarily granted for a plan for interagency coordination of domestic intelligence activities which included several illegal programs. Although the approval was subsequently revoked, some of the programs were implemented separately by various agencies.

Throughout the administrations of Presidents Johnson and Nixon, the investigative process was misused as a means of acquiring political intelligence for the White House. At the same time, the Justice Department’s Internal Security Division, which should have been a check against the excesses of domestic intelligence, generally failed to restrain such activities. For example, as late as 1971–1973, the FBI continued to evade the will of Congress, partly with Justice Department approval, by maintaining a secret “Administrative Index” of suspects for round-up in case of national emergency.

g. Reconsideration of FBI Authority

Partly in reaction to congressional inquiries, the FBI in the early 1970s began to reconsider the extent of its authority to conduct domestic intelligence activities and requested clarification from the Attorney General and an executive mandate for intelligence investigations of “terrorists” and “revolutionaries”.

In the absence of any new standards imposed by statute, or by the Attorney General, the FBI continued to collect domestic intelligence under sweeping authorizations issued by the Justice Department in 1974 for investigations of “subversives,” potential civil disturbances, and “potential crimes”. These authorizations were explicitly based on broad theories of inherent executive power. Attorney General Edward H. Levi recently promulgated guidelines which represent the first significant attempt by the Justice Department to set standards and limits for FBI domestic intelligence investigations.

2. Scope of Domestic Intelligence

During this period the FBI continued the same broad investigations of the lawful activities of Americans that were based on the Bureau’s vague mandate to collect intelligence about “subversion.”

In addition, the Bureau — joined by CIA, NSA, and military intelligence agencies — took on new and equally broad assignments to investigate “racial matters,” the “New Left,” “student agitation,” and alleged “foreign influence” on the antiwar movement.

a. Domestic Protest and Dissent: FBI

“We are an intelligence agency,” stated a policy directive to all FBI offices in 1966, “and as such are expected to know what is going on or is likely to happen.”[408] Written in the context of demonstrations over the Vietnam war and civil rights, this order illustrates the general attitude among Bureau officials and high administration officials who established intelligence policy: in a country in ferment, the FBI could, and should, know everything that might someday be useful in some undefined manner.

(1) Racial Intelligence. — During the 1960s, the FBI, partly on its own and partly in response to outside requests, developed sweeping programs for collecting domestic intelligence concerning racial matters. These programs had roots in the late 1950s.[409] By the early 1960s, they had grown to the point that the Bureau was gathering intelligence about proposed “civil demonstrations” and the related activities of “officials, committees, legislatures, organizations, etc.,” in the “racial field.”[410]

In 1965, FBI field offices were directed to supply “complete,” information (including “postponement or cancellation”) :

regarding planned racial activity, such as demonstrations, rallies, marches, or threatened opposition to activity of this kind.

Field offices reported their full “coverage” of “meetings” and “any other pertinent information concerning racial activities.”[411]

In late 1966, field offices were instructed to begin preparing semi monthly summaries of “existing racial conditions in major urban areas,” relying upon “established sources,” and “racial,” “criminal,” and security informants.” These reports were to describe the “general programs” of all “civil rights organizations” and “black nationalist organizations” as well as subversive or “hate-type” groups. The information to be gathered was to include: “readily available personal background data” on “leaders and individuals in the civil rights movement” and other “leaders and individuals involved,” as well as any data in Bureau files on “subversive associations” they might have; the “objectives sought by the minority community;” the community reaction to “minority demands;” and “the number, character, and intensity of the techniques used by the minority community, such as picketing or sit-in demonstrations, to enforce their demands.”[412]

Thus, the FBI was mobilized to used all its available resources to discover everything it could about “general racial conditions.” While the stated objective was to arrive at an “evaluation” of potential for violence, the broad sweep of the directives issued to the field resulted in the collection and filing of vast amounts of information unrelated to violence.

Some programs concerning “general racial matters” were directed to concentrate on groups with a “propensity for violence and civil disorder.”[413] But even these programs were so overbroad in their application as to include Dr. Martin Luther King, Jr. and his non-violent Southern Christian Leadership Conference in the “radical and violence-prone” “hate group” category. The stated justification, unsupported by any facts, was that Dr. King might “abandon his supposed ‘obedience’ to ‘white, liberal doctrines’ (nonviolence) and embrace black nationalism.”[414]

Another leading civil rights group, the Congress of Racial Equality (CORE), was investigated under the “Racial Matters” Program because the Bureau concluded that it was moving “away from a legitimate civil rights organization” and “assuming a militant black nationalist posture.” The FBI reached this conclusion on the grounds that “some leaders in their public statements” had condoned “violence as a means of attaining Negro rights.” The investigation was intensified, even though it was recognized there was no information that its members “advocate violence” or “participate in actual violence.”[415]

The same overbreadth characterized the FBI’s collection of intelligence about “white militant groups.” Among the groups investigated were those “known to sponsor demonstrations against integration and against the busing of Negro students to white schools.” As soon as a new organization of this sort was formed, the Bureau used its informants and “established sources” to determine “the aims and purposes of the organization, its leaders, approximate membership,” and other “background data” bearing upon “the militancy” of the group.[416]

(2) “New Left” Intelligence. — The FBI collected intelligence under its VIDEM (Vietnam Demonstration) and STAG (Student Agitation) Programs on “anti-Government demonstrations and protest rallies” which the Bureau considered “disruptive.” Field offices were warned against “incomplete and nonspecific reporting” which neglected such details as “number of protesters present, identities of organizations, and identities of speakers and leading activists.”[417]

The FBI attempted to define the “New Left,” but with little success. The Bureau agent who was in charge of New Left intelligence conceded that:

It has never been strictly defined, as far as I know.... It’s more or less an attitude, I would think.

He also stated that the definition was expanded continually.[418]

Field offices were told that the New Left was a “subversive force” dedicated to destroying our “traditional values.” Although it had “no definable ideology,” it was seen as having “strong Marxist, existentialist, nihilist and anarchist overtones.” Field offices were instructed that “proper areas of inquiry” regarding the subjects of “New Left” investigations were “public statements, the writings and the leadership activities” which might establish their “rejection of law and order” and thus their “potential” threat to security. Such persons would also be placed on the Security Index (for detention in a time of emergency) because of these “anarchistic tendencies,” even if the Bureau could not prove “membership in a subversive organization.”[419]

A Bureau memorandum which recommended the use of disruptive techniques against the “New Left” paid particular attention to one of its “anarchistic tendencies”:

the New Left has on many occasions viciously and scurrilously attacked the Director and the Bureau in an attempt to hamper our investigations and drive us off the college campuses.[420]

Later instructions to the field stated that the term “New Left” did not refer to “a definite organization,” but to a “loosely bound, freewheeling, college-oriented movement” and to the “more extreme and militant anti-Vietnam war and antidraft protest organizations.” These instructions directed a “comprehensive study of the whole movement” for the purpose of assessing its “dangerousness.” Quarterly reports were to be prepared, and “subfiles” opened, under the following headings:

Organizations (“when organized, objectives, locality which active, whether part

of a national organization”)

Membership (and “sympathizers” — use “best available informants and sources”)

Finances (including identity of “angels” and funds from “foreign sources”)

Comunist Influence

Publications (“describe publications, show circulation and principal members of editorial staff”’]


Religion (“support of movement by religious groups or individuals”)

Race Relations

Political Activities (“details relating to position taken on political matters including efforts to influence public opinion, the electorate and Government bodies”)


Education (“courses given together with any educational outlines and assigned or suggested reading”)

Reform (“demonstrations aimed at social reform”)

Labor (“all activity in the labor field”)

Public Appearances of Leaders (“on radio and television” and “before groups, such as labor, church and minority groups,” including “summary of subject matter discussed”)


Security Measures

International Relations (“travel in foreign countries,” “attacks on United States foreign policy”)

Mass Media (“indications of support of New Left by mass media”)

Through these massive reports, the FBI hoped to discover “the true nature of the New Left movement.”[421] Few Bureau programs better reflect “pure intelligence” objectives which extended far beyond even the most generous definition of “preventive intelligence.”[422]

Apart from the massive general reports required on the “New Left,” examples of particular investigations included: a stockholders group planning to protest their corporation’s war production at the annual stockholders meeting;[423] a university professor who was “an active participant in New Left demonstrations,” publicly surrendered his draft card, and had been arrested in antiwar demonstrations, but not convicted;[424] and two university instructors who helped support a student “underground” newspaper whose editorial policy was described as “left-of-center, anti- establishment, and opposed [to] the University administration.”[425]

The FBI also investigated emerging “New Left” groups, such as “Free Universities” attached to various college campuses, to determine whether they were connected “in any way” with “subversive groups.” For example, when an article appeared in a newspaper stating that one “Free University” was being formed and that it was “anti- institutional,” the FBI sought to determine its “origin,” the persons responsible for its “formation,” and whether they had “subversive backgrounds.”[426] The resulting report described in detail the formation, curriculum content, and associates of the group. It was disseminated to military intelligence and Secret Service field offices and headquarters in Washington as well as to the State Department and the Justice Department.[427]

b. FBI Informants

The FBI Manual has never significantly limited informant reporting about the lawful political activities or personal lives of American citizens, except for prohibiting reports about legal defense “plans or strategy,” “employer-employee relationships” connected with labor unions, and “legitimate campus activities.”[428] In practice, FBI agents imposed no other limitations on the informants they handled and, on occasion, disregarded the prohibitions of the Manual.[429]

(1) Infiltration of the Klan. — In mid-1964, Justice Department officials became increasingly concerned about the spread of Ku Klux Klan activity and violence in the Deep South. Attorney General Kennedy advised President Johnson that, because of the “unique difficulty” presented by a situation where “lawless activities” had the “sanction of local law enforcement agencies,” the FBI should apply to the Klan the same “techniques” used previously “in the infiltration of Communist groups.”[430]

Former Attorney General Katzenbach, under whose tenure FBI activities against the Klan expanded, vigorously defended this decision as necessary to “deter violence” by sowing “deep mistrust among Klan members” and making them aware that they were “under constant observation.”[431] The FBI Manual did, in fact, advise Bureau agents against “wholesale investigations” of persons who “merely attend meetings on a regular basis. “[432] But FBI intelligence officials chafed under this restriction and sought expanded informant coverage.[433] Subsequently, the Manual was revised in 1967 to require the field to furnish the “details” of Klan “rallies” and “demonstrations.”[434] By 1971, the Special Agents in Charge of field offices had the discretion to investigate not only persons with “a potential for violence,” but also anyone else who in the SAC’s “judgment” was an “extremist.”[435]

(2) “Listening Posts” in the Black Community. — Two special informant programs illustrate the breadth of the Bureau’s infiltration of the black community. In 1970, the FBI used its “established informants” to determine the “background, aims and purposes, leaders and Key Activists” in every black student group in the country, “regardless of [the group’s] past or present involvement in disorders.”[436] Field offices were instructed to “target informants” against these groups and to “develop such coverage” where informants were not already available.”[437]

In response to Attorney General Clark’s instructions regarding civil disorders intelligence in 1967, the Bureau launched a “ghetto informant program” which lasted until 1973.[438] The number of ghetto informants expanded rapidly: 4,067 in 1969 and 7,402 by 1972.[439] The original concept was to establish a “listening post”[440] by recruiting a person “who lives or works in a ghetto area” to provide information regarding the “racial situation” and “racial activities.”[441] Such information could include “the proprietor of a candy store or barber shop.” As the program developed, however, ghetto informants were:

utilized to attend public meetings held by extremists, to identify extremists passing through or locating in the ghetto area, to identify purveyors of extremist literature as well as given specific assignments where appropriate.[442]

Material to be furnished by ghetto informants included names of “Afro-American type book stores” and their “owners, operators and clientele.”[443]

(3) Infiltration of the “New Left”. — The FBI used its “security” informant program to report extensively on all activities relating to opposition to the Vietnam war. Moreover, informants already in groups considered “subversive” by the FBI also reported on the activities of other organizations and their members, if the latter were being “infiltrated” by the former groups.[444]

The agent who handled one informant in an antiwar group believed to be infiltrated by “subversive groups and/or violent elements” testified that the informant told him “everything she knew” about the chapter she joined.[445] Summaries of her reports indicate that she reported extensively about personal matters and lawful political activity.[446] This informant estimated that her reports identified as many as 1,000 people to the FBI over an 18-month period. The vast majority of these persons were members of peaceful and lawabiding groups, including the United Church for Christ, which were engaged in joint social welfare projects with the antiwar group which the informant had infiltrated.[447]

Other FBI informants reported, for example, on the Women’s Liberation ‘Movement, identifying its members at several mid-western universities[448] and reporting statements made by women concerning their personal reasons for participating in the women’s movement.[449]

Moreover, as in the case of informants in the black community, efforts were made to greatly increase the number of informants who could report on antiwar and related groups. In 1969, the Justice Department specifically asked the FBI to use not only “existing sources,” but also “any other sources you may be able to develop” to collect information about “serious campus disorders.”[450] The Bureau ordered its field offices in 1970 to “make every effort” to obtain “informant coverage” of every “New Left commune.”[451] Later that year, after Director Hoover lifted restrictions against recruiting 18 to 21-year-old informants, field offices were urged to take advantage of this “tremendous opportunity” to expand coverage of New Left “collectives, communes, and staffs of their underground newspapers.”[452]

c. Army Surveillance of Civilian Political Activity

In the early 1960s, after several commitments of troops to control racial disturbances and enforce court orders in the South, Army intelligence began collecting information on civilian political activity in all areas where it believed civil disorders might occur. The growth of the Army’s domestic intelligence program typifies, once again, the general tendency of information-gathering operations to continually broaden their coverage.

Shortly after the Army was called upon to quell civil disorders in Detroit and to cope with an antiwar demonstration at the Pentagon in 1967, the Army Chief of Staff approved a recommendation for “continuous counterintelligence investigations” to obtain information on “subversive personalities, groups or organizations” and their “influence on urban populations” in promoting civil disturbances.[453] The Army’s “collection plan” for civil disturbances specifically targeted as “dissident elements” (without further definition) the “civil rights movement” and the “anti-Vietnam/anti-draft movements.”[454] As revised later, Army intelligence-gathering extended beyond “subversion” and “dissident groups” to “prominent persons” who were “friendly” with the “leaders of the disturbance” or “sympathetic with their plans.”[455]

d. Federal Encouragement of Local Police Intelligence

In reaction to civil disorders in 1965–1966, Attorney General Katzenbach turned for advice to the newly created President’s Commission on Law Enforcement and Administration of Justice. After holding a conference with police and National Guard officials, the President’s Commission urged police not to react with too much force to disorder “in the course of demonstrations,” but to make advance plans for “a true riot situation.” This meant that police should establish “procedures for the acquisition and channeling of intelligence” for the use of “those who need it.”[456] Former Assistant Attorney General Vinson recalled the Justice Department’s concern that local police did not have “any useful intelligence or knowledge about ghettos, about black communities in the big cities.”[457]

During the winter of 1967–1968, the Justice Department and the National Advisory Commission on Civil Disorders reiterated the message that local police should establish “intelligence units” to gather and disseminate information on “potential” civil disorders. These units would use “undercover police personnel and informants” and draw on “community leaders, agencies, and organizations in the ghetto.”[458] The Commission also urged that these local units be linked to “a national center and clearinghouse” in the Justice Department.[459] One consequence of these recommendations was that the FBI, because of regular liaison with local police, became a channel and repository for much of this intelligence data.

Local police intelligence provided a convenient manner for the FBI to acquire information it wanted while avoiding criticism for using covert techniques such as developing campus informants. For example, in 1969, Director Hoover decided “that additional student informants cannot be developed” by the Bureau.[460] Field offices were instructed, however, that one way to continue obtaining intelligence on “situations having a potential for violence” was to develop “in-depth liaison with local law enforcement agencies. “[461] Instead of recruiting student informants itself, the FBI would rely on local police to do so.

These Federal policies contributed to the proliferation of local police intelligence activities, often without adequate controls. One result was that still more persons were subjected to investigation who neither engaged in unlawful activity, nor belonged to groups which might be violent. For example, a recent state grand jury report on the Chicago Police Department’s “Security Section” described its “close working relationship” with Federal intelligence agencies, including Army intelligence and the FBI. The report found that the police intelligence system produced “inherently inaccurate, and distortive data” which contaminated Federal intelligence. One police officer testified that he listed “any person” who attended two “public meetings” of a group as a “member.” This conclusion was forwarded “as a fact” to the FBI. Subsequently, an agency seeking, “background information” on that person from the Bureau in an employment investigation or for other purposes would be told that the individual was “a member.” The grand jury stated:

Since federal agencies accepted data from the Security Section without questioning the procedures followed, or methods used to gain information, the federal government cannot escape responsibility for the harm done to untold numbers of innocent persons.[462]

e. The Justice Department’s Interdivision Information Unit (IDIU)

Joseph Califano, President Johnson’s assistant in 1967, testified that the Newark and Detroit riots were a “shattering experience” for Justice Department officials and “for us in the White House.” They were concerned about the “lack of intelligence” about “black groups.” Consequently, “there was a desire to have the Justice Department have better intelligence, for lack of a better term, about dissident groups.” This desire “precipitated the intelligence unit” established by Attorney General Ramsey Clark in late 1967. According to Califano, the President and the White House staff were insisting: “There must be a way to predict violence. We’ve got to know more about this.”[463]

In September 1967 Attorney Genera I Clark asked Assistant Attorney General John Doar to review the Department’s “facilities” for civil disorders intelligence.[464] Doar recommended creating a Departmental “intelligence unit” to analyze FBI information about “certain persons and groups” (without further definition) in the urban ghettos. He proposed that its “scope be very broad initially” so as to “measure the influence of particular groups.” Doar recommended that, in addition to the FBI, agencies who should “funnel information” to the unit should include:

Community Relations Service
Poverty Programs
Neighborhood Legal Services
Program Labor Department Programs
Intelligence Unit of the Internal Revenue Service
Alcohol, Tobacco, and Firearms Division of the Treasury Department
Narcotics Bureau (then in the Treasury Department)
Post Office Department

Doar recognized that the Justice Department’s Community Relations Service, designed to conciliate racial conflicts, risked losing its “credibility” and thereby its ability to help prevent riots, but he assured the Attorney General that the “confidentiality” of its information could be protected.[465]

A later study for Attorney General Clark -added the following agencies to Doar’s list:

President’s Commission on Civil Disorders

New Jersey Blue Ribbon Commission (and similar state-agencies)

State Department Army Intelligence Office of Economic Opportunity

Department of Housing and Urban Development (surveys and Model City applications)

Central Intelligence Agency

National Security Agency

This study recommended that FBI reports relating “to the civil disturbance problem” under the headings “black power, new left, pacifist, pro-Red Chinese, anti-Vietnam war, proCastro, etc.” be used to develop “a master index on individuals, or organizations, and by cities.”[466]

Attorney General Clark approved these recommendations and established the Interdivision Information Unit (IDIU) for:

reviewing and reducing to quickly retrievable form all information that may come to this Department relating to organizations and individuals who may play a role, whether purposefully or not, either in instigating or spreading civil disorders, or in preventing or checking them.[467]

In early instructions, Clark had stated that the Department must “endeavor to increase” such intelligence from “external sources.”[468]

In fact, according to its first head, the IDIU did use intelligence from the Army, the Internal Revenue Service, and “other investigative agencies.” Sometimes IDIU information was used to “determine whether or not” the Community Relations Service should “mediate” a dispute.[469] The Unit developed a computer system which could generate lists of all “members or affiliates” of an organization, their location and travel, “all incidents” relating to “specific issues”, and “all information” on a “planned specific demonstration.”[470]

By 1970, the IDIU computer was receiving over 42,000 “intelligence reports” a year relating to “civil disorders and campus disturbances” from:

the FBI, the U.S. Attorneys, Bureau of Narcotics, Alcohol, Tobacco, and Firearms Division of the Treasury Department and other intelligence gathering bodies within the Executive Branch.[471]

IDIU computer tapes, which included 10–12,000 entries on “numerous anti-war activists and other dissidents,” were provided to the Central Intelligence Agency in 1970 by Assistant Attorney General Jerris Leonard, then the Attorney General’s Chief of Staff for Civil Disturbance and head of the Civil Rights Division.[472] This list of persons was sent to the Internal Revenue Service where the Special Services staff opened intelligence files on all persons and organizations listed. Many of them were later investigated or audited, in some cases merely because they were on the list.

In 1971, the IDIU computer included data on such prominent persons as Rev. Ralph Abernathy, Caesar Chavez, Bosley Crowther (former New York Times film critic), Sammy Davis, Jr., Charles Evers, James Farmer, Seymour Hersh, and Coretta King. Organizations on which information had been collected included the NAACP, the Congress of Racial Equality, the Institute for Policy Studies, VISTA, United Farm Workers of California, and the Urban League. Ordinary private citizens who were not nationally prominent were also included. One was described as “a local civil rights worker,” another as a “student at Merritt College and a member of the Peace and Freedom Party as of mid-68,” and another as “a bearded militant who writes and recites poetry.”[473]

Thus, beginning in 1967–1968, the IDIU was the focal point of a massive domestic intelligence apparatus established in response to ghetto riots, militant black rhetoric, antiwar protest, and campus disruptions. Through IDIU, the Attorney General received the benefits of information gathered by numerous agencies, without setting limits to intelligence reporting or providing clear policy guidance. Each component of the structure FBI, Army, IDIU, local police, and many others — set its own generalized standards and priorities, resulting in excessive collection of information about law abiding citizens.

f. COMINFIL Investigations: Overbreadth

In the late 1960’s the Communist infiltration or association concept continued to be used as a central basis for FBI intelligence investigations. In many cases it led to the collection of information on the same groups and persons who were swept into the investigative net by the vague missions to investigatie such subjects as “racial matters” or the “New Left.” As it had from its beginning, theCOMINFIL concept produced investigations of individuals and groups who were not Communists. Dr. Martin Luther King, Jr. is the best known example.[474] But the lawful activities of many other persons were recorded in FBI files and reports, because they associated in some wholly innocent way with Communists, a term which the Bureau required its agents to “interpret in its broad sense” to include “splinter” and “offshoot” groups.[475]

During this period, when millions of Americans demonstrated in favor of civil rights and against the Vietnam war, many law-abiding citizens and groups came under the scrutiny of intelligence agencies. Under the COMINFIL program, for example, the Bureau compiled extensive reports on moderate groups, like the NAACP.[476]

The FBI significantly impaired the democratic decisionmaking process by its distorted intelligence reporting on Communist infiltration of and influence on domestic political activity. In private remarks 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.[477]

3. Domestic Intelligence Authority

During this period there were no formal executive directives outlining the scope of authority for domestic intelligence activity of the sort previously issued by Presidents Roosevelt, Truman, Eisenhower, and Kennedy.[478] 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[479] and for “photographic coverage” of a civil rights demonstration on the 100th anniversary of the Emancipation Proclamation.[480] On its own initiative, the FBI supplied the Civil Rights Division with information from a “confidential source” about plans for a demonstration in Virginia, including background data on its “sponsor” and the intention to make “a test case.”[481] The Civil Rights Division prepared regular summaries of information from the Bureau on “demonstrations and other racial matters.”[482]

A formal directive, for a similar purpose, was sent by Attorney General 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. “[483]

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.[484] After the FBI submitted a report on the Watts riot in Los Angeles in 1965, however, Attorney General Katzenbach 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 matters. The President approved this “limited investigation.”[485] Nonetheless, internal Bureau instructions in 1965 and 1966 went far beyond this limitation.[486] By 1967 new Attorney General Ramsey Clark reversed 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 instructions” for investigating riots “to search for evidence on conspiracy.”[487] 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.[488] Director Hoover also agreed to investigate “allegations of subversive influence, involvement of out-of-state influences, and the like. “[489]

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.[490]

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 collection, since it had “focused narrowly” on “traditional subversive groups” and on persons suspected of “specific statutory violations.”[491]

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 expanded to determine the size and purpose of these groups and their relationship to other groups ...[492]

Clark described his directive as setting forth “a relatively new area of investigation and intelligence reporting for the FBI.”[493]

In response to the Attorney General’s instructions, the FBI advised its field offices of the immediate “need to develop additional penetrative coverage of the militant black nationalist groups and the ghetto areas.”[494]

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 making contingency plans for troop movements, landing sites, facilities, etc.

It added that the Attorney General and the Deputy Secretary of Defense “had agreed to coordinate their efforts.”[495] 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 intelligence collection effort,” although he asked the Defense Department to “screen” its “incoming intelligence” and send “only key items” to the Justice Department.[496]

There is no record that at this or any other similar meeting in this period the Attorney General or White House aides explicitly ordered the Army to conduct intelligence investigations using infiltration or other covert surveillance techniques. However, even though Army collection plans which were circulated to the Justice Department and the FBI[497] did not mention techniques of collection, the information they described could only be obtained by covert surveillance. No objections were voiced by the Justice Department.

Not until 1969 was there a formal civilian decision specifically authorizing Army surveillance of civilian political activity. At that time, Attorney General John Mitchell and Secretary of Defense Melvin Laird considered the matter and over the objections of the Army General Counsel, decided that the Army would participate in intelligence collection concerning civil disturbances.[498] The Army’s collection plan was not rescinded until June 1970, after public exposure and congressional criticism.[499]

c. FBI Interagency Agreements

After the assassination of President Kennedy, the FBI and the rot Service negotiated an — agreement which recognized that the Bureau had “general jurisdiction” over “subversion.” The term was more narrowly than it had been defined by practice in the past, knowingly or wilfully advocat[ing]” overthrow of the Government by “force or violence” or by “assassination.” Except for “temporary” action to “neutralize” -a threat to the President, the Secret Service agreed to “conduct no investigation” of “members of subversive WU without notifying the FBI. The Bureau, on the other hand, would not investigate individuals “solely” to determine their “dangerousness to the President.”[500]

After Congress enacted antibombing legislation in 1970, the FBI was assigned primary responsibility for investigating “offenses perpetrated by terrorist/revolutionary groups.”[501] When these guidelines were developed, the FBI shifted supervision of bombing cases from its General Investigative Division to the Intelligence Division because, as one official put it, the specific criminal investigations were “so interrelated with the gathering of intelligence in the racial and security fields that overlap constantly occurs.”[502]

The agreement with Secret Service and the “guidelines” covering bombing investigations did not give the FBI any additional domestic intelligence-gathering authority. They simply provided for dissemination of information to Secret Service and allocated criminal investigative jurisdiction between the FBI and the Alcohol, Firearms, and Tobacco Division. Nevertheless, both presupposed that the FBI had broad authority to investigate “subversives” or “terrorist/revolutionary groups.”

4. Domestic Covert Action


The FBI’s initiation of COINTELPRO operations against the Ku Klux Klan, “Black Nationalists” and the “New Left” brought to bear upon a wide range of domestic groups the techniques previously developed to combat Communists and persons who happened to associate with them.

The start of each program coincided with significant national events. The Klan program followed the widely-publicized disappearance in 1964 of three civil rights workers in Mississippi. The “Black Nationalist” program was authorized in the aftermath of the Newark and Detroit riots in 1967. The “New Left” program developed shortly after student disruption of the Columbia University campus in the spring of 1968. While the initiating memoranda approved by Director Hoover do not refer to these specific events, it is clear that they shaped the context for the Bureau’s decisions.

These programs were not directed at obtaining evidence for use In possible criminal prosecutions arising out of those events. Rather, they were secret programs — “under no circumstances” to be “made known outside the Bureau”[503] — which used unlawful or improper acts to “disrupt” or “neutralize” the activities of groups and individuals targeted on the basis of imprecise criteria.

(1) Klan and “White Hate” COINTELPRO. — The expansion of Klan investigations, in response to pressure from President Johnson and Attorney General Kennedy,[504] was accompanied by an internal Bureau decision to shift their supervision from the General Investigative Division to the Domestic Intelligence Division. One internal FBI argument for the transfer was that the Intelligence Division was “in a position to launch a disruptive counterintelligence program” against the Klan with the “same effectiveness” it had against the Communist Party.[505]

Accordingly, in September 1964 a directive was sent to seventeen field offices instituting a COINTELPRO against the Klan and what considered to be other “White Hate” organizations (e.g., American Nazi Party, National States Rights Party) “to expose, disrupt, and otherwise neutralize” the activities of the groups, “their leaders, and adherents.”[506]

During the 1964–1971 period, when the program was in operation, 287 proposals for COINTELPRO actions against Klan and “White Hate” groups were authorized by FBI headquarters.[507] Covert techniques used in this COINTELPRO included creating new Klan chapters to be controlled by Bureau informants and sending an anonymous letter designed to break up a marriage.[508]

(2) “Black Nationalist” COINTELPRO. — The stated strategy of the “Black Nationalist” COINTELPRO instituted in 1967 was “to expose, disrupt, misdirect, discredit, or otherwise neutralize” such groups and their “leadership, spokesmen, members, and supporters.” The larger objectives were to “counter” their “propensity for violence” and to “frustrate” their efforts to “consolidate their forces” or to “recruit new or youthful adherents.” Field offices were instructed to exploit conflicts within and between groups; to use news media contacts ridicule and otherwise discredit groups; to prevent “rabble rousers” from spreading their “philosophy” publicly; and to gather information on the “unsavory backgrounds” of group leaders.[509]

In March 1968, the program was expanded from twenty-three to forty-one field offices and the following long-range goals were set forth:

(1) prevent the “coalition of militant black nationalist groups;”

(2) prevent the rise of a “messiah” who could “unify and electrify” the movement, naming specifically Dr. Martin Luther King, Jr., Stokely Carmichael, and Elijah Muhammed;

(3) prevent violence by pinpointing “potential troublemakers” and “neutralizing” them before they “exercise their potential for violence;”

(4) prevent groups and leaders from gaining “respectabily by discrediting them to the “responsible” Negro community, the “responsible” white community, “liberals” with “vestiges of sympathy” for militant black nationalists, and “Negro radicals;” and

(5) “prevent these groups from recruiting young people.”[510]

After the Black Panther Party emerged as a group of national stature, FBI field offices were instructed to develop “imaginative and hard-hitting counterintelligence measures aimed at crippling the BPP.” Particular attention was to be given to aggravating conflicts between the Black Panthers and rival groups in a number of cities where such conflict had already taken on the character of “gang warfare with attendant threats of murder and reprisals.”[511]

During 1967–1971, FBI headquarters approved 379 proposals for COINTELPRO actions against “black nationalists.”[512] These operations utilized dangerous and unsavory techniques which gave rise to the risk of death and often disregarded the personal rights and dignity of the victims.

(3) “New Left” COINTELPRO. — The most vaguely defined and haphazard of the COINTELPRO operations was that initiated against the “New Left” in May 1968. It was justified to the FBI Director by his subordinates on the basis of the following considerations:

The nation was “undergoing an era of disruption and violence” which was “caused to a large extent” by individuals “generally connected with the New Left.”

Some of these, “activists” were urging “revolution” and calling for “the defeat of the United States in Vietnam.”

The problem was not just that they committed “unlawful acts,” but also that they “falsely” alleged police brutality, and that they “scurrilously attacked the Director and the Bureau” in an attempt to “hamper” FBI investigations and to “drive us off the college campuses.”[513]

Consequently, the COINTELPRO was intended to “expose, disrupt, and otherwise neutralize” the activities of “this group” and “persons connected with it.”[514] The lack of any clear definition of “New Left” meant, as an FBI supervisor testified, that “legitimate” and nonviolent antiwar groups were targeted because they were “lending aid and comfort” to more disruptive groups.[515]

Further directives issued soon after initiation of the program urged field offices to “vigorously and enthusiastically” explore “every avenue of possible embarrassment” of New Left adherents. Agents were instructed to gather information on the “immorality” and the “scurrilous and depraved” behavior, “habits, and living conditions” of the members of targeted groups.[516] This message was reiterated several months later, when the offices were taken to task for their failure to remain alert for and seek specific data depicting the “depraved nature and moral looseness of the New Left” and to “use this Material in a vigorous and enthusiastic approach to neutralizing them.”[517]

In July 1968, the field offices were further prodded by FBI headquarters to:

(1) prepare leaflets using “the most obnoxious pictures” of New Left leaders at various universities;

(2) instigate “personal conflicts or animosities” between New Left leaders;

(3) create the impression that leaders are “informants for the Bureau or other law enforcement agencies” (the “snitch jacket” technique) ;

(4) send articles from student or “underground” newspapers which show “depravity” (“use of narcotics and free sex”) of New Left leaders to university officials, donors, legislators, and parents;

(5) have members arrested on marijuana charges;

(6) send anonymous letters about a student’s activities to parents, neighbors, and the parents’ employers;

(7) send anonymous letters about New Left faculty members (signed “A Concerned Alumni” or “A Concerned Taxpayer”) to university officials, legislators, Board of Regents, and the press;

(8) use “cooperative press contacts;”

(9) exploit the “hostility” between New Left and Old Left groups;

(10) disrupt New Left coffee houses near military bases which are attempting to “influence members of the Armed forces;”

(11) use cartoons, photographs, and anonymous letters to “ridicule” the New Left;

(12) use “misinformation” to “confuse and disrupt” New Left activities, such as by notifying members that events have been cancelled.[518]

During the period 1968–1971, 291 COINTELPRO actions against the “New Left” were, approved by headquarters.[519] Particular emphasis was placed upon preventing the targeted individuals from public speaking or teaching and providing “misinformation” to confuse demonstrators.

b. FBI Target Lists

The FBI’s most intensive domestic intelligence investigations and COINTELPRO operations were directed against persons identified, not as criminals or criminal suspects, but in vague terms such as “rabble rouser,” “agitators,” “key activists,” or “key black extremists.” The Security Index for detention in time of national emergency was revised to include such persons.

(1) “Rabble Rouser/Agitator” Index. — Following a meeting with the National Advisory Commission on Civil Disorders in August 1967, Director Hoover ordered his subordinates to intensify collection of intelligence about “vociferous rabble-rousers.”[520] He also directed a “Key Black Extremist” “that an index be compiled of racial agitators and individuals who have demonstrated a potential for fomenting racial discord.”[521]

The already vague standards for the Rabble Rouser Index were broadened in November 1967 to cover persons with a “propensity for fomenting” any disorders affecting the “internal security” — as opposed to only racial disorders — and to include persons of local as well as national interest. This included “black nationalists, white supremacists, Puerto Rican nationalists, anti-Vietnam demonstration leaders, and other extremists.” A rabble rouser was defined as:

a person who tries to arouse people to violent action by appealing to their emotions, prejudices, etcetera; a demagogue.[522]

In March 1968, the Rabble Rouser Index was renamed the Agitator Index and field offices were ordered to obtain a photograph of each person on the Index.[523] However, expanding the size of the Agitator Index lessened its value as an efficient target list for FBI intelligence operations. Consequently, the Bureau developed a more refined tool for this purpose-the Key Activist Program.

(2) “Key Activist” Program. — Instructions were issued to ten major field offices in January 1968 to designate certain persons as “Key Activists,” who were defined as

individuals in the Students for Democratic Society and the anti-Vietnam war groups [who] are extremely active and most vocal in their statements denouncing the United States and calling for civil disobedience and other forms of unlawful and disruptive acts.

There was to be an “intensive investigation” of each Key Activist, which might include “high-level informant coverage” and “technical surveillances and physical surveillances.”[524]

The “New Left” COINTELPRO was designed in part to “neutralize” the Key Activists, who were “the moving forces behind the New Left.[525] One of the first techniques employed in this program was to obtain the Federal income tax returns of Key Activists for use in disrupting their activities.[526] In October 1968, the Key Activist Program was expanded to virtually all field offices. The field agents were instructed to recommend additional persons for the program and to “consider if the individual was rendered ineffective would it curtail [disruptive] activity in his area of influence.” While the FBI considered Federal prosecution a “logical” result of these investigations and “the best deterrent,” Key Activists were not selected because they were suspected of committing or planning to commit any specific Federal crime.[527]

(3) “Key Black Extremist” Program. — A “Key Black Extremist” target list for concentrated investigation and COINTELPRO actions was instituted in 1970. Key Black Extremists were defined as

leaders or activists [who] are particularly extreme, agitative, anti-Government, and vocal in their calls for terrorism and violence.[528]

Field offices were instructed to place all Key Black Extremists in the to priority category of the Security Index and in the Black Nationalist Photograph Album, which concentrated on “militant black nationalists” who traveled extensively. In addition, the following steps were to be taken:

(1) All aspects of the finances of a KBE must be determined. Bank accounts must be monitored....

(2) Continuing consideration must be given by each office to develop means to neutralize the effectiveness of each KBE....

(3) Obtain suitable handwriting specimens....

(4) Particular efforts should be made to obtain records of and/or reliable witnesses to, inflammatory statements....

(5) Where there appears to be a possible violation of a statute within the investigative jurisdiction of the Bureau, [it should be] vigorously investigated....

(6) Particular attention must be paid to travel by a KBE and every effort made to determine financial arrangements for such travel....

(7) The Federal income tax returns of all KBEs must be checked annually....

Reports on all Key Black Extremists were to be submitted every ninety days, and the field was urged to use “initiative and imagination” to achieve “the desired results.”[529][530] Once again, the “result” was not limited to prosecution of crimes and the targets were not chosen because they were suspected of committing crimes.

(4) Security Index. — The Agitator Index was abolished in 1971 because “extremist subjects” were “adequately followed” through the Security Index.[531] In contrast to the other indices, the Security Index was not reviewed by the FBI alone. It had, from the late 1940’s, been largely a joint FBI-Justice Department program based on the Department’s plans for emergency detention.[532] According to FBI memoranda, moreover, President Johnson was directly involved in the updating of emergency detention plans.[533]

After a large-scale march on the Pentagon against the Vietnam War in October 1967, President Johnson ordered a comprehensive review of the government’s emergency plans. Attorney General Clark was appointed chairman of a committee to review the Presidential Emergency Action Documents (PEADs) prepared under the Emergency Detention Program. One result of this review, in which the FBI took Part, was a decision to bring the Detention Program into line with the Emergency Detention Act of 1950, reversing the previous decision to “disregard” as “unworkable” the procedural requirements of the Act, which were tighter than the standards which had been applied by FBI and Justice.[534]

The Bureau also had to revise its criteria for inclusion of names on the Security Index, which since 1950 had disregarded the statutory standards. However, the definition chosen of a “dangerous individual” was so broad that it enabled the Bureau to add persons not previously eligible. A “dangerous individual” was defined as a

person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage and sabotage, including acts of terrorism or assassination and any interference with or threat to the survival of and effective operation of the national, state, and local governments and of the national defense effort. [Emphasis added.][535]

The emphasized language greatly broadened the Security Index standards. It gave FBI intelligence officials the opportunity to include on the Security Index “racial militants”, “black nationalists”, and individuals associated with the “New Left” who were not affiliated with the “basic revolutionary organizations” as the Bureau characterized the Communist Party, which had previously been the focus of the Security Index.[536] Once again, the limitations which a statute was intended to impose were effectively circumvented by the use of elastic language in a Presidential directive.

Moreover, the Bureau adopted a new “priority” ranking for apprehension in case of an emergency. Top priority was now given not only to leaders of “basic subversive organizations,” but also to “leaders of anarchistic groups.”[537] It was said to be the “anarchistic tendencies” of New Left and racial militants that made them a “threat to the internal security.”[538]

Initially, the Justice Department approved informally these changes in the criteria for “the persons listed for apprehension.”[539] After several months of “study,” the Justice Department’s Office of Legal Counsel formally approved the new Security Index criteria. This was the first time since 1955 that the Department had fully considered the matter, and the previous policy of disregarding the procedures of the Emergency Detention Act of 1950 was formally abandoned. If an emergency occurred, the Attorney General would abide by “the requirement that any person actually detained will be entitled to a hearing at which time the evidence will have to satisfy the standards of [the Act].” However, the Office of Legal Counsel declared that the Security Index criteria themselves could be — as they were — less precise than those of the Act because of the “needed flexibility and discretion at the operating level in order to carry on an effective surveillance program.”[540] Thus while the plan to ignore Congress’ procedural limitations was abandoned, Congress’ substantive standards were disregarded as insufficiently “flexible.”

c. Internal Revenue Service Program

(1) Misuse by FBI and CIA. — IRS information was used as an instrument of domestic intelligence mainly by the FBI. For example, in 1965, the Bureau obtained the tax returns of Ku Klux Klan members in order to develop “discrediting or embarrassing” information as part of the Bureau’s COINTELPRO against the Klan.[541] The procedure by which FBI obtained access to tax returns and related information held by IRS was deemed “illegal” when it was discovered by the Chief of the IRS Disclosure Branch in 1968.[542] The FBI had not followed the procedures for obtaining returns which required written application to the IRS Disclosure Branch. Instead the Bureau had arranged to obtain the returns and information surreptitiously through contacts inside the IRS Intelligence Division. The procedure for FBI access was regularized by the IRS after 1968: a formal request on behalf of the Bureau was made to the IRS Disclosure Branch, by the internal Security Division of the Justice Department.

During this same period, the CIA was obtaining tax returns in a similar manner to the FBI, although in much smaller numbers. Yet even after procedures were changed for the FBI’s access to tax information in 1968, the IRS did not re-examine the CIA’s practices.[543] Therefore, CIA continued to receive tax return information without filing requests as required by the regulations.

Between 1968 and 1974, either directly or through the Internal Security Division of the Justice Department, the FBI requested at least 130 tax returns for domestic intelligence purposes. This included the returns of 46 “New Left activists” and 74 “black extremists,”[544] as part of Bureau COINTELPRO operations to “neutralize” these individuals.[545] These requests were not predicated upon any specific information suggesting delinquency in fulfilling tax obligations.

Even after a formal request was required before supplying the FBI with tax returns, the IRS accepted the Justice Department’s undocumented assertions that tax information was “necessary” in connection with an “official matter” involving “internal security.”[546] Yet in making such assertions, the Justice Department’s Internal Security Division relied entirely on the Bureau’s judgment. Thus, while the IRS is required by the statute to release tax information only where necessary, it in effect delegated its responsibility to the Internal Security Division which in turn delegated the decision to the FBI. Although most FBI requests for tax information were for targets of various COINTELPRO operations, the Justice Department official who made the requests on behalf of the Bureau said he was never informed of the existence of COINTELpRo.[547]

Even after 1968, the Bureau sometimes used tax information in improper or unlawful ways. For example, the Bureau attempted to use such information to cause IRS to audit a midwestern college professor associated with “new left” activities at the time he was planning to attend the 1968 Democratic Party National Convention in Chicago. The FBI agent in charge of the operation against the professor explained its purpose in a memorandum:

if IRS contact with [the Professor] can be arranged within the next two weeks their demands upon him may be a source of distraction during the critical period when he is engaged in meetings and plans for disruption of the Democratic National Convention. Any drain upon the time and concentration which [the Professor], a leading figure in Demcon planning, can bring to bear upon this activity can only accrue to the benefit of the Government and general public.[548]

Among the tax returns which the CIA obtained informally from IRS in an informal and illegal manner were those of the author of a book, the publication of which the CIA sought to prevent,[549] and of Ramparts magazine which had exposed the CIA’s covert use of the National Student Association.[550] In the latter case, CIA memoranda indicate that its officials were unwilling to risk a formal request for tax information without first learning through informal disclosure whether the tax returns contained any information that would be helpful in their effort to deter this “attack on the CIA” and on “the administration in general.”[551]

(2) The Special Service Staff. — IRS Targeting of Ideological Groups. — In 1969, the IRS established a Special Service Staff to gather intelligence on a category of taxpayers defined essentially by political criteria. The SSS attempted to develop tax cases against the targeted taxpayers and initiated tax fraud investigations against some who would otherwise never have been investigated.

The SSS originated as a result of pressure from the permanent Subcommittee on Investigations of the Senate Committee on Government Operations[552] and from President Nixon, acting through White House assistants Tom Charles Huston and Dr- Arthur Burns.[553] According to the IRS Commissioner’s memorandum, Dr. Burns expressed to him the President’s concern

over the fact that tax-exempt funds may be supporting activist groups engaged in stimulating riots both on the campus and within our inner cities.[554]

The administration did not supply any facts to support the assertion that such groups were violating tax laws.

After the SSS was established, the FBI and the Justice Department’s Inter di visional Information Unit (IDIU) became its largest sources of names. An Assistant IRS Commissioner requested the FBI to provide information regarding “various organizations of predominantly dissident or extremist nature and/or people prominently identified within those organizations.”[555] The FBI agreed, believing, as one intelligence official put it, that SSS would “deal a blow” to “dissident elements.”[556]

Among the material received by SSS from the FBI was a list of 2,300 organizations categorized as “Old Left,” “New Left,” and “Right Wing.”[557] The SSS also received about 10,000 names on IDIU computer printouts.[558] SSS opened files on all these taxpayers, many of whom were later subjected to tax audits and some to tax fraud investigations. There is no reason to believe that the names listed by the FBI or the IDIU were selected on the basis of any probable noncompliance with the tax laws. Rather, these groups and individuals were targeted because of their political and ideological beliefs and activities.[559]

The SSS, by the time it was disbanded in 1973, had gone over approximately half of the IDIU index and established files on those individuals on whom it had no file. Names on the SSS list included Nobel Prize winner Linus Pauling, Senators Charles Goodell and Ernest Gruening, Congressman Charles Diggs, journalists Joseph Alsop and Jimmy Breslin. and attorney Mitchell Rogovin. Organizations on the SSS list included: political groups ranging from the John Birch Society to Common Cause; religious organizations such as the B’nai Brith Antidefamation League and the Associated Catholic Charities; professional associations such as the American Law Institute and the Legal Aid Society; private foundations such as the Carnegie Foundation; publications ranging from “Playboy” to “Commonwealth;” and government institutions including the United States Civil Rights Commission.[560]

SSS officials have conceded that some cases referred to the field for tax investigations would not have qualified for referral but for the ideological category in which they fell. While IRS field offices closed out many cases because, of the lack of tax grounds upon which legal action could be taken, referral from the SSS probably resulted in the examination of some cases despite the lack of adequate grounds. Interviews with IRS field personnel confirm that this did occur in several instances.[561]

Upon discovering that its functions were not tax-related, new IRS Commissioner Alexander ordered the Special Service Staff abolished. He testified:

Mr. ALEXANDER. I ordered the Special Service staff abolished. That order was given on August the 9th, 1973. It was implemented by manual supplements issued on August the 13th, 1973. We held the files. I ordered the files be held intact — I’m not going to give any negative assurances to this Committee — in order that this Committee and other Committees could review these files to see what, was in them, and see, what sort of information was supplied to us on this more than 11,000 individuals and organizations as to whom and which files were maintained.

I suggested, Mr. Chairman, that at the end of all of these inquiries, I would like to take those files to the Ellipse and have the biggest bonfire since 1814.

The CHAIRMAN. Well, I concur in that judgment. I would only say this to you; in a way, it might be a more important bonfire than the Boston Tea Party when it comes to protecting individual rights of American citizens. I am glad you feel that way. I am glad you took that action.[562]

5. Foreign Intelligence and Domestic Dissent

In the late 1960’s, CIA and NSA, acting in response to presidential pressure, turned their technological capacity and great resources toward spying on certain Americans. The initial impetus was to determine whether the antiwar movement — and to a lesser extent the “black power” movement — were controlled by foreigners. Despite evidence that there was no significant foreign influence, the intelligence gathering which culminated in CIA’s “Operation CHAOS” followed the general pattern of broadening in scope and intensity. The procedure for one aspect of these programs was established by an informal agreement between the CIA and FBI in 1966, which permitted CIA to engage in “internal security” activities in the United States.

a. Origins of CIA Involvement in “Internal Security Functions”

The National Security Act of 1947 explicitly prohibited the CIA from exercising “police, subpoena, or law-enforcement powers, or internal security functions.” But the Act did not address the question of the CIA’s authority to conduct clandestine intelligence activity within the United States for what Secretary Forrestal called “purposes outside of this country.”[563]

Under Director Hoover, the FBI interpreted the term “internal security functions” broadly to encompass almost “anything that CIA might be doing in the United States.”[564] Throughout the 1950’s and into the early 1960’s, Director Hoover’s position led to jurisdictional conflicts between the CIA and the FBI.

The Bureau insisted on being informed of the CIA’s activity in the United States so that it could be coordinated with the Bureau. As the FBI liaison with the CIA in that period recalled, “CIA would take action, it would come to our attention and we would have a flap.”[565]

In 1966 the FBI and CIA negotiated an informal agreement to regularize their coordination. This agreement was said to have “led to a great improvement” and almost eliminated the “flaps.”[566]

Under the agreement, the CIA would “seek concurrence and coordination of the FBI” before engaging in clandestine activity in the United States and the FBI would “concur and coordinate if the proposed action does not conflict with any operation, current or planned, including active investigation of the FBI.”[567] When an operative recruited by the CIA abroad arrived in the United States, the FBI would “be advised” and the two agencies would “confer regarding the handling of the agent in the United States.” The CIA would continue its “handling” of the agent for “foreign intelligence” purposes. The FBI would also become involved where there were “internal security factors,” although it was recognized that the CIA might continue to “handle” the agent in the United States and provide the Bureau with “information” bearing on “internal security matters.”[568]

As part of their handling of “internal security factors,” CIA operatives were used after 1966 to report on domestic “dissidents” for the FBI. There were infrequent instances in which, according to the former FBI liaison with CIA:

CIA had penetrations abroad in radical, revolutionary organizations and the individual was coming here to attend a conference, a meeting, and would be associating with leading dissidents, and the question came up, can he be of any use to us, can we have access to him during that period.

In most instances, because he was here for a relatively short period, we would levy the requirement or the request upon the CIA to find out what was taking place at the meetings to get his assessment of the individuals that he was meeting, and any other general intelligence that he could collect from his associations with the people who were of interest to us.[569]

The policies embodied in the 1966 agreement and the practice under ‘it clearly involved the CIA in the performance of “internal security functions.” At no time did the Executive branch ask Congress to amend the 1947 act to modify its ban against CIA exercising “internal security functions.” Nor was Congress asked to clarify the ambiguity of the 1947 act about the CIA’s authority to conduct clandestine foreign intelligence and counterintelligence activities within the United States, a matter dealt with even today by Executive Order.[570]

Moreover, National Security Council Intelligence Directive 5 provided authority within the Executive Branch for the Director of Central Intelligence to coordinate, and for the CIA to conduct, counterintelligence activities abroad to protect the United States against not only espionage and sabotage, but also “subversion.”[571] However, NSCID 5 did not purport to give the CIA authority for counterintelligence activities in the United States, as provided in the FBI-CIA agreement of 1966.

b. CIA Intelligence About Domestic Political Groups

In the late 1960s, the CIA increasingly was drawn into collecting intelligence about domestic political groups, particularly the anti-war movement, in response to FBI requests and to pressure from Presidents Johnson and Nixon. A principal assistant to President Johnson testified that high governmental officials could not believe that

a cause that is so clearly right for the country, as they perceive it, would be so widely attacked if there were not some [foreign] force behind it.[572]

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 channel for mobilizing foreign intelligence resources and techniques against domestic targets. The FBI regularly notified the CIA that it wished coverage of Americans overseas.[573] 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.[574] FBI reports flowed to the CIA at a rate of over 1,000 a month.[575] From 1967 to 1974, the CIA responded with over 5,000 reports to the FBI. These CIA disseminations included some reports of information acquired by the CIA in the course of its own operations, not sought in response to a specific FBI request.[576]

The FBI’s broad approach to the investigations of foreign influence which it coordinated with the CIA is shown by a memorandum 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 prevalent, there is great potential for the development of an international 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 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.[577]

There was no mention of, or apparent concern for, direct influence or control of the “New Left” by agents of hostile foreign powers. Instead, the stress was almost entirely upon ideological links and similarities, and the threat of ideas considered dangerous by the FBI.

The enlistment of both CIA and NSA resources in domestic intelligence 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 currently 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 appropriate overseas investigations may be conducted to establish activities and contacts abroad. [Emphasis added.][578]

The FBI passed such information to the CIA, which in turn began to place individual black nationalists on a “watch list” for the interception of international communications by the National Security Agency. After 1969, the FBI began submitting names of citizens engaged in domestic protest and violence to the CIA not only for investigation 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 monitoring other channels of international communication.

(2) Operation CHAOS. — The CIA did not restrict itself to servicing the FBI’s requests. Under White House pressure, the CIA developed its own program — Operation CHAOS -as an adjunct to the CIA’s foreign counterintelligence activities, although CIA officials recognized from the outset that it bad “definite domestic counterintelligence aspects.”[579]

Former CIA Director Richard Helms testified that he established the program in response to President Johnson’s persistent interest in the extent of foreign influence on domestic dissidents. According to Helms, the President would repeatedly ask, “How are you getting along with your examination?” and “Have you picked up any more information on this subject?”[580]

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 subversion.”[581]

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” following the October 1967 demonstration at the Pentagon.[582] In response, CIA headquarters sent a directive to CIA stations seeking information on “illegal and subversive” connections between U.S. activists and “communist, communist front, or other anti-American and foreign elements abroad. Such connections might range from casual contacts based merely on mutual interest to closely controlled channels for party directives.” [Emphasis added.][583]

--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 students, antiwar activists, draft resisters and deserters, black nationalists, anarchists, and assorted ‘New Leftists.’”[584]

--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 construed” to include “encouragement” by Communist countries.[585]

--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.[586]

Thus, this attempt to ascertain and evaluate “foreign links’, was so broadly defined that it required much more than background information 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 activities.[587] In a few instances, the CIA agents appear to have been encouraged to participate in specific protest activity or to obtain particular domestic information.[588] The CHAOS program also involved obtain inforination about Americans from the CIA mail opening project other domestic CIA components[589] and from a National Security Agency international communications intercept program.[590]

CIA officials recognized that the CIAs 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.[591]

The reaction to such admissions of illegality was neither an instruction to stop the program or an attempt to change the Iaw. Rather, the White House continued to ask for more information and continued to urge the CIA to confirm the theory that American dissidents were under foreign control.[592]

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 person could CIA “prove the negative” that none were under foreign domination.[593]

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.”[594] This led to “a reduction in the intensity of attention to political dissidents,”[595] although the program was not terminated until March 1974.[596]

By the end of the CHAOS program, 13,000 different files were accumulated, 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.[597] 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.”[598]

c. CIA Security Operations Within the United States: Protecting “Sources” and “Methods”

The National Security Act of 1947 granted the Director of Central Intelligence a vaguely- worded responsibility for “protecting intelligence sources and methods from unauthorized disclosure.”[599] 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.[600] 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 investigations were directed at former CIA employees, employees of other government agencies, newsmen and other private, citizens in this country.[601] Among the techniques used were physical surveillance, mail and tax information coverage, electronic surveillance, and surreptitious 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.[602]

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.[603] Project MERRIMACK (1967 to 1973) involved 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 broadened 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 country, 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 newspapers. 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 contradictions in the statutory definition of CIA authority in the 1947 Act. While the Director of Central Intelligence is charged with responsibility to protect intelligence “sources and methods,” the CIA is forbidden 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.[604]

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 telephone calls and telegrams.[605] 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 obtained from foreign electrical communications ....[606]

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 communications 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.”[607]

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 agencies, the names of Americans suspected of involvement in civil disturbance or drug activity which had some foreign aspects. Second, Operation Shamrock, which began as an effort to acquire the telegrams of certain foreign targets, expanded so that NSA obtained from at least two cable companies essentially all cables to or from the United States, including millions of the private communications of Americans.

6. Intrusive Techniques

As domestic intelligence activity increasingly broadened to cover domestic dissenters under many different programs, the government intensified the use of covert techniques which intruded upon individual privacy.

Informants were used to gather more information about more Americans, often targeting an individual because of his political views and “regardless of past or present involvement in disorders.”[608][609][610] The CIA’s mail opening program increasingly focused upon domestic groups, including “protest and peace organizations” which were covered at the FBI’s request.[611] Similarly, NSA-largely in response to Army, CIA, and FBI pressures -expanded its international interception program to include “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 United States.”[612]

During this period, Director Hoover ordered cutbacks on the FBI’s use of a number of intrusive techniques. Frustration with Hoover’s cutbacks was a substantial contributing factor to the effort in 1970 — coordinated by White House Aide Tom Charles Huston and strongly supported by CIA Director Helms, NSA Director Gaylor and Hoover’s Intelligence Division subordinates — to obtain Presidential authorization for numerous illegal or questionable intelligence techniques.

a. Warrantless Electronic Surveillance

(1) Executive Branch Restrictions on Electronic Surveillance: 1965–1968 — In March 1965, Attorney General Nicholas deB. Katzenbach established a new requirement for the FBI’s intelligence operations: the Bureau had to obtain the written approval of the Attorney General prior to the implementation of an microphone surveillance. He also imposed a six month limitation on both wiretaps and microphone surveillances, after which time new requests had to be submitted for the Attorney General’s re-authorization.[613]

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.”[614] This standard was reiterated by Attorney General Katzenbach, for both wiretapping and microphone surveillances three months later, and again in July 1966.[615]

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.”[616]

In line with that policy, Katzenbach approved FBI requests for wiretaps on the Student Non-Violent Coordinating Committee,[617] Students for a Democratic Society,[618] the editor of an anti-communist newsletter,[619] a Washington attorney with whom the editor was in frequent contact,[620] a Klan official,[621] and a leader of the black Revolutionary Action Movement.[622] According to FBI records, Katzenbach also initialed three memoranda informing him of microphone surveillances of Dr. Martin Luther King, Jr.[623]

There were no similar electronic surveillance authorizations by Attorney General Ramsey

Clark in cases involving purely domestic “national security” considerations.[624] 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.[625]

(2) Omnibus Crime 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,[626] Congress enacted the Omnibus Crime Control Act of 1968. This Act established warrant procedures 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.”[627] Although Congress did not purport to define the President’s power,[628] the Act suggested five broad categories in which warrantless electronic surveillance 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 essential to the security of the United States; and

(3) to protect national security information against foreign 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 structure 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 organization was tapped because, among other factors, its members desired to “take the radical politics they learned on campus and spread them among factory workers.”[629] Four newsmen were wiretapped or bugged during this period, as were sixteen executive branch officials, one former executive official, and a relative of an executive official.”[630] There were numerous wiretaps and some microphones used against the Black Panther Party and similar domestic groups.[631] Attorney Gen John Mitchell approved FBI requests for wiretaps on organizations involved in planning the November 1969 antiwar “March on Washington” including the moderate Vietnam Moratorium Committee.[632]

(a) Supreme Court Restrictions on National Security Electronic Surveillance: 1972. — The issue of national security electronic surveillance 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 “constitutional power” to authorize warrantless electronic surveillance to protect the

security of the nation from “domestic” threats.[633] The Court remained silent, however, on the legality of warrantless electronic surveillance where there was a ‘significant connection with a foreign power, its agents or agencies.”[634] As a result of this decision, the Justice Department eliminated as criteria for the use of warrantless electronic surveillance the two categories, described by Congress in the 1968 Act, dealing with domestic intelligence interests.[635]

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, uopn the recommendation of the official in charge of the CIA’s CHAOS program, the FBI began submitting names of domestic political radicals and black militants to the CIA for inclusion on its mail opening “Watch List.”[636] By 1972, the FBIs 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 Panthers, White Panthers, Black Nationalists and Liberation Groups, Students for a Democratic Society, Resist, Revolutionary Union, and other New Left Groups.

Traffic to and from Puerto Rico and the Virgin Islands showing anti-U.S. or subversive sympathies.[637]

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 communications of selected Americans in the early 1960s, the systematic inclusion 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 information 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 influence 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.[638]

Two years later, NSA issued an internal instruction intended to ensure the secrecy of the fact that it was monitoring and disseminating communications to and from Americans.[639] 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.[640]

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 intercepted communications were of a private or personal nature or involved rallies and demonstrations that werepublic knowledge.[641]

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.”[642] The FBI Director was particularly concerned about an inquiry by the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee chaired by Senator Edward Long.

(1) The Long Subcommittee Investigation. — The Senate Subcommittee was primarily investigating electronic surveillance and mail cover. The Bureau was seen as a major subject of the inquiry, although the Internal Revenue Service and other Executive agencies 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.[643][644] 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 interest 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 “undermine the restricted and tightly controlled operations of the Bureau.” FBI officials had assured Katzenbach that their activities were, indeed “tightly controlled” and restricted to “important security matters.”[645]

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 coverage, microphones, trash covers, mail covers, etc. While it might handicap us I doubt they are as valuable as some believe and none warrant the FBI being used to justify them.[646]

Several days later, according to a memorandum of the FBI Director, the Attorney General “advised that he had talked to Senator Long,” and that the Senator “said he did not want to get into any national security area.”[647] 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.[648]

Again in 1966, the FBI took steps to, in the words of Bureau official Cartha DeLoach, “neutralize” the “threat of being embarrassed by the Long Subcommittee.”[649] This time the issue involved warrantless 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.”[650] The Bureau prepared such a statement for Senator Long to release as his own, which apparently was not used.[651] At another meeting with DeLoach, Senator Long agreed to make “a commitment that he would in no way embarrass the FBI.” When the Subcommittee’s Chief Counsel asked if a Bureau spokesman could appear and “make a simple statement,” DeLoach replied that this would “open a Pandora’s box, in so far as our enemies in the press were concerned.” Senator Long then stated that he would call no FBI witnesses.[652]

(2) Director Hoover’s Restriction. — The Director subsequently issued instructions that the number of warrantless wiretaps installed at any one time be cut in half. One of his subordinates speculated that this was done out of a concern that the Subcommittee’s “inquiry might get into the use of that technique by the FBI.”[653]

In July 1966, after hundreds of FBI “black bag job” operations had been approved over many years, Director Hoover decided to eliminate warrantless surreptitious entries for purposes other than microphone installations.[654] In response to an Intelligence Division analysis that such break-ins were an “invaluable technique,” although “clearly illegal,” Hoover stated that “no more such techniques must be used.”[655] Bureau subordinates took Hoover’s “no more such techniques” language as an injunction against the Bureau’s mail opening program as well.[656] Apparently, a termination order was issued to field offices by telephone. FBI mail-opening was suspended, although the Bureau continued to seek information from CIA’s illegal mail-opening program until its suspension in 1973.

A year and a half before Hoover’s cutbacks on wire-tapping, “black bag jobs,” and mailopening, he prohibited the FBI’s use of other covert techniques such as mail covers and trash covers.[657]

FBI intelligence officials persisted in requesting authority for “black bag” techniques. In 1967 Director Hoover ordered that “no such recommendations should be submitted.”[658] At about this time, Attorney General Ramsey Clark was asked to approve a “breaking and entering” operation and declined to do so.[659] There was an apparently unauthorized surreptitious entry directed at a “domestic subversive target as late as April, 1968.[660] A proposal from the field to resume mail opening for foreign counterintelligence purposes was turned down by FBI officials in 1970.[661]

7. Accountability and Control

a. The Huston Plan: A Domestic Intelligence Network

In 1970, pressures from the White House and from within the intelligence community led to the formulation of a plan for coordination and expansion of domestic intelligence activity. The so-called “Huston Plan” called for Presidential authorization of illegal intelligence techniques, expanded domestic intelligence collection, and centralized evaluation of domestic intelligence. President Nixon approved the plan and then, five days later, revoked his approval. Despite the revocation of official approval, many major aspects of the plan were implemented, and some techniques which the intelligence community asked for permission to implement had already been underway.

In 1970, there was an intensification of the social tension in America that had provided the impetus in the 1960s for ever-widening domestic intelligence operations. The spring invasion of Cambodia by United States forces triggered the most extensive campus demonstrations and student “strikes” in the history of the war in Southeast Asia. Domestic strife heightened even further when four students were killed by National Guardsmen at Kent State University. Within one twenty-four hour period, there were 400 bomb threats in New York City alone. To respond, White House Chief of Staff, H. R. Haldeman, assigned principal responsibility for domestic intelligence planning to staff assistant Tom Charles Huston.[662]

Since June 1969, Huston had been in touch with the head of the FBI Domestic Intelligence Division, Assistant Director William C. Sullivan. Huston initially contacted Sullivan on President Nixon’s behalf to request “all information possibly relating to foreign influences and financing of the New Left.”[663] Huston also made similar requests to CIA, NSA, and the Defense Intelligence Agency. The quality of the data provided by these agencies, especially the FBI, had failed to satisfy Huston and Presidential assistant John Ehrlichman.[664] Thereafter, Huston’s continued discussions with Assistant Director Sullivan convinced him that the restraints imposed upon domestic intelligence techniques by Director Hoover impeded the collection of important information about dissident activity.[665]

(1) Intelligence Community Pressures. — The interest of the White House in better intelligence about domestic protest activity coincided with growing dissatisfaction among the foreign intelligence agencies with the FBI Director’s restrictions on their performance of foreign intelligence functions in America.[666]

The CIA’s concerns crystallized in March 1970 when — as a result of a “flap” over the CIA’s refusal to disclose information to the FBI — Hoover issued an order that “direct liaison” at FBI headquarters with CIA “be terminated” and that “any contact with CIA in the future” was to take place “by letter only.”[667] This order did not bar interagency communication; secure telephones were installed and working-level contacts continued. But the position of FBI “liaison agent” with CIA was eliminated.[668]

CIA Director Helms subsequently attempted to reopen the question of FBI cooperation with CIA requests for installing electronic surveillances and covering mail.[669] Hoover replied that he agreed with Helms that there should be, expanded “exchange of information between our agencies concerning New Left and racial extremist matters.” However, he refused the request for aid with electronic surveillance and mail coverage. Hoover cited the “widespread concern by the American public regarding the possible misuse of this type of coverage.” Their use, in “domestic investigations” posed legal problems not encountered “in similar operations abroad.” Hoover added, “The FBI’s effectiveness has always depended in large measure on our capacity to retain the full confidence of the American people.”[670]

(2) The Interagency Committee Report. — In the following months, Tom Charles Huston arranged a meeting between President Nixon and the directors of the FBI, CIA, NSA, and DIA on June 5, 1970.[671] The President’s emphasis was upon improved coordination among the agencies to strengthen their capabilities to collect intelligence about “revolutionary activism” and “the support — ideological and otherwise — of foreign powers” for these activities. The talking paper prepared by Huston for the President to read at the meeting declared, “We are now confronted with a new and grave crisis in our country -which we know too little about.”[672]

From this meeting emanated the Special Report of the Interagency Committee on Intelligence (Ad Hoc), prepared jointly by representatives of the FBI, CIA, NSA, and DIA, and submitted to the President a month later.[673] The report presented the President a series of options, and Huston recommended that the President approve the following:

(1) “coverage by NSA of the communications of U.S. citizens using international facilities;”

(2) “intensification” of “electronic surveillances and penetrations” directed at individuals and groups “who pose a major threat to the internal security” and at “foreign nationals” in the United States “of interest to the intelligence community;”

(3) removal of restrictions on “legal” mail coverage and relaxation of “restrictions on covert coverage” [mail opening] on “selected targets of priority foreign intelligence and internal security interest;”

(4) modification of “present restrictions” on “surreptitious entry” to allow “procurement of vitally needed foreign cryptographic material” and “to permit selective use” against “high priority internal security targets;”

(5) relaxation of “present restrictions” on the “development of campus sources” to permit “expanded coverage of violence-prone and student-related groups;’

(6) “increased” coverage by CIA “of American students (and others) traveling or living abroad;”

(7) appointment of a “permanent committee consisting of the FBI, CIA, NSA, DIA, and the military counterintelligence agencies” to evaluate “domestic intelligence” and to carry out the other objectives specified in the report.”[674]

Huston also raised and dismissed questions about the legality of two collection techniques in particular. “Covert [mail opening] coverage is illegal, and there are serious risks involved,” he wrote. “However, the advantages to be derived from its use outweigh the risks.”[675] 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 embarrassment if exposed. However, it is also the most fruitful tool and can produce the type of intelligence which cannot be obtained in any other fashion.”[676]

Huston testified that his recommendations “reflected what I understood to be the consensus of the working group” of intelligence officials on the interagency committee.[677]

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.[678] Henceforth, with Presidential authority, the intelligence community could intercept the international communications of Americans; eavesdrop electronically on anyone deemed a “threat to the internal security;” read the mail of American citizens; break into the homes of anyone regarded as a security threat; and monitor the activities of student political groups at home and abroad.

There is no indication that the President was informed at this time that NSA was already covering the international communications of Americans and had been doing so for domestic intelligence purposes since at least 1967. Nor is there any indication that he was told that the CIA was opening the mail of Americans and sharing the contents with the FBI and the military for domestic intelligence purposes. In effect, the “Huston plan” supplied Presidential authority for operations previously 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.[679]

Nevertheless, the FBI Director was not satisfied with Huston’s memorandum concerning the authorization of the plan.[680] Hoover went immediately to Attorney General Mitchell, who had not known of the prior deliberations or the President’s “decisions.”[681] In a memorandum, Director Hoover said he would implement the plan, but only with the explicit approval of the Attorney General or the President:

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 domestic intelligence, the FBI is prepared to implement the instructions of the White House at your direction. Of course, we would continue to seek your specific authorization, where appropriate, to utilize the various sensitive investigative techniques involved in individual cases.[682]

CIA Director Helms shortly thereafter indicated his support for the to the Attorney General, telling him “we had put our backs into exercise.”[683] Nonetheless, Mitchell advised the President to withdraw his approval.[684] Huston was told to rescind his memorandum, and the White House Situation Room dispatched a message requesting its return.[685]

(3) Implementation. — The President’s withdrawal of approval for the “Huston plan” did not, in fact, result in the termination of either the NS A program for covering the communications of Americans or the CIA mail-opening program. These programs continued withoutformal authorization which had been hoped for.[686] The directors of the CIA and NSA also continued to explore means of expanding their involvement in, and access to, domestic intelligence.[687] A new group, the Intelligence Evaluation Committee (IEC), was created by Attorney General Mitchell within the Justice Department to consider such expansion.[688] NSA, CIA, Army counterintelligence, and the FBI 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.[689] Although the IEC merely evaluated 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.[690]

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.”[691] Two men who had participated in developing the “Huston Plan” were promoted to positions of greater influence within the Bureau.[692] 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 inaugurated 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.”[693]

The chief of the Domestic Intelligence Division in 1970 said the “Huston Plan” had “nothing to do” with the FBI’s expanded intelligence activities. Rather, both the “Huston Plan” and the Bureau intensification 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.”[694] 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.[695]

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 and Richard Nixon, this practice grew to unprecedented dimensions.[696]

(1) Name Check Requests. — White House aides serving under Presidents Johnson and Nixon made numerous requests for “name checks” 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.[697] President Johnson’s assistants also requested name checks on members of the Senate staff of Presidential candidate Barry Goldwater in 1964,[698] on Justice and Treasury Department officials responsible for a phase of the criminal investigation of Johnson’s former aide Bobby Baker,[699] on the authors of books critical of the Warren Commission report,[700] a nd on prominent newsmen.[701] 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.[702]

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 Leadership Conference leader Reverend Ralph Abernathy.[703]

(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 Conventions’ 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 appropriate cover as reporters.”[704] 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 headquarters for the Student Nonviolent Coordinating Committee and another civil rights organization.[705]

Neither of the electronic surveillances at Atlantic City were specifically 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.[706] The only recorded reason for instituting the wiretap on Dr. King in Atlantic City, however, was set forth in an internal memorandum 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 determine 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.[707]

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.[708] DeLoach, moreover, has testified that he is uncertain whether he ever informed Jenkins of these sources.[709]

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 related to possible civil disturbances. The most important single issue for President Johnson at the Atlantic City Convention was the seating challenge of the Mississippi Freedom Democratic Party to the regular Mississippi delegation.[710] 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.[711] Moreover, the 1975 Inspection Report stated that “several Congressmen, Senators, and Governors of States” were overheard on the King tap.”[712]

According to both Cartha DeLoach and Walter Jenkins, the Bureau’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 exemplified by the many, many references [to possible civil disturbances] in the memoranda furnished Mr. Jenkins ....[713]

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.[714] 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. DeLoach’s reports.[715]

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 political intelligence to the President as well.[716]

(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 reports 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 informed 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 prominent 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].[717]

As a result of the President’s request, the FBI prepared a chronological summary — apparently based in part on existing electronic surveillances 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.”[718] A second summary, 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.[719]

This practice was reinstituted during the Nixon Administration. On July 27, 1970, Larry Higby, Assistant to H. R. Haldeman, informed the Bureau that Haldeman “wanted any information possessed by the FBI relating to contacts between [certain foreign officials] 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 Bureau’s reports did not identify individual Senators; they provided overall statistics and two examples of foreign recruitment attempts (with names removed.[720]

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 intercepting telephone conversations of an American citizen. An FBI memorandum states that shortly before the 1968 Presidential election, President 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.[721]

The electronic surveillance was authorized by Attorney General Ramsey Clark on October 29, 1968, installed the same day, and continued until January 6, 1969.[722] Thus, a “foreign” electronic surveillance was instituted to target indirectly an American citizen who could not be legitimately surveilled directly. Also as part of this investigation, President Johnson personally ordered a check of the long distance toll call records of Vice Presidential candidate Spiro Agnew.[723]

(4) The Surveillance of Joseph Kraft (1969). — There is no substantial indication of any genuine national security rationale for the electronic surveillance overseas of columnist Joseph Kraft in 1969. John Erlichman testified before the Senate Watergate Committee that the national security was involved, but did not elaborate further.[724]

Beyond this general claim, however, there is little evidence that any national security issue was involved in the case. Former Deputy Attorney General and Acting FBI Director William Ruckelshaus testified that after reviewing the matter he “could never see any national security justification” for the surveillance of Kraft. Ruckelshaus stated that the Administration’s “justification” for bugging Kraft’s hotel room was that he was “asking questions of some members of the North Vietnamese Government.” Ruckelshaus believed that this was not an adequate national security justification for placing “any kind of surveillance on an American citizen or newsman.”[725] Mr. Kraft agreed he was in contact with North Vietnamese officials while he was abroad in 1969, but noted that this was a common practice among journalists and that “at the time” he never knowingly published any classified information.[726]

The documentary record also reveals no national security justification for the FBI’s electronic surveillance of Mr. Kraft overseas. The one memorandum which referred to “Possible Leaks of Information” by Kraft does not indicate that there clearly was a leak of national security significance or that Mr. Kraft was responsible for such a leak if it occurred.[727] Furthermore, the hotel room bug did not produce any evidence that Kraft received or published any classified information.[728]

Similarly, there is no evidence of a national security justification for the physical surveillance and proposed electronic surveillance of Kraft in the fall of 1969. A Bureau memorandum suggests that the Attorney General requested some type of coverage of Kraft,[729] but the record reveals no purpose for this coverage. The physical surveillance was discontinued after five weeks because it had “not been productive.” Apparently, the Attorney General himself was unconvinced that a genuine national security justification supported the Kraft surveillance: he refused to authorize the requested wiretap, and it was consequently never implemented.[730]

(5) The “17” Wiretaps. — The relative ease with which high administration officials could select improper intelligence targets was demonstrated by the “17” wiretaps on Executive officials and newsmen installed between 1969–1971 under the rationale of determining the source of leaks of sensitive information.[731] In three cases no national security claim was even advanced. While national security issues were at least arguably involved in the initiation of the other taps, the program continued in two instances against persons who left the government and took positions as advisors to Senator Edmund Muskie, then the leading Democratic Presidential prospect.[732]

The records of these wiretaps were kept separate from the FBI’s regular electronic surveillance files;[733] their duration in many cases went beyond the period then required for re-authorization by the Attorney General; and in some cases the Attorney General did not authorize the tap until after it had begun.[734] In 1971, the records were removed from the FBI’s possession and sent to the White House.

Thus, misuse of the FBI had progressed by 1971 from the regular receipt by the White House of political “tid-bits” and occasional requests for name checks of Bureau files to the use of a full array of intelligence operations to serve the political interests of the administration. The final irony was that the Nixon administration came to distrust Director Hoover’s reliability and, consequently, to develop a White House-based covert intelligence operation.[735]

c. The Justice Department’s Internal Security Division

FBI intelligence reports flowed consistently to the Justice Department, especially to the IDIU established by Attorney General Clark in 1967 and to the Internal Security Division. Before 1971, the Justice Department provided little guidance to the FBI on the proper scope of domestic intelligence investigations.[736] For example, in response to a Bureau inquiry in 1964 about whether a group’s activities came “within the criteria” of the employee security program or were “in violation of any other federal statute,”[737] the Internal Security Division replied that there was “insufficient evidence” for prosecution and that the group’s leaders were “becoming more cautious in their utterances.”[738] Nevertheless, the FBI continued for years to investigate the group with the knowledge and approval of the Division.

(1) The “New” Internal Security Division. — When Robert Mardian was appointed Assistant Attorney General in late 1970, the Internal Security Division assumed a more active posture. In fact, one of the alternatives to implementation of the “Huston Plan” suggested to Attorney General John Mitchell by White House aide John Dean was the invigoration of the Division.[739] This included Mardian’s establishment of the IEC to prepare domestic intelligence estimates. Equally significant, however, was Mardian’s preparation of a new Executive Order on federal employee security. The new order assigned to the moribund Subversive Activities Control Board the function of designating groups for what had been the “Attorney General’s list”[740] This attempt to assign broad new functions by Executive fiat to a Board with limited statutory responsibilities clearly disregarded the desires of the Congress.[741]

According to Mardian, there was a “problem” because the list had “not been updated for 17 years.” He expected that the revitalized SACB would “deal specifically with the revolutionary/terrorist organizations which have recently become a part of our history.”[742]

Assistant Attorney General Mardian’s views coincided with those of FBI Assistant Director Brennan, who had seen a need to compile massive data on the “New Left” for future employee security purposes.[743] Since FBI intelligence investigations were based in part on standards for the “Attorney General’s list,” the new Executive Order substantially redefined and expanded FBI authority. The new order included groups who advocated the use of force to deny individual rights under the “laws of any State” or to overthrow the government of “any State or subdivision thereof.”[744] The new order also continued to use the term “subversive,” although it was theoretically more restrictive than the previous standard for the Attorney General’s list because it required “unlawful” advocacy.

Mardian made it clear that, under the order, the FBI was to provide intelligence to the Subversive Activities Control Board:

We have a new brand of radical in this country and we are trying to address ourselves to the new situation. With the investigative effort of the FBI, we hope to present petitions to the Board in accordance with requirement of the Executive Order.[745]

FBI intelligence officials learned that the Internal Security Division intended to “initiate proceedings against the Black Panther Party, Progressive Labor Party, Young Socialist Alliance, and Ku Klux Klan.” They also noted: “The language of Executive Order 11605 is very broad and generally coincides with the basis for our investigation of extremist groups.”[746] Mardian had, in effect, provided a new and wider “charter” for FBI domestic intelligence.[747]

(2) The Sullivan-Mardian Relationship. — In 1971, Director Hoover expressed growing concern over the close relationship developing between his FBI subordinates in the Domestic Intelligence Division and the Internal Security Division under Mardian. For example, when FBI intelligence officials met with Mardian’s principal deputy, A. William Olsen, to discuss “proposed changes in procedure” for the Attorney General’s authorization of electronic surveillance, Hoover reiterated instructions that Bureau officials be “very careful in our dealings” with Mardian. Moreover, to have a source of legal advice independent of the Justice Department, the FBI Director created a new position of Assistant Director for Legal Counsel and required that he attend “at any time officials of the Department are being contacted on any policy consideration which affects the Bureau.”[748]

In the summer of 1971, William C. Sullivan openly challenged FBI Director Hoover, possibly counting on Mardian and Attorney General Mitchell to back him up and oust Hoover.[749] Sullivan charged in one memorandum to Hoover that other Bureau officials lacked “objectivity” and “independent thinking” and that “they said what they did because they thought this was what the Director wanted them to say.”[750]

Shortly thereafter, Director Hoover appointed W. Mark Felt, formerly Assistant Director for the Inspection Division, to a newly created position as Sullivan’s superior. Apparently realizing that he was on his way out, Sullivan gave Assistant Attorney General Mardian the FBI’s documents recording the authorization for, and dissemination of, information from the “17” wiretaps placed on Exccutive officials and newsmen in 1969–1971. The absence of these materials was not discovered by other FBI officials until after Sullivan was forced to resign in September 1971.[751] Mardian eventually took part in the transfer of these records to the White House.[752]

Thus, the Attorney General’s principal assistant for internal security collaborated with a ranking FBI official to conceal vital records, ultimately to be secreted away in the White House. This provides a striking example of the manner in which channels of legitimate authority within the Executive Branch can be abused.

d. The FBIs Secret “Administrative Index”

In the fall of 1971, the FBI confronted the prospect of the first serious Congressional curtailment of domestic intelligence investigations — repeal of the Emergency Detention Act of 1950 — and set a course of evasion of the will of Congress which continued, partly with justice Department approval, until 1973.

An FBI Inspection Report viewed the prospect of the repeal without great alarm. In the event the Act was repealed, the FBI intended to continue as before under “the Government’s inherent right to protect itself internally.”[753] After the repeal took place, Bureau officials elaborated the following rationale for keeping the Security Index of “potentially dangerous subversives:”

Should this country come under attack from hostile forces, foreign or domestic, there is nothing to preclude the President from going before a joint session of Congress and requesting necessary authority to apprehend and detain those who would constitute a menace to national defense. At this point, it would be absolutely essential to have an immediate list, such as the SI, for use in making such apprehensions.[754] [Emphasis added.]

Thus, FBI officials hoped there would be a way to circumvent the repeal “in which the essence of the Security Index and emergency detention of dangerous individuals could be utilized under Presidential powers.”[755]

Assistant Director Dwight Dalbey, the FBI’s Legal Counsel, recommended writing to the Attorney General for “a reassessment” in order to “protect” the Bureau in case “some spokesman of the extreme left” claimed that repeal of the Detention Act eliminated FBI authority for domestic intelligence activity. Dalbey agreed that, since the Act “could easily be put back in force should an emergency convince Congress of its need,” the Bureau should “have on hand the necessary action information pertaining to individuals.”[756] Thereupon, a letter was sent to Attorney General Mitchell proposing that the Bureau be allowed to “maintain an administrative index” of individuals who “pose a threat to the internal security of the country.” Such an index would be an aid to the Bureau in discharging its “investigative responsibility.” However, the letter made no reference to the theory prevailing within the FBI that the new “administrative index” would serve as the basis for a revived detention program in some future emergency.[757]

Thus, when the Attorney General replied that the repeal of the Act did not prohibit the FBI from compiling an “administrative index” to make “readily retrievable” the “results of its investigations,” he did not deal with the question of whether the index would also serve as a round-up list for a future emergency. The Attorney General also stated that the Department did not “desire a copy” of the new index, abdicating even the minimal supervisory role performed previously by the Internal Security Division in its review of the names on the Security Index.[758] FBI officials realized that they were “now in a position to make a sole determination as to which individuals should be included in an index of subversive individuals.”[759]

There were two major consequences of the new system. First, the new “administrative index” (ADEX) was expanded to include an elastic category: “the new breed of subversive.”[760] Second, the previous Reserve Index, which had never been disclosed to the Justice Department, was incorporated into the ADEX. It included “teachers, writers, lawyers, etc.” who did not actively participate in subversive activity “but who were nevertheless influential in espousing their respective philosophies.” It was estimated that the total case load under the ADEX would be “in excess of 23,000.”[761]

One of the FBI standards for placing someone on the ADEX list demonstrates the vast breadth of the list and the assumption that it could be used as the basis for detention in an emergency:

An individual who, although not a member of or participant in activities of revolutionary organizations or considered an activist in affiliated fronts, has exhibited a revolutionary ideology and is likely to seize upon the opportunity presented by national emergency to commit acts of espionage or sabotage, including acts of terrorism, assassination or any interference with or threat to the survival and effective operation of the national, state, and local governments and of the defense efforts. [Emphasis added.][762]

These criteria were supplied to the Justice Department in 1972, and the Attorney General did not question the fact that the ADEX was more than an administrative aid for conducting investigations, as he had previously been told.[763]

A Bureau memorandum indicates that “representatives of the Department” in fact agreed with the view that there might be “circumstances” where it would be necessary “to quickly identify persons who were a threat to the national security” and that the President could then go to Congress “for emergency legislation permitting apprehension and detention.”[764]

Thus, although the Attorney General did not formally authorize the ADEX as a continuation of the previous detention list, there was informal Departmental knowledge that the FBI would proceed on that basis. One FBI official later recognized that the ADEX could be “interpreted as a means to circumvent repeal of the Emergency Detention Act.”[765]

8. Reconsideration of FBI Authority

In February 1971, the Subcommittee on Constitutional Rights of the Senate Judiciary Committee began a series of hearings on federal data banks and the Bill of Rights which marked a crucial turning point in the development of domestic intelligence policy. The Subcommittee, chaired by Senator Sam J. Ervin of North Carolina, reflected growing concern among Americans for the protection of “the privacy of the individual against the ‘information power’ of government.”[766]

Largely in response to this first serious Congressional inquiry into domestic intelligence policy, the Army curtailed its extensive surveillance of civilian political activity. The Senate inquiry also led, after Director Hoover’s death in 1972, to reconsideration by the FBI of the legal basis for its domestic intelligence activities and eventually to a request to the Attorney General for clarification of its authority.[767]

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.[768] Indeed, when Deputy Attorney General Richard Kleindienst testified in February 1972 at the hearings on his nomination to be Attorney General, he stated that be 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.”[769] Director Hoover noted on a newspaper report of the testimony, “Prepare succinct memo to him on our guidelines.”[770]

After Hoover’s death in 1912, 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.[771]

Acting Director Gray postponed making any formal decisions on this matter; he did not formally request advice from the Attorney General.[772] Meanwhile, the Domestic Intelligence Division proceeded on its own to revise the pertinent Manual sections and the ADEX standards.[773] 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.[774]

A revision of the FBI Manual was completed by May 1973. It was described as “a major step” away from “heavy reliance upon Presidential Directives” to an approach “based on existing Federal statutes.[775] 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.[776]

After a series of regional conferences with field office supervisors, the standards were revised to allow greater flexibility.[777] For the first time in FBI history, a copy of the Manual section for “domestic subversive investigations” was sent to the Attorney General.[778]

After Clarence M. Kelley was confirmed as FBI Director, he authorized a request for guidance from Attorney General Elliot Richardson.[779] Kelley advised that it “would be folly” to limit the Bureau 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 exercise his “inherent Executive power to expand by further defining the FBI’s investigative authority to enable it to develop advance information” about the plans of “terrorists and revolutionaries who seek to overthrow or destroy the Government.”[780] [Emphasis added.]

Director Kelley’s request initiated a process of reconsideration of FBI intelligence authority by the Attorney General.[781]

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. Responsibility for this inquiry was assigned to a committee headed by Assistant Attorney General Henry Peterson.[782]

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 techniques.”[783]

As a result, the Petersen committee’s review of COINTELPRO did not consider anything more than a brief FBI prepared summary of foreign counterintelligence operations.[784] 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.[785]

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.[786]

(1) Executive Order 1045O, As Amended. — The Federal employee security program continued to serve as a basis for FBI domestic intelligence 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.[787]

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 movements (including front groups) with which subject has been identified, period of membership, positions held, and a summary of the type and extent of subversive or extremist activities engaged in by subject (e.g., attendance at meetings or other functions, fundraising or recruiting activities on behalf of the organization, contributions, etc.).[788]

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 [with] which would still be considered in evaluating prospective federal employees.[789] The Justice Department instructed the FBI that it should “detect organizations with a potential” for falling within the terms of the order and investigate “individuals 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 investigation is initiated, but only that a reasonable evaluation of the available information suggests that the activities of the organization 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 involvement.”[790]

(2) Civil Disorders Intelligence. — The Justice Department also instructed the FBI in 1974 that it should not, as the Bureau had suggested, limit its civil disturbance reporting “to those particular situations which are of such a serious nature that Federal military personnel may be called upon for assistance.” The Department advised that this suggested “guideline” was “not practical” since, it “would place the burden on the Bureau” to make an initial decision as to “whether military personnel may ultimately be needed,” and this responsibility rested “legally” with the President. Instead, the FBI was ordered to “continue” to report on

all significant incidents of civil unrest and should not be restricted to situations where, in the judgment of the Bureau, military personnel eventually may be used.[791]

Moreover, under this authority the Bureau was also ordered to “continue” reporting on

all disturbances where there are indications that extremist organizations such as the Communist Party, Ku Klux Klan, or Black Panther Party are believed to be involved in efforts to instigate or exploit them.

The instructions specifically declared that the Bureau “should make timely reports of significant disturbances, even when no specific violation of Federal law is indicated.” This was to be done, at least in part, through “liaison” with local law enforcement agencies.[792]

Even after the Justice Department’s IDIU dismantled its computerized data bank, its basic functions continued to be, performed by a Civil Disturbance Unit in the office of the Deputy Attorney General, and the FBI was under instructions to disseminate its civil disturbance reports to that Unit.[793]

FBI officials considered these instructions “significant” because they gave it “an official, written mandate from the Department.” The Department’s desires were viewed as “consistent with what we have already been doing for the past several years,” although the Bureau Manual was rewritten to “incorporate into it excerpts from the Department’s letter.”[794]

(3) “Potential” Crimes. — The FBI recently abolished completely the administrative index (ADEX) of persons considered “dangerous now.” However, the Justice Department has advanced a theory to support broad power for the Executive Branch in investigating groups which represent a “potential threat to the public safety” or which have a “potential” for violating specific statutes. For example, the Department advised the FBI that the General Crimes Section of the Criminal Division had “recommended continued investigation” of one group on the basis of “potential violations” of the antiriot statutes.[795][796] These same instructions added that there need not be a “potential” for violation of any specific statute.[797]

(4) Claim of Inherent Executive Power. — The Department’s theory of executive power was set forth in 1974 testimony before the House Internal Security Committee. According to Deputy Assistant Attorney General Kevin Maroney, “the primary basis” for FBI domestic intelligence authority rests in “the constitutional powers and responsibilities vested in the President under Article II of the Constitution.” These powers were specified as: the President’s duty undertaken in his oath of office to “preserve, protect, and defend the Constitution of the United States;”[798] the Chief Executive’s duty to “take care that the laws be faithfully executed:”[799] the President’s responsibilities as Commander-in-Chief of the military; and his “power to conduct our foreign relations.”[800]

The chairman of the Internal Security Committee, Rep. Richard H. Ichord, stated at that time that, except in limited areas, the Congress “has not directly imposed upon the FBI clearly defined duties in the acquisition, use, or dissemination of domestic or internal security intelligence.”[801]

Subsequently, the FBI Intelligence Division revised its 1972–1973 position on its legal authority, and in a paper completed in 1975 it returned to the view “that the intelligencegathering activities of the FBI have had as their basis the intention of the President to delegate his Constitutional authority,” as well as the statutes “pertaining to the national security.”[802]

The Attorney General has continued to assert the claim of inherent executive power to conduct warrantless electronic surveillance of American citizens, although this power has been exercised sparingly.[803] The Justice Department has also claimed that this inherent executive power permits warrantless surreptitious entries.[804] However, the Executive Branch has recently joined a bipartisan group of Senators and Representatives in sponsoring a legislative proposal requiring judicial warrants for all electronic surveillance by the FBI.

(5) Attorney General Levi’s Guidelines. — During 1975, the Congress and the Executive Branch began major efforts to review the field of domestic intelligence. A Presidential commission headed by Vice President Rockefeller inquired into the CIA’s improper surveillance of Americans.[805] Attorney General Edward H. Levi established a committee in the Justice Department to develop “guidelines” for the FBI,[806] and the Justice Department began to work on draft legislation to require warrants for national security electronic surveillance.[807]

These efforts have begun to bear fruit in recent months. President Ford has issued an Executive Order regulating foreign intelligence activities;[808] Attorney General Levi has promulgated several sets of “guidelines” for the FBI.[809] And the administration has endorsed a specific bill to establish a warrant procedure for all national security wiretaps and bugs in the United States.[810]

These Executive initiatives are a major step forward in creating safeguards and establishing standards, but they are incomplete without legislation.[811] Among the issues left open by the President’s Executive Order, for example, are: (1) the definition of the term “foreign subversion” used to characterize the counter- intelligence responsibilities of the CIA and the FBI; and (2) clarification of the vague provisions in the National Security Act of 1947 relating to the authority of the Director of Central Intelligence to protect “sources” and “methods;” and (3) amplification of the 1947 Act’s prohibition against the CIA’s exercise of “law enforcement powers” or “internal security functions.”

Although they represent only a partial answer to the need for permanent restraints, the initiatives of the Executive Branch demonstrate a willingness to seriously consider the need for legislative action. The Attorney General has recognized that Executive “guidelines” are not enough to regulate, and authorize FBI intelligence activities.[812] The Committee’s conclusions and recommendations in Part IV of this report indicate the areas most in need of legislative attention.

III. Findings

The Committee makes seven major findings. Each finding is accompanied by subfindings and by an elaboration which draws upon the evidentiary record set forth in our historical narrative (Part II herein) and in the thirteen detailed reports which will be published as supplements to this volume. We have sought to analyze in our findings characteristics shared by intelligence programs, practices which involved abuses, and general problems in the system which led to those abuses.

The findings treat the following themes that run through the facts revealed by our investigation of domestic intelligence activity: (A) Violating and Ignoring the Law; (B) Overbreadth of Domestic Intelligence Activity; (C) Excessive Use of Intrusive Techniques; (D) Using Covert Action to Disrupt and Discredit Domestic Groups; (E) Political Abuse of Intelligence Information; (F) Inadequate Controls on Dissemination and Retention; (G) Deficiencies in Control and Accountability.

Viewed separately, each finding demonstrates a serious problem in the conduct and control of domestic intelligence operations. Taken together, they make a compelling case for the necessity of change. Our recommendations (in Part IV) flow from this analysis and propose changes which the Committee believes to be appropriate in light of the record.

A. Violating and Ignoring the Law

Major Finding

The Committee finds that the domestic activities of the intelligence community at times violated specific statutory prohibitions and infringed the constitutional rights of American citizens.[813] The legal questions involved in intelligence programs were often not considered. On other occasions, they were intentionally disregarded in the belief that because the programs served the “national security” the law did not apply. While intelligence officers on occasion failed to disclose to their superiors programs which were illegal or of questionable legality, the Committee finds that the most serious breaches of duty were those of senior officials, who were responsible for controlling intelligence activities and generally failed to assure compliance with the law.


(a) In its attempt to implement instructions to protect the security of the United States, the intelligence community engaged in some activities which violated statutory law and the constitutional rights of American citizens.

(b) Legal issues were often overlooked by many of the intelligence officers who directed these operations. Some held a pragmatic view of intelligence activities that did not regularly attach sufficient significance to questions of legality. The question raised was usually not whether a particular program was legal or ethical, but whether it worked.

(c) On some occasions when agency officials did assume, or were told, that a program was illegal, they still permitted it to continue. They justified their conduct in some cases on the ground that the failure of “the enemy” to play by the rules granted them the right to do likewise, and in other cases on the ground that the “national security” permitted programs that would otherwise be illegal.

(d) Internal recognition of the illegality or the questionable legality of many of these activities frequently led to a tightening of security rather than to their termination. Partly to avoid exposure and a public “flap,” knowledge of these programs was tightly held within the agencies, special filing procedures were used, and “cover stories” were devised.

(e) On occasion, intelligence agencies failed to disclose candidly their programs and practices to their own General Counsels, and to Attorneys General, Presidents, and Congress.

(f) The internal inspection mechanisms of the CIA and the FBI did not keep — and, in the case of the FBI, were not designed to keep — the activities of those agencies within legal bounds. Their primary concern was efficiency, not legality or propriety.

(g) When senior administration officials with a duty to control domestic intelligence activities knew, or had a basis for suspecting, that questionable activities had occurred, they often responded with silence or approval. In certain cases, they were presented with a partial description of a program but did not ask for details, thereby abdicating their responsibility. In other cases, they were fully aware of the nature of the practice and implicitly or explicitly approved it.

Elaboration of findings

The elaboration which follows details the general finding of the Committee that inattention to — and disregard of — legal issues was an all too common occurrence in the intelligence community. While this section focuses on the actions and attitudes of intelligence officials and certain high policy officials, the Committee recognizes that a pattern of lawless activity does not result from the deeds of a single stratum of the government or of a few individuals alone. The implementation and continuation of illegal and questionable programs would not have been possible without the cooperation or tacit approval of people at all levels within and above the intelligence community, through many successive administrations.

The agents in the field, for their part, rarely questioned the orders they received. Their often uncertain knowledge of the law, coupled with the natural desire to please one’s superiors and with simple bureaucratic momentum, clearly contributed to their willingness to participate in illegal and questionable programs. The absence of any prosecutions for law violations by intelligence agents inevitably affected their attitudes as well. Under pressure from above to accomplish their assigned tasks, and without the realistic threat of prosecution to remind them of their legal obligations, it is understandable that these agents frequently acted without concern for issues of law and at times assumed that normal legal restraints and prohibitions did not apply to their activities.

Significantly, those officials at the highest levels of government, who had a duty to control the activities of the intelligence community, sometimes set in motion the very forces that permitted lawlessness to occur — even if every act committed by intelligence agencies was not known to them. By demanding results without carefully limiting the means by which the results were achieved; by over-emphasizing the threats to national security without ensuring sensitivity to the rights of American citizens; and by propounding concepts such as the right of the “sovereign” to break the law, ultimate responsibility for the consequent climate of permissiveness should be placed at their door.[814]

Subfinding (a)

In its attempt to implement instructions to protect the security of the United States, the intelligence community engaged in some activities which violated statutory law and the constitutional rights of American citizens.

From 1940 to 1973, the CIA and the FBI engaged in twelve covert mail opening programs in violation of Sections 1701–1703 of Title 18 of the United States Code which prohibit the obstruction, interception, or opening of mail. Both of these agencies also engaged in warrantless “surreptitious entries” — break-ins — against American citizens within the United States in apparent violation of state laws prohibiting trespass and burglary. Section 605 of the Federal Communications Act of 1934 was violated by NSA’s program for obtaining millions of telegrams of Americans unrelated to foreign targets and by the Army Security Agency’s interception of domestic radio communications.

All of these activities, as well as the FBI’s use of electronic surveillance without a substantial national security predicate, also infringed the rights of countless Americans under the Fourth Amendment protection “against unreasonable searches and seizures.”

The abusive techniques used by the FBI in COINTELPRO from 1956 to 1971 included violations of both federal and state statutes prohibiting mail fraud, wire fraud, incitement to violence, sending obscene material through the mail, and extortion. More fundamentally, the harassment of innocent citizens engaged in lawful forms of political expression did serious injury to the First Amendment guarantee of freedom of speech and the right of the people to assemble peaceably and to petition the government for a redress of grievances. The Bureau’s maintenance of the Security Index, which targeted thousands of American citizens for detention in the event of national emergency, clearly overstepped the permissible bounds established by Congress in the Emergency Detention Act of 1950 and represented, in contravention of the Act, a potential general suspension of the privilege of the writ of habeas corpus secured by Article 1, Section 9, of the Constitution.

A distressing number of the programs and techniques developed by the intelligence community involved transgressions against human decency that were no less serious than any technical violations of law. Some of the most fundamental values of this society were threatened by activities such as the smear campaign against Dr. Martin Luther King, Jr., the testing of dangerous drugs on unsuspecting American citizens, the dissemination of information about the sex lives, drinking habits, and marital problems of electronic surveillance targets, and the COINTELPRO attempts to turn dissident organizations against one another and to destroy marriages.

Subfinding (b)

Legal issues were often overlooked by many of the intelligence officers who directed these operations. Some held a pragmatic view of intelligence activities that did not regularly attach sufficient significance to questions of legality. The question raised was usually not whether a particular program was legal or ethical, but whether it worked.

Legal issues were clearly not a primary consideration — if they were a consideration at all -in many of the programs and techniques of the intelligence community. When the former head of the FBI’s Racial Intelligence Section was asked whether anybody in the FBI at any time during the 15-year course of COINTELPRO discussed its constitutionality or legal authority for example, he replied: “No, we never gave it a thought.”[815] This attitude is echoed by other Bureau officials in connection with other programs. The former Section Chief of one of the FBI’s Counterintelligence sections, and the former Assistant Director of the Bureau’s Domestic Intelligence Division both testified that legal considerations were simply not raised in policy decisions concerning the FBI’s mail opening programs.[816] Similarly, when the FBI was presented with the opportunity to assume responsibility for the CIA’s New York mail opening operation, legal factors played no role in the Bureau’s refusal; rather, the opportunity was declined simply because of the attendant expense, manpower requirements, and security problems.[817]

One of the most abusive of all FBI programs was its attempt to discredit Dr. Martin Luther King, Jr. Yet former FBI Assistant Director William C. Sullivan testified that he “never heard anyone raise the question of legality or constitutionality, never.”[818]

Former Director of Central Intelligence Richard Helms testified publicly that he never seriously questioned the legal status of the twenty-year CIA New York mail opening project because he assumed his predecessor, Allen Dulles, had “made his legal peace with [it].”[819]

“... [F]rom time to time,” he said, “the Agency got useful information out of it,”[820] so he permitted it to continue throughout his sevenyear tenure as Director.

The Huston Plan that was prepared for President Richard Nixon in June 1970 constituted a virtual charter for the use of intrusive and illegal techniques against American dissidents as well as foreign agents. Its principal author has testified, however, that during the drafting sessions with representatives of the FBI, CIA, NSA, and Defense Intelligence Agency, no one ever objected to any of the recommendations on the grounds that they involved illegal acts, nor was the legality or constitutionality of any of the recommendations ever discussed.[821]

William C. Sullivan, who participated in the drafting of the Huston Plan and served on the United States Intelligence Board and as FBI Assistant Director for Intelligence for 10 years, stated that in his entire experience in the intelligence community he never heard legal issues raised at all:

We never gave any thought to this realm of reasoning, because we were just naturally pragmatists. The one thing we were concerned about was this: Will this course of action work, will it get us what we want, will we reach the objective that we desire to reach? As far as legality is concerned, morals, or ethics, [it] was never raised by myself or anybody else ... I think this suggests really in government that we are amoral. In government — I am not speaking for everybody — the general atmosphere is one of amorality.[822]

Subfinding (c)

On some occasions when agency officials did assume, or were told, that a program was illegal, they still permitted it to continue. They justified their conduct in some cases on the ground that the failure of “the enemy” to play by the rules granted them the right to do likewise, and in other cases on the ground that the “national security” permitted programs that would otherwise be illegal.

Even when agency officials recognized certain programs or techniques to be illegal, they sometimes advocated their implementation or permitted them to continue nonetheless.

This point is illustrated by a passage in a 1954 memorandum from an FBI Assistant Director to J. Edgar Hoover, which recommended that an electronic listening device be planted in the hotel room of a suspected Communist sympathizer: “Although such an installation will not be legal, it is believed that the intelligence information to be obtained will make such an installation necessary and desirable.”[823] Hoover approved the installation.[824]

More than a decade later, a memorandum was sent to Director Hoover which described the current FBI policy and procedures for “black bag jobs” (warrantless break-ins for purposes other than microphone installation). This memorandum read in part:

Such a technique involves trespass and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it. Despite this, “black bag” jobs have been used because they represent an invaluable technique in combatting subversive activities ... aimed directly at undermining and destroying our nation.[825]

In other words, breaking the law was seen as useful in combating those who threatened the legal fabric of society. Although Hoover terminated the general use of “black bag jobs” in July 1966, they were employed on a large scale before that time and have been used in isolated instances since then.

Another example of disregard for the law is found in a 1969 memorandum from William C.

Sullivan to Director Hoover. In June of that year, Sullivan was requested by the Director, apparently at the urging of White House officials to travel to France for the purpose of electronically monitoring the conversations of journalist Joseph Kraft.[826] With the cooperation of local authorities, Sullivan was able to have a microphone installed in Kraft’s hotel room, and informed Hoover of his success. “Parenthetically,” he wrote in his letter to the Director, “I might add that such a cover is regarded as illegal.”[827]

The attitude that legal standards and issues of privacy can be overridden by other factors is further reflected in a memorandum written by Richard Helms in connection with the testing of dangerous drugs on unsuspecting American citizens in 1963. Mr. Helms wrote the Deputy Director of Central Intelligence:

While I share your uneasiness and distaste for any program which tends to intrude on an individual’s private and legal prerogatives, I believe it is necessary that the Agency maintain a central role in this activity, keep current on enemy capabilities in the manipulation of human behavior, and maintain an offensive capability. I, therefore, recommend your approval for continuation of this testimony program ...[828]

The history of the CIA’s New York mail opening program is replete with examples of conscious contravention of the law. The original proposal for large-scale mail opening in 1955, for instance, explicitly recognized that “[t]here is no overt, authorized or legal censorship or monitoring of first class mails which enter, depart or transit the United States at the present time.”[829] A 1962 memorandum on the project noted that its exposure could “give rise to grave charges of criminal misuse of the mails by Government agencies” and that “existing Federal statutes preclude the concoction of any legal excuse for the violation ...[830] And again in 1963, a CIA officer wrote: “There is no legal basis for monitoring postal communications in the United States except during time of war or national emergency ...”[831]

Both the former Chief of the Counterintelligence Staff and the former Director of Security — — who were in charge of the New York project — testified that they believed it to be illegal.[832] One Inspector General who reviewed the project in 1969 also flatly stated: “[O]f course, we knew that this was illegal. [E]verybody knew that it was [illegal] ...”[833]

In spite of the general recognition of its illegality, the New York mail opening project continued for a total of 20 years and was not terminated until 1973, when the Watergate- created political climate had increased the risks of exposure.[834]

With the full knowledge of J. Edgar Hoover, moreover, the FBI continued to receive the fruits of this project for three years after the FBI Director informed the President of the United States that “the FBI is opposed to implementing any covert mail coverage because it is clearly illegal ...”[835] The Bureau’s own mail opening programs had been terminated in 1966, but it continued intentionally and knowingly to benefit from the illegal acts of the CIA until 1973.

The Huston Plan is another disturbing reminder of the fact that intelligence programs and techniques may be advocated and authorized with the knowledge that they are illegal. At least two of the options that were presented to President Nixon were described as unlawful on the face of the Report. Of “covert mail coverage” (mail opening) it was written that “[t] his coverage, not having the sanction of law, runs the risk of any illicit act magnified by the involvement of a Government agency.”[836] The Report also noted that surreptitious entry “involves illegal entry and trespass.”[837] Thus, the intelligence community presented the nation’s highest executive official with the option of approving courses of action described as illegal. The fact that President Nixon did authorize them, even if only for five days, is more disquieting still.[838]

When President Nixon eventually revoked his approval of the Huston Plan, the intelligence community nevertheless proceded to initiate some programs suggested in the Plan. Intelligence agencies also continued to employ techniques recommended in the Plan, such as mail opening which had been used previously without presidential approval.[839]

The recent history of Army intelligence provides an additional example of continuing an activity described as illegal. Beginning in 1967, the Army Security Agency monitored the radio communications of amateur radio operators in this country to determine if dissident elements planned disruptive activity at particular demonstrations and events. Because Army officials questioned whether such monitoring was legal under Section 605 of the Federal Communications Act of 1934, they requested a legal opinion from the Federal Communications Commission. At a meeting held in August 1968, the FCC advised the Army that such monitoring was illegal under the Act. FCC representatives also stated that the matter had been raised with Attorney General Ramsey Clark and that he had disapproved the program.[840] The FCC agreed, however, to submit a written reply to the Army, stating only that it could not “Provide a positive answer to the Army’s proposal.”[841]

Despite having been told that their monitoring activity was illegal, and that the Attorney General himself disapproved it, the Army Security Agency continued to monitor the radio communications of American citizens for another two years.[842]

Several factors may explain the intelligence community’s frequent disregard of legal issues.

Some intelligence officials expressed the view that the legal and ethical restraints that applied to the rest of society simply did not apply to intelligence activities. This concept is reflected in a 1959 memorandum on the Army’s covert drug testing program: “In intelligence, the stakes involved and the interest of national security may permit a more tolerant interpretation of moral-ethical values ...”[843]

As William C. Sullivan also pointed out, many intelligence officers had been imbued with a “war psychology.” “Legality was not questioned,” he said. “it was not an issue.”[844] In war, one simply did what was “expected to do as a soldier.”[845] “It was my assumption,” said one FBI official connected with the Bureau’s mail opening programs, “that what we were doing was justified by what we had to do.”[846] Since the “enemy” did not play by the rules, moreover, intelligence officials often believed they could not afford to do so either.[847]

One FBI intelligence officer appeared to attribute the disregard of the law in the Bureau’s C0INTELPRO operations to simple restlessness on the part of “action-oriented” FBI agents. George C. Moore, the Racial Intelligence Section Chief, testified that:

... the FBI’s counterintelligence program came up because if you have anything in the FBI, you have an action oriented group of people who see something happening and want to do something to take its place.[848][849]

Others in the intelligence community have contended that questionable and illegal acts were justified by a law higher than the United States Code or the Constitution. An FBI Counterintelligence Section Chief, for example, stated the following reason for believing in the necessity of techniques such as mail opening:

The greater good, the national security, this is correct. This is what I believed in. Why I thought these programs were good, it was that the national security required this, this is correct.[850]

Similarly, when intelligence officials secured the cooperation of telegraph company executives for Project SHAMROCK, in which NSA received millions of copies of international telegraph messages without the sender’s knowledge, they assured the executives that they would not be subjected to criminal liability because the project was “in the highest interests of the nation.”[851]

Perhaps the most novel reason for advocating illegal action was proffered by Tom Charles Huston. Huston explained that he believed the real threat to internal security was potential repression by right-wing forces within the United States. He argued that the “New Left” was capable of producing a climate of fear that would bring forth every repressive demagogue in the country. Huston believed that the intelligence professionals, if given the chance, could protect the people from the latent forces of repression by monitoring the New Left, including by illegal means.[852] Illegal action directed against the New Left, in other words, should be used by the Government to forestall potential repression by the Right.

In attempting to explain why illegal activities were advocated and defended, the impact of the attitudes and actions of government officials in supervisory positions — Presidents, Cabinet officers, and Congressmen — should not be discounted. Their occasional endorsement of such activities, as well as the atmosphere of permissiveness created by their emphasis on national security and their demands for results, clearly contributed to the notion that strict adherence to the law was unimportant. So, too, did the concept, propounded by some senior officials, that a “sovereign” president may authorize violations of the law.

Whatever the reasons, however, it is clear that a number of intelligence officers acted in knowing contravention of the law.

Subfinding (d)

Internal recognition of the illegality or questionable legality of many of these activities frequently led to a tightening of security rather than to their termination. Partly to avoid exposure and a public “flap,” knowledge of these programs was tightly held within the agencies, special filing procedures were used, and “cover stories” were devised.

When intelligence agencies realized that certain programs and techniques were of questionable legality, they frequently took special security precautions to avoid public exposure, criticism, and embarrassment. The CIA’s study of student unrest throughout the world in the late 1960s, for example, included a section on student dissent in the United States, an area that was clearly outside the Agency’s statutory charter. DCI’s Richard Helms urged the President’s national security advisor, Henry Kissinger, to treat it with extreme sensivity in light of the acknowledged jurisdictional violation:

“Herewith is a survey of student dissidence world-wide as requested by the President. 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.”[853]

Concern for the FBI’s public image prompted security measures which Protected numerous questionable activities. For example, in approving or denying COINTELPRO proposals, many of which were clearly illegal, a main consideration was preventing “embarrassment to the Bureau.[854] A characteristic caution to FBI agents appears in the letter which initiated the COINTELPRO against “Black Nationalists”:

You are also cautioned that the nature of this new endeavor is such that under no circumstances should the existence of the program be made known outside the Bureau and appropriate within-office security should be afforded to sensitive operations and techniques considered under the program.

Examples of attention to such security are that anonymous letters had to be written on commercially purchased stationery; newsmen had to be so completely trustworthy that they were guaranteed not to reveal the Bureau’s interest; and inquiries of law enforcement officials had to be made under the pretext of a criminal investigation. A similar preoccupation with security measures for improper activities affected both the NSA and the Army Security Agency.

NSA’s guidelines for its watch list activity provided that NSA’s name should not be on any of the disseminated watch list material involving Americans. The aim was to “restrict the knowledge that such information is being collected and processed” by NSA.[855][856]

The Army Security Agency’s radio monitoring activity, which continued even after the Army was told that the FCC and the Attorney General regarded it as illegal, also had to be conducted in secrecy if a public outcry was to be avoided. When Army officials decided to permit radio monitoring in connection with the military’s Civil Disturbance Collection Plan, their instruction provided that all ASA personnel had to be “disguised” either in civilian clothes or as members of regular military Units.[857]

The perceived illegality — and consequent “flap potential” — of the CIA’s New York mail opening project led Agency officials to formulate a drastic strategy to follow in the event of public exposure. A review of the project by the Inspector General’s Office in the early 1960s concluded that it would be desirable to fabricate a “cover story.” A formal recommendation was therefore made that “[a]n emergency plan and cover story be prepared for the possibility that the operation might be blown.”[858] In response to this recommendation, the Deputy Chief of the Counterintelligence Staff agreed that “a ‘flap’ will put us ‘out of business’ immediately and may give rise to grave charges of criminal misuse of the mails by government agencies,” but he argued:

Since no good purpose can be served by an official admission of the violation, and existing Federal statutes preclude the concoction of any legal excuse for the violation, it must be recognized that no cover story is available to any Government Agency. Therefore, it is important that all Federal law enforcement and US Intelligence Agencies vigorously deny any association, direct or indirect, with any such activity as charged.... Unless the charge is supported by the presentation of interior items from the Project, it should be relatively easy to “hush up” the entire affair, or to explain that it consists of legal mail cover activities conducted by the Post Office at the request of authorized Federal agencies. Under the most unfavorable circumstances ... it might be necessary after the matter has cooled off during an extended period of investigation, to find a scapegoat to blame for unauthorized tampering with the mails. Such cases by their very nature do not have much appeal to the imagination of the public, and this would he an effective way to resolve the initial charge of censorship of the mails.[859]

This strategy of complete denial and transferring blame to a scapegoat was approved by the Director of Security in February 1962.[860]

Another extreme example of a security measure that was adopted because of the threat that illegal activity might be exposed was the outright destruction of files.

The FBI developed a special filing system — or, more accurately, a destruction system — for memoranda written about illegal techniques, such as break-ins,[861] and highly questionable operations, such as the microphone surveillance of Joseph Kraft.[862] Under this system -which was referred to as the “DO NOT FILE” procedure — authorizing documents and other memoranda were filed in special safes at headquarters and field offices until the next annual inspection by the Inspection Division, at which time they were to be systematically destroyed.[863]

Subfinding (e)

On occasion, intelligence agencies failed to disclose candidly programs and practices to their own General Counsels, and to Attorney Generals, Presidents, and Congress.

(i) Concealment from Executive Branch Officials

Intelligence officers frequently concealed or misrepresented illegal activities to their own General Counsel and superiors within and outside the agencies in order to protect these activities from exposure.

For example, during the entire 20-year history of the CIA’s mail opening project, the Agency’s General Counsel was never informed of its existence. According to one Agency official, this knowledge was purposefully kept from him. Former Inspector General Gordon Stewart testified:

Well, I am sure that it was held back from [the General Counsel] on purpose. An operation of this sort in the CIA is run — if it is closely held, it is run by those people immediately concerned, and to the extent that it is really possible, according to the practices that we had in the fifties and sixties, those persons not immediately concerned were supposed to be ignorant of it.[864]

The evidence also indicates that two Directors of Central Intelligence under whom the New York mail operations continued — John McCone and Admiral Raborn-- were never informed of its existence.[865] In 1954, Postmaster General Arthur Summerfield was informed that the CIA operated a mail cover project in New York, but be was not told that the Agency opened or intended to open any mail.[866] In 1965, the CIA briefly considered informing Postmaster General John A. Gronouski about the project when its existence was felt to be jeopardized by a congressional subcommittee that was investigating the use of mail covers and other investigative techniques by federal agencies. According to an internal memorandum, however, the idea was quickly rejected “in view of various statements by Gronouski before this subcommittee.”[867] Since Gronouski had agreed with the subcommittee that tighter administrative controls on mail covers were necessary and generally supported the principle of the sanctity of the mail, it is reasonable to infer that CIA officials assumed he would not be sympathetic to the technique of mail opening.[868]

The only claim that any President may have known about the project was made by Richard Helms, who testified that “there was a possibility” that he “mentioned” it to President Lyndon Johnson in 1967 or 1968.[869] No documentary evidence is available that either supports or refutes this statement. During the preparation of the Huston Plan, neither CIA nor FBI representatives informed Tom Charles Huston, President Nixon’s representative, that the mail opening project existed. The final interagency report on the Huston Plan signed by Richard Helms and J. Edgar Hoover, was sent to the President with the statement, contrary to fact, that all mail opening programs by federal agencies had been discontinued.[870]

In connection with another CIA mail opening Project, middle-level Agency officials apparently did not even tell their own superiors within the CIA that they intended to open mail, as opposed to merely inspecting envelope exteriors. The ranking officials testified that they approved the project believing it to be a mail cover program only.[871] No Cabinet officials or President knew of this project and the approval of the Deputy Chief Postal Inspector (for what he also believed to be a mail cover operation) was secured through conscious deception.[872]

A pattern of concealment was repeated by the FBI in their mail opening programs. There is no claim by the Bureau that any Postmaster General, Attorney General, or President was ever advised of the true nature and scope of its mail projects. One FBI official testified that it was an unofficial Bureau policy not to inform postal officials with whom they dealt of the actual intention of FBI agents in receiving the mail, and there is no indication that this policy was ever violated.[873] At one point in 1965, Assistant Director Alan Belmont and Inspector Donald Moore apparently informed Attorney General Nicholas deB. Katzenbach that FBI agents received custody of the mail in connection with espionage cases on some occasions.[874] But Moore testified that the Attorney General was not told that mail was actually opened. When asked if he felt any need to hold back from Katzenbach the fact of mail openings as opposed to the fact that Bureau agents received direct access to the mail, Moore replied:

It is perhaps difficult to answer. Perhaps I could liken it to ... a defector in place in the KGB. You don’t want to tell anybody his name, the location, the title, or anything like that. Not that you don’t trust them completely, but the fact is that any time one additional person becomes aware of it, there is a potential for the information to ... go further.[875]

Another Bureau agent speculated that the Attorney General was not told because, mail opening “was not legal, as far as I knew.”[876]

Similarly, there is no indication that the FBI ever informed any Attorney General about its use of “black bag jobs” (illegal break-ins for purposes other than microphone installations) ; the full scope of its activities in COINTELPRO ; or its submission of names for inclusion on either the CIA’s “Watch List” for mail opening or, before 1973, on the NSA’s “Watch List” for electronic monitoring of international communications.[877]

After J. Edgar Hoover disregarded Attorney General Biddle’s 1943 order to terminate the Custodial Detention List by merely changing its name to the Security Index moreover, Bureau headquarters instructed the field officers that the new list should be kept “strictly confidential” and that it should never be mentioned in FBI reports or “discussed with agencies or individuals outside the Bureau” except for military intelligence agencies. For several years thereafter, the Attorney General and the Justice Department were not informed of the FBI’s decision.[878]

An incident which occurred in 1967 in connection with the Bureau’s COINTELPRO operations is particularly illustrative of the lengths to which intelligence agencies would go to protect illegal programs from scrutiny by executive branch officers outside the intelligence community. As one phase of its disruption of the United Klans of America, the Bureau sent a letter to Klan officers purportedly prepared by the highly secret “National Intelligence Committee” (NIC) of the Klan.[879] The fake letter purported to fire the North Carolina Grand Dragon for personal misconduct and misfeasance in office, and to suspend Imperial Wizard Robert Shelton for his failure to remove the Grand Dragon. Shelton complained to the FBI and the Post Office about this apparent violation of the mail fraud statutes — without realizing that the Bureau had in fact sent the letter.[880] The Bureau, after solemnly assuring Shelton that his complaint was not within the FBI’s jurisdiction, approached the Chief Postal Inspector’s office in Washington to determine what action the Post Office planned to take regarding Shelton’s allegation. The FBI was advised that the matter had been referred to the Justice Department’s Criminal Division.[881] At no time did the Bureau inform either the Post Office or the Justice Department that FBI agents had authored the letter. When no investigation was deemed to be warranted by the Criminal Division, FBI Headquarters directed the Bureau’s Charlotte, North Carolina office to prepare a second phony NIC letter to send to Klan officials.[882] This letter was not mailed, however, because, the Charlotte office proposed and implemented a different idea — the formation of an FBI-controlled alternative Klan organization, which eventually attracted 250 members.[883]

The Huston Plan itself was prepared without the knowledge of the Attorney General. Neither the Attorney General nor anyone in his office was invited to the drafting sessions at Langley or consulted during the proceedings. Huston testified that it never occurred to him to confer with the Attorney General before making the recommendations in the Report, in part because the plan was seen as an intelligence matter to be handled by the intelligence agency directors.[884]

Similarly, the CIA’s General Counsel was not included or consulted in the formulation of the Huston Plan. As James Angleton testified, “the custom and usage was not to deal with the General Counsel, as a rule, until there were some troubles. He was not a part of the process of project approval.”[885]

(ii) Concealment from Congress

At times, knowledge of illegal programs and techniques has been concealed from Congress as well as executive branch officials. On two occasions, for example, officials of the Army Security Agency ordered its units — in apparent violation of that Agency’s jurisdiction — to conduct general searches of the radio spectrum without regard to the source or subject matter of the transmissions. ASA did not report these incidents to ranking Army officials, even when specifically asked to do so as part of the Army’s preparation for the hearings of the Senate Subcommittee on Constitutional Rights in 1971.[886]

Events surrounding the 1965 and 1966 investigation by Senator Edward Long of Missouri into federal agencies’ use of mail covers and other investigative techniques clearly showed the desire on the part of CIA and FBI officials to protect their programs from congressional review.[887] Fearing that the New York mail opening program might be discovered by this subcommittee, the CIA considered suspending the, operation until the investigation had been completed. An internal CIA memorandum dated April 23, 1965, reads in part:

Mr. Karamessines [Assistant Deputy Director for Plans] felt that the dangers inherent in Long’s subcommittee activities to the security of the Project’s operations in New York should be thoroughly studied in order that a determination can be made as to whether these operations should be partially or fully suspended until the subcommittee’s investigations are completed.[888]

When it was learned that Chief Postal Inspector Henry Montague had been contacted about the Long investigation and believed that it would “soon cool off”, however, it was decided to continue the operation without suspension.[889]

The FBI was also concerned that the subcommittee might expose its mail opening programs. Bureau memoranda indicate that the FBI intended to “warn the Long Committee away from those areas which would be injurious to the national defense.”[890] J. Edgar Hoover personally contacted the Chairman of the Senate Judiciary Committee,[891] and urged him “to see Long not later than Wednesday morning to caution him that [the Chief Counsel] must not go into the kind of question he made of Chief Inspector Montague of the Post Office Department”[892] — questioning that had threatened to reveal the FBI’s mail project the Previous week.[893]

When the Long subcommittee began to investigate electronic surveillance practices several months later, Bureau officials convinced Senator Edward Long that there was no need to pursue such an investigation since, they said, the FBI’s operations were tightly controlled and properly implemented.[894] According to Bureau documents, FBI agents wrote a press release for the Senator from Missouri, with his approval, that stated his subcommittee had

conducted exhaustive research into the activities, procedures, and techniques of this agency [and] based upon careful study ... we are fully satisfied that the FBI has not participated in highhanded or uncontrolled usage of wiretaps, microphones, or other electronic equipment.[895]

Not only was this release written by the FBI itself, it was misleading. The “exhaustive research” apparently consisted of a ninety-minute briefing by FBI officials describing their electronic surveillance practices; neither the Senator nor the public learned of the instances of improper electronic surveillances that had been conducted by the FBI.[896] When Senator Edward Long later asked certain FBI officials to testify about the Bureau’s electronic surveillance policy before the Subcommittee, they refused, arguing: “... to put an FBI

witness on the stand would be an attempt to open a Pandora’s box, insofar as our enemies in the press were concerned ....”[897]

After the press release had been delivered to Senator Long and the refusal to testify had been accepted, one FBI official wrote to the Associate Director that while some problems still existed, “we have neutralized the threat of being embarrassed by the Long Subcommittee ...”[898]

Subfinding (f)

The internal inspection mechanisms of the CIA and the FBI did not keep — and, in the case of the FBI, were not designed to keep — the activities of those agencies within legal bounds. Their primary concern was efficiency, not legality or propriety.

The internal inspection mechanisms of the CIA and the FBI were ineffective in ensuring that the activities of these agencies were kept within legal bounds. This failure was sometimes due to structural deficiencies which kept knowledge of questionable programs tightly compartmented and shielded from those who could evaluate their legality.

As noted above, for example, the CIA’s General Counsel was not informed about either the New York mail opening project or CIA’s participation in the Huston Plan deliberations. The role of the CIA’s General Counsel was essentially a passive one; he did not initiate inquiries but responded to requests from other Agency components. As James Angleton stated, the General Counsel was not a part of the normal project approval process and generally was not consulted until “something was going wrong.”[899]

When the General Counsel was consulted, he often exerted a positive influence on the conduct of CIA activities. For example, the CIA stopped monitoring telephone calls to and from Latin America after the General Counsel issued an opinion describing the telephone intercepts as illegal.[900] But internal CIA regulations have never required employees who know of illegal, improper, or questionable activities to report them to the General Counsel; rather, employes with such knowledge are instructed to inform either the Director of Central Intelligence or, the Inspector General. The Director and the Inspector General may refer the matter to the General Counsel but until recently they were not obligated to do so.[901] As Richard Helms stated, “Somtimes we did [consult the General Counsel]; sometimes we did not. I think the record on that is rather spotty, quite frankly.”[902]

Indeed, the record suggests that those programs that were most questionable — such as the New York mail opening project and Project CHAOS — were ]lot referred to the General Counsel because they were considered extremely sensitive.[903] Even when questionable activities re called to the attention of the General Counsel, moreover, the internal Agency regulations did not guarantee him unrestricted access all relevant information. Thus, the General Counsel was not in a position to conduct a complete evaluation of the propriety of particular programs.

Part of the failure of internal inspection to terminate improper programs and practices may be attributed to the fact that the primary focus of the CIA’s Office of the Inspector General and the FBI’s Inspection Division has been on efficiency and effectiveness rather than on propriety.

The CIA’s Inspector General is charged with the responsibility, among other matters, of investigating activities which might be construed as “illegal, improper, and outside the CIA’s legislative charter.”[904] In at least one case, the Inspector General did force the suspension of a suspect activity: the surreptitious administration of LSD to unwitting, nonvolunteer, human subjects which was suspended in 1963.[905] An earlier Inspector General’s review of the larger, more general program for the testing of behavorial control agents, however, had labeled that program “unethical and illegal” and it nonetheless continued for another seven years.[906] In general, as the Rockefeller Commission pointed out, “the focus of the Inspector General component reviews was on operational effectiveness. Examination of the legality or propriety of CIA activities was not normally a primary concern.”[907] Two separate reviews of the New York mail opening projects by the Inspector General’s office, for example, considered issues of administration and security at length but did riot even mention legal considerations.[908]

Internal inspection at the FBI has traditionally not encompassed legal or ethical questions at all. According to W. Mark Felt, the Assistant FBI Director in charge of the Inspection Division from 1964 to 1971, his job was to ensure that Bureau programs were being operated efficiently, not constitutionally: “There was no instruction to me,” he stated, “nor do I believe there is any instruction in the Inspector’s manuals, that inspectors should be on the alert to see that constitutional values are being protected.”[909] He could not recall any program which was terminated because it might have been violating someone’s civil rights.[910]

A number of questionable FBI programs were apparently never inspected. Felt could recall no inspection, for instance, of either the FBI mail opening programs or the Bureau’s participation in the CIA’s New York mail opening project.[911] Even when improper programs were inspected, the Inspection Division did not attempt to exercise oversight in the sense of looking for wrongdoing. Its responsibility was simply to ensure that FBI policy, as defined by J. Edgar Hoover was effectively implemented and not to question the propriety of the policy.[912] Thus, Felt testified that if, in the course of an inspection of a field office, he discovered a microphone surveillance on Martin Luther King, Jr., the only questions he would ask were whether it had been approved by the Director and whether the procedures had been properly followed.[913]

When Felt was asked whether the Inspection Division conducted any investigation into the propriety of COINTELPRO, the following exchange ensued:

Mr. FELT. Not into the propriety.

Q. So in the case of COINTELPRO, as in the case of NSA interceptions, your job as Inspector was to determine whether the program was being pursued effectively as opposed to whether it was proper?

Mr. FELT. Right, with this exception, that in any of these situations, Counterintelligence Program or whatever, it very frequently happened that the inspectors, in reviewing the files, would direct that a certain investigation be discontinued, that it was not productive, or that there was some reason that it be discontinued.

But I don’t recall any cases being discontinued in the Counterintelligence


As a result of this role definition, the Inspection Division became an active participant in some of the most questionable FBI programs For example, it was responsible for reviewing on an annual basis all memoranda relating to illegal break-ins prior to their destruction under the “DO NOT FILE” procedure.

Improper programs and techniques in the FBI were protected not only by the Inspection Division’s perception of its function, but also by the maxim that FBI agents should never “embarrass the Bureau.” This standard, which served as a shield to outside scrutiny, was explicitly reflected in the FBI Manual:

Any investigation necessary to develop complete essential facts regarding any allegation against Bureau employees must be instituted promptly, and every logical lead which will establish the true facts should be completely run out unless such action would embarrass the Bureau ... in which event the Bureau will weigh the facts, along with the recommendations of the division head. [Emphasis added.][915]

Such an instruction, coupled with the Inspection Division’s inattention to the law, could only inhibit or prevent the termination and exposure of illegal practices.

Subfinding (g)

When senior administration officials with a duty to control domestic intelligence activities knew, or had a basis for suspecting, that questionable activities had occurred, they often responded with silence or approval. In certain cases, they were presented with a partial description of a program but did not ask for details, thereby abdicating their responsibility. In other cases, they were fully aware of the nature of the practice and implicitly or explicitly approved it.

On several occasions, senior administration officials with a duty to control domestic intelligence activities were supplied with partial details about questionable or illegal programs but they did not ask for additional information and the programs continued.

Sometimes the failure to probe further stemmed from the administration official’s assumption that an intelligence agency would not engage in lawless conduct. Former Chief Postal Inspector Henry Montague, for example, was aware that the FBI received custody of the mail in connection with several of its mail opening programs — indeed, he had approved such custody in one case — but he testified that he believed these were mail cover operations only.[916] Montague stated that he did not ask FBI officials if the Bureau opened mail because he

never thought that would be necessary .... I trusted them the same as I would another [Postal] Inspector. I would never feel that I would have to tell a Postal person that you cannot open mail. By the same token, I would not consider it necessary to emphasize it to any great degree with the FBI.[917]

A former FBI official has also testified, as noted above, that he informed Attorney General Katzenbach about selected aspects of the FBI mail opening programs. This official did not tell Katzenbach that mail was actually opened, but he testified that he “pointed out [to the Attorney General] that we do receive mail from the Post Office in certain sensitive areas.”[918] While Katzenbach stated that he never knew mail was opened or that the FBI gained access to mail on a regular basis in large-scale operations,[919] the former Attorney General acknowledged that he did learn that “in some cases the outside of mail might have been examined or even photographed by persons other than Post Office employees”.[920] However, neither at this time nor at any other time did the Justice Department make any inquiry to determine the full scope of the FBI mail operations.

Similarly, former Attorneys General Nicholas Katzenbach and Ramsey Clark testified that they were familiar with the FBI’s efforts to disrupt the Ku Klux Klan through regular investigative techniques but said they were unaware of the offensive tactics that occurred in COINTELPRO. Katzenbach said he did not believe it necessary to explore possible irregularities since “[i]t never occurred to me that the Bureau would engage in the sort of sustained improper activity which it apparently did.”[921]

Both Robert Kennedy and Nicholas Katzenbach were also aware of some aspects of the FBI’s investigation of Dr. Martin Luther King, Jr., yet neither ascertained the full details of the Bureau’s campaign to discredit the civil rights leader. Kennedy intensified the original “communist influence” investigation in October 1963 by authorizing wiretaps on King’s home and office telephones.[922] Kennedy requested that an evaluation of the results be submitted to him in thirty days in order to determine whether or not to maintain the taps, but the evaluation was never delivered to him and he did not insist on it.[923] Since he never ordered the termination of the wiretap, the Bureau could, and did, install additional wiretaps on King by invoking the original authorization.[924] According to Bureau memoranda apparently initialled by Attorney General Katzenbach, Katzenbach received after the fact notification in 1965 that three bugs had been planted in Dr. King’s hotel rooms.[925] A transmittal memorandum written by Katzenbach also indicates that he may have instructed the FBI to be “very cautious” in conducting these surveillances.[926] There is no indication, however, that, he requested further details about any of them or prohibited the FBI from future use of this technique against Dr. King.

While there is no evidence that the full extent of the FBI’s campaign to discredit Dr. King was authorized by or known to anyone outside of the Bureau, there is evidence that officials responsible for supervising the FBI received indications that some such efforts were being undertaken. For example, former Attorney General Katzenbach and former Assistant Attorney General Burke Marshall both testified that in late 1964 they learned that the Bureau had offered tape recordings of Dr. King to certain newsmen in Washington, D.C. They further stated that they informed President Johnson of the FBI’s offers.[927] The Committee has discovered no evidence, however, that the President or Justice Department officials made any further effort to halt the discrediting campaign at this time or at any other time; indeed, the Bureau’s campaign continued for several years after this incident.

On some occasions, administration officials did not request further details about intelligence programs because they simply did not want to know. Former Postmaster General J. Edward Day testified that when Allen Dulles and Richard Helms spoke to him about a CIA project in 1961, he interrupted them before they could tell him the purpose of their visit (which Helms said was to say mail was being opened). Day stated:

... Mr. Dulles, after some preliminary visiting and so on, said that he wanted to tell me something very secret, and I said, “Do I have to know about it?” And he

said, “No.”

I said, “My experience is that where there is something that is very secret, it is likely to leak out, and anybody that knew about it is likely to be suspected of having been part of leaking it out, so I would rather not know anything about it.”

What additional things were said in connection with him building up to that, I don’t know. But I am sure ... that I was not told anything about opening mail.”[928]

By his own account, therefore, Mr. Day did not learn the true nature of this project because he “would rather not know anything about it.” Although rarely expressed in such unequivocal terms, this attitude appears to have been all too common among senior government officials.

Even when administration officials were fully apprised of the illegal or questionable nature of certain programs and techniques, they sometimes permitted them to continue. An example of acquiescence is presented in the case of William Cotter, a former Chief Postal Inspector who knew that the CIA opened mail in connection with its New York project but took no direct action to terminate the project for a period of four years.[929] Cotter had learned of this project in his capacity as a CIA official in the mid-1950’s and he knew that it was continuing when he was sworn in as Chief Postal Inspector in April 1969.[930] Because the primary responsibility of his position was to insure the sanctity of the mails, he was understandably “very, very uncomfortable with [knowledge of the New York] project,”[931] but he felt constrained by the letter and spirit of the secrecy oath which he had signed when he left the CIA in 1969 “attesting to the fact that I would not divulge secret information that came into my possession during the time that I was with the CIA.”[932] Cotter stated: “After coming from eighteen years in the CIA, I was hypersensitive, perhaps, to the protection of what I believed to be a most sensitive project ...”[933] For several years, he placed the dictate of the secrecy oath above that of the law he was charged with enforcing.

Former White House adviser John Ehrlichman also stated that he learned of a program of intercepting mail between the United States and Communist countries “because I had seen reports that cited those kinds of sources in connection with this, the bombings, the dissident activities.”[934] Yet he cannot recall any White House inquiry that was made into such a program nor can he recall raising the matter with the President.[935]

When President Nixon learned of the illegal techniques that were recommended in the Huston Plan, he initially endorsed, rather than disavowed them. The former President stated that “[t]o the extent that I reviewed the Special Report of Interagency Committee on Intelligence, I would have been informed that certain recommendations or decisions set forth in that report were, or might be construed to be, illegal.”[936] He nonetheless approved them, in part because they represented an efficient method of intelligence collection. As President Nixon explained, “[M]y approval was based largely on the fact that the procedures were consistent with those employed by prior administrations and had been found to be effective by the intelligence agencies.”[937]

Mr. Nixon also apparently relied on the theory that a “sovereign” President can authorize the violation of criminal laws in the name of “national security” when the President, in his sole discretion, deems it appropriate. He recently stated:

It is quite obvious that there are certain inherently governmental actions which if undertaken by the sovereign in protection of the interest of the nation’s security are lawful but which if undertaken by private persons are not....

... [I]t is naive to attempt to categorize activities a President might authorize as “legal” or “illegal” without reference to the circumstances under which he concludes that the activity is necessary....

In short, there have been — and will be in the future — circumstances in which Presidents may lawfully authorize actions in the interests of the security of this country, which if undertaken by other persons, or even by the President under different circumstances, would be illegal.[938]

As the former President described this doctrine, it could apply not only to actions taken openly, which are subject to later challenge by Congress and the courts, but also to actions such as those recommended in the Huston Plan, which are covertly endorsed and implemented. The dangers inherent in this theory are clear, for it permits a President to create exceptions to normal legal restraints and prohibitions, without review by a neutral authority and without objective standards to guide him.[939] The Huston Plan itself serves as a reminder of these dangers.

Significantly, President Nixon’s revocation of approval for the Huston Plan was based on the possibility of “media criticism” if the use of these techniques was revealed. The former President stated:

Mr. Mitchell informed me that it was Director Hoover’s opinion that initiating a program which would permit several government intelligence agencies to utilize the investigative techniques outlined in the Committee’s report would significantly increase the possibility of their public disclosure. Mr. Mitchell explained to me that Mr. Hoover believed that although each of the intelligence gathering methods outlined in the Committee’s recommendations had been utilized by one or more previous Administrations, their sensitivity would likely generate media criticism if they were employed. Mr. Mitchell further informed me that it was his opinion that the risk of disclosure of the possible illegal actions, such as unauthorized entry into foreign embassies to install a microphone transmitter, was greater than the possible benefit to be derived. Based upon this conversation with Attorney General Mitchell, I decided to revoke the approval originally extended to the Committee’s recommendations.[940]

In more than one instance, administration officials outside the intelligence community have specifically requested intelligence agencies to undertake questionable actions. NSA’s program of monitoring telephonic communications between New York City and a city in South America, for example, was undertaken at the specific request of the Bureau of Narcotics and Dangerous Drugs, a law enforcement agency.

BNDD officials had been concerned about drug deals that were apparently arranged in calls from public telephones in New York to South America, but they felt that they could not legally wiretap these telephone booths.[941] In order to avoid tapping a limited number of phones in New York, BNDD submitted the names of 450 American citizens for inclusion in NSA’s Watch List, and requested NSA to monitor a communications link between New York and South America which necessitated the interception of thousands of international telephone calls.[942]

The legal limitations on domestic wiretapping apparently did not concern certain officials in the White House or Attorneys General who requested the FBI to do their bidding. In some instances, they specifically requested the FBI to institute wiretaps on American citizens with no substantial national security predicate for doing so.[943]

On occasion, Attorneys General have also encouraged the FBI to circumvent the will of both Congress and the Supreme Court. As noted above, after Congress passed the Emergency Detention Act of 1950 to regulate the FBI program for listing people to be detained in case of war or other emergency, Justice Department officials concluded that its procedural safeguards and substantive standards were “unworkable”. Attorney General J. Howard McGrath instructed the FBI to disregard the statute and “proceed with the [Security Index] program as previously outlined.”[944] Two subsequent Attorneys General — James McGranery and Herbert Brownell endorsed the decision to ignore the Emergency Detention Act.[945]

In 1954, the Supreme Court denounced the use of microphone surveillances by local police in criminal cases;[946] the fact that a microphone had been installed in a defendant’s bedroom particularly outraged the court. Within weeks of this decision, however, Attorney General Herbert Brownell reversed the existing Justice Department policy prohibiting trespassory microphone installations by the FBI, and gave the Bureau sweeping new authority to engage in bugging for intelligence purposes — even when it meant planting microphones in bedrooms.[947] Brownell wrote J. Edgar Hoover:

Obviously, the installation of a microphone in a bedroom or in some comparably intimate location should be avoided whenever possible. It may appear, however, that important intelligence or evidence relating to matters connected with the national security can only be obtained by the installation of a microphone in such a location....

... I recognize that for the FBI to fulfill its important intelligence function, considerations of internal security and the national safety are paramount and, therefore, may compel the unrestricted use of this technique in the national interest.[948]

Brownell did not even require the Bureau to seek the Attorney General’s prior approval for microphone installations in particular cases.[949] In the face of the Irvine decision, therefore, he gave the FBI authority to bug whomever it wished wherever it wished in cases that the Bureau — and not the Attorney General — determined were “in the national interest.”

In short, disregard of the law by intelligence officers was seldom corrected, and sometimes encouraged or facilitated, by officials outside the agencies. Whether by inaction or direct participation, these administration officials contributed to the perception that legal restraints did not apply to intelligence activities.

B. The Overbreadth of Domestic Intelligence Activity

Major Finding

The Committee finds that domestic intelligence activity has been overbroad in that (1) many Americans and domestic groups have been subjected to investigation who were not suspected of criminal activity and (2) the intelligence agencies have regularly collected information about personal and political activities irrelevant to any legitimate governmental interest.


(a) Large numbers of law-abiding Americans and lawful domestic groups have been subjected to extensive intelligence investigation and surveillance.

(b) The absence of precise standards for intelligence, investigations of Americans contributed to overbreadth. Congress did not enact statutes precisely delineating the authority of the intelligence agencies or defining the purpose and scope of domestic intelligence activity. The executive branch abandoned the standard set by Attorney General Stone — that the government’s concern was not with political opinions but with “such conduct as is forbidden by the laws of the United States.” Intelligence agencies’ superiors issued over-inclusive directives to investigate “subversion” (a term that was never defined in presidential directives) and “potential” rather than actual or likely criminal conduct, as well as to collect general intelligence on lawful political and social dissent.

(c) The intelligence agencies themselves used imprecise and overinclusive criteria in their conduct of intelligence investigations. Intelligence investigations extended beyond “subversive” or violent targets to additional groups and individuals subject to minimal “subversive influence” or having little or no “potential” for violence.

(d) Intelligence agencies pursued a “vacuum cleaner” approach to intelligence collection -drawing in all available information about groups and individuals, including their lawful political activity and details of their personal lives.

(e) Intelligence investigations in many cases continued for excessively long periods of time, resulting in sustained governmental monitoring of political activity in the absence of any indication of criminal conduct or “subversion.”

Elaboration of Findings

The central problem posed by domestic intelligence activity has been its departure from the standards of the law. This departure from law has meant not only the violation of constitutional prohibitions and explicit statutes, but also the adoption of criteria unrelated to the law as the basis for extensive investigations of Americans.

In 1917–1924, the federal government, often assisted by the private vigilante American Protective League, conducted sweeping investigations of dissenters, war protesters, labor organizers, and alleged “anarchists” and “revolutionaries.” These investigations led to massarrests of thousands of persons in the 1920 “Palmer raids.” Reacting to these and other abuses of investigative power, Attorney General Harlan Fiske Stone in 1924 confined the Bureau of Investigation in the Justice Department to the investigation of federal crimes. Attorney General Stone articulated a clear and workable standard:

The Bureau of Investigation is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only such conduct as is forbidden by the laws of the United States.[950]

Nevertheless, his restriction lasted for little more than a decade.

In the mid-1930s the FBI resumed domestic intelligence functions, carrying out President Roosevelt’s vague order to investigate “subversive activities.” The President and the Attorney General authorized FBI and military intelligence investigations of conduct explicitly recognized as “not within the specific provisions of prevailing statutes.” As a result, ideas and associations, rather than suspicion of criminal offenses, once again became the focus of federal investigations.

The scope of domestic intelligence investigations consistently widened in the decades after the 1930s, reaching its greatest extent in the late 1960s and early 1970s.

Domestic intelligence investigations were permitted under criteria which more nearly resembled political or social labels than standards for governmental action. Rather than Attorney General Stone’s standard of investigating “only such conduct as is forbidden by the laws of the United States,” domestic intelligence used such labels as the following to target intelligence investigations:

--“rightist” or “extremist” groups in the “anticommunist field

--persons with “anarchistic or revolutionary beliefs” or who were “espousing the line of revolutionary movements”

--“general racial matters”

--“hate organizations”


--“key activists”

--“black nationalists”

--“white supremacists”


--“key black extremists”

These broad and imprecise labels reflect the ill-defined mission of domestic intelligence, which resulted from recurring demands for progressively wider investigations of Americans. Without the firm guidance provided by law, intelligence activities intruded into areas of American life which are protected from governmental inquiry by the constitutional guarantees of personal privacy and free speech and assembly.

Subfinding (a)

Large numbers of law-abiding Americans and lawful domestic groups have been subjected to extensive intelligence investigation and surveillance.

Some domestic intelligence activity has focused on specific illegal conduct or on instances where there was tangible evidence that illegal conduct was likely to occur. But domestic intelligence has gone far beyond such matters in collecting massive amounts of data on Americans. For example:

FBI Domestic Intelligence. — The FBI has compiled at its headquarters over 480,000 files on its “subversion” investigations and over 33,000 files on its “extremism” investigations.[951] During the twenty years from 1955 to 1975, the FBI conducted 740,000 investigations of “subversive matters” and 190,000 investigations of “extremist matters.”[952]

The targets for FBI intelligence collection have included:

— -the Women’s Liberation Movement

— -the conservative Christian Front and Christian Mobilizers of Father Coughlin;

— -the conservative American Christian Action Council of Rev. Carl McIntyre;

— -a wide variety of university, church and political groups opposed to the Vietnam war;

--those in the non-violent civil rights movement, such as Martin Luther King’s Southern Christian Leadership Council, the National Association for the Advancement of Colored People (NAACP), and the Council on Racial Equality (CORE).

Army Surveillance of Civilians. — The Army’s nationwide intelligence surveillance program created files on some 100,000 Americans and an equally large number of domestic organizations, encompassing virtually every group seeking peaceful change in the United States including:

— -the John Birch Society;

— -Young Americans for Freedom;

— -the National Organization of Women;

— -the NAACP;

— -the Urban League;

— -the Anti-Defamation League of B’nai B’rith; and Business Executives to End the War in Vietnam.[953]

CIA’s CHAOS Program. — The CIA’s extensive CHAOS program — which compiled intelligence on domestic groups and individuals protesting the Vietnam war and racial conditions — amassed some 10,000 intelligence files on American citizens and groups and indexed 300,000 names of Americans in CIA computer records.[954]

IRS Selective Tax Investigations of Dissenters. — Between 1969 and 1973, the Internal Revenue Service, through a secret “Special Service Staff” (SSS), targeted more than 10,000 individuals and groups for tax examinations because of their political activity.[955] The FBI and the Internal Security Division of the Justice Department gave SSS lists of taxpayers deemed to be “activists” or “ideological organizations;” the FBI, in providing SSS with a list of over 2,000 groups and individuals classified as “Right Wing,” “New Left,” and “Old Left,” expressed its hope that SSS tax examinations would “deal a blow to dissident elements.”[956] A smaller though more intensive selective enforcement program, the “Ideological Organization Project,” was established in November 1961 in response to White House criticism of “right-wing extremist” groups.[957] On the basis of such political criteria, 18 organizations were selected for special audit although there was no evidence of tax violation.[958] In 1964, the IRS proosed to expand its program to make “10,000 examinations of tax exempt organizations of all types including the extremist groups.”[959] Although this program never fully materialized, the “Ideological Organizations Project” can be viewed as a precursor to SSS.

CIA and FBI Mail Opening. — The 12 mail opening programs conducted by the CIA and FBI between 1940 and 1973 resulted in the illegal opening of hundreds of thousands of first-class letters. In the 1960s and early 1970s, the international correspondence of large numbers of Americans who challenged the condition of racial minorities or who opposed the war in Vietnam was specifically targeted for mail opening by both the CIA and FBI.

The overbreadth of the longest CIA mail opening program — the 20 year (1953–1973) program in New York City — is shown by the fact that of the more than 28 million letters screened by the CIA, the exteriors of 2.7 million were photographed and 214,820 letters were opened.[960] This is further shown by the fact that American groups and individuals placed on the Watch List for the project included:

— -The Federation of American Scientists;

— -authors such as John Steinbeck and Edward Albee;

--numerous American peace groups such as the American Friends Service Committee and Women’s Strike for Peace; and

— -businesses, such as Praeger Publishers.[961]

By one CIA estimate, random selection accounted for 75 percent of the 200,000 letters opened, including letters to or from American political figures, such as Richard Nixon, while a presidential candidate in 1968, and Senators Frank Church and Edward Kennedy.[962]

IV NSA’s Watch List and SHAMROCK Programs. — The National Security Agency’s SHAMROCK program, by which copies of millions of telegrams sent to, from, or through the United States were obtained between 1947 and 1973, involved the use of a Watch List 1967–1973. The watch list included groups and individuals selected by the FBI for its domestic intelligence investigations and by the CIA for its Operation CHAOS program. In addition, the SHAMROCK Program resulted in NSA’s obtaining not only telegrams to an from certain foreign targets, but countless telegrams between Americans in the United States and American or foreign parties abroad.[963]

In short, virtually every element of our society has been subjected to excessive government- ordered intelligence inquiries. Opposition to government policy or the expression of controversial views was frequently onsidered sufficient for collecting data on Americans.

The committee finds that this extreme breadth of intelligence activity is inconsistent with the principles of our Constitution which protact the rights of speech, political activity, and privacy against un”Justified governmental intrusion.

Subfinding (b)

The absence of precise standards for intelligence investigations of Americans contributed to overbreadth. Congress did not enact statutes precisely delineating the authority of the intelligence agencies or defining the purpose and scope of domestic intelligence activity. The Executive branch abandoned the standard set by Attorney General Stone — that the government’s concern was not with political opinions but with “such conduct as is forbidden by the laws of the United States.” Intelligence agencies’ superiors issued overinclusive directives to investigate “subversion” (a term that was never defined in presidential directives) and “potential” rather than actual or likely criminal conduct, as well as to collect general intelligence on lawful political -and social dissent.

Congress has never set out a specific statutory charter for FBI domestic intelligence activity delineating the standards for opening intelligence investigations or defining the purpose and scope of domestic intelligence activity.[964]

Nor have the charters for foreign intelligence agencies — the Central Intelligence Agency and the National Security Agency — articulated adequate standards to insure that those agencies did not become involved in domestic intelligence activity. While the 1947 National Security Act provided that the CIA shall have no “police, subpoena, law enforcement powers or internal security functions,”[965] the Act was silent concerning whether the CIA was authorized to target Americans abroad or to gather intelligence in the United States on Americans or foreign nationals in connection with its foreign intelligence responsibilities. By classified presidential directive, the CIA was authorized to conduct counterintelligence operations abroad and to maintain central counterintelligence files for the intelligence community.[966] Counterintelligence activity was defined in the directive to include protection of the nation against “subversion,” a term which, as in the directives authorizing FBI domestic intelligence activity, was not defined.

In the absence of specific standards for CIA activity and given the susceptibility of the term “subversion” to broad interpretation, the CIA conducted Operation CHAOS — a large scale intelligence program involving the gathering of data on thousands of Americans and domestic groups to determine if they had “subversive connections”and illegally opened the mail of hundreds of thousands of Americans.

Moreover, the Act does not define the scope of the authority granted to CIA’s Director to protect intelligence “sources and methods.”[967] This authority has been broadly interpreted to permit surveillance of present and former CIA employees in the United States as well as domestic groups thought to be a threat to CIA installations in the United States.

No statute at all deals with the National Security Agency. That Agency — one of the largest of the intelligence agencies — was created by Executive Order in 1952. Although NSA’s mission is to obtain foreign intelligence from “foreign” communications, this has been interpreted to permit NSA to intercept communications where one terminal — the sender or receiver — was in the United States. Consequently when an American has used telephone or telegraph facilities between this country and overseas, his message has been subject to interception by NSA. NSA obtained copies of millions of private telegrams sent from, to or through the United States in its SHAMROCK program and complied with requests to target the international communications of specific Americans through the use of a watch list.

In addition to the failure of Congress to enact precise statutory standards, members of Congress have put pressure on the intelligence agencies for the collection of domestic intelligence without adequate regard to constitutional interests.[968] Moreover, Congress has passed statutes, such as the Smith Act, which, although not directly authorizing domestic intelligence collection, had the effect of contributing to the excessive collection of intelligence about Americans.

Three functional policies, established by the Executive branch and acquiesced in by Congress, were the basis for the overbreadth of intelligence investigations directed at Americans. These policies centered on (1) so-called “subversion investigations” of attempts by hostile foreign governments and their agents in this country to influence the course of American life; (2) the investigation of persons and groups thought to have a “potential” for violating the law or committing violence; and (3) the collection of general intelligence on political and social movements in the interest of predicting and controlling civil disturbances.

Each of these policies grew out of a legitimate concern. Nazi Germany, Japan and the Soviet Union mounted intelligence efforts in this country before World War II; and Soviet operations continued after the war. In the 1960s and early 1970s, racist groups used force to deprive Americans of their civil rights, some American dissidents engaged in violence as a form of political protest, and there were large-scale protest demonstrations and major civil disorders in cities stemming from minority frustrations.

The Committee recognizes that the government had a responsibility to act in the face of the very real dangers presented by these developments. But appropriate restraints, controls, and prohibitions on intelligence collection were not devised; distinctions between legitimate targets of investigations and innocent citizens were forgotten; and the Government’s actions were never examined for their effects on the constitutional rights of Americans, either when programs originated or as they continued over the years.

The policies of investigating Americans thought to have a “potential” for violence and the collection of general intelligence on political and social movements inevitably resulted in the surveillance of American citizens and domestic groups engaged in lawful political activity. “Subversive” was never defined in the presidential directives from Presidents Roosevelt to Kennedy authorizing FBI domestic intelligence activity. Consequently, “subversive” investigations did not focus solely on the activities of hostile foreign governments in this country. Rather, they targeted Americans who dissented from administration positions or whose political positions were thought to resemble those of “subversive” groups. An example of the ultimate result of accepting the concept of “subversive” investigations is the Johnson White House, instruction to the FBI to monitor public hearings on Vietnam policy and compare the extent to which Senators’ views “followed the Communist Party line.”[969]

Similarly, investigations of those thought to have the “potential” for violating laws or committing violence and the collection of general intelligence to prepare for civil disturbances resulted in the surveillance of Americans where there was not reasonable suspicion to believe crime or violence were likely to occur. Broad categories of American society — conservatives, liberals, blacks, women, young people and churches — were targeted for intelligence collection.

Domestic intelligence expanded to cover widespread political protest movements in the late 1960s and early 1970s. For example, in September 1967, Attorney General Ramsey Clark called for a “new area of investigation and intelligence reporting” by the FBI regarding the possibility of “an organized pattern of violence” by groups in the “urban ghetto.” He Instructed FBI Director Hoover:

... we must make certain that every attempt is being made to get all information bearing upon these problems; to take every step possible to determine whether the rioting is preplanned or organized.... As apart of the broad investigation which must be conducted ... sources or informants in black nationalist organizations, SNCC and other less publicized groups should be developed and expanded to determine the size and purpose of these groups and their relationship to other groups.[970]

Such instructions did not limit investigation to facts pointing to particular criminal or violent activity but called for intensive intelligence surveillance of a broad category of black groups (and their connections with other groups) to determine their “size and purpose.”

Similarly, the Army’s broad domestic surveillance program reflected administration pressure on the Army for information on groups and individuals involved in domestic dissent.[971] As a former Assistant Secretary of Defense testified, the Army’s sweeping collection plan “reflected the all-encompassing and uninhibited demand for information directed at the Department of the Army.”[972]

Presidents Johnson and Nixon subjected the CIA to intensive pressure to find foreign influence on the domestic peace movements, resulting in the establishment of Operation CHAOS.[973] When the Nixon Administration called for an intensification of CIA’s effort, the CIA was instructed to broaden its targeting criteria and strengthen its collection efforts. CIA was told that “foreign Communist support” should be “liberally construed.”[974] The White House stated further that “it appears our present intelligence collection capabilities in this area may be inadequate” and implied that any gaps in CIA”s collection program resulting from “inadequate resources or a low priority of attention” should be corrected.[975]

In short, having abandoned Attorney General Stone’s standard that restricted Government investigations to “conduct and then only such conduct as is forbidden by the laws of the United States,” the Government’s far-reaching domestic intelligence policies inevitably, produced investigations and surveillance of large numbers of lawabiding Americans.

Subfinding (c)

The intelligence agencies themselves used imprecise and over-inclusive criteria in their conduct of intelligence investigations. Intelligence investigations extended beyond “subversive” or violent targets to additional groups and individuals subject to minimal “subversive influence” or having little or no “potential” for violence.

Having been given vague directions by their superiors and subjected to substantial pressure to report on a broad range of matters, the intelligence agencies themselves often established overinclusive targeting criteria. The criteria followed in the major domestic intelligence programs conducted in the 1960s and 1970s illustrate the breadth of intelligence targeting:

General Racial Matters”. — The FBI gathered intelligence about proposed “civil demonstrations” and related activities of “officials, committees, legislatures, organizations, etc.” in the “racial field.”[976]

FBI Field Offices were directed to report the “general programs” of all “civil rights organizations” and “readily available personal background data” on leaders and individuals “in the civil rights movement,” as well as any “subversive association” that might be recorded in Field Office files.[977] In addition, the FBI reported “the objectives sought by the minority Community.”[978]

These broad criteria were also reflected in the FBI’s targeting of “white militant groups” in the reporting of racial matters. Those who were “known to sponsor demonstrations against integration and against the busing of Negro students to white schools” were to be investigated.[979]

“New Left” Intelligence. — In conducting a “comprehensive study of the whole New Left movement” (rather than investigating particular violations of law), the FBI defined its intelligence target as a “loosely-bound, free-wheeling, college-oriented movement.”[980] Organizations to be investigated were those who fit criteria phrased as the “more extreme and militant anti-Vietnam war and antidraft organizations.”[981]

The use of such imprecise criteria resulted in investigations of such matters as (1) two university instructors who helped support a student newspaper whose editorial policy was described by the FBI as “left-of-center, antiestablishment, and opposed to the University Administration”;[982] (2) a dissident stockholder’s group planning to protest a large corporation’s war production at the annual stockholder’s meeting;[983] and (3) “Free Universities” attached to college campuses, whether or not there were facts indicating any actual or potential violation of law.[984]

“Rabble Rouser” Index. — Beginning in August 1967, the FBI conducted intensive intelligence investigations of individuals identified as “rabble rousers.”” The program was begun after a member of the National Advisory Commission on Civil Disorders asked the FBI at a meeting of the Commission “to identify the number of militant Negroes and Whites.”[985] This vague reference was subsequently used by the FBI as the basis for instructions implementing a broad new program: persons were to be investigated and placed on the “rabble rouser” index who were “racial agitators who have demonstrated a potential for fomenting racial discord.”[986]

Ultimately, a “rabble rouser” was defined as:

A person who tries to arouse people to violent action by appealing to their emotions, prejudices, et cetera; a demagogue.[987]

Thus, rather than collecting information on those who had or were likely to commit criminal or violent acts, a major intelligence program was launched to identify “demagogues.”

Army Domestic Surveillance of “Dissidents.” — Extremely broad criteria were used in the Army’s nationwide surveillance program conducted in the late 1960s. Such general terms as “the civil rights movement” and the “anti-Vietnam/anti-draft movements” were used to indicate targets for investigation.[988] In collecting information on these “Movements” and on the “cause of civil disturbances,” Army intelligence was to investigate “instigators,” “group participants” and “subversive elements” — all undefined.

Under later revisions, the Army collection plan extended even beyond “subversion” and “dissident groups” to “prominent persons” who were “friendly” with the “leaders of the disturbance” or “sympathetic with their plans.”[989]

These imprecise criteria led to the creation of intelligence files on nearly 100,000 Americans, including Dr. Martin Luther King, Major General Edwin Walker, Julian Bond, Joan Baez, Dr. Benjamin Spock, Rev. William Sloane Coffin, Congressman Abner Mikva, Senator Adlai Stevenson III,[990] as well as clergymen, teachers, journalists, editors, attorneys, industrialists, a laborer, a construction worker, railroad engineers, a postal clerk, a taxi driver, a chiropractor, a doctor, a chemist, an economist, a historian, a playwright, an accountant, an entertainer, professors, a radio announcer, athletes, business executives and authors — all of whom became subjects of Army files simply because of their participation in political protests or their association with those who were engaged in such political activity.[991]

The IRS Computerized Intelligence Index. — In 1973, IRS established a central computer index — the “Intelligence Gathering and Retrieval System” — for general intelligence data, much of it unrelated to tax law enforcement. More than 465,000 Americans were indexed in the IRS computer system, including J. Edgar Hoover and the IRS Commissioner, as well as thousands of others also not suspected of tax violation. Names in newspaper articles and other published sources were indexed wholesale into the IRS computer. Under the system, intelligence gathering preceded any specific allegation of a violation, and possible “future value” was the sole criterion for inclusion of information into the Intelligence Gathering and Retrieval System.

CIA’s Operation CHAOS. — In seeking to fulfill White House requests for evidence of foreign influence on domestic dissent, the CIA gave broad instructions to its overseas stations. These directives called for reporting on the “Radical Left” which included, according to the CIA, “radical students, antiwar activists, draft resisters and deserters, black nationalists, anarchists, and assorted ‘New Leftists’.”[992] CIA built its huge CHAOS data base on the assumption that to know whether there was significant foreign involvement in a domestic group “one has to know whether each and every one of these persons has any connection to foreigners.”[993] CIA instructed its stations that even “casual contacts based merely on mutual interest” between Americans opposed to the Vietnam war and “foreign elements” were deemed to “casual contacts based merely on mutual interest” between Americans opposed to the Vietnam war and “foreign elements” were deemed to constitute “subversive connections.”[994] Similarly, CIA’s request to NSA for materials on persons targeted by the NSA Watch List called for all information regardless of how innocuous it may seem.”[995]

The Committee’s investigation has shown that the absence of precise statutory standards and the use of overbroad criteria for domestic intelligence activity resulted in the extension of intelligence investigations beyond their original “subversive” or violent targets. Intelligence investigations extended to those thought to be subject to “subversive influence.” Moreover, those thought to have a “potential” for violence were also targeted and, in some cases, investigations extended even to those engaged in wholly non-violent lawful political expression.

FBI “COMINFIL” Investigations. — Under the FBI’s COMINFIL (“communist infiltration”) program, large numbers of groups and individuals engaged in lawful political activity have been subjected to informant coverage and intelligence scrutiny. Although COMINFIL investigations were supposed to focus on the Communist Party’s alleged efforts to penetrate domestic groups, in practice the target often became the domestic groups themselves.

FBI COMINFIL investigations reached into domestic groups in virtually every area of American political life. The FBI conducted COMINFIL investigations in such areas as “religion,” “education,” “veterans’ matters,” “women’s matters,” “Negro question,” and “cultural activities.”[996] The “entire spectrum of the social and labor movement” was covered.[997]

The overbreadth that results from the practice of investigating groups for indications of communist influence, or infiltration is illustrated by the following FBI COMINFIL intelligence investigations:

NAACP. — An intensive 25 year long surveillance of the NAACP was conducted, ostensibly to determine whether there was Communist infiltration of the NAACP. This surveillance, however, produced detailed intelligence reports on NAACP activities wholly unrelated to any alleged communist “attempts” to infiltrate the NAACP, and despite the fact that no evidence was ever found to contradict the FBI’s initial finding that the NAACP was opposed to communism.[998]

Northern Virginia Citizens Concerned About the ABM. — In 1969, the FBI conducted an intelligence investigation and used informants to report on a meeting held in a public high school auditorium at which the merits of the Anti-Ballistic Missile System were debated by, among others, Department of Defense officials. The investigation was apparently opened because a communist newspaper had commented on the fact that the meeting was to be held.[999]

National Conference on Amnesty for Vietnam Veterans. — In 1974, FBI informants reported on a national conference sponsored by church and civil liberties groups to support amnesty for Vietnam veterans. The investigation was based on a two-step “infiltration” theory. Other informants had reported that the Vietnam Veterans Against the War (which was itself the subject of an intelligence investigation because it was thought to be subject to communist or foreign influence) might try to “control” the conference.[1000] Although the conference was thus twice removed from the original target, it was nevertheless subjected to informant surveillance.

FBI intelligence investigations to find whether groups are subject to communist or “subversive” influence result in the collection of information on groups and individuals engaged in wholly legitimate activity. Reports on the NAACP were not limited to alleged communist infiltration. Similarly, the investigation of the National Amnesty Conference produced reports describing the topics discussed at the conference and the organization of a steering committee which would include families of men killed in Vietnam and congressional staff aides.[1001] The reports on the meeting concerning the ABM system covered the past and present residence of the person who applied to rent the high school auditorium, and plans for a future meeting, including the names of prominent political figures who planned to attend.[1002]

The trigger for COMINFIL-type investigations — that subversive attempts” to infiltrate groups were a substantial threat — was greatly exaggerated. According to the testimony of FBI officials, the mention in a communist newspaper of the citizens’ meeting to debate the ABM was sufficient to produce intelligence coverage of that meeting.[1003] A large public teach-in on Vietnam, including representatives of Catholic, Episcopal, Methodist and Unitarian churches, as well as a number of spokesmen for antiwar groups, was investigated because a Communist Party official had “urged” party members to attend and one speaker representing the W. E. B. DuBois Club was identified as a communist.[1004] The FBI surveillance of the teach-in resulted in a 41-page intelligence report based on coverage by 13 informants and sources.[1005] And the FBI’s investigation of all Free Universities near colleges and universities was undertaken because “several” allegedly had been formed by the Communist Party “and other subversive groups.”[1006]

Similarly, the FBI’s broad COMINFIL investigations of the civiI rights movement in the South were based on the FBI’s conclusion that the Communist Party had “attempted” to take advantage of racial unrest and had “endeavored” to pressure U.S. Government officials “through the press, labor unions and student groups.[1007] [Emphasis supplied.] No mention was made of the general failure of these attempts.”

The Committee finds that COMINFIL investigations have been based on an exaggerated notion of the threat posed by “subversives” and foreign influence on American political expression. There has been unjustified belief that Americans need informants and government surveillance to protect them from “subversive” influence in their unions, churches, schools, parties and political efforts.

Investigations of Wholly Non-Violent Political Expression. — Domestic intelligence investigations have extended from those who commit or are likely to commit violent acts to those thought to have a “potential” for violence, and then to those engaged in purely peaceful political expression. This characteristic was graphically described by the White House official who coordinated the intelligence agencies’ recommendations for “expanded” (and illegal) coverage in 1970. He testified that intelligence investigations risked moving

from the kid with a bomb to the kid with a picket sign, and from the kid with the picket sign to the kid with the bumper sticker of the opposing candidate.

And you just keep going down the line.[1008]

Without precise standards to restrict their scope, intelligence investigations did move beyond those who committed or were likely to commit criminal or violent acts. For example:

--Dr. Martin Luther King, Jr., was targeted for the FBI’s COINTELPRO operations against “Black Nationalist Hate Groups” on the theory, without factual justification, that Dr. King might “abandon” his adherence to nonviolence.[1009]

--The intensive FBI investigation of the Women’s Liberation Movement was similarly predicated on the theory that the activities of women in that Movement might lead to demonstrations and violence.[1010]

--The FBI investigations of Black Student Unions proceeded from the concern of the FBI and its superiors over violence in the cities. Yet, the FBI opened intelligence investigations on “every Black Student Union and similar group regardless of their past or present involvement in disorders.”[1011] [Emphasis added.]

--The nationwide Army Intelligence surveillance of civilians was conducted in connection with civil disorders. However, the Army collection plan focused not merely on those likely to commit violence but was “so comprehensive ... that any category of information related even remotely to people or organizations active in a community in which the potential for violence was present would fall within their scope.”[1012]

The Committee finds that such intelligence surveillance of groups and individuals has greatly exceeded the legitimate interest of the government in law enforcement and the prevention of violence. Where unsupported determinations as to “potential” behavior are the basis for 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 intelligence 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 subject is likely to be engaged in criminal or violent activity, the overbroad 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 organization, they sometimes gathered “too much information.”[1013]

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 electorate and Government bodies.”[1014]

Similar overbreadth characterized the FBI’s collection of intelligence on “white militant groups.” In 1968 FBI field offices were instructed 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.”[1015] 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 investigation due to extremist activities.”[1016]

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 informants obtain the names of “Afro-American type bookstores” and their “owners, operators and clientele.”[1017] 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.[1018] 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 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.[1019] 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.”).[1020]

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 governmental 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 conduct or “subversion.”

One of the most disturbing aspects of domestic intelligence investigations found by the Committee was their excessive length. Intelligence investigations often continued, despite the absence of facts indicating 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 Investigation 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,[1021] 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 “Communist 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 directors, and its stand against Communism.[1022]

--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 members to go to Washington, D.C., for a “Prayer Pilgrimage.”[1023]

--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.[1024]

--As late as 1966, the FBI was obtaining NAACP chapter membership figures by “pretext telephone call ... utilizing the pretext of being interested in joining that branch of the NAACP.”[1025]

--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.[1026] Later reports covered what transpired at several of these meetings with Senators.[1027] Most significantly, all these reports were sent to the White House.[1028]

(ii) The FBI Intelligence Investigation of the Socialist Workers Party (1940 to date). — The FBI has investigated the Socialist Workers Party (SWP) from 1940 to the present day on the basis of that Party’s revolutionary rhetoric and alleged international links. Nevertheless, 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.[1029]

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.[1030]

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.[1031] The informants also have been reporting on SWP cooperation with other groups who are not the subject of separate intelligence investigations.[1032]

(iii) The Effort to Prove Negatives. — Intelligence investigations and programs have also continued for excessively long periods in efforts to prove negatives. CIA’s Operation CHAOS began in 1967. From that year until the program’s termination in 1974,[1033] the CIA repeatedly reached formal conclusions that there was negligible foreign 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;[1034] in 1968, the CIA concluded that U.S. student protest was essentially homegrown and not stimulated by an international conspiracy;[1035] and in 1971 the CIA found “there is no evidence that foreign governments, organizations, or intelligence services now control U.S. New Left Movements ... the U.S. New Left is basically self-sufficient and moves under its own impetus.”[1036]

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 effort, 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 performance.[1037]

In an effort to prove its negative finding to a skeptical White House — and to test its validity each succeeding year — CIA expanded its program, 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 eventually CIA agents who had infiltrated domestic organizations for other purposes supplied general information on the groups’ activities.[1038] Thus, the intelligence mission became one of continued surveillance to prove a negative, with no thought to terminating the program 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 intelligence investigation of an advisor of Dr. Martin Luther King, Jr. The advisor was investigated on the theory that he might be a communist “sympathizer.” The Bureau’s New York office concluded he was not.[1039] Using a theory of “guilty until proven innocent,” FBI headquarters directed that the investigation continue:

The Bureau does not agree with the expressed belief of the New York office that [ ][1040] is not sympathetic to the Party cause. While there may not be any evidence that [ ] is a Communist neither is there any substantial evidence that he is anti-Communist.[1041]

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 investigations are indeed open ended.

C. Excessive Use of Intrusive Techniques

Major Finding

The intelligence community has employed surreptitious collection techniques — mail opening, surreptitious entries, informants, and “traditional” and highly sophisticated forms of electronic surveillance — to achieve its overly broad intelligence targeting and collection objectives. Although there are circumstances where these techniques, if properly controlled, are legal and appropriate, the Committee finds that their very nature makes them a threat to the personal privacy and Constitutionally protected activities of both the targets and of persons who communicate with or associate with the targets. The dangers inherent in the use of these techniques have been compounded by the lack of adequate standards limiting their use and by the absence of review by neutral authorities outside the intelligence agencies. As a consequence, these techniques have collected enormous amounts of personal and political information serving no legitimate governmental interest.


(a) Given the highly intrusive nature of these techniques,[1042] the legal standards and procedures regulating their use have been insufficient. There have been no statutory controls on the use of informants; there have been gaps and exceptions in the law of electronic surveillance; and the legal prohibitions against warrantless mail opening and surreptitious entries have been ignored.

(b) In addition to providing the means by which the Government can collect too much information about too many people, certain techniques have their own peculiar dangers:

(i) Informants have provoked and participated in violence and other illegal activities in order to maintain their cover, and they have obtained membership lists and other private documents.

(ii) Scientific and technological advances have rendered traditional controls on electronic surveillance obsolete and have made it more difficult to limit intrusions. Because of the nature of wiretaps, microphones and other sophisticated electronic techniques, it has not always been possible to restrict the monitoring of communications to the persons being investigated.

(c) The imprecision and manipulation of labels such as “national security,” “domestic security,” “subversive activities,” and “foreign intelligence” have led to unjustified use of these techniques.

Elaboration of Findings

The preceding section described how the absence of rigorous standards for opening, controlling, and terminating investigations subjected many diverse elements of this society to scrutiny by intelligence agencies, without their being suspected of violating any law. Once an investigation was opened, almost any item of information about a target’s personal behavior or political views was considered worth collecting.

Extremely intrusive techniques — such as those listed above — have often been used to accomplish those overly broad targeting and collection objectives.

The paid and directed informant has been the most extensively used technique in FBI domestic intelligence investigations. Informants were used in 83% of the domestic intelligence investigations analyzed in a recent study by the General Accounting Office.[1043] As of June 30, 1975, the FBI was using a total of 1,500 domestic intelligence informants.[1044] In 1972 there were over 7,000 informants in the ghetto informant program alone. In fiscal year 1976, the Bureau has budgeted more than $7.4 million for its domestic intelligence informant program, more than twice the amount allocated for its organized crime informant program.[1045]

Wiretaps and microphones have also been a significant means of gathering intelligence. Until 1972, the FBI directed these electronic techniques against scores of American citizens and domestic organizations during investigations of such matters as domestic “subversive” activities and leaks of classified information. The Bureau continues to use these techniques against foreign targets in the United States.

The most extensive use of electronic surveillance has been by the National Security Agency. NSA has electronically monitored (without wiretapping in the traditional sense) international communication links since its inception in 1952; because of its sophisticated technology, it is capable of intercepting and recording an enormous number of communications between the United States and foreign countries.[1046]

All mail opening programs have now been terminated, but a total of twelve such operations were conducted by the CIA and the FBI in ten American cities between 1940 and 1973.[1047] Four of these were operated by the CIA, whose most massive project involved the opening of more than 215,000 letters between the United States and the Soviet Union over a twentyyear period. The, FBI conducted eight mail opening programs, three of which included opening mail sent between two points in the United States. The longest FBI mail opening program lasted, with one period of suspension, for approximately twenty-six years.

The FBI has also cunducted hundreds of warrantless surreptitious entries — break-ins -during the past twenty-five years. Often these entries were conducted to install electronic listening devices, at other times they involved physical searches for information. The widespread use of warrantless surreptitious entries against both foreign and domestic targets was terminated by the Bureau in 1966 but the FBI has occasionally made such entries against foreign targets in more recent years.

All of these techniques have been turned against American citizens its well as against certain foreign targets. On the theory that the executive’s responsibility in the area of “national security” and “foreign intelligence” justified their use without the need of judicial supervision, the intelligence community believed it was free to direct these techniques against individuals and organizations whom it believed threatened the country’s security. The standards governing the use of these techniques have been imprecise and susceptible to expansive interpretation and in the absence of any judicial check on the application of these vague standards to particular cases. it was relatively easy for intelligence agencies and their superiors to extend them to many cases where they were clearly inappropriate. Lax internal controls on the use of some of these techniques compounded the problem.

These intrusive techniques by their very nature invaded the private communications and activities both of the individuals they were directed against and of the persons, with whom the targets communicated or associated. Consequently. they provided the means by which all types of information — including personal and political information totally unrelated to any legitimate governmental objective — were collected and in some cases disseminated to the highest levels of the government.

Subfinding (a)

Given the highly intrusive nature of these techniques, the legal standards and procedures regulating their use have been insufficient. There have been no statutory controls on the use of informants; there have been gaps and exceptions in the law of electronic surveillance; and the legal prohibitions against warrantless mail opening and surreptitious entries have been ignored.

1. The Absense of Statutory Restraints on the Use of Information

There are no statutes or published regulations governing the use of informants.[1048] Consequently, the FBI is free to use informants, guided only by its own internal directives which can be changed at any time by FBI officials without approval from outside the Bureau.[1049]

Apart from court decisions precluding the use of informants to entrap persons into criminal activity, there are few judicial opinions dealing with informants and most of those concern criminal rather than intelligence informants.[1050] The United States Supreme Court has never ruled on whether the use of intelligence informants in the contexts revealed by the Committee’s investigation offend First Amendment rights of freedom of expression and association.[1051]

In the absence of regulation through statute, published regulation, or court, decision, the FBI has used informants to report on virtually every aspect of a targeted group or individual’s activity, including lawful political expression, political meetings, the identities of group members and their associates, the “thoughts and feelings, intentions and ambitions,” of members,[1052] and personal matters irrelevant to any legitimate governmental interest. Informants have also been used by the FBI to obtain the confidential records and documents of a group.[1053]

Informants could be used in any intelligence investigation. FBI directives have not limited informant reporting to actual or likely violence or other violations of law.[1054] Nor has any determination been made concerning whether the substantial intrusion represented by informant coverage is justified by the government’s interest in obtaining information, or whether less intrusive means would adequately serve the government’s interest. There has also been no requirement that the decisions of FBI officials to use informants be reviewed by anyone outside the FBI. In short, intelligence informant coverage has not been subject to the standards which govern the use of other intrusive techniques such as electronic surveillance, even though informants can produce a far broader range of information.

2. Gaps and Exceptions in the Law of Electronic Surveillance

Congress and the Supreme Court have both addressed the legal issues raised by electronic surveillance, but the law has been riddled with gaps and exceptions. The Executive branch has been able to apply vague standards for the use of this technique to particular cases as it has seen fit, and, in the case of NSA monitoring, the standards and procedures for the use of electronic surveillance were not applied at all.

When the Supreme Court first considered wiretapping, it held that the warrantless use of this technique was constitutional because the Fourth Amendment’s warrant requirement applied only to physical trespass and did not extend to the seizure of conversation. This decision, the 1928 case of Olmstead v. United States, involved a criminal prosecution, and left federal agencies free to engage in the unrestricted use of wiretaps in both criminal and intelligence investigations.[1055]

Six years later, Congress enacted the Federal Communications Act of 1934, which made it a crime for “any person,” without authorization, to intercept and divulge or publish the contents of wire and radio communications. The Supreme Court subsequently construed this section to apply to federal agents as well as to ordinary citizens, and held that evidence obtained directly or indirectly from the interception of wire and radio communications was not admissible in court.[1056] But Congress acquiesed in the Justice Department’s position that these cases prohibited only the divulgence of contents of wire communications outside the executive branch,[1057] and Government wiretapping for intelligence purposes other than prosecution continued.

On the ground that neither the 1934 Act nor the Supreme Court decisions on wiretapping were meant to apply to “grave matters involving the defense of the nation,” President Franklin Roosevelt authorized Attorney General Jackson in 1940 to approve wiretaps on “persons suspected of subversive activities against the Government of the United States, including suspected spies.”[1058] In the absence of any guidance from Congress or the Court for another quarter century, the executive branch first broadened this standard in 1946 to permit wiretapping in “cases vitally affecting the domestic security or where human life is in jeopardy,”[1059] and then modified it in 1965 to allow wiretapping in “investigations related to the national security.”[1060] Internal Justice Department policy required the prior approval of the Attorney General before the FBI could institute wiretaps in particular cases,[1061] but until the mid-1960’s there was no requirement of periodic reapproval by the Attorney General.[1062] In the absence of any instruction to terminate, them, some wiretaps remained in effect for years.[1063]

In 1967, the Supreme Court reversed its holding in the Olmstead case and decided that the Fourth Amendment’s warrant requirement did apply to electronic surveillances.[1064] It expressly declined, however, to extend this holding to cases involving the “national security.”[1065] Congress followed suit the next year in the Omnibus Crime Control Act of 1968, which established a warrant procedure for electronic surveillance in criminal cases but included a provision that neither it nor the Federal Communications Act of 1934 “shall limit the constitutional power of the President.”[1066] Although Congress did not purport to define the President’s power, the Act referred to five broad categories which thereafter served as the Justice Department’s criteria for warrantless electronic surveillance. The first three categories related to foreign intelligence and counterintelligence matters:

(1) to protect the Nation against actual or potential attack or other hostile acts of a foreign power;

(2) to obtain foreign intelligence information deemed essential to the security of the United States; and

(3) to protect the national security information against foreign 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 structure or existence of the government.

In 1972, the Supreme Court held in United States v. United States District Court,[1067] that the President did not have the constitutional power to authorize warrantless electronic surveillances to protect the nation from domestic threats.[1068] The Court pointedly refrained, however, from any “judgment on the scope of the Presidents’ surveillance power with respect to the activities of foreign powers, within or without this country.”[1069] Only “the domestic aspects of national security” came within the ambit of the Court’s decision.[1070]

To conform with the holding in this case, the Justice Department thereafter limited warrantless wiretapping to cases involving a “significant connection with a foreign power, its agents or agencies.”[1071]

At no time, however, were the Justice Department’s standards and procedures ever applied to NSA’s electronic monitoring system and its “watch listing” of American citizens.[1072] From the early 1960’s until 1973, NSA compiled a list of individuals and organizations, including 1200 American citizens and domestic groups, whose communications were segregated from the mass of communications intercepted by the Agency, transcribed, and frequently disseminated to other agencies for intelligence purposes.[1073]

The Americans on this list, many of whom were active in the antiwar and civil rights movements, were placed there by the FBI, CIA, Secret Service, Defense Department, and NSA itself without prior judicial warrant or even the prior approval of the Attorney General. In 1970, NSA began to monitor telephone communications links between the United States and South America at the request of the Bureau of Narcotics and Dangerous Drugs (BNDD) to obtain information about international drug trafficking. BNDD subsequently submitted the names of 450 American citizens for inclusion on the Watch List, again without warrant or the approval of the Attorney General.[1074]

The legal standards and procedures regulating the use of microphone surveillance have traditionally been even more lax than those regulating the use of wiretapping. The first major Supreme Court decision on microphone surveillance was Goldman v. United States, 316 U.S. 129 (1942), which held that such surveillance in a criminal case was constitutional when the installation did not involve a trespass. Citing this case, Attorney General McGrath prohibited the trespassory use of this technique by the FBI in 1952.[1075] But two years later -a few weeks after the Supreme Court denounced the use of a microphone installation in a criminal defendant’s bedroom[1076] — Attorney General Brownell gave the FBI sweeping authority to engage in bugging for intelligence purposes. “... (C)onsiderations of internal security and the national safety are paramount,” he wrote, “and, therefore, may compel the unrestricted use of this technique in the national interest.”[1077]

Since Brownell did not require the prior approval of the Attorney General for bugging specific targets, he largely undercut the policy that had developed for wiretapping. The FBI in many cases could obtain equivalent coverage by utilizing bugs rather than taps and would not be burdened with the necessity of a formal request to the Attorney General.

The vague “national interest” standards established by Brownell, and the policy of not requiring the Attorney General’s prior approval for microphone installations, continued until 1965, when the Justice Department began to apply the same criteria and procedures to both microphone and telephone surveillance.

3. Ignoring the Prohibitions Against Warrantless Mail Opening and Surreptitious Entries

Warrantless mail opening and surreptitious entries, unlike the use of informants and electronic surveillance, have been clearly prohibited by both statutory and constitutional law. In violation of these prohibitions, the FBI and the CIA decided on their own when and how these techniques should be used.[1078][1079]

Sections 1701 through 1973 of Title 18 of the United States Code forbid persons other than employees of the Postal Service “dead letter” office from tampering with or opening mail that is not addressed to them. Violations of these statutes may result in fines of up to $2000 and imprisonment for not more than five years. The Supreme Court has also held that both First Amendment and Fourth Amendment restrictions apply to mail opening.

The Fourth Amendment concerns were articulated as early as 1878, when the Court wrote:

The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant ... as is required when papers are subjected to search ‘it one’s own household.[1080]

This principle was reaffirmed as recently as 1970 in United States v. Van Leeuwen, 396 U.S. 249 (1970). The infringement of citizens’ First Amendment rights resulting from warrantless mail opening was first recognized by Justice Holmes in 1921. “The use of the mails,” he wrote in a dissent now embraced by prevailing legal opinion, “is almost as much a part of free speech as the right to use our tongues.”[1081] This principle, too, has been affirmed in recent years.[1082]

Breaking and entering is a common law felony as well as a violation of state and federal statutes. When committed by Government agents, it has long been recognized as “the chief evil against which the wording of the Fourth Amendment is directed.”[1083]

In the one judicial decision concerning the legality of warrantless “national security” breakins for physical search purposes, United States District Court Judge Gerhard Gesell held such entries unconstitutional. This case, United States v. Ehrlichman,[1084] involved an entry into the office of a Los Angeles psychiatrist, Dr. Lewis Fielding, to obtain the medical records of his client Daniel Ellsberg, who was then under federal indictment for revealing classified documents. The entry was approved by two Presidential assistants, John Ehrlichman and Charles Colson, who argued that it had been justified “in the national interest.” Ruling on the defendants’ discovery motions, Judge Gesell found that because no search warrant was obtained:

The search of Dr. Fielding’s office was clearly illegal under the unambiguous mandate of the Fourth Amendment... [T]he Government must comply with the strict constitutional and statutory limitations on trespassory searches and arrests even when known foreign agents are involved.... To hold otherwise, except under the most exigent circumstances, would be to abandon the Fourth Amendment to the whim of the Executive in total disregard of the Amendment’s history and purpose.[1085]

In the appeal of this decision, the Justice Department has taken the position that a physical search may be authorized by the Attorney General without a warrant for “foreign intelligence” proposes.[1086] The warrantless mail opening programs and surreptitious entries by the FBI and CIA did not even conform to the “foreign intelligence” standard, however, nor were they specifically approved in each case by the Attorney General. Domestic “subversives” and “extremists” were targeted for mail opening; and domestic “subversives” and “White Hate groups” were among those targeted for surreptitious entries.[1087] Until the Justice Department’s recent statement in the Ehrlichman case, moreover, no legal justification had ever been advanced publicly for violating the statutory or constitutional prohibitions against physical searches or opening mail without a judicial warrant, and none has ever been officially advanced by any Administration to justify warrantless mail openings.

Subfinding (b)

In addition to providing the means by which the Government can collect too much information about too many people, certain techniques have their own peculiar dangers:

(i) Informants have provoked and participated in violence and other illegal activities in order to maintain their cover, and they have obtained membership lists and other private documents.

(ii) Scientific and technological advances have rendered obsolete traditional controls on electronic surveillance and have made it more difficult to limit intrusions. Because of the nature of wiretaps, microphones, and other sophisticated electronic techniques, it has not always been possible to restrict the monitoring of communications to the persons being investigated.

a. The Intrusive Nature of the Intelligence Informant Technique

The FBI employs two types of informants: (1) “intelligence informants” who are used to report on groups and individuals in the course of intelligence investigations, and (2) “criminal informants,” who are used in connection with investigations of specific criminal activity. FBI intelligence informants are administered by the FBI Intelligence Division at Bureau headquarters through a centralized system that is separate from the administrative system for FBI criminal informants. For example, the FBI’s large-scale Ghetto Informant Program was administered by the FBI Intelligence Division. The Committee’s investigation centered on the use of FBI intelligence informants. The FBI’s criminal informant program fell outside the scope of the Committee’s mandate, and accordingly it was not examined.

The Committee recognizes that FBI intelligence informants in violent groups have sometimes played a key role in the enforcement of the criminal law. The Committee examined a number of such cases,[1088] and in public hearings on the use of FBI intelligence informants included the testimony of a former informant in the Ku Klux Klan whose reporting and court room testimony was essential to the arrest and conviction of the murderers of Mrs. Viola Liuzzo, a civil rights worker killed in 1965.[1089] Former Attorney General Katzenbach testified that informants were vital to the solution of the murders of three civil rights workers killed in Mississippi in 1964.[1090]

FBI informant coverage of the Women’s Liberation Movement resulted in intensive reporting on the identities and opinions of women who attended WLM meetings. For example, the FBI’s New York Field Office summarized one informant’s report in a memorandum to FBI Headquarters:

Informant advised that a WLM meeting was held on.[1091] Each woman at this meeting stated why she had come to the meeting and how she felt oppressed, sexually or otherwise.

According to this informant, these women are mostly concerned with liberating women from this “oppressive society.” They are mostly against marriage, children, and other states of oppression caused by men. Few of them, according to the informant, have had political backgrounds.[1092]

Individual women who attended WLM meetings at midwestern universities were identified by FBI intelligence informants. A report by the Kansas City FBI Field Office stated:

Informant indicates members of Women’s Liberation campus group who are now enrolled as students at University of Missouri, Kansas City, are -------, -------, -------, -------, -------.[1093] Informant noted that -------, and -------,[1094] not currently students on the UMKC campus are reportedly roommates at -----------------.[1095]

Informants were instructed to report “everything” they knew about a group to the FBI.

... to go to meetings, write up reports ... on what happened, 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.[1096]

Another intelligence informant described his mission as “total reporting.” Rowe testified that he reported “anything and everything I observed or heard” pertaining to any member of the group he infiltrated.[1097]

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.[1098]

Intelligence informants also report on other groups — not the subject of intelligence investigations — which merely associate with, or are even opposed to, the targeted group. For example, an FBI informant 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.[1099]

This informant reported the identities of an estimated 1,000 individuals to the FBI, although the local chapter to which she was assigned had only 55 regular members.[1100] Similarly, an FBI informant 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.[1101]

In short, the intelligence informant technique is not a precise instrument. By its nature, it extends far beyond the sphere of proper governmental 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.[1102]

b. Other Dangers in the Intelligence Informant Technique

In the absence of clear guidelines for informant conduct, FBI paid and directed intelligence informants have participated in violence and other illegal activities and have taken membership lists and other private documents.

1. Participation in Violence and Other Illegal Activity

The Committee’s investigation has revealed that there is often a fundamental dilemma in the use of intelligence informants in violent organizations. The Committee recognizes that intelligence informants in such groups have sometimes played essential roles in the enforcement of the criminal law. At the same time, however, the Committee has found that the intelligence informant technique carries with it the substantial danger that informants will participate in, or provoke, violence or illegal activity. Intelligence informants are frequently infiltrated into groups for long-term reporting rather than to collect evidence for use in prosecutions. Consequently, intelligence informants must participate in the activity of the group they penetrate to preserve their cover for extended periods. Where the group is involved in violence or illegal activity, there is a substantial risk that the informant must also become involved in this activity. As an FBI Special Agent who handled an intelligence informant in the Ku Klux Klan testified: “[you] couldn’t be an angel and be a good informant.”[1103]

FBI officials testified that it is Bureau practice to instruct informants that they are not to engage in violence or unlawful activity and, if they do so, they may be prosecuted. FBI Deputy Associate Director Adams testified:

... we have informants who have gotten involved in the violation of the law, and we have immediately converted their status from an informant to the subject, and have prosecuted, I would say, offhand ... around 20 informants.[1104]

The Committee finds, however, that the existing guidelines dealing with informant conduct do not adequately ensure that intelligence informants stay within the law in carrying out their assignments. The FBI Manual of Instructions contain no provisions governing informant conduct. While FBI employee conduct regulations prohibit an FBI agent from directing informants to engage in violent or other illegal activity, informants themselves are not governed by these regulations since the FBI does not consider them as FBI employees.

In the absence of clear and precise written provisions directly applicable to informants, FBI intelligence informants have engaged in violent and other illegal activity. For example, an FBI intelligence informant who penetrated the Ku Klux Klan and reported on its activities for over five years testified that on a number of occasions he and other Klansmen had “beaten people severely, had boarded buses and kicked people off; had went in restaurants and beaten them with blackjacks, chains, pistols.”[1105] This informant described how he had taken part in Klan attacks on Freedom Riders at the Birmingham, Alabama, bus depot, where “baseball bats, clubs, chains and pistols” were used in beatings.[1106]

Although the FBI Special Agents who directed this informant instructed him that he was not to engage in violence, it was recognized that there was a substantial risk that he would become a participant in violent activity.

As one of the Agents testified:

... it is kind of difficult to tell him that we would like you to be there on deck, observing, be able to give us information and still keep yourself detached and uninvolved and clean, and that was the problem that we constantly had.[1107]

In another example, an FBI intelligence informant penetrated “right wing” groups operating in California under the names “The Minutemen” and “The Secret Army Organization.” The informant reported on the activities of these “right wing” paramilitary groups for a period of five years but was also involved in acts of violence or destruction. In addition, the informant actually rose to a position of leadership in the SAO and became an innovator of various harassment actions. For example, he admittedly participated in firebombing of an automobile and was present, conducting a “surveillance” of a professor at San Diego State University, when his associate and subordinate in the SAO took out a gun and fired into the home of the professor, wounding a young woman.[1108]

An FBI intelligence informant in a group of antiwar protesters planning to break into a draft board claimed to have provided technical instruction and materials that were essential to the illegal breaktestified to the committee:

Everything they learned about breaking into a building or climbing a wall or cutting glass or destroying lockers, I taught them. I got sample equipment, the type of windows that we would go through, I picked up off the job and taught them how to cut the glass, how to drill holes in the glass so you cannot bear it and stuff like that, and the FBI supplied me with the equipment needed. The stuff I did not have, the [the FBI] got off their own agents.[1109]

The Committee finds that where informants are paid and directed by a government agency, the government has a responsibility to impose clear restrictions on their conduct. Unwritten practice or general provisions aimed at persons other than the informants themselves are not sufficient. In the investigation of violence or illegal activity, it is essential that the government not be implicated in such activity.

2. Membership Lists and Other Private Documents Obtained by the Government Through Intelligence Informants

The Committee finds that there are inadequate guidelines to regulate the conduct of intelligence informants with respect to private and confidential documents, such as membership lists, mailing lists and papers relating to legal matters. The Fourth Amendment provides that citizens shall be “secure in their ... papers and effects, against unreasonable searches and seizures” and requires probable cause to believe there has been a violation of law before a search warrant may issue. Moreover the Supreme Court, in NAACP v. Alabama,[1110] held that the First Amendment’s protections of speech, assembly and group association did not permit a state to compel the production of the membership list of a group engaged in lawful activity. The Court distinguished the case where a state was able to demonstrate a “controlling justification” for such lists by showing a group’s activities involved “acts of unlawful intimidation and violence.”[1111]

There are no provisions in the FBI Manual which preclude the FBI from obtaining private and confidential documents through intelligence informants. The Manual does prohibit informant reporting of “any information pertaining to defense plans or strategy,” but the FBI interprets this as applying only to privileged communications between an attorney and client in connection with a specific court proceeding.[1112]

The Committee’s investigation has shown that, the FBI, through its intelligence informants and sources, has sought to obtain membership lists and other confidential documents of groups and individuals.[1113] For example, one FBI Special Agent testified:

I remember one evening ... [an informant] called my home and said I will meet you in a half an hour ... I have a complete list of everybody that I have just taken out of the files, but i have to have it back within such a length of time.

Well, naturally I left home and met him and had the list duplicated forthwith, and back in his possession and back in the files with nobody suspecting.”[1114]

Similarly, the FBI Special Agent who handled an intelligence informant in an antiwar group testified that he obtained confidential papers of the group which related to legal defense matters:

“She brought back several things ... various position papers taken by various legal defense groups, general statements of ... the VVAW, legal thoughts on various trials, the Gainesville (Florida) 8 ... the Camden (New Jersey) 9 ... various documents from all of these groups.”[1115]

This informant also testified that she took the confidential mailing list of the group she had penetrated and gave it to the FBI.[1116]

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.[1117] 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 bugging — and the highly sophisticated form of electronic monitoring practiced by NS A have been used to collect too much information about too many people.

1. Wiretapping and Bugging

Wiretaps and bugs are considered by FBI officials to be one of the most valuable techniques for the collection of information relevant to the Bureau’s legitimate foreign counterintelligence mandate. W. Raymond Wannall, the former Assistant Director in charge of the FBI’s Intelligence Division, stated that electronic surveillance assisted Bureau officials in making “decisions” as to operations against foreigners engaged in espionage. “It gives us leads as to persons ... hostile intelligence services are trying to subvert or utilize in the United States, so certainly it is a valuable technique.”[1118]

Despite its stated value in foreign counterintelligence cases, however, the dangers inherent in its use imply a clear need for rigorous controls. By their nature, wiretaps and bugs are incapable of a surgical 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) communicates.[1119] Microphones planted in the target’s room or office inevitably intercept all conversations in a particular area: anyone confessing in the room or office, not just the target, is overheard.

The intrusiveness of these techniques has a second aspect as well. It is extremely difficult, if not impossible, to limit the interception to conversations that are relevant to the purposes for which the surveillance is placed. Virtually all conversations are overheard, no matter how trivial, personal, or political they might be. When the electronic surveillance target is a political figure who is likely to discuss political affairs, or a lawyer, who confers with his clients, the possibilities for abuse are obviously heightened.

The dangers of indiscriminate interception are perhaps most acute in the case of microphones planted in locations such as bedrooms. When Attorney General Herbert Brownell gave the FBI sweeping authority to engage in microphone surveillances for intelligence purposes in 1954, he expressly permitted the Bureau to plant microphones in such locations if, in the sole discretion of the FBI, the facts warranted the installation.[1120] Acting under this general authority, for example, the Bureau installed no fewer than twelve bugs in hotel rooms occupied by Dr. Martin Luther King, Jr.[1121]

The King surveillances which occurred between January 1964 and October 1965, were ostensibly approved within the FBI for internal security reasons, but they produced vast amounts of personal information that were totally unrelated to any legitimate governmental interest; indeed, a single hotel room bug alone yielded twenty reels of tape that subsequently provided the basis for the dissemination of personal information about Dr. King throughout the Federal establishment.[1122] Significantly, FBI internal memoranda with respect to some of the installations make clear that they were planted in Dr. King’s hotel rooms for the express purpose of obtaining personal information about him.[1123]

Extremely personal information about the target, his family, and his friends, is easily obtained from wiretaps as well as microphones. This fact is clearly illustrated by the warrantless electronic surveillance of an American citizen who was suspected of leaking classified data to the press. A wiretap on this individual produced no evidence that he had in fact leaked any stories or documents, but among the items of information that the FBI did obtain from the tap (and delivered in utmost secrecy to the White House) were the following: that “meat was ordered [by the target’s family] from a grocer;” that the target’s daughter had a toothache; that the target needed grass clippings for a compost heap he was building; and that during a telephone conversation between the target’s wife and a friend the “matters discussed were milk bills, hair, soap operas, and church.”[1124]

The so-called “seventeen” wiretaps on journalists and government employees, which collectively lasted from May 1969 to February 1971, also illustrate the intrusiveness of electronic surveillance. According to former President Nixon, these taps produced “just gobs of material: gossip and bull.”[1125] FBI summaries of information obtained from the wiretaps and disseminated to the White House suggest that the former President’s private evaluation of them was correct. This wiretapping program did not reveal the source of any leaks of classified data, which was its ostensible purpose, but it did generate a wealth of information about the personal lives of the targets — their social contacts, their vacation plans, their employment satisfactions and dissatisfaction, their marital problems, their drinking habits, and even their sex lives.[1126]

Among those who were incidentally overheard on one of these wiretaps was a currently sitting Associate Justice of the Supreme Court of the United States, who made plans to review a manuscript written by one of the targets.[1127] Vast amounts of political information were also obtained from these wiretaps.[1128]

The “seventeen” wiretaps also exemplify the particularly acute problems of wiretapping when the targeted individuals are involved in the domestic political process. These wiretaps produced vast amounts of purely political information,[1129] much of which was obtained from the home telephones of two consultants to Senator Edmund Muskie and other Democratic politicians.

The incidental collection of political information from electronic surveillance is also shown by a series of telephone and microphone surveillances conducted during the Kennedy administration. In an investigation of the possibly unlawful attempts of representatives of a foreign country to influence congressional deliberations about sugar quota legislation in the early 1960s, Attorney General Robert Kennedy authorized a total of twelve warrantless wiretaps on foreign and domestic targets. Among the wiretaps of American citizens were two on American lobbyists, three on executive branch officials, and two on a staff member of a House of Representatives’ Committee.[1130] A bug was also planted in the hotel room of a United States Congressman, the Chairman of the House Agriculture Committee, Harold D. Cooley.[1131]

Although this investigation was apparently initiated because of the Government’s concern about future relations with the foreign country involved and the possibility of bribery,[1132] it is clear that the Kennedy administration was politically interested in the outcome of the sugar quota legislation as well.[1133] Given the nature of the techniques used and of the targets they were directed against, it is not surprising that a great deal of potentially useful political information was generated from these “Sugar Lobby” surveillances.[1134]

The highly intrusive nature of electronic surveillance also raises special problems when the targets are lawyers and journalists. Over the past two decades there have been a number of wiretaps placed on the office telephones of lawyers.[1135] In the Sugar Lobby investigation, for example, Robert Kennedy authorized wiretaps on ten telephone lines of a single law firm.[1136][1137] All of these lines were apparently used by the one lawyer who was a target and presumably by other attorneys in the firm as well. Such wiretaps represent a serious threat to the attorney-client privilege, because once they are instituted they are capable of detecting all conversations between a lawyer and his clients, even those relating to pending criminal cases.

Since 1960, at least six American journalists and newsmen have also been the targets of warrantless wiretaps or bugs.[1138][1139] These surveillances were all rationalized as necessary to discover the source of leaks of classified information, but, since wiretaps and bugs are indiscriminate in the types of information collected, some of these taps revealed the attitudes of various newsmen toward certain politicians and supplied advance notice of forthcoming newspaper and magazine articles dealing with administration policies. The collection of information such as this, and the precedent set by wiretapping of newsmen, generally, inevitably tends to undermine the constitutional guarantee of a free and independent press.

2. NSA Monitoring

The National Security Agency (NSA) has the capability to monitor almost any electronic communication which travels through the air. This means that NSA is capable of intercepting a telephone call or even a telegram, if such call or telegram is transmitted at least partially through the air. Radio transmissions, a fortiori, are also within NSA’s reach.

Since most communications today — to an increasing extent even domestic communications — are, at some point, transmitted through the air, NSA’s potential to violate the privacy of American citizens is unmatched by any other intelligence agency. Furthermore, since the interception of electronic signals entails neither the installation of electronic surveillance devices nor the cooperation of private communications companies, the possibility that such interceptions will be undetected is enhanced.

NSA has never turned its monitoring apparatus upon entirely domestic communications, but from the early 1960s until 1973, it did intercept the international communications of American citizens, without a warrant, at the request of other federal agencies.

Under current practice, NSA does not target any American citizen or firm for the purpose of intercepting their foreign communications. As a result of monitoring international links of communication, however, it does acquire an enormous number of communications to, from, or about American citizens and firms.[1140]

As a practical matter, most of the communications of American citizens or firms acquired by NSA as incidental to its foreign intelligencegathering process are destroyed upon recognition as a communication to or from an American citizen. But other such communications, which bear upon NSA’s foreign intelligence requirements, are processed, and information obtained from them are used in NSA’s reports to other intelligence agencies. Current practice precludes NSA from identifying American citizens and firms by name in such reports. Nonetheless, the practice does result in NSA’s disseminating information derived from the international communications of American citizens and firms to the intelligence agencies and policymakers in the federal government.

In his dissent in Olmstead v. United States,[1141] which held that the Fourth Amendment warrant requirement did not apply to the seizure of conversations by means of wiretapping, Justice Louis D. Brandeis expressed grave concern that new technologies might outstrip the ability of the Constitution to protect American citizens. He wrote:

Subtler and more far-reaching means of invading privacy have become available to the government ... (and) the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.

Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home .... Can it be that the Constitution affords no protection against such invasions of individual security?

The question posed by Justice Brandeis applies with obvious force to the technological developments that allow NSA to monitor an enormous number of communications each year. His fears were firmly based, for in fact no warrant was ever obtained for the inclusion of 1200 American citizens on NSA’s “Watch List” between the early 1960s and 1973, and none is obtained today for the dissemination within the intelligence community of information derived from the international communications of American citizens and firms. In the face of this new technology, it is well to remember the answer Justice Brandeis gave to his own question. Quoting from Boyd v. United States, 116 U.S. 616, he wrote:

It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essense of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property ...[1142]

d. Mail Opening

By ignoring the legal prohibitions against warrantless mail opening, the CIA and the FBI were able to obtain access to the written communications of hundreds of thousands of individuals, a large proportion of whom were American citizens. The intercepted letters were presumably sealed with the expectation that they would only be opened by the party to whom they were addressed, but intelligence agents in ten cities throughout the United States surreptitiously opened the seal and photographed the entire contents for inclusion in their intelligence files.

Mail opening is an imprecise technique. In addition to relying on a “Watch List” of names, the CIA opened vast numbers of letters on an entirely random basis; as one agent who opened mail in the CIA’s New York project testified, “You never knew what you would hit.”[1143] Given the imprecision of the technique and the large quantity of correspondence that was opened, it is perhaps not surprising that during the twenty year course of the Agency’s New York project, the mail that was randomly opened included that of at least three United States Senators and a Congressman, one Presidential Candidate, and numerous educational, business, and civil rights leaders.[1144]

Several of the FBI programs utilized as selection criteria certain “indicators” on the outside of envelopes that suggested that the communication might be to or from a foreign espionage agent. These “indicators” were more refined than the “shotgun approach”[1145] which characterized the CIA’s New York project, and they did lead to the identification of three foreign spies.[1146] But even by the Bureau’s own accounting, it is clear that the mail of hundreds of innocent American citizens was opened and read for every successful counterintelligence lead that was obtained by means of “indicators.”[1147]

Large volumes of mail were also intercepted and opened in other FBI mail programs that were based not on indicators but on far less precise criteria. Two programs that involved the opening of mail to and from an Asian country, for example, used “letters to or from a university, scientific, or technical facility” as one selection criterion.[1148] According to FBI memoranda, an average of 50 to 100 letters per day was opened and photographed during the ten years in which one of these two programs operated.[1149]

e. Surreptitious Entries

Surreptitious entries, conducted in violation of the law, have also permitted intelligence agencies to gather a wide range of information about American citizens and domestic organization as well as foreign targets.[1150] By definition this technique involves a physical entry into the private premises of individuals and groups. Once intelligence agents are inside, no “papers or effects” are secure. As the Huston Plan recommendations stated in 1970, “It amounts to burglary.”[1151]

The most private documents are rendered vulnerable by the use of surreptitious entries. According to a 1966 internal FBI memorandum, which discusses the use of this technique against domestic. organizations:

[The FBI has] on numerous occasions been able to obtain material held highly secret, and closely guarded by subversive groups and organizations which consisted of membership lists and mailing lists of these organizations.[1152]

A specific example cited in this memorandum also reveals the types of information that this technique can collect and the uses to which the information thus collected may be put:

Through a “black bag” job, we obtained the records in the possession of three high-ranking officials of a Klan organization. These records gave us the complete membership and financial information concerning the Klan’s operation which we have been using most effectively to disrupt the organization and, in fact, to bring about Its near disintegration.[1153]

Unlike techniques such as electronic surveillance, government entries into private premises were familiar to the Founding Fathers. “Indeed,” Judge Gesell wrote in the Ehrlichman case, “the American Revolution was sparked in part by the complaints of the colonists against the issuance of writs of assistance, pursuant to which the King’s revenue officers conducted unrestricted, indiscriminate searches of persons and homes to uncover contraband.”[1154] Recognition of the intrusiveness of government break-ins was one of the primary reasons for the subsequent adoption of the Fourth Amendment in 1791,[1155] and this technique is certainly no less intrusive today.

Subfinding (c)

The imprecision and manipulation of labels such as “national security,” “domestic security,” “subversive activities” and “foreign intelligence” have led to unjustified use of these techniques.

Using labels such as “national security” and “foreign intelligence”, intelligence agencies have directed these highly intrusive techniques against individuals and organizations who were suspected of no criminal activity and who posed no genuine threat to the national security. In the absence of precise standards and effective outside control, the selection of American citizens as targets has at times been predicated on grounds no more substantial than their lawful protests or their non-conformist philosophies. Almost any connection with any perceived danger to the country has sufficed.

The application of the “national security” rationale to cases lacking a substantial national security basis has been most apparent in the area of warrantless electronic surveillance. Indeed, the unjustified use of wiretaps and bugs under this and related labels has a long history. Among the wiretaps approved by Attorney General Francis Biddle under the standard of “persons suspected of subversive activities,” for example, was one on the Los Angeles Chamber of Commerce in 1941.[1156] This was approved in spite of his comment to J. Edgar Hoover that the target organization had “no record of espionage at this time.”[1157] In 1945, Attorney General Tom Clark authorized a wiretap on a former aide to President Roosevelt.[1158] According to a memorandum by J. Edgar Hoover, Clark stated that President Truman wanted “a very thorough investigation” of the activities of the former official so that “steps might be taken, if possible, to see that [his] activities did not interfere with the proper administration of government.”[1159] The memorandum makes no reference to “subversive activities” or any other national security considerations.

The “Sugar Lobby” and Martin Luther King, Jr., wiretaps in the early 1960s both show the elasticity of the “domestic security” standard which supplemented President Roosevelt’s “subversive activities” formulation. Among those wiretapped in the Sugar Lobby investigation, as noted above, was a Congressional staff aide. Yet the documentary record of this investigation reveals no evidence indicating that the target herself represented any threat to the “domestic security.” Similarly, while the FBI may properly have been concerned with the activities of certain advisors to Dr. King, the direct wiretapping of Dr. King shows that the “domestic security” standard could be stretched to unjustified lengths.

The microphone surveillances of Congressman Cooley and Dr. King under the “national interest” standard established by Attorney General Brownell in 1954 also reveal the relative ease with which electronic bugging devices could be used against American citizens who posed no genuine “national security” threat. Neither of these targets advocated or engaged in any conduct that was damaging to the security of the United States.

In April, 1964, Attorney General Robert Kennedy approved “technical coverage (electronic surveillance)” of a black nationalist leader after the FBI advised Kennedy that he was “forming a new group” which would be “more aggressive” and would “participate in racial demonstrations and civil rights activities.” The only indication of possible danger noted in the FBI’s request for the wiretaps, however, was that this leader had “recommended the possession of firearms by members for their self-protection.[1160]

One year later, Attorney General Nicholas Katzenbach approved a wiretap on the offices of the Student Non-Violent Coordinating Committee on the basis of potential communist infiltration into that organization. The request which was sent to the Attorney General noted that “confidential informants” described SNCC as “the principal target for Communist Party infiltration among the various civil rights organizations” and stated that some of its leaders had “made public appearances with leaders of communist-front organizations” and had “subversive backgrounds.”[1161] The FBI presented no substantial evidence however, that SNCC was in fact infiltrated by communists — only that the organization was apparently a target for such infiltration in the future.

After the Justice Department adopted new criteria for the institution of warrantless electronic surveillance in 1968, the unjustified use of wiretaps continued. In November 1969, Attorney General John Mitchell approved a series of three wiretaps on organizations involved in planning the antiwar “March on Washington.” The FBI’s request for coverage of the first group made no claim that its members engaged or were likely to engage in violent activity; the request was simply based on the statement that the anticipated size of the demonstration was cause for “concern should violence of any type break out.”[1162]

The only additional justification given for the wiretap on one of the other groups, the Vietnam Moratorium Committee, was that it “has recently endorsed fully the activities of the [first group] concerning the upcoming antiwar demonstrations.”[1163]

In 1970, approval for a wiretap on a “New Left oriented campus group” was granted by Attorney General Mitchell on the basis of an FBI request which included, among other factors deemed relevant to the necessity for the wiretap, evidence that the group was attempting “to develop strong ties with the cafeteria, maintenance and other workers on campus” and wanted to “go into industry and factories and ... take the radical politics they learned on the campus and spread them among factory workers.”[1164]

This approval was renewed three months later despite the fact that the request for renewal made no mention of violent or illegal activity by the group. The value of the wiretap was shown, according to the FBI, by such results as obtaining “the identities of over 600 persons either in touch with the national headquarters or associated with” it during the preceding three months.[1165] Six months after the original authorization the number of persons so identified had increased to 1,428; and approval was granted for a third three-month period.”[1166]

The “seventeen wiretaps” also show how the term “national security” as a justification for wiretapping can obscure improper use of this technique. Shortly after these wiretaps were revealed publicly, President Nixon stated they had been justified by the need to prevent leaks of classified information harmful to the national security.[1167]

Wiretaps for this purpose had, in fact, been authorized under the Kennedy and Johnson administrations. President Nixon learned of these and other prior taps and, at a news conference, sought to justify the taps he had authorized by referring to past precedent. He stated that in the:

period of 1961 to ’63 there were wiretaps on news organizations, on news people, on civil rights leaders and on other people. And I think they were perfectly justified and I’m sure that President Kennedy and his brother, Robert Kennedy, would never have authorized them, unless he thought they were in the national interest. (Presidential News Conference, 8/22/73.)

Thus, questionable electronic surveillances by earlier administrations were put forward as a defense for improper surveillances exposed in 1973. In fact, however, two of these wiretaps were placed on domestic affairs advisers at the White House who had no foreign affairs responsibilities and apparently no access to classified foreign policy materials.[1168][1169] A third target was a White House speech writer who had been overheard on an existing tap agreeing to provide a reporter with background information on a Presidential speech concerning domestic revenue sharing and welfare reform.[1170] The reinstatement of another wiretap in this series was requested by H. R. Haldeman simply because “they may have a bad apple and have to get him out of the basket.”[1171] The last four requests in this series that were sent to the Attorney General (including the requests for a tap on the “bad apple”) did not mention any national security justification at all. As former Deputy Attorney General William Ruckelshaus has testified:

I think some of the individuals who were tapped, at least to the extent I have reviewed the record, had very little, if any, relationship to any claim of national security ... I think that as the program proceeded and it became clear to those who could sign off on taps how easy it was to institute a wiretap under the present procedure that these kinds of considerations [i.e., genuine national security justifications] were considerably relaxed as the program went on.[1172]

None of the “seventeen” wiretaps was ever reauthorized by the Attorney General, although 10 of them remained in operation for periods longer than 90 days and although President Nixon himself stated privately that “[t]he tapping was a very, very unproductive thing ... it’s never been useful to any operation I’ve conducted ...”[1173]

In short, warrantless electronic surveillance has been defended on the ground that it was essential for the national security, but the history of the use of this technique clearly shows that the imprecision and manipulation of this and similar labels, coupled with the absence of any outside scrutiny, has led to its improper use against American citizens who posed no criminal or national security threat to the country.[1174]

Similarly, the terms “foreign intelligence” and “counterespionage” were used by the CIA and the FBI to justify their cooperation in the CIA’s New York mail opening project, but this project was also used to target entirely innocent American citizens.

As noted above, the CIA compiled a “Watch List” of names of persons and organizations whose mail was to be opened if it passed through the New York facility. In the early days of the project. the names on this list — which then numbered fewer than twenty — might reasonably have been expected to lead to genuine foreign intelligence or counterintelligence information. But as the project developed, the Watch List grew and its focus changed. By the late 1960s there were approximately 600 names on the list, many of them American citizens and organizations who were engaged in purely lawful and constitutionally protected forms of protest against governmental policies. Among the domestic organizations on the Watch List, which was supplemented by submissions from the FBI, were: Clergy and Laymen Concerned about Vietnam, the National Mobilization Committee to End the War in Vietnam, Ramparts, the Student Non-Violent Coordinating Committee, the Center for the Study of Public Policy, and the American Friends Service Committee.[1175]

The FBI levied more general requirements on the CIA’s project as well. The focus of the original categories of correspondence in which the FBI expressed an interest was clearly foreign counterespionage, but subsequent requirements became progressively more domestic in their focus and progressively broader in their scope. The requirements that were levied by the FBI in 1972, one year before the termination of the project, included the following:

“... [p]ersons on the Watch List; known communists, New Left activists, extremists, and other subversives ...

Communist party and front organizations ... extremist and New Left organizations.

Protest and peace organizations, such as People’s Coalition for Peace and Justice, National Peace Action Committee, and Women’s Strike for Peace.

Communists, Trotskyites and members of other Marxist-Leninist, subversive and extremist groups, such as the Black Nationalists and Liberation groups ... Students for a Democratic Society ... and other New Left groups.

Traffic to and from Puerto Rico and the Virgin Islands showing anti-U.S. or subversive sympathies.”[1176]

This final set of requirements evidently reflected the domestic turmoil of the late 1960s and early 1970s. The mail opening program that began as a means of collecting foreign intelligence information and discovering Soviet intelligence efforts in the United States had expanded to encompass detection of the activities of domestic dissidents of all types.

In the absence of effective outside control, highly intrusive techniques have been used to gather vast amounts of information about the entirely lawful activities — and privately held beliefs — of large numbers of American citizens. The very intrusiveness of these techniques demands the utmost circumspection in their use. But with vague or non-existent standards to guide them, and with labels such as “national security” and “foreign intelligence” to shield them, executive branch officials have been all too willing to unleash these techniques against American citizens with little or no legitimate justification.

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.


(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 sometimes caused serious emotional, economic, or physical damage. Actions were taken which were designed to break up marriages, terminate funding or employment, and encourage gang warfare between violent rival groups. Due process of law forbids the use of such covert tactics, whether the victims are innocent law-abiding citizens or members of groups suspected of involvement in violence.

(d) The sustained use of such tactics by the FBI in an attempt to destroy Dr. Martin Luther King, Jr., violated the law and fundamental human decency.

Elaboration of the Findings

For fifteen years from 1956 until 1971, the FBI carried out a series of covert action programs directed against American citizens.[1177] 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.[1178]

They ended formally in 1971 with the threat of public exposure.[1179] Some of the findings discussed herein are related to the findings on lawlessness, overbreadth, and intrusive techniques previously set forth. Some of the most offensive actions in the FBI’s COINTELPRO 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 investigations and intrusive techniques.[1180] Similarly, as noted above, COINTELPRO involved specific violations of law, and the law and the Constitution were “not [given] a thought” under the FBI’s policies.[1181]

But COINTELPRO was more than simply violating the law or the Constitution. In COINTELPRO the Bureau secretly[1182] 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 criminal activity. But in COINTELPRO, the Bureau imposed summary punishment, not only on the allegedly violent, but also on the nonviolent advocates of change. Such action is the hallmark of the vigilante and has no place in a democratic society.

Under COINTELPRO, certain techniques the Bureau had used against hostile foreign agents were adopted for use against perceived domestic threats to the established political and social order.[1183]

Some of the targets of COINTELPRO were law-abiding citizens merely advocating change in our society. Other targets were members 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.[1184]

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.”[1185]

Subfinding (a)

Although the claimed purposes of these action programs were to protect the “national security” and to prevent violence, many of the victims were concededly nonviolent, were not controlled by a foreign power, and posed no threat to the “national security.”

The Bureau conducted five “counterintelligence programs” aimed against domestic groups: the “Communist Party, USA” program (1956–71); the “Socialist Workers Party” program (1961–69); the “White Hate” program (1964–1971); the “Black Nationalist-Hate Group” program (1967–71) ; and the “New Left” program (1968–71).

While the declared purposes of these programs were to protect the “national security” or prevent violence, Bureau witnesses admit that many of the targets were nonviolent and most had no connections with a foreign power. Indeed, nonviolent organizations and individuals were targeted because the Bureau believed they represented a “potential” for violence[1186] 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.[1187]

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.”[1188] 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 sponsors of the National Committee to Abolish the House Un-American Activities Committee[1189][1190] and civil rights leaders allegedly under Communist influence or not deemed to be “anti-Communist”.[1191] 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.[1192] 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.[1193] New Left targets ranged from the SDS[1194] to the InterUniversity Committee for Debate on Foreign Policy,[1195] from Antioch College (“vanguard of the New Left”)[1196] to the New

Mexico Free University and other “alternate” schools,[1197] and from underground newspapers[1198] to students protesting university censorship of a student publication by carrying signs with four-letter words on them.[1199]

Subfinding (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.

In achieving its purported goals Of protecting the national security and preventing violence, the Bureau attempted to deter membership in the target groups. As the supervisor of the “Black Nationalist” COINTELPRO stated, “Obviously, you are going to prevent violence or a greater amount of violence if you have smaller groups.[1200] The chief of the COINTELPRO unit agreed: “We also made an effort ... to deter recruitment where we could. This was done with the view that if we could curb the organization, we could curb the action or the violence within the organization.”[1201] As noted above, many of the organizations “curbed” were not violent, and covert attacks on group membership contravened the First Amendment’s guarantee of freedom to associate.

Nor was this the only First Amendment right violated by the Bureau. In addition to attempting to prevent people from joining or continuing to be members in target organizations, the Bureau tried to “deter or counteract” what it called “propaganda”[1202] — the expression of ideas which it considered dangerous. Thus, the originating document for the “Black Nationalist” COINTELPRO noted that “consideration should be given to techniques to preclude” leaders of the target organizations “from spreading their philosophy publicly or through various mass communication media.”[1203]

Instructions to “preclude” free speech were not limited to “black nationalists;” they occurred in every program. In the New Left program, for instance, approximately thirty-nine percent of all actions attempted to keep targets from speaking, teaching, writing, or publishing.[1204]

The cases included attempts (sometimes successful) to prompt the firing of university and high school teachers;[1205] to prevent targets from speaking on campus;[1206] to stop chapters of target groups from being formed;[1207] to prevent the distribution of books, newspapers, or periodicals;[1208] to disrupt or cancel news conferences;[1209] to interfere with peaceful demonstrations, including the SCLC’s Poor People’s Campaign and Washington Spring Project and most of the large anti-war marches;[1210] and to deny facilities for meetings or conferences.[1211]

As the above cases demonstrate, the FBI was not just “chilling” free speech, but squarely attacking it.

The tactics used against Americans often risked and sometimes caused serious emotional, economic, or physical damage. Actions were taken which were designed to break up marriages, terminate funding or employment, and encourage gang warfare between violent rival groups. Due process of law forbids the use of such covert tactics whether the victims are innocent law-abiding citizens or members of groups suspected of involvement in violence. The former head of the Domestic Intelligence Division described counterintelligence as a “rough, tough, dirty, and dangerous” business.[1212] His description was accurate.

One technique used in COINTELPRO involved sending anonymous letters to spouses intended, in the words of one proposal, to “produce ill-feeling and possibly a lasting distrust” between husband and wife, so that “concern over what to do about it” would distract the target from “time spent in the plots and plans” of the organization.[1213] The image of an agent of the United States Government scrawling a poison-pen letter to someone’s wife in language usually reserved for bathroom walls is not a happy one. Nevertheless, anonymous letters were sent to, among others, a Klansman’s wife, informing her that her husband had “taken the flesh of another unto himself,” the other person being a woman named Ruby, with her “lust filled eyes and smart aleck figure;”[1214] and to a “Black Nationalist’s” wife saying that her husband “been maken it here” with other women in his organization “and than he gives us this jive bout their better in bed then you.”[1215] A husband who was concerned about his wife’s activities in a biracial group received a letter which started, “Look man I guess your old lady doesn’t get enough at home or she wouldn’t be shucking and jiving with our Black Men” in the group.[1216] The Field Office reported as a “tangible result” of this letter that the target and her husband separated.[1217]

The Bureau also contacted employers and funding organizations in order to cause the firing of the targets or the termination of their support.[1218] For example, priests who allowed their churches to be used for the Black Panther breakfast programs were targeted, and anonymous letters were sent to their bishops;[1219] a television commentator who expressed admiration for a Black Nationalist leader and criticized heavy defense spending was transferred after the Bureau contacted his employer;[1220] and an employee of the Urban League was fired after the FBI approached a “confidential source” in a foundation which funded the League.[1221]

The Bureau also encouraged “gang warfare” between violent groups. An FBI memorandum dated November 25,1968 to certain Field Offices conducting investigations of the Black Panther Party ordered recipient offices to submit “imaginative and hard-hitting counterintelligence measures aimed at crippling the BPP.” Proposals were to be received every two weeks. Particular attention was to be given to capitalizing upon differences between the Panthers and US, Inc. (an other “Black Nationalist” group), which had reached such proportions that “it is taking on the aura of gang warfare with attendant threats of murder and reprisals.”[1222] On May 26,1970, after U.S. organization members had killed four BPP members and members of each organization had been shot and beaten by members of the other, the Field Office reported:

Information received from local sources indicate[s] that, in general, the membership of the Los Angeles BPP is physically afraid of US members and take premeditated precautions to avoid confrontations.

In view of their anxieties, it is not presently felt that the Los Angeles BPP can be prompted into what could result in an internecine struggle between the two organizations....

The Los Angeles Division is aware of the mutually hostile feelings harbored between the organizations and the first opportunity to capitalize on the situation will be maximized. It is intended that US Inc. will be appropriately and discreetly advised of the time and location of BPP activities in order that the two organizations might be brought together and thus grant nature the

opportunity to take’her due course.[1223] [Emphasis added.]

A second Field Office noted:

Shootings, beatings and a high degree of unrest continues to prevail in the ghetto area of Southeast San Diego. Although no specific counterintelligence action can be credited with contributing to this overall situation, it is felt that a substantial amount of the unrest is directly attributable to this program.[1224]

In another case, an anonymous letter was sent to the leader of the Blackstone Rangers (a group, according to the Field Offices’ proposal, “to whom violent-type activity, shooting, and the like are second nature”) advising him that “the brothers that run the Panthers blame you for blocking their thing and there’s supposed to be a hit out for you.” The letter was intended to “intensify the degree of animosity between the two groups” and cause “retaliatory action which could disrupt the BPP or lead to reprisals against its leadership.”[1225]

Another technique which risked serious harm to the target was falsely labeling a target an informant. This technique was used in all five domestic COINTELPROs. When a member of a nonviolent group was successfully mislabeled as an informant, the result was alienation from the group.[1226] When the target belonged to a group known to have killed suspected informants, the risk was substantially more serious. On several occasions, the Bureau used this technique against members of the Black Panther Party; it was used at least twice after FBI documents expressed concern over the possible consequences because two members of the BPP had been murdered as suspected informants.[1227]

The Bureau recognized that some techniques used in COINTELPRO were more likely than others to cause serious physical, emotional, or economic damage to the targets.[1228] Any proposed use of such techniques — for example, encouraging enmity between violent rival groups, falsely labeling group members as informants, and mailing anonymous letters to targets’ spouses accusing the target of infidelity — was scrutinized carefully by headquarters supervisory personnel, in an attempt to balance the “greater good” to be achieved by the proposal against the known or risked harm to the target. If the “good” was sufficient, the proposal was approved. For instance, in discussing anonymous letters to spouses, the agent who supervised the New Left COINTELPRO stated:

[Before recommending approval] I would want to know what you want to get out of this, who are these people. If it’s somebody, and say they did split up, what would accrue from it as far as disrupting the New Left is concerned? Say they broke up, what then....

[The question would be] is it worth it?[1229]

Similarly, with regard to causing false suspicions that an individual was an informant, the chief of the Racial Intelligence Section stated:

You have to be able to make decisions and I am sure that labeling somebody as an informant, that you’d want to make certain that it served a good purpose before you did it and not do it haphazardly.... It is a serious thing ... As far as I am aware, in the black extremist area, by using that technique, no one was killed. I am sure of that.[1230]

This official was asked whether the fact that no one was killed was the, result of “luck or planning.” He answered: “Oh, it just happened that way, I am sure.”[1231]

It is intolerable in a free society that an agency of the Government should adopt such tactics, whether or not the targets are involved in criminal activity. The “greater good” of the country is in fact served by adherence to the rule of law mandated by the Constitution.

Subfinding (d)

The sustained use of such tactics by the FBI in an attempt to destroy Dr. Martin Luther King, Jr., violated the law and fundamental human decency.

The Committee devoted substantial attention to the FBI’s covert action campaign against Dr. Martin Luther King because it demonstrates just how far the Government could go in a secret war against one citizen. In focusing upon Dr. King, however, it should not be forgotten that the Bureau carried out disruptive activities against hundreds of lesser known American citizens. It should also be borne in mind that positive action on the part of high Government officials outside the FBI might have prevented what occurred in this case.[1232]

The FBI’s claimed justification for targeting Dr. King — alleged Communist influence on him and the civil rights movement — is examined elsewhere in this report.[1233]

The FBI’s campaign against Dr. Martin Luther King, Jr. began in December 1963, four months after the famous civil rights March on Washington,[1234] when a nine-hour meeting was convened at FBI Headquarters to discuss various “avenues of approach aimed at neutralizing King as an effective Negro leader.”[1235] Following the meeting, agents in the field were instructed to “continue to gather information concerning King’s personal activities ... in order that we may consider using this information at an opportune time in a counterintelligence move to discredit him.”[1236]

About two weeks after that conference, FBI agents planted a microphone in Dr. King’s bedroom at the Willard Hotel in Washington, D.C.[1237] During the next two years, the FBI installed at least fourteen more “bugs” in Dr. King’s hotel rooms across the country.[1238] Physical and photographic surveillances accompanied some of the microphone, coverage.[1239]

The FBI also scrutinized Dr. King’s tax returns, monitored his financial affairs, and even tried to determine whether he had a secret foreign bank account.[1240]

In late 1964, a “sterilized” tape was prepared in a manner that would prevent attribution to the FBI and was “anonymously” mailed to Dr. King just before he received the Nobel Peace Prize.[1241] Enclosed in the package with the tape was an unsigned letter which warned Dr. King, “your end is approaching ... you are finished.” The letter intimated that the tape might be publicly released, and closed with the following message:

King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do (this exact number has been selected for a specific reason, it has definite practical significance). You are done. There is but one

way out for you ...[1242]

Dr. King’s associates have said he interpreted the message as an effort to induce him to commit suicide.[1243]

At about the same time that it mailed the “sanitized” tape, the FBI was also apparently offering tapes and transcripts to newsmen.[1244] Later when civil rights leaders Roy Wilkins and James Farmer went to Washington to persuade Bureau officials to halt the FBI’s discrediting efforts,[1245] they were told that “if King want[s] war we [are] prepared to give it to him.”[1246]

Shortly thereafter, Dr. King went to Europe to receive the Nobel Peace Prize. The Bureau tried to undermine ambassadorial receptions in several of the countries he visited,[1247] and when he returned to the United States, took steps to diminish support for a banquet and a special “day” being planned in his honor.[1248]

The Bureau’s actions against Dr. King included attempts to prevent him from meeting with world leaders, receiving honors or favorable publicity, and gaining financial support. When the Bureau learned of a possible meeting between Dr. King and the Pope in August 1964, the FBI asked Cardinal Spellman to try to arrange a cancellation of the audience.[1249] Discovering that two schools (Springfield College and Marquette University) were going to honor Dr. King with special degrees in the spring of 1964, Bureau agents tried to convince officials at the schools to rescind their plans.[1250] And when the Bureau learned in October 1966 that the Ford Foundation might grant three million dollars to Dr. King’s Southern Christian Leadership Conference, they asked a former FBI agent who was a high official at the Ford Motor Company to try to block the award.[1251]

A magazine was asked not to publish favorable articles about him.[1252] Religious leaders and institutions were contacted to undermine their support of him.[1253] Press conference questions were prepared and distributed to “friendly” journalists.[1254] And plans were even discussed for sabotaging his political campaign in the event he decided to run for national office.[1255] An SCLC employee was “anonymously” informed that the SCLC was trying to get rid of her “so that the Bureau [would be] in a position to capitalize on [her] bitterness.”[1256][1257] Bureau officials contacted members of Congress,[1258] and special “off the record” testimony was prepared for the Director’s use before the House Appropriations Committee.[1259]

The “neutralization” program continued until Dr. King’s death. As late as March 1968, FBI agents were being instructed to neutralize Dr. King because he might become a “messiah” who could “unify, and electrify, the militant black nationalist movement” if he were to “abandon his supposed ‘obedience’ to ‘white liberal doctrines’ (nonviolence) and embrace black nationalism.”[1260] Steps were taken to subvert the “Poor People’s Campaign” which Dr. King was planning to lead in the spring of 1968.[1261] Even after Dr. King’s death, agents in the field were proposing methods for harassing his widow[1262] and Bureau officials were trying to prevent his birthday from becoming a national holiday.[1263]

The actions taken against Dr. King are indefensible. They represent a sad episode in the dark history of covert actions directed against law abiding citizens by a law enforcement agency.

E. Political Abuse of Intelligence Information

Major Finding

The Committee finds that information has been collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action.


(a) White House officials have requested and obtained politically useful information from the FBI, including information on the activities of political opponents or critics.

(b) In some cases, political or personal information was not specifically requested, but was nevertheless collected and disseminated to administration officials as part of investigations they had requested. Neither the FBI nor the recipients differentiated in these cases between national security or law enforcement information and purely political intelligence.

(c) The FBI has also volunteered information to Presidents and their staffs, without having been asked for it, sometimes apparently to curry favor with the current administration. Similarly, the FBI has assembled intelligence on its critics and on political figures it believed might influence public attitudes or Congressional support.

(d) The FBI has also used intelligence as a vehicle for covert efforts to influence social policy and political action.

E laboration of Findings

The FBI’s ability to gather information without effective restraints gave it enormous power. That power was inevitably attractive to politicians, 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 sometimes 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 available 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.[1264]

Information gathered and disseminated to the White House ranged from purely political intelligence, such as lobbying efforts on bills ail administration opposed and the strategy of a delegate challenge at a national political convention, to “tidbits” about the activities of politicians and public figures which the Bureau believed “of interest” to the recipients.

Such participation in political machinations by an intelligence agency is totally improper. Responsibility for what amounted to a betrayal of the public trust in the integrity of the FBI must be shared between the officials who requested such information and those who provided it.

The Bureau’s collection and dissemination of politically useful information 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 ideoIogical purposes, attempting covertly to influence social policy and 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 opinions about what choices the people should make on contemporary social and political issues. The First Amendment guarantees their right to enter the marketplace of ideas and persuade their fellow citizens of the correctness of those opinions by making speeches, writing books, and, within certain statutory limits, supporting political candidates. The problem lies not in the open expression of views, but in the covert use of power or position of trust to influence others. This abuse is aggravated by the agency’s control over information on which the public and its elected representatives rely to make decisions.

The essence of democracy is the belief that the people must be free to make decisions about matters of public policy. The FBI’s actions interfered with the democratic process, because attitudes within the Bureau toward social change led to the belief that such intervention formed a part of its obligation to protect society. When a governmental agency clandestinely tries to impose its views of what is right upon the American people, then the democratic process is undermined.

Subfinding (a)

White House officials have requested and obtained politically useful 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.[1265] They have also asked the Bureau to conduct electronic surveillance or more limited investigations of such persons. The FBI appears to have complied unquestioningly with these requests, despite occasional internal doubts about their propriety.[1266]

Precedents for certain political abuses go back to the very outset of the domestic intelligence program. In 1940 the FBI complied with President Roosevelt’s request to file the names of people sending critical telegrams to the White House.[1267] There is evidence of improper electronic surveillance for the White House in the 1940s.[1268] And an aide to President Eisenhower asked the FBI to conduct a questionable name check.[1269] In 1962, the FBI complied unquestioningly with a request from Attorney General Kennedy to interview a steel executive and several reporters who had written stories about a statement by the executive.[1270] As part of an investigation of foreign lobbying efforts on sugar quota legislation in 1961 and 1962, Attorney General Kennedy requested wiretaps on a Congressional aide, three executive officials, and two American lobbyists, including a Washington law firm.[1271]

Nevertheless, the political misuse of the FBI under the Johnson and Nixon administrations appears to have been more extensive than in previous years.

Under the Johnson administration, the FBI was used to gather and report political intelligence on the, administration’s partisan opponents in the last days of the 1964 and 1968 Presidential election campaigns. In the closing days of the 1964 campaign, Presidential aide Bill Moyers asked the Bureau to conduct “name checks” on all persons employed in Senator Goldwater’s Senate office, and information on two staff members was reported to the White House.[1272] Similarly, in the last two weeks of the 1968 campaign, the Johnson White House requested an investigation (including indirect electronic surveillance and direct physical surveillance) of Mrs. Anna Chennault, a prominent Republican leader, and her relationships with certain South Vietnamese officials.[1273] This investigation also included an FBI check of Vice Presidential candidate Spiro Agnew’s long distance telephone call records, apparently at the personal request of President Johnson.[1274]

Another investigation for the Johnson White House involved executive branch officials who took part in the criminal investigation of former Johnson Senate aide Bobby Baker. When Baker’s trial began in 1967, it was revealed that one of the government witnesses had been “wired” to record his conversations with Baker. Presidential aide Marvin Watson told the FBI that Johnson was quite “exercised,” and the Bureau was ordered to conduct a discreet “run down” on the former head of the Justice Department’s Criminal Division and four Treasury Department officials who had been responsible for “wiring” the witness. The Bureau was specifically insisted to include any associations between those persons and Robert Kennedy.[1275]

Several Johnson White House requests were directed at critics of the war in Vietnam, at newsmen, and at other opponents. According a Bureau memorandum, White House aide Marvin Watson attempted to disguise his, and the President’s interest in such requests asking the FBI to channel its replies through a lower level White House staff member.[1276]

In 1966, Watson asked the FBI to monitor the televised hearings of the Senate Foreign Relations Committee on Vietnam policy and prepare a memorandum comparing statements of the President’s Senate critics with “the Communist Party line.”[1277] Similarly, in 1967 when seven Senators made statements criticizing the bombing of North Vietnam, Watson requested (and the Bureau delivered) a “blind memorandum” setting forth information from FBI files on each of the Senators. Among the data supplied were the following items:

Senator Clark was quoted in the press as stating that the three major threats to America are the military-industrial complex, the Federal Bureau of Investigation, and the Central Intelligence Agency.

Senator McGovern spoke at a rally sponsored by the Chicago, Committee for a Sane Nuclear Policy, a pacifist group. Senator McGovern stated that the “United States was making too much of the communist take-over of Cuba.”

[Another Senator now deceased] has, on many occasions, publicly criticized United States policy toward Vietnam. He frequently speaks before groups throughout the United States on this subject. He has been reported as intentionally entering into controversial areas so that his services as a speaker for which he receives a fee, will be in demand.[1278]

The Johnson administration also requested information on contacts between members of Congress and certain foreign officials known to oppose the United States presence in Vietnam. According to FBI records, President Johnson believed these foreign officials had generated “much of the protest concerning his Vietnam policy, particularly the hearings in the Senate.”[1279]

White House requests were not limited to critical Congressmen. Ordinary citizens who sent telegrams protesting the Vietnam war to the White House were also the subject of Watson requests for FBI name check reports.[1280] Presidential aide Jake Jacobsen asked for name checks on persons whose names appeared in the Congressional Record as signers of a letter to Senator Wayne Morse expressing support for his criticism of U.S. Vietnam policy.[1281] On at least one occasion, a request was channeled through Attorney General Ramsey Clark, who supplied Watson (at the latter’s request) with a summary of information on the National Committee for a Sane Nuclear Policy.[1282]

Other individuals who were the subject of such name check requests under the Johnson Administration included NBC Commentator David Brinkley,[1283] Associated Press reporter Peter Arnett,[1284] columnist Joseph Kraft,[1285] Life magazine Washington bureau chief Richard Stolley,[1286] Chicago Daily News Washington bureau chief Peter Lisagor,[1287] and Ben W. Gilbert of the Washington Post.[1288] The Johnson 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 lives of the individuals.[1289]

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 antiwar teach-in in 1965, his position as State Coordinator of the group “Negotiation Now” in 1967, and his activity as chairman of Connecticut Citizens for McCarthy in 1968.[1290]

Presidential aide H. R. Haldeman requested a name check on CBS reporter Daniel Schorr. In this instance, the FBI mistakenly considered the request to be for a full background investigation and began to conduct interviews. These interviews made the inquiry public. Subsequently, White House officials stated (falsely) that Schorr was under consideration for an executive appointment.[1291] 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 “destroying Abernathy’s credibility.”[1292] (Agnew has denied that he made such a request, but agrees that he received the information.)[1293]

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 William C. Sullivan arranged for the microphone surveillance of the hotel, room of columnist Joseph Kraft while be was visiting a foreign country.[1294] Kraft was also the target of physical surveillance by the FBI.[1295] 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.[1296] A third was a White House speechwriter who had been overheard on an existing tap agreeing to provide a reporter with background on a presidential speech concerning, not foreign policy, but revenue sharing and welfare reform.[1297]

Subfinding (b)

In some cases, political or personal information was not specifically requested, but was nevertheless collected and disseminated to administration officials as part of investigations they had requested. Neither the FBI nor the recipients differentiated in these cases between national security or law enforcement information and purely political intelligence.

In some instances, the initial request for or dissemination of information was premised upon law enforcement or national security purposes. 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.”[1298]

Examples from the Eisenhower, Kennedy, Johnson, and Nixon administrations 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 memorandum describing the “potential for violence” in the current “racial situation”.[1299] 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 following:

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.[1300]

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, Herbert Lehman, Wayne Morse, Hubert Humphrey, and John Bricker. The report also summarized a speech by Roy Wilkins, other conference proceedings, and the report of “an informant” that the United Auto Workers was a “predominant organization” at the conference.[1301]

Another report on the conference included an account of what transpired at meetings between conference delegations and Senators Paul Douglas and Everett Dirksen.[1302]

A report including the information that two New Jersey congressmen would sign a petition to the Attorney General.[1303]

A presidential aide suggested that Hoover brief the Cabinet on “developments in the South.”[1304] 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 Constitutional Government with Southern Congressmen and Governors on its advisory board.[1305]

(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 produced substantial political intelligence unrelated to the activities of foreign officiaIs.[1306] Such information came from wiretaps both on foreign officials and on American citizens, as well as from the microphone surveillance of the chairman of the House Agriculture Committee when he met with foreign officials in a New York hotel room.[1307] The following are examples of the purely political (and personal) by-product:

A particular lobbyist “mentioned he is working on the Senate and has the Republicans all lined up.”[1308]

The same lobbyist said that “he had seen two additional representatives on the House Agriculture Committee, one of whom was ‘dead set against us’ and who may reconsider, and the other was neutral and ‘may vote for us.’”[1309]

The Agriculture Committee chairman believed “he had accomplished nothing” and that “he had been fighting over the Rules Committee and this had interfered with his attempt to organize.”[1310]

The “friend” of a foreign official “was under strong pressure 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.”[1311]

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.”[1312]

A foreign official was reported to be in contact with two Congressmen’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.”[1313]

The FBI’s own evaluation of these wiretaps indicates that they “undoubtedly ... contributed heavily to the Administration’s success” in passing the legislation it desired.[1314]

(iii) The 1964 Democratic Convention

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.[1315] 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:[1316]

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.”[1317]

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.”[1318]

“MFDP leaders have asked Reverend King to call Governor Egan of Alaska and Governor Burns of Hawaii in an attempt to enlist their support. According to the MFDP spokesman, the Negro Mississippi Party needs these two states plus California and New York for the roll call tonight.”[1319]

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.”[1320]

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 Humphrey is not going to get it, that Johnson needs a Catholic ... and therefore the VicePresident will be Muskie of Maine.”[1321]

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.[1322]

(iv) The ”17” Wiretaps.

The Nixon White House learned a substantial amount of purely political intelligence from wiretaps to investigate “leaks” of classified information placed on three newsmen and fourteen executive officials during 1969–1971.[1323] 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.”[1324]

Another target said that Senator Fulbright postponed congressional hearings on

Vietnam because he did not believe they would be popular at that time.[1325]

A well-known television news correspondent “was very distressed over having been ‘singled out’ by the Vice President.”[1326]

A friend of one of the targets said the Washington Star planned to do an article critical of Henry Kissinger.[1327]

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.[1328]

One of the targets told a friend it “is clear the Administration will win on the ABM by a two-vote margin. He said ‘They’ve got [a Senator] and they’ve got [another Senator].’.”[1329]

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.[1330]

A friend of one of the targets described a Senator as “marginal” on the CooperChurch Amendment and stated that another Senator might be persuaded to support it.[1331]

One of the targets said Senator Mondale was in a “dilemma” over the “trade bill.”[1332]

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.”[1333]

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,[1334] 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.”[1335] 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 security advisor, but to the President’s political advisor, H. R. Haldeman.[1336]

These four illustrations from administrations of both political parties indicate clearly that direct channels of communication between top FBI officials and the White House, combined with the failure to screen out extraneous information, and coupled with overly broad investigations in the first instance, have been sources of flagrant political abuse of the intelligence process.[1337]

Subfinding (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 information on its critics and on political figures it believed might influence public attitudes or Congressional support.

There have been numerous instances over the past three decades where the FBI volunteered to its superiors purely political or personal information believed by the FBI Director to be “of interest” to them.[1338]

The following are examples of the information in Director Hoover’s letters under the Truman, Eisenhower, Kennedy, and Johnson administrations.[1339]

To Major General Harry Vaughn, Military Aide to President Truman, a report on the activities of a former Roosevelt aide who was trying to influence the Truman administration’s appointments.[1340]

To Matthew J. Connelly, Secretary to President Truman, a report from a “very confidential source” about a meeting of newspaper representatives in Chicago to plan publication of stories exposing organized crime and corrupt politicians.[1341]

To Dillon Anderson, Special Assistant to President Eisenhower, the advance text of a speech to be delivered by a prominent labor leader.[1342]

To Robert Cutler, Special Assistant to President Eisenhower, a report of a “confidential source” on plans of Mrs. Eleanor Roosevelt to hold a reception for the head of a civil rights group.[1343]

To Attorney General Robert Kennedy, information from a Bureau “source” regarding plans of a group to publish allegations about the President’s personal life.[1344]

To Attorney General Kennedy, a summary of material in FBI files on a prominent entertainer which the FBI Director thought “may be of interest”.[1345]

To Marvin Watson, Special Assistant to President Johnson, a summary of data in Bureau files on the author of a play satirizing the President.[1346]

As these illustrations indicate, the FBI Director provided such data to administrations of both political parties without apparent partisan favoritism.[1347]

Additionally, during the Nixon Administration, the FBI’s INLET (Intelligence Letter) Program for sending regular short summaries of FBI intelligence to the White House was used on one occasion to provide information on the purely personal relationship between an entertainer and the subject of an FBI domestic intelligence investigation.[1348] SACs were instructed under the INLET program to submit to Bureau headquarters items with an “unusual twist” or regarding “prominent” persons.[1349]

One reason for the Bureau’s volunteering information to the White House was to please the Administration and thus presumably to build high-level political support for the FBI. Thus, a 1975 Bureau report on the Atlantic City episode states:

One [agent said], “I would like to state that at no time did I ever consider (it) to be a political operation but it was obvious that DeLoach wanted to impress Jenkins and Moyers with the Bureau’s ability to develop information which would be of interest to them.” Furthermore, in response to a question as to whether the Bureau’s services were being utilized for political reasons, [another] answered, “No. I do recall, however, that on one occasion I was present when DeLoach held a lengthy telephone conversation with Walter Jenkins. They appeared to be discussing the President’s ‘image.’ At the end of the conversation DeLoach told us something to the effect, ‘that may have sounded a little political to you but this doesn’t do the Bureau any harm.’”[1350]

In addition to providing information useful to superiors, the Bureau assembled information on its own critics and on political figures it believed might influence public attitudes or congressional support. FBI Director Hoover had massive amounts of information at his fingertips. As indicated above, he could have the Bureau’s files checked on anyone of interest to him. He personally received political information and “personal tidbits” from the special agents in charge of FBI field offices.[1351] This information, both from the files and Hoover’s personal sources, was available to discredit critics.

The following are examples of how the Bureau disseminated information to discredit its opponents:

In 1949 the FBI provided Attorney General J. Howard McGrath and Presidential aide Harry Vaughn inside information on plans of the Lawyers Guild to denounce Bureau surveillance so they would have an opportunity to prepare a rebuttal well in advance of the expected criticism.[1352]

In 1960, when the Knoxville Area Human Relations Council in Tennessee charged that the FBI was practicing racial discrimination, the Bureau conducted name checks on members of the Council’s board of directors and sent the results to Attorney General William Rogers, including derogatory personal allegations and political affiliations from as far back as the late thirties and early forties.[1353]

When a reporter wrote stories critical of the Bureau, he was not only refused any further interviews, but an FBI official in charge of press relations also spread derogatory personal information about him to other newsmen.[1354]

The Bureau also maintained a “not to contact list’ of “those individuals known to be hostile to the Bureau.” Director Hoover specifically ordered that “each name” on the list “should be the subject of memo.”[1355]

This request for “a memo” on each critic meant that, before someone was placed on the list, the Director received, in effect, a “name check” report summarizing “what we had in our files” on the individual.[1356]

In addition to assembling information on critics, name checks were run as a matter of regular Bureau policy on all “newly elected Governors and Congressmen.” The Crime Records Division instructed the field offices to submit “summary memoranda” on such officials, covering both “public source information” and “any other information that they had in their files.”[1357] These “summary memoranda” were provided to Director Hoover and maintained in the Crime Records Division for use in “congressional liason” — which the Division head said included “selling” hostile Congressmen on “liking the FBI.”[1358]

It has been widely believed among Members of Congress that the Bureau had information on each of them.[1359] The impact of that belief led Congressman Boggs to state:

Our apathy in this Congress, our silence in this House, our very fear of speaking out in other forums has watered the roots and hastened the growth of a vine of tyranny which is ensnaring that Constitution and Bill of Rights which we are each sworn to uphold.

Our society can survive many challenges and many threats.

It cannot survive a planned and programmed fear of its own government bureaus and agencies.[1360]

Subfinding (d)

The FBI has also used intelligence as a vehicle for covert efforts to influence social policy and political action.

The FBI’s interference with the democratic process was not the result of any overt decision to reshape society in conformance with Bureau-approved norms. Rather, the Bureau’s actions were the natural consequence of attitudes within the Bureau toward social change, combined with a strong sense of duty to protect society — even from its own “wrong” choices.

The FBI saw itself as the guardian of the public order, and believed that it had a responsibility to counter threats to that order, using any means available.[1361] At the same time, the Bureau’s assessment of what constituted a “threat” was influenced by its attitude toward the forces of change. In effect, the Bureau chose sides in the major social movements of the last fifteen years, and then attacked the other side with the unchecked power at its disposal.

The clearest proof of the Bureau’s attitude toward change is its own rhetoric. The language used in internal documents which were not intended to be disseminated outside the Bureau is that of the highly charged polemic revealing clear biases.

For example, in one of its annual internal reports on COINTELPRO, the Bureau took pride in having given “the lie” to what it called “the Communist canard” that “the Negro is downtrodden and has no opportunities in America.” This was accomplished by placing a story in a newspaper in which a “wealthy Negro industrialist” stated that “the Negro will have to earn respectability and a responsible position in the community before he is accepted as an equal.” It is significant that this view was expressed at about the same time as the civil rights movement’s March on Washington, which was intended to focus public attention on the denial of opportunities to black Americans, and which rejected the view that inalienable rights have to be “earned.”[1362]

The rhetoric used in dealing with the Vietnam War and those in opposition to it is even more revealing. The war in Vietnam produced sharply divided opinions in the country; again, the Bureau knew which side it was on. For instance, fifty copies of an article entitled “Rabbi in Vietnam Says Withdrawal Not The Answer” were anonymously mailed by the FBI to members of the Vietnam Day Committee to “convince” the recipients “of the correctness of the U.S. foreign policy in Vietnam.”[1363]

The Bureau also ordered copies of a film called “While Brave Men Die” which depicted “communists, left-wing and pacifist activities associated with the so-called ‘peace movement’ or student agitational demonstrations in opposition to the United States position in Vietnam.” The film was to be used for training Bureau personnel in connection with “increased responsibilities relating to communist inspired student agitational activities.”[1364]

In the same vein, a directive to the Chicago field office shortly after the 1968 Democratic Convention instructed it to “obtain all possible evidence” that would “disprove” charges that the Chicago police used undue force in dealing with antiwar demonstrations at the Convention:

Once again, the liberal press and the bleeding hearts and the forces on the left are taking advantage of the situation in Chicago surrounding the Democratic National Convention to attack the police and organized law enforcement agencies.... We should be mindful of this situation and develop all possible evidence to expose this activity and to refute these false allegations.[1365]

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 established morality.”[1366] 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.”[1367] 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 representative of the type of mentality that is following the New Left theory of immorality on certain college campuses.”[1368]

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) Use of the Media

The FBI attempted to influence public opinion by supplying information or articles to “confidential sources” in the news media. The FBI’s Crime Records Division[1369] was responsible for covert liaison with the media to advance two main domestic intelligence objectives:[1370]

(1) providing derogatory information to the media intended to generally discredit the activities or ideas of targeted groups or individuals; and (2) disseminating unfavorable articles, news releases, and background information in order to disrupt particular activities.

Typically, a local FBI agent would provide information to a “friendly news source” on the condition “that the Bureau’s interest in these matters is to be kept in the strictest confidence.”[1371] 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.[1372] Bishop and one of his predecessors indicated that the FBI sometimes refused to cooperate with reporters critical of the Bureau or its Director.[1373]

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 publications.[1374]

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 publication would be left to the reporter’s judgment.[1375]

There are numerous examples of authorization for the preparation and dissemination of unfavorable information to discredit generally the activities and ideas of a target;[1376]

— — 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 embarrassment must be vigorously and enthusiastically explored.”[1377]

-FBI headquarters authorized a Field Office to furnish a media contact with “background information and any arrest record” on a man 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.”[1378]

— — Photographs depicting a radical group’s apartment as “a shambles with lewd, obscene and revolutionary slogans displayed on the walls” were furnished to a free-lance writer. The directive from headquarters said: “As this publicity will be derogatory in nature and might serve to neutralize the group, it is being approved.”[1379]

— — 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 violence, preaching of race hatred, and hypocrisy, should be exposed. 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].[1380]

One Bureau-inspired documentary on the NOI reached an audience of 200,000.[1381] Although the public was to be convinced that the NOI was “violent”, the Bureau knew this was not in fact true of the organization as a whole.[1382]

— — 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 exploitation.” 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 prominent Communist Party member. The release added: “the Red Chinese have long used narcotics to help weaken the youth of target countries.”[1383]

— — 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 continued contributions to Party coffers.”[1384]

— — 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.”[1385]

— — 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 fictitious letter said that “the cuckoo editor of an unimportant smutty little rag” should be “left in the sewers.”[1386]

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 furnishing 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 embarrassment of riches has befallen King ... and King doesn’t need the money.”[1387] 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 not be revealed as the source.”[1388]

The Section Chief in charge of the Black Nationalist COINTELPRO 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 participants and might be of interest to a cooperative news source.”[1389]

— 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 concerning subversive influences in the Atlanta peace movement. His use of this material in well-timed articles would be used to thwart the [upcoming] demonstrations.”[1390]

— — 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 underground communist organization” to take over SDS. This contact resulted in an article headlined “Red Unit Seeks SDS Rule.”[1391]

— — FBI Director Hoover approved a Field Office plan “to get cooperative news media to cover closed meetings of Students for a Democratic Society (SDS) and other New Left groups” with the aim of “disrupting them.”[1392]

— — 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 “identification 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 communist front groups.” In a handwritten note, J. Edgar Hoover directed that copies of the news release be sent to “Haldeman, A. G., and Deputy.”[1393]

The Bureau sometimes used its media contacts to prevent or postpone the publication of articles it considered favorable to its targets or 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 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 publication” of an article on another FBI case; “forestalled publication” of an article by Dr. Martin Luther King, Jr.; and received information about proposed editing of King’s articles.[1394]

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 conservative 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.[1395]

— — 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 Communist 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.[1396]

-- 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;[1397] furnishing information to the media on the participation of the Communist Party presidential candidate in the United Farm Workers’ picket line;[1398] “confidentially” informing established sources in three northern California newspapers that the San Francisco County Communist Party Committee had stated that civil rights groups were to “begin working” on the area’s large newspapers “in an effort to secure greater employment of Negroes;”[1399] and furnishing information to the media on Socialist Workers Party participation in the Spring Mobilization Committee to End the War in Vietnam to “discredit” the antiwar group.[1400]

(ii) Attacks on Leaders

Through covert propaganda, the FBI not only attempted to influence public opinion on matters of social policy, but also directly intervened 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 “effectively tabbing as communists or as communist-backed the more hysterical opponents of the President on the Vietnam question in the midst of the presidential campaign would be a real boon to Mr. Johnson.”[1401]

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 information about the candidate to the press.[1402]

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 “Charlatan.”[1403] Under a fictitious name, the Bureau sent a letter to a television on which the candidate was to appear, enclosing a series of questions about his clients and his activities which it believed should be asked.[1404] 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 anticommunist group to distribute fliers and write letters opposing his candidacy.[1405]

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 candidates 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 Activities and had led demonstrations opposing the manufacture of napalm bombs.[1406]

Although the disruption of election campaigns is the clearest example, the FBI’s interference, with the political process was much broader. For example, all of the COINTELPRO programs were aimed at the leadership of dissident groups.[1407]

In one case, the Bureau’s plans to discredit a civil rights leader included 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.[1408] 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 developed 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 ....[1409]

The Bureau’s efforts to discredit Dr. King are discussed more fully elsewhere.[1410] 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) Exaggerating The Threat

The Bureau also used its control over the infomiation-gathering process to shape the views of government officials and the public on the threats it perceived to the social order. For example, the FBI exaggerated 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, Congress, and the public. Since the Bureau was assigned to compile intelligence 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.”[1411]

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.”[1412] Another memorandum was ‘therefore written to give the Director “what Hoover wanted to hear.”[1413]

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 national 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.”[1414]

Although the Division still had not said the influence was decisive, by 1964 the Director testified before the House Appropriations Subcommittee that the “Communist influence” in the “Negro movement” was “vitally important.”[1415] “I Only someone with access to the underlying information would note that the facts could be interpreted quite differently.[1416]

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 discuss Johnson’s “concern over the anti-Vietnam situation.” According to Hoover, Johnson said he had “no doubt” that Communists were “behind the disturbances.”[1417] 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.”[1418]

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 picture is.” The Director added that he wanted “a good, strong memorandum” pinpointing that the demonstrations had been “largely participated 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.”[1419]

Once again, the Bureau wrote a report which made Communist “efforts” sound like Communist success. The eight page memorandum detailed all of the Communist Party’s attempts to “encourage” domestic dissent by “a crescendo of criticism aimed at negating every effort of the United States to prevent Vietnam from being engulfed by communist 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 ... Communist Party members from throughout the nation participated.” [Emphasis added.][1420]

The rest of the memorandum is an illustration of what former Assistant Director Sullivan called “interpretive” memo writing in which Communist efforts and desires are emphasized without an 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,[1421] could only have had the effect of reinforcing President Johnson’s original tendency to discount dissent against the Vietnam War as “Communist inspired” — a belief shared by his successor.[1422] It is impossible to measure the full effect of this distorted perception at the very highest policymaking level.

F. Inadequate Controls on Dissemination and Retention

Major Finding

The Committee finds that the product of intelligence investigations has been disseminated without adequate controls. Reports on lawful political activity and law-abiding citizens have been disseminated to agencies having no proper reason to receive them. Information that should have been discarded, purged, or sealed, including the product of illegal techniques and overbroad investigations, has been retained and is available for future use.


(a) Agencies have volunteered massive amounts of irrelevant information to other officials and agencies and have responded unquestioningly in some instances to requests for data without assuring that the information would be used for a Iawful purpose.

(b) Excessive dissemination has sometimes contributed to the inefficiency of the intelligence process itself.

(c) Under the federal employee security program, unnecessary information about, the political beliefs and associations of prospective government employees has been disseminated.

(d) The FBI, which has been the “clearinghouse” for all domestic intelligence data, maintains in readily accessible files sensitive and derogatory personal information not relevant to any investigation, as well as information which was improperly or illegally obtained.

Elaboration of Findings

The adverse effects on privacy of the Overbreadth of domestic intelligence collection and of the use of Intrusive Techniques have been magnified many times over by the dissemination practices of the collecting agencies. Information which should not have been gathered in the first place has gone beyond the initial agency to numerous other agencies and officials, thus compounding the original intrusion. The amount disseminated within the Executive branch has often been so voluminous as to make it difficult to separate useful data from worthless detail.

The Committee’s finding on Political Abuse describes dissemination of intelligence for the political advantage of high officials or the self-interest of an agency. The problems of excessive dissemination, however, include more than political use. Dissemination has not been confined to what is appropriate for law enforcement or other proper government purposes. Rather, any information which could have been conceived to be useful was passed on, and doubts were generally resolved in favor of dissemination. Until recently, none of the standards for the exchange of data among agencies has taken privacy interests into account. The same failure to consider privacy interests has characterized the retention of data by the original collecting agency.

Subfinding (a)

Agencies have volunteered massive amounts of irrelevant information to other officials and agencies and have responded unquestioningly in some instances to requests for data without assuring that the information would be used for a lawful purpose.

The following examples illustrate the extent of dissemination:

— — FBI reports on dissident Americans flowed to the CIA at a rate as high as 1,000 a month. CIA officials regarded any names in these reports as a standing requirement from the FBI for information about those persons.[1423]

— — In 1967 the Internal Security Division of the Justice Department was receiving 150 reports and memoranda a day from the FBI on “organizations and individuals engaged in agitational activity of one kind or another.”[1424]

— — Attorney General Ramsey Clark could not “keep up with” the volume of FBI memoranda coming into him and to the Assistant Attorneys General on the 700,000 FBI investigations per year.[1425]

— — The Justice Department’s IDIU sent its computer list of 10,000 to 12,000 American dissidents to the CIA’s Operation CHAOS (which apparently found it useless) and to the Special Service Staff of the Internal Revenue Service which did use it as part of its program of tax investigations).[1426]

— — In fiscal year 1974 alone, the FBI, the Civil Service Commission, and military intelligence received over 367,000 requests for “national agency checks,” or name checks of their files, on prospective federal government employees.[1427]

The information disseminated to other agencies has often been considered useless by the recipients. FBI officials have said they received “very little in the way of good product” from the National Security Agency’s interception of the international communications of Americans.[1428] FBI officials also considered most of the material on “the domestic scene” sent to them from the CIA mail opening project to be irrelevant “junk.”[1429] The Secret Service destroyed over ninety percent of the information disseminated to it by the FBI without ever putting it in its own intelligence files.[1430] Defense Department directives require the destruction of a great deal of information it receives from the FBI about civilians considered “threatening” to the military, including reports on civilian “subversion.”[1431]

Sometimes dissemination has become almost -air end in itself. The FBI would often anticipate what it considered to be the needs of other “appropriate agencies.”[1432] The Bureau has disseminated data to military intelligence agencies, regardless of whether or not there was likely to be serious violence requiring the dispatch of troops; the Bureau also disseminated information when there was no connection between the subject of the report and any military personnel or facility.[1433] Consequently, the computerized and noncomputerized domestic intelligence data banks compiled by the Continental Army Command cited the FBI as “data source” for about 80 percent of the information where a source was identified.[1434]

FBI dissemination to the military has shown how information can get into the hands of agencies which have no proper reason to receive it.[1435]

The FBI disseminated a large volume of information on domestic political activities to the CIA, thus providing a substantial part of the data for the CHAOS program.[1436] Much of this information was also furnished to the State Department.[1437] The FBI sometimes disseminated reports to the CIA and the State Department if the subject matter involved public discussion of national security policy and possible “subversive” influence.[1438]

The FBI was also the largest source of political targets for tax investigations by the Special Service Staff of the Internal Revenue Service. While still in its formative days, SSS was placed on the FBI’s distribution list in response to a request from an Assistant IRS Commissioner for information regarding:

various organizations of predominantly dissident or extremist nature and/or people prominently identified with those organizations.[1439]

The FBI, perceiving that SSS would “deal a blow to dissident elements,”[1440] 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.[1441] 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.”[1442]

One reason for the Bureau’s widespread dissemination of intelligence 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 information 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 disseminate, disseminate, disseminate.[1443]

This testimony illustrates the dilemma of an agency which was blamed for inadequate dissemination, but never criticized for too much dissemination. 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.”[1444]

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 faculty-student “dialogue” as a junior college and the plans of the college 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 information came from college officials.[1445]

— — 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 announcing 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 intelligence 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.”[1446]

— — The FBI disseminated 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 “potentially 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.[1447]

— — In 1966 the FBI disseminated to the Army, Navy, and Air Force intelligence divisions, to the Secret Service (locally and at Headquarters), 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 Vietnam protest activities” or as being known to officials of a nearby established university as “problem people.” The information came from several FBI informants and a confidential source.[1448]

— — In 1966 the FBI disseminated to “appropriate federal and local authorities,” including military intelligence, Secret Service, the Department 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 describing a “speak out” demonstration attended by approximately 300 persons on a university campus. The gathering was entirely peaceful and included “speakers who supported U.S. policies in Viet Nam.” The data came from two Bureau informants.[1449]

— — 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 Ballistic Missile. The only indication of “subversive” influence was that one woman married to a Communist was assisting in publicity work for the meeting. The reports described (from reliable FBI sources) the speakers, pro and con, including prominent scientists, academics, and a Defense Department spokesman.[1450]

— — 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), extensive reports on a national conference on amnesty for war resisters. One of the participants had “recently organized [a] nonviolent protest 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.[1451]

— — 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 Department.[1452]

— — 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 project to furnish “legal advice to GI’s and veterans.” The report described 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.[1453]

The FBI does have an obligation to disseminate to local law enforcement agencies information about crimes within their jurisdiction. Nevertheless, there has been improper dissemination to local police under at least two Bureau programs. Such dissemination occurred under COINTELPRO, as part of the FBI’s effort to discredit individuals or disrupt groups.[1454] Others were in response to local police requests for “public source” information relating to “subversive matters.”[1455] Experienced police officials confirmed that the term “subversive” is so broad that it inevitably leads to dissemination about political beliefs.[1456]

Other executive agencies have also engaged in excessive dissemination. The Justice Department’s Inter-Division Information Unit (IDIU) sent its computerized data to the CIA, in order that the CIA could check its records on foreign travel of American dissidents.[1457] The IDIU sent the same material to the Internal Revenue Service’s Special Service Staff, which used the information as part of its program for initiating tax audits.[1458] The Internal Revenue Service itself disseminated tax returns or related tax information to the CIA, the FBI, and the Justice Department’s Internal Security Division (which also made requests on behalf of the FBI), without ascertaining whether there was a proper basis for the request or the purpose for which the information would be used.[1459]

Subfinding (b)

Excessive dissemination has sometimes contributed to the inefficiency of the intelligence process itself.

The dissemination of large amounts of relatively useless or totally irrelevant information has reduced the efficiency of the intelligence process. It has made it difficult for decisionmakers to weigh the importance of reports.[1460] Agencies such as the FBI have collected intelligence, not because of its own needs or desires, or because it had been requested to do so, but because the data was assumed to be of value to someone else. Units established to screen and evaluate intelligence have encouraged, rather than reduced, further dissemination.

In some instances the FBI has disseminated information to local police in a manner that was counterproductive to effective law enforcement. One former police chief has described how the Bureau, under “pressure” from the White House to prepare for a specific demonstration, “passed on information in such a way that it was totally useless” because it was not “evaluated” and thus exaggerated the dangers.[1461] The need for prior evaluation of the significance of raw intelligence has not been fully recognized in the Bureau’s policy for dissemination of data on protest demonstrations.[1462]

The impediments to accurate intelligence collection have been augmented by the dissemination practices of some local law enforcement agencies. An example is the report oil the Chicago Police Department’s Security Section, which has been described as having passed “inherently inaccurate and distortive data” to federal intelligence agericies.[1463] The General Accounting Office has confirmed that this is a general problem.[1464] While the Committee has not examined local law enforcement intelligence, the dissemination practices of such agencies require as much careful control as federal agencies.[1465]

The assumption that some other agency might need information has not only produced excessive dissemination, but has also served as a specific rationale for collection of intelligence that was not otherwise within an agency’s jurisdiction. The best example is the FBI’s collection of intelligence on “general racial matters” for the military.[1466]

One of the ironies in the recent history of domestic intelligence was that the Justice Department’s IDIU, which was set up to collate and evaluate the massive amounts of data flowing to the Justice Department from the FBI, contributed to even more extensive collection and dissemination.[1467] The IDIU encouraged numerous federal agencies (including many without regular investigative functions) to disseminate information to it about “organizations and individuals” who might “instigate” or “prevent” civil disorders.[1468]

Subfinding (c)

Under the federal employee security program, unnecessary information about the political beliefs and associations of prospective government employees has been disseminated.

For nearly thirty years the federal employee security program has required a “national agency check” of the files of several government agencies, including the FBI, the Civil Service Commission, and military intelligence, on prospective employees.[1469] Although there was often no information to report, federal agencies received “name check” reports on all candidates for employment. This appears to have been the single largest source of regular dissemination of data in intelligence files.

These name check reports have provided information from intelligence files not only about possible criminal activity or personal weaknesses of the individual, but also about lawful political activity and association. Until recently the Executive Order on employee security required reports on any “association” with a person or group supporting “subversive” views. These reports have been required for every federal employee, regardless of whether he or she holds a sensitive position or has access to classified information.[1470]

It has been the policy of the FBI, and presumably other agencies as well, to disseminate via name check reports any information in its files — no matter how old or how unreliable -which might relate to the standards of the Executive Order.[1471] The current criteria have been substantially narrowed: the basic standards for reporting are group membership and potential criminal conduct.[1472] However, the Justice Department has advised the FBI that “it is not possible to set definite parameters” for organizations and that the Bureau should include those with a “potential” for meeting the criteria.[1473] The FBI does not determine whether or not the information it furnishes is decisive under these standards. Departmental instructions state:

It is not the Bureau’s responsibility to determine whether the information is or is not of importance to the particular agency in the carrying out of its current activities and responsibilities, and whether or not any action is taken by the department or agency is not, of course, a principal concern of the Bureau.[1474]

The FBI itself has expressed misgivings about the breadth of its responsibilities under the employee security program. It has continued to seek “clarification” from the Justice Department, and it has pointed out that there have been no “adverse actions” taken against current or prospective Federal employees under the loyalty and security provisions of the Executive Order “for several years.” This has been due to the fact “that difficulties of proof imposed by the courts in loyalty and security cases have proved almost insurmountable.”[1475]

The employee security program has served an essential function in full background investigation and name checks for those having access to classified information. But its extension to vaguely-defined “subversives” in nonsensitive positions has gone beyond the Government’s proper need for information on the suitability of persons for employment.[1476]

Subfinding (d)

The FBI, which has been the “clearinghouse” for all domestic intelligence data, maintains in readily accessible files sensitive and derogatory personal information not relevant to any investigation, as well as information which was improperly or illegally obtained.

In recent years, the Secret Service, military intelligence, and other agencies have instituted significant programs for the destruction or purging of useless information.[1477] However, the FBI has retained its vast general files, accumulated over the years under its duty to serve as a “clearinghouse” for domestic intelligence data.[1478] There are over 6,500,000 files at FBI headquarters; and the data is retrievable through a general index consisting of over 58,000,000 index cards. Each Bureau Field Office has substantial additional information in its files. Domestic intelligence information included in the general index is described by the FBI as:

associates and relatives of the subject; members of organizations under investigation or deter-mined to be possible subversive individuals contributing funds to subversive-type activity; subversive or seditious publications; writers of articles in. subversive or seditious publications — bookstores specializing in subversive-type publications and related types of information.[1479]

The Committee has found that there are massive amounts of irrelevant and trivial information in these files.[1480] The FBI has kept such data in its filing system on the theory that they might he useful someday in the future to solve crimes, for employee background checks, to evaluate the reliability of the source, or to “answer questions or challenges” about the Bureau’s conduct.[1481]

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 activity is “pertinent” to the Bureau’s “legitimate investigative interest.”[1482] 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.[1483]

Finally, there is Information in FBI files which was collected by illegal or improper means. It ranges from the fruits of warrantless electronic surveillance, mail openings, and surreptitious entries, to the results of sweeping intelligence investigations which collected data about the lawful political activities and personal lives of Americans. Where such intelligence remain in the name-indexed files, it can be retrieved and disseminated along with other information, thus continuing indefinitely the potential for compounding the initial intrusion into constitutionally protected areas.

G. Deficiencies in Control and Accountability

Major Finding

The Committee finds that those responsible for overseeing, supervising, and controlling domestic activities of the intelligence community, although often unaware of details of the excesses described in this report, made those excesses possible by delegating broad authority without establishing adequate guidelines and procedural checks; by failing to monitor and coordinate sufficiently the activities of the agencies under their charge; by failing to inquire further after receiving indications that improper activities may have been occurring; by exhibiting a reluctance to know about secret details of programs; and sometimes by requesting intelligence agencies to engage in questionable practices. On numerous occasions, intelligence agencies have, by concealment, misrepresentation, or partial disclosure, hidden improper activities from those to whom they owed a duty of disclosure. But such deceit and the improper practices which it concealed would not have been possible to such a degree if senior officials of the Executive Branch and Congress had clearly allocated responsibility and imposed requirements for reporting and obtaining prior approval for activities, and had insisted on adherence to those requirements.


(a) Presidents have given intelligence agencies firm orders to collect information concerning “subversive activities” of American citizens, but have failed until recently to define the limits of domestic intelligence, to provide safeguards for the rights of American citizens, or to coordinate and control the ever-expanding intelligence efforts by an increasing number of agencies.

(b) Attorneys General have permitted and even encouraged the FBI to engage in domestic intelligence activities and to use a wide range of intrusive investigative techniques — such as wiretaps, microphones, and informants — but have failed until recently to supervise or establish limits on these activities or techniques by issuing adequate safeguards, guidelines, or procedures for review.

(c) Presidents, White House officials, and Attorneys General have requested and received domestic political intelligence, thereby contributing to and profiting from the abuses of domestic intelligence and setting a bad example for their subordinates.

(d) Presidents, Attorneys General, and other Cabinet officers have neglected until recently to make inquiries in the face of clear indications that intelligence agencies were engaging in improper domestic activities.

(e) Congress, which has the authority to place restraints on domestic intelligence activities through legislation, appropriations, and oversight committees, has not effectively asserted its responsibilities until recently. It has failed to define the scope of domestic intelligence activities or intelligence collection techniques, to uncover excesses, or to propose legislative solutions. Some of its members have failed to object to improper activities of which they were aware and have prodded agencies into questionable activities.

(f) Intelligence agencies have often undertaken programs without authorization with insufficient authorization, or in disregard of express orders.

(g) The weakness of the system of accountability and control can be seen in the fact that many illegal or abusive domestic intelligence operations were terminated only after they had been exposed or threatened with exposure by Congress or the news media.

Elaboration of Findings

The Committee has found excesses committed by intelligence agencies — lawless and improper behavior, intervention in the democratic process, overbroad intelligence targeting and collection, and the use of covert techniques to discredit and “neutralize” persons and groups defined as enemies by the agencies. But responsibility for those acts does not fall solely on the intelligence agencies which committed them. Systematic excesses would not have occurred if lines of authority had been clearly defined; if procedures for reporting and review had been established; and if those responsible for supervising the intelligence community had properly discharged their duties.

The pressure of events and the widespread confidence in the FBI help to explain the deficiencies in command and authorization discovered by the Committee. Most of the activities examined in this report occurred during periods of foreign or domestic crisis. There was substantial support from the public and all branches of government for some of the central objectives of domestic intelligence policy, including the search for “Fifth Columnists” before World War II; the desire to identify communist “influence” in the Cold War atmosphere of the 1950s; the demand for action against Klan violence in the early 1960s; and the reaction to violent racial disturbances and anti-Vietnam war activities in the late 1960s and early 1970s. It was in this heated environment that President and Attorneys General ordered the FBI to investigate “subversive activities”. Further, the Bureau’s reputation for effectiveness and professionalism, and Director Hoover’s ability to cultivate political support and to inspire apprehension, played a significant role in shaping the relationship between the FBI and the rest of the Government.

With only a few exceptions, the domestic intelligence activities reviewed by the Committee were properly authorized within the intelligence agencies. The FBI epitomizes a smoothly functioning military structure: activities of agents are closedly supervised; programs are authorized only after they have traveled a well-defined bureaucratic circuit; and virtually all activities — ranging from high-level policy considerations to the minutia of daily reports from field agencies — are reduced to writing. These characteristics are commendable. All efficient law enforcement and intelligence-gathering machine, acting consistently with law, can greatly benefit the nation. However, when used for wrongful purposes, this efficiency can pose a grave danger.

It appears that many specific abuses were not known by the Attorney General, the President, or other Cabinet-level officials directly responsible for supervising domestic intelligence activities. But whether or not particular activities were authorized by a President or Attorney General, those individuals must — as the chief executive and the principal law enforcement officer of the United States Government — bear ultimate responsibility for the activities of executive agencies under their command. The President and his Cabinet officers have a duty to determine the nature of activities engaged in by executive agencies and to prevent undesired activities from taking place. This duty is particularly compelling when responsible officials have reason to believe that undesirable activity is occurring, as has often been the case in the context of domestic intelligence.

The Committee’s inquiry has revealed a pattern of reckless disregard of activities that threatened our Constitutional system. Intelligence agencies were ordered to investigate “subversive activities,” and were then usually left to determine for themselves which activities were “subversive” and how those activities should be investigated. Intelligence agencies were told they could use investigative techniques — wiretaps, microphones, informants — that permitted them to pry into the most valued areas of privacy and were then given in many cases the unregulated authority to determine when to use those techniques and how long to continue them. Intelligence agencies were encouraged to gather “pure intelligence,” which was put to political use by public officials outside of those agencies. This was possibly because Congress had failed to pass laws limiting the areas into which intelligence agencies could legally inquire and the information they could disseminate.

Improper acts were often intentionally concealed from the Government officials responsible for supervising the intelligence agencies, or undertaken without express authority. Such behavior is inexcusable. But equally inexcusable is the absence of executive and congressional oversight that engendered an atmosphere in which the heads of those agencies believed they could conceal activities from their superiors. Attorney General Levi’s recent guidelines and the recommendations of this Committee are intended to provide the necessary guidance.

Whether or not the responsible Government officials knew about improper intelligence activities, and even if the agency heads failed in their duty of full disclosure, it still follows that Presidents and the appropriate Cabinet officials should have known about those activities. This is a demanding standard, but one that must be imposed. The future of democracy rests upon such accountability.

Subfinding (a)

Presidents have given intelligence agencies firm orders to collect information concerning “subversive activities” of American citizens, but have failed until recently to define the limits of domestic intelligence, to provide safeguards for the rights of American citizens, or to coordinate and control the ever-expanding intelligence efforts by an increasing number of agencies.

As emphasized throughout this report, domestic intelligence activities have been undertaken pursuant to mandates from the Executive branch, generally issued during times of war or domestic crisis. The directives of Presidents Roosevelt, Truman, and Eisenhower to investigate “subversive activities,” or other equally ill-defined targets, were echoed in various orders from Attorneys General, who themselves encouraged the FBI to undertake domestic intelligence activities with vague but vigorous commands.

Neither Presidents nor their chief legal officers, the Attorneys General, have defined the “subversive activities” which may be investigated or provided guidelines to the agencies in determining which individuals or groups were engaging in those activities. No reporting procedures were established to enable Cabinet-level officials or their designees to review the types of targets of domestic investigations and to exercise independent judgment concerning whether such investigations were warranted. No mechanisms were established for monitoring the conduct of domestic investigations or for determining if and when they should be terminated. If Presidents had articulated standards in these areas, or had designated someone to do the job for them, it is possible that many of the abuses described in this report would not have occurred.

Considering the proliferation of agencies engaging in domestic intelligence and the overlapping jurisdictional lines, it is surprising that no President has successfully designated one individual or body to coordinate and supervise the domestic intelligence activities of the various agencies. The half-hearted steps that were taken in that direction appear either to have been abandoned or to have resulted in the concentration of even more power in individual agency heads. For example, in 1949 President Truman attempted to establish a control mechanism — the Interdepartmental Intelligence Conference — to centralize authority for supervising domestic intelligence activities of the FBI and military intelligence agencies in a committee chaired by the Director of the FBI. The Committee reported to the National Security Council, and an NSC staff member was assigned responsibility for internal security.[1484] The practical effect of the IIC was apparently to increase the power of the FBI Director and to remove control further from the Cabinet level. In 1962, the functions of the IIC were transferred to the Justice Department, and the Attorney General was put in nominal charge of domestic intelligence.[1485] While in theory supervision resided in the Internal Security Division of the Justice Department, that Division deferred in large part to the FBI and provided little oversight.[1486] The top two executives of the Internal Security Division were former FBI officials. They appeared sympathetic to the Bureau, and like the Bureau, emphasized threats of Communist “influence” without mentioning actual results.[1487]

Another opportunity to coordinate intelligence collection was missed in 1967, when Attorney General Ramsey Clark established the Interdivisional Intelligence Unit (IDIU) to draw on virtually the entire Federal Government’s intelligence collecting capability for information concerning groups and individuals “who may play a role, whether purposefully or not, either in instigating or spreading civil disorders, or in preventing or checking them.”[1488] In the rush to obtain intelligence, no efforts were made to formulate standards or guidelines for controlling how the intelligence would be collected. In the absence of such guidelines and under pressure for results, the agencies undertook some of the most overly broad programs encountered by the Committee. For example, the FBI’s “ghetto” informant program was a direct response to the Attorney General’s broad requests for intelligence.

The need for centralized control of domestic intelligence was again given serious consideration during the vigorous demonstrations against the war in Vietnam in 1970. The intelligence community’s program for dealing with internal dissent — the Huston Plan -envisioned not only relaxing controls on surveillance techniques, but also coordinating intelligence collection efforts. According to Tom Charles Huston’s testimony, the President viewed the suggestion of a coordinating body as the most important contribution of the plan.[1489][1490][1491] Although the President quickly revoked his approval for the Huston Plan, the idea of a central domestic intelligence body had taken root. Two months later, with the encouragement of Attorney General John Mitchell, the Intelligence Evaluation Committee was established in the Justice Department. That Committee, like its precursor, the IDIU, compiled and evaluated raw intelligence; it did not exercise supervision.[1492]

The growing sophistication of intelligence collection techniques underscores the present need for central control and coordination of domestic intelligence activities. Although the Executive Branch has recognized that need in the past, it has not, until recently, faced up to its responsibilities. President Gerald Ford’s joint effort with members of Congress to place further restrictions on wiretaps is a welcome step in the right direction. Congress must act expeditiously in this area.

Subfinding (b)

Attorneys General have permitted and even encouraged the FBI to engage in domestic intelligence activities and to use a wide range of intrusive investigative techniques — such as wiretaps, microphones, and informants — but have failed until recently to supervise or establish limits on these activities or techniques by issuing adequate safeguards, guidelines, or procedures for review.

The Attorney General is the chief law enforcement officer of the United States and the Cabinet-level officer formally in charge of the FBI.[1493] The Justice Department, until recently, has failed to issue directives to the FBI articulating the grounds for opening domestic intelligence investigations or the standards to be followed in carrying out those investigations. The Justice Department has neglected to establish machinery for monitoring and supervising the conduct of FBI investigations, for requiring approval of major investigative decisions, and for determining when an investigation should be terminated. Indeed, in 1972 the Attorney General said he did not even know whether the FBI itself bad formulated guidelines and standards for domestic intelligence activities, was not aware of the FBI’s manual of instructions, and had never reviewed the FBI’s internal guidelines.[1494]

The Justice Department has frequently levied specific demands on the FBI for domestic intelligence, but has not accompanied these demands with restrictions or guidelines. Examples include the Justice Department’s Civil Rights Division’s requests for reports on demonstrations in the early 1960’s (including coverage of a speech by Governor elect George Wallace[1495] and coverage of a civil rights demonstration on the 100th anniversary of the Emancipation Proclamation[1496]): Attorney General Kennedy’s efforts to expand FBI infiltration of the Ku Klux Klan in 1964;[1497] Attorney General Clark’s sweeping instructions to collect intelligence about civil disorders in 1967;[1498] and the Internal Security Division’s request for more extensive investigations of campus demonstrations in 1969.[1499] While a limited investigation into some of these areas may have been warranted, the improper acts committed in the course of those investigations were possible because no restraints had been imposed.

The Justice Department also cooperated with the FBI in defying the Emergency Detention Act of 1950 by approving the Bureau’s Security Index criteria for the investigation of “potentially dangerous” persons.[1500] Even after Congress repealed the Detention Act, the Justice Department allowed the Bureau to continue listing “potentially dangerous” persons on a new Administrative Index. The Department stopped reviewing the names on the FBI’s index, and apparently endorsed the FBI’s view that the list could, contrary to law, be used for detention purposes in an “emergency.”

The FBI’s autonomy has been a prominent and long-accepted feature of the Federal bureaucratic terrain. As early as the 1940s the FBI could oppose Justice Department inquiries into its internal affairs by raising the specter of “leaks.”[1501] The Department acquiesced in the Bureau’s claim that it was entitled to withhold its raw files, conceal the identities of informants, and, in a number of cases, refuse to give the Justice Department evidence supporting broad allegations and characterizations. Former Attorney General Katzenbach has pointed out that there were both positive and negative sides to the Bureau’s autonomy:

Keeping the Bureau free from political interference was a powerful argument against efforts by politically appointed officials, whatever their motivations, to gain a greater measure of control over operations of the Bureau.... [Director Hoover also] found great value in his formal position as subordinate to the Attorney General and the fact that the FBI was a part of the Department of Justice.... In effect, he was uniquely successful in having it both ways; he was protected from public criticism by having a theoretical superior who took responsibility for his work, and was protected from his superior by his public reputation.[1502]

As a consequence of its autonomy, the Bureau could plan and implement many of the abusive operations described in this report. Former Attorneys General have told the Committee that they would never have permitted the more unsavory aspects of the New Left or Racial COINTELPROs if they had been aware of the Bureau’s plans. To the extent that Attorneys General were ignorant of the Bureau’s activities, it was the consequence not only of the FBI Director’s independent political position, but also of the failure of the Attorneys General to establish procedures for finding out what the Bureau was doing and for permitting an atmosphere to evolve in which Bureau officials believed that they had no duty to report their activities to the Justice Department, and that they could conceal those activities with little risk of exposure.[1503]

Attorneys General have not only neglected to establish procedures for reviewing FBI programs and activities, but they have at the same time granted the FBI authority to employ highly intrusive investigative techniques with inadequate guidelines and review procedures, and in some instances with no external restraints whatsoever. Before 1965, wiretaps required the approval of the Attorney General in advance, but once the Attorney General had authorized wiretap coverage of a subject, the Bureau could continue the surveillance for as long as it judged necessary.

This permissive policy was current in October 1963 when Attorney General Robert Kennedy authorized the FBI to wiretap the phones of Dr. Martin Luther King, Jr. “at his current address or at any future address to which he may move” and to wiretap the New York and Atlanta SCLC offices.[1504] Reading the Attorney General’s wiretap authorization broadly, the FBI construed Dr. King’s “residence” so as to permit wiretaps on three of his hotel rooms and the homes of friends with whom he stayed temporarily.[1505] The FBI was still relying on Attorney General Kennedy’s initial authorization when it sought reauthorization for the King wiretaps in April 1965 in response to new procedures formulated by Attorney General Katzenbach. Although Attorney General Kennedy’s authorizing memorandum in October 1963 said that the FBI should provide him with an evaluation of the wiretaps after 60 days, he failed to complain when the FBI neglected to send him the evaluation. Apparently the Attorney General never mentioned the wiretaps to the FBI again, even though he received FBI reports from the wiretaps until he resigned in September, 1964.[1506]

The Justice Department’s policy toward the use of microphones has been even more permissive than for wiretaps. Until 1965, the FBI was free to carry out microphone surveillance in national security cases without first seeking the approval of the Attorney General or notifying him afterward. The total absence of supervision enabled the FBI to hide microphones in Dr. Martin Luther King’s hotel rooms for nearly two years for the express purpose of not only determining whether he was being influenced by allegedly communist advisers. but to “attempt” to obtain information about the private “activities of Dr. King and his associates” so that Dr. King could be “completely discredited.”[1507] Attorney General Kennedy was apparently never told about the microphone surveillances of Dr. King, although he did receive reports containing unattributed information from that surveillance from which he might have concluded that microphones were the source.[1508]

The Justice Department imposed external control over microphones for the first time in March 1965, when Attorney General Katzenbach applied the same procedures to wiretaps and microphones, requiring not only prior authorization but also formal periodic review.[1509] But irregularities were tolerated even with this standard. For example, the FBI has provided the Committee three memoranda from Director Hoover, initialed by Attorney General Katzenbach, as evidence that it informed the Justice Department of its microphone surveillance of Dr. King after the March 1965 policy change. These documents, however, show that Katzenbach was informed about the microphones only after they had already been installed.[1510] Such after-the-fact approval was permitted under Katzenbach’s procedures.[1511] There is no indication that Katzenbach inquired further after receiving the notice.[1512]

The Justice Department condoned, and often encouraged, the FBI’s use of informants — the investigative technique with the highest potential for abuse. However, the Justice Department imposed no restrictions on informant activity or reporting, and established no procedures for reviewing the Bureau’s decision to use informants in a particular case.

In 1954 the Justice Department entered into an agreement with the CIA in which the CIA was permitted to withhold the names of 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.”[1513] This practice was terminated by the Justice Department in January, 1975.[1514]

Despite the failure of Attorneys General to exercise the supervision 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 rejection 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 exercised welcome leadership by formulating guidelines for FBI investigations; developing legislative proposals requiring a judicial warrant 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.[1515] 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 contributing to and profiting from the abuses of domestic intelligence and setting a bad example for their subordinates.

The separate finding on “political abuse” sets forth instances in which the FBI was used by White House officials to gather politically useful information, including data on administration opponents 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 excessive 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 characterized 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.

Subfinding (d)

Presidents, Attorneys General, and other cabinet officers have neglected, until recently, to make inquiries in the face of clear indications 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 Ignoring 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.[1516]

Some of the most disturbing examples of insufficient action in the face of clear danger signals were uncovered in the Committee’s investigation 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 outside of the FBI “were specifically aware of any efforts, steps, or plans or proposals to ‘discredit’ or ‘neutralize’ King.”[1517] The relevant executive branch officials have told the Committee that they were, unaware of a general Bureau program to discredit King. Former Attorney General 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 unaware of the potential for disaster which those feelings embodied. But, given the realities of the situation, I do not believe one could have anticipated the extremes to which it was apparently carried.[1518]

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 President Johnson and Attorney General Katzenbach, knew that the Bureau 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.[1519]

— — In February 1964 a reporter informed the Justice Department that the FBI had offered to “leak” information unfavorable to Dr. King to the press. The Justice Department’s Press Chief, Edwin Guthman, asked Cartha DeLoach, the FBI’s liaison with the press, about this allegation and DeLoach denied any involvement. The Justice Department took no further action.[1520]

— — Bill Moyers, an Assistant to President Johnson, testified that he learned sometime in early 1964 that an FBI agent twice offered to play a tape recording for Walter Jenkins that would have been personally embarrassing to Dr. King and that Jenkins refused to listen to the tape on both occasions.[1521] Moyers testified that he never asked the FBI why it had the tape or was offering to play it in the White House.[1522] When asked if he had ever questioned the propriety of the FBI’s disseminating information of a personal nature about Dr. King within the Government, he replied, “I never questioned it, no.” When he was asked if he could recall anyone in the White House ever questioning the propriety of the FBI disseminating this type of material, Moyers testified. “I think ... there were comments that tended to ridicule the FBI’s doing this, but no.”[1523]

— — Burke Marshall, Assistant Attorney General in charge of the Civil Rights Division, testified that sometime in 1964 a reporter told him that the Bureau had offered information unfavorable to Dr. King. Marshall testified that he repeated this allegation to a Bureau official and asked for a report. The Bureau official subsequently informed him “The Director wants you to know that you’re a ... damned liar.”[1524]

— — In November 1964 the Washington Bureau Chief of a national news publication told Attorney General Katzenbach and Assistant Attorney General Marshall that one of his reporters had been approached by the FBI and offered the opportunity to hear some “interesting” tape recordings involving Dr. King. Katzenbach testified that, he had been “shocked,” and that he and Marshall had informed President Johnson, who “took the matter very seriously” and promised to contact Director Hoover.[1525] Neither Marshall nor Katzenbach knew if the President contacted Hoover.[1526] Katzenbach testified that, during this same period, he learned of at least one other reporter who had been offered tape recordings by the Bureau, and that he personally confronted DeLoach, who was reported to have made the offers.[1527] DeLoach told Katzenbach that be had never made such offers.[1528] The only record of this episode in FBI files is a memorandum by DeLoach stating that Moyers had informed him that the newsman was “telling all over town” that the FBI was making allegations concerning Dr. King, and that Moyers had “stated that the President felt that [the newsman] lacked integrity....”[1529] Moyers could not recall this episode, but told the Committee that it would be fair to conclude that the President had been upset by the fact that the newsman revealed the Bureau’s conduct rather than by the Bureau’s conduct itself.[1530]

The response of top White House and Justice Department officials to strong indications of wrongdoing by the FBI was clearly inadequate. The Attorney General went no further than complaining to the President and asking a Bureau official if the charges were true. President Johnson apparently not only failed to order the Bureau to stop, but indeed warned it not to deal with certain reporters because they had complained about the Bureau’s improper conduct.

In 1968 Attorney General Ramsey Clark asked Director Hoover if he had “any information as to how” facts about Attorney General Kennedy’s authorization of the wiretap on Dr. King had leaked to columnists Drew Pearson and Jack Anderson. Clark requested the FBI Director to “undertake whatever investigation you deem feasible to determine how this happened.[1531] Director Hoover’s reply, drafted in the office of Cartha DeLoach, expressed “dismay” at the leak and offered no indication of the likely source.[1532]

In fact, DeLoach had prepared a memorandum ten days earlier stating that a middle-level Justice Department official with knowledge of the King wiretap met with him and admitted having “discussed this matter with Drew Pearson.” According to this memorandum, DeLoach attempted to persuade the official not to allow the story to be printed because “certain Negro groups would still blame the FBI, whether we were ordered to take such action or not.”[1533] Thus, DeLoach and Hoover deliberately misled Attorney General Clark by withholding their knowledge of the source of the “leak.”

Subfinding (e)

Congress, which has the authority to place restraints on domestic intelligence activities through legislation, appropriations, and oversight committees, has not effectively asserted its responsibilities until recently. It has failed to define the scope of domestic intelligence activities or intelligence collection techniques, to uncover excesses, or to propose legislative solutions. Some of its members have failed to object to improper activities of which they were aware and have prodded agencies into questionable activities.

Congress, unlike the Executive branch, does not have the function of supervising the dayto-day activities of agencies engaged in domestic intelligence. Congress does, however, have the ability through legislation to affect almost every aspect of domestic intelligence activity: to erect the framework for coordinating domestic intelligence activities; to define and limit the types of activities in which executive agencies may engage; to establish the standards for conducting investigations; and to promulgate guidelines for controlling the use of wiretaps, microphones, and informants. Congress could also exercise a great influence over domestic intelligence through its power over the appropriations for intelligence agencies’ budgets and through the investigative powers of its committees.

Congress has failed to establish precise standards governing domestic intelligence. No congressional statutes deal with the authority of executive agencies to conduct domestic intelligence operations, or instruct the executive in how to structure and supervise those operations. No statutes address when or under what conditions investigations may be conducted. Congress did not attempt to formulate standards for wiretaps or microphones until 1968, and even then avoided the issue of domestic intelligence wiretaps by allowing an exception for an undefined claim of inherent executive power to conduct domestic security surveillance, which was subsequently held unconstitutional.[1534] No legislative standards have been enacted to govern the use of informants.

Congress has helped shape the environment in which improper intelligence activities were possible. The FBI claims that sweeping provisions in several vague criminal statutes and regulatory measures enacted by Congress provide a basis for much of its domestic intelligence activity.[1535] Congress also added its voice to the strong consensus in favor of governmental action against Communism in the 1950’s and domestic dissidents in the 1960’s and 1970’s.

Congress’ failure to define intelligence functions has invited action by the executive. If the top officials of the executive branch are responsible for failing to control the intelligence agencies, that failure is in part due to a lack of guidance from Congress.

During most of the 40-year period covered in this report, congressional committees did not effectively monitor domestic intelligence activities. For example, in 1966, a Senate Judiciary subcommittee undertook an investigation of electronic surveillance and other intrusive techniques by Federal agencies. According to an FBI memorandum, its chairman told a delegation from the FBI that he would make “a commitment that he would in no way embarrass the FBI,” and acceded in the FBI’s request that the subcommittee refrain from calling FBI witnesses.[1536]

Another example of the deficiencies in congressional oversight is seen in the House Appropriations Committee’s regular approval of the FBI’s requests for appropriations without raising objections to the activities described in the Director’s testimony and off-the-record briefings. There is no question that members of a House Appropriations subcommittee were aware not only that the Bureau was engaged in broad domestic intelligence investigations, but that it was also employing disruptive tactics against domestic targets.

In 1958, Director Hoover informed the subcommittee that the Bureau had an “intensive program” to “disorganize and disrupt” the Communist Party, that the program had existed “for years” and that Bureau informants were used “as a disruptive tactic.”[1537] The next year, the Director informed the subcommittee that informants in 12 field offices

have been carefully briefed to engage in controversial discussions with the Communist Party so as to promote dissention, factionalism and defections from the communist cause. This technique has been extremely successful from a disruptive standpoint.

Under another phase of this program, we have carefully selected 28 items of anticommunist propaganda and have anonymously mailed it to selected communists, carefully concealing the identity of the FBI as its source. More than 2,800 copies of literature have been placed in the hands of active communists.[1538]

Hoover described more aggressive “psychological warfare” techniques in 1962:

During the past year we have caused disruption at large Party meetings, rallies and press conferences through various techniques such as causing the last-minute cancellation of the rental of the hall, packing the audience with anticommunists, arranging adverse publicity in the press and making available embarrassing questions for friendly reporters to ask the Communist Party functionaries.

The Appropriations subcommittee was also told during this briefing that the FBI’s operations included exposing and discrediting “communists who are secretly operating in legitimate organizations and employments, such as the Young Men’s Christian Association, Boy Scouts, civic groups, and the like.”[1539]

In 1966 Director Hoover informed the Appropriations subcommittee that the disruptive program had been extended to the Ku Klux Klan.[1540]

The present Associate Director of the FBI, Nicholas Callahan, who accompanied Director Hoover during several of his appearances before the Appropriations subcommittee, said that members of the subcommittee made “no critical comment” about “the Bureau’s efforts to neutralize groups and associations.”[1541]

Subcommittee Chairman John Rooney’s statements in a televised interview in 1971 regarding FBI briefings about Dr. Martin Luther King are indicative of the subcommittee’s attitude toward the Bureau:

Representative ROONEY. Now you talk about the F.B.I. leaking something about Martin Luther King. I happen to know all about Martin Luther King, but I have never told anybody.

Interviewer. How do you know everything about Martin Luther King?

Representative ROONEY. From the Federal Bureau of Investigation.

Interviewer. They’ve told you — gave you information based on taps or other sources about Martin Luther King.

Representative ROONEY. They did.

Interviewer. Is that proper?

Representative ROONEY. Why not?[1542]

Former Assistant Attorney General Fred Vinson recalled that in 1967 the Justice Department averaged “fifty letters a week from Congress” demanding that “people like [Stokely] Carmichael be jailed.” Vinson said that on one occasion when he was explaining First Amendment limits at a congressional hearing, a Congressman “got so provoked he raised his hand and said, ‘to hell with the First Amendment.”’ Vinson testified that these incidents fairly characterized “the atmosphere of the time.”[1543]

The congressional performance has improved, however, in recent years. Subcommittees of the Senate Judiciary Committee have initiated inquiries into Army surveillance of domestic targets and into electronic surveillance by the FBI. House Judiciary Committee subcommittees commissioned a study of the FBI by the General Accounting Office and have inquired into FBI misconduct and surveillance activities. Concurrent with this Committee’s investigations, the House Select Committee on Intelligence considered FBI domestic intelligence activities.

Our Constitution envisions Congress as a check on the Executive branch, and gives Congress certain powers for discharging that function. Until recently, Congress has not effectively fulfilled its constitutional role in the area of domestic intelligence. Although the appropriate congressional committees did not always know what intelligence agencies were, doing, they could have asked. The Appropriations subcommittee was aware that the FBI was engaging in activities far beyond the mere collection of intelligence, yet it did not inquire into the details of those programs.[1544] If Congress had addressed the issues of domestic intelligence and passed regulatory legislation, and if it had probed into the activities of intelligence agencies and required them to account for their deeds, many of the excesses in this Report might not have occurred.

Subfinding (f)

Intelligence agencies have often undertaken programs without authorization, with insufficient authorization, or in defiance of express orders.

The excesses detailed in this report were due in part to the failure of Congress and the Executive branch to erect a sound framework for domestic intelligence, and in part to the dereliction of responsibility by executive branch officials who were in charge of individual agencies. Yet substantial responsibility lies with officials of the intelligence agencies themselves. They had no justification for initiating major activities without first seeking the express approval of their superiors. The pattern of concealment and partial and misleading disclosures must never again be allowed to occur.

The Committee’s investigations have revealed numerous instances in which intelligence agencies have assumed programs or activities were authorized under circumstances where it could not reasonably be inferred that higher officials intended to confer authorization. Sometimes far-reaching domestic programs were initiated without the knowledge or approval of the appropriate official outside of the agencies. Sometimes it was claimed that higher officials had been “notified” of a program after they had been informed only about some aspects of the program, or after the program had been described with vague references and euphemisms, such as “neutralize,” that carried different meanings for agency personnel than for uninitiated outsiders. Sometimes notice consisted of references to programs buried in the details of lengthy memoranda; and “authorization” was inferred from the fact that higher officials failed to order the agency to discontinue the program that had been obscurely mentioned.

The Bureau has made no claim of outside authorization for its COINTELPROs against the Socialist Workers Party, Black Nationalists, or New Left adherents. After 1960, its fragile claim for authorization of the COINTELPROs against the Communist Party USA and White Hate Groups was drawn from a series of hints and partial, obscured disclosures to the Attorneys General and the White House.

The first evidence of notification to higher government officials of the FBI’s COINTELPRO against the Communist Party USA consists of letters from Director Hoover to President Eisenhower and Attorney General William Rogers in May 1958 informing them that “in August of 1956, this Bureau initiated a program designed to promote disruption within the ranks of the Communist Party (CP) USA.”[1545] There is no record of any reply to these letters.

Later that same year, Director Hoover told President Eisenhower and his Cabinet:

To counteract a resurgence of Communist Party influence in the United States, we have a ... program designed to intensify any confusion and dissatisfaction among its members.

During the past few years, this program has been most effective. Selected informants were briefed and trained to raise controversial issues within the Party.... The Internal Revenue Service was furnished names and addresses of Party functionaries who had been active in the underground apparatus ... ; Anticommunist literature and simulated Party documents were mailed anonymously to carefully chosen members ....[1546]

The FBI’s only claim to having notified the Kennedy Administration about COINTELPRO rests upon a letter written shortly before the inauguration in January 1961 from Director Hoover to Attorney General-designate Robert Kennedy, Deputy Attorney General-designate Byron R. White, and Secretary of State-designate Dean Rusk. One paragraph in the five-page letter stated that the Bureau had a “carefully planned program of counterattack against the CPUSA which keeps it off balance,” and which was “carried on from both inside and outside the party organization.” The Bureau claimed to have been “successful in preventing communists from seizing control of legitimate, mass organizations” and to have “discredited others who were secretly operating inside such organizations.”[1547] Specific techniques were not mentioned, and no additional notice was provided to the Kennedy Administration. Indeed, when the Kennedy White House formally requested of Hoover a report on “Internal Security Programs,” the Director described only the FBI’s “investigative program,” and made no reference to disruptive activities.[1548]

The only claimed notice of the COINTELPRO against the Ku Klux Klan was given after the program had begun and consisted of a partial description buried within a discussion of other subjects. In September 1965, copies of a two page letter were sent to President Johnson and Attorney General Katzenbach, describing the Bureau’s success in solving a number of cases involving racial violence in the South. That report contained a paragraph stating that the Bureau was “seizing every opportunity to disrupt the activities of Klan organizations,” and briefly described the exposure of a Klan member’s “kickback” scheme involving insurance company premiums.[1549] More questionable tactics, such as sending a letter to a Klansman’s wife to destroy their marriage, were not mentioned. The Bureau viewed Katzenbach’s reply to its letter — which praises the investigative successes which are the focus of the FBI’s letter — as constituting authorization for the White Hate COINTELPRO.[1550]

The claimed notification to Attorney General Ramsey Clark of the White Hate COINTELPRO consisted of a ten-page memorandum captioned “Ku Klux Klan Investigations — FBI Accomplishments” with a buried reference to Bureau informants “removing” Klan officers and “provoking scandal” within the Klan organization[1551], Clark told the Committee that he did not recall reading those phrases or interpreting them as notice that the Bureau was engaging in disruptive tactics.[1552] Cartha DeLoach, Assistant to the Director during this period, testified that he “distinctly” recalled briefing Attorney General Clark “generally ... concerning COINTELPRO.”[1553] Clark denied havingbeen briefed.[1554]

The letters and briefings described above, which constitute the Bureau’s entire claim to notice and authorization for the CPUSA and White Hate COINTELPROs, failed to mention techniques which risked physical, emotional, or economic harm to their targets. In no case was an Attorney General clearly told the nature and extent of the programs and asked for his approval. In no case was approval expressly given.

Former Attorney General Katzenbach cogently described another misleading form of “authorization” relied on by the Bureau and other intelligence agencies:

As far as Mr. Hoover was concerned, it was sufficient for the Bureau if at any time any Attorney General had authorized [a particular] activity in any circumstances. In fact, it was often sufficient if any Attorney General had written something which could be construed to authorize it or had been informed in some one of hundreds of memoranda of some facts from which he could conceivably have inferred the possibility of such an activity. Perhaps to a permanent head of a large bureaucracy this seems a reasonable way of proceeding. However, there is simply no way an incoming Cabinet officer can or should be charged with endorsing every decision of his predecessor ....[1555]

For example, the CPUSA COINTELPRO was substantially described to the Eisenhower Administration, obliquely to the Kennedy Administration designees, but continued -apparently solely on the strength of those assumed authorizations — through the Johnson Administration and into the Nixon Administration. The idea that authority might continue from one administration to the next and that there is no duty to reaffirm authority inhibits responsible decision making. Circumstances may change and judgments may differ. New officials should be given — and should insist upon — the opportunity to review significant programs.

The CIA’s mail opening project illustrates an instance in which an intelligence agency apparently received authorization for a limited program and then expanded that program into significant new areas without seeking further authorization. In May 1954, DCI Allen Dulles and Richard Helms, then Chief of Operations in the CIA’s Directorate of Plans, briefed Postmaster General Arthur Summerfield about the CIA’s New York mail project, which at that time involved only the examination of envelope exteriors. CIA memoranda indicate that Summerfield’s approval was obtained for photographing envelope exteriors, but no mention was made of the possibility of mail opening.[1556]

The focus of the CIA’s project shifted to mail opening sometime during the ensuing year, but the CIA did not return to inform Summerfield and made no attempt to secure his approval for this illegal operation.

Intelligence officers have sometimes withheld information from their superiors and concealed programs to prevent discovery by their superiors. The Bureau apparently ignored the Attorney General’s order to stop classifying persons as “dangerous” in 1943; unilaterally decided not to provide the Justice Department with information about communist espionage on at least two occasions “for security reasons;” and withheld similar information from the Presidential Commission investigating the government’s security program in 1947.[1557][1558][1559][1560][1561] More recently, CIA and NSA concealed from President Richard Nixon their respective mail opening and communications interception programs.

These incidents are not unique. The FBI also concealed its Reserve Index of prominent persons who were not included on the Security Index reviewed by the Justice Department; its other targeting programs against “Rabble Rousers,” “Agitators,” “Key Activists,” and “Key Extremists;” and its use of intrusive mail opening and surrepititious entry techniques. Indeed, the FBI institutionalized its capability to conceal activities from the Justice Department by establishing a regular “Do Not File” procedure, which assured internal control while frustrating external accountability.

Subfinding (g)

The weakness of the system of accountability and control can be seen in the fact that many illegal or abusive domestic intelligence operations were terminated only after they had been exposed or threatened with exposure by Congress or the news media.

The lack of vigorous oversight and internal controls on domestic intelligence activity frequently left the termination of improper programs to the ad hoc process of public exposure or threat of exposure by Congress, the press, or private citizens. Less frequently, domestic intelligence projects were terminated solely because of an agency’s internal review of impropriety.

The Committee is aware that public exposure can jeopardize legitimate, productive, and costly intelligence programs. We do not condone the extralegal activities which led to the exposure of some questionable operations.

Nevertheless two points emerge from an examination of the termination of numerous domestic intelligence activities: (1) major illegal or improper operations thrived in an atmosphere of secrecy and inadequate executive control; and (2) public airing proved to be the most effective means of terminating or reforming those operations.

Some intelligence officers and Executive branch administrators sought the termination of questionable programs as soon as they became aware of the nature of the operation — the Committee praises their actions. However, too often we have seen that the secrecy that protected illegal or improper activities and the insular nature of the agencies involved prevented intelligence officers from questioning their actions or realizing that they were wrong.

There are several noteworthy examples of illegal or abusive domestic intelligence activities which were terminated only after the threat of public exposure:

— — The FBI’s widesweeping COINTELPRO operations were terminated on April 27, 1971, in response to disclosures about the program in the press.[1562]

— — IRS payments to confidential informants were suspended in March 1975 as a result of journalistic investigation of Operation Leprechaun.[1563]

— — The Army’s termination of several major domestic intelligence operations, which were clearly overbroad or illegal, came only after the programs were disclosed in the press or were scheduled as the subject of congressional inquiry.[1564]

— — On one occasion, FBI Director Hoover insisted that electronic surveillance be discontinued prior to his appearance before the House Appropriations Committee so that he could report a relatively small number of wiretaps in place.[1565] Contrary to frequent allegations, however, no general pattern of temporary suspensions or terminations during the Director’s appearances before the House Appropriations Committee is revealed by Bureau records.

— — Following the report of a Presidential committee which had been established in response to news reports in 1967, the CIA terminated its covert relationship with a large number of domestically based organizations, such as academic institutions, student groups, private foundations, and media projects aimed at an international audience.[1566][1567]

Other examples of curtailment of domestic intelligence activity in response to the prospect of public exposure include: President Nixon’s 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;”[1568] 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;[1569] and the CIA’s consideration of suspending mail-opening until the Long inquiry abated and eventual termination of the program “in the Watergate climate.”[1570] More recently, several questionable domestic intelligence practices have been terminated at least in part as a result of Congressional investigation.[1571]

There are several prominent instances of terminations which resulted 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 activities which he considered “antithetical to proper tax administration.”[1572]

— — An internal legal review in 1973 prompted the termination of the joint effort by NSA and CIA to monitor United States — South American communications by individuals named on a drug traffic “watch list.”[1573]

— — On May 9, 1973, newly appointed CIA Director James Schlesinger requested from CIA personnel an inventory of all “questionable activities” which the Agency had undertaken. The 694 pages of memoranda received in response to this request — which became known at the CIA as “The Family Jewels” — prompted the termination or limitation of a number of programs which were in violation of the the Agency’s mandate, notably the CHAOS project involving intelligence-gathering against American citizens.[1574]

— — In the early 1960s, the CIA’s MKULTRA testing program, which involved surreptitiously administering drugs to unwitting persons, was “frozen” after the Inspector General questioned the morality and lack of administrative control of the program.[1575]

— — Several mail-opening operations were terminated because they lacked sufficient intelligence value, which was often measured in relation to the “flap potential” — or risk of disclosure — of an operation. However, both the CIA and the FBI continued other mailopening operations after these terminations.[1576]

The Committee’s examination of the circumstances surrounding terminations of a wide range of improper or illegal domestic intelligence activities clearly points to the need for more effective oversight from outside the agencies. In too many cases, the impetus for the termination of programs of obviously questionable propriety came from the press or the Congress rather than from intelligence agency administrators or their superiors in the Executive Branch. Although there were several laudable instances of termination as a responsible outgrowth 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.

IV. Conclusions and Recommendations

A. Conclusions

The findings which have emerged from our investigation convince us that the Government’s domestic intelligence policies and practices require fundamental reform. We have attempted to set out the basic facts; now it is time for Congress to turn its attention to legislating restraints upon intelligence activities which may endanger the constitutional rights of Americans.

The Committee’s fundamental conclusion is that intelligence activities have undermined the constitutional rights of citizens and that they have done so primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.

Before examining that conclusion, we make the following observations.

-While nearly all of our findings focus on excesses and things that went wrong, we do not question the need for lawful domestic intelligence. We recognize that certain intelligence activities serve perfectly proper and clearly necessary ends of government. Surely, catching spies and stopping crime, including acts of terrorism, is essential to insure “domestic tranquility” and to “provide for the common defense.” Therefore, the power of government to conduct proper domestic intelligence activities under effective restraints and controls must be preserved.

-We are aware that the few earlier efforts to limit domestic intelligence activities have proven ineffectual. This pattern reinforces the need for statutory restraints coupled with much more effective oversight from all branches of the Government.

-The crescendo of improper intelligence activity in the latter part of the 1960s and the early 1970s shows what we must watch out for: In time of crisis, the Government will exercise its power to conduct domestic intelligence activities to the fullest extent. The distinction between legal dissent and criminal conduct is easily forgotten. Our job is to recommend means to help ensure that the distinction will always be observed.

-In an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward “big brother government.” The potential for abuse is awesome and requires special attention to fashioning restraints which not only cure past problems but anticipate and prevent the future misuse of technology.

-We cannot dismiss what we have found as isolated acts which were limited in time and confined to a few willful men. The failures to obey the law and, in the words of the oath of office, to “preserve, protect, and defend” the Constitution, have occurred repeatedly throughout administrations of both political parties going back four decades.

-We must acknowledge that the assignment which the Government has given to the intelligence community has, in many ways, been impossible to fulfill. It has been expected to predict or prevent every crisis, respond immediately with information on any question, act to meet all threats, and anticipate the special needs of Presidents. And then it is chastised for its zeal. Certainly, a fair assessment must place a major part of the blame upon the failures of senior executive officials and Congress.

In the final analysis, however, the purpose of this Committee’s work is not to allocate blame among individuals. Indeed, to focus on personal culpability may divert attention from the underlying institutional causes and thus may become an excuse for inaction.

Before this investigation, domestic intelligence had never been systematically surveyed. For the first time, the Government’s domestic surveillance programs, as they have developed over the past forty years, can be measured against the values which our Constitution seeks to preserve and protect. Based upon our full record, and the findings which we have set forth in Part III above, the Committee concludes that:

Domestic Intelligence Activity Has Threatened and Undermined The Constitutional Rights of Americans to Free Speech, Association and Privacy. It Has Done So Primarily Became The Constitutional System for Checking Abuse of Power Has Not Been Applied.

Our findings and the detailed reports which supplement this volume set forth a massive record of intelligence abuses over the years. Through a vast network of informants, and through the uncontrolled or illegal use of intrusive techniques — ranging from simple theft to sophisticated electronic surveillance — the Government has collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans.

Affect Upon Constitutional Rights. — That these abuses have adversely affected the constitutional rights of particular Americans is beyond question. But we believe the harm extends far beyond the citizens directly affected.

Personal privacy is protected because it is essential to liberty and the pursuit of happiness. Our Constitution checks the power of Government for the purpose of protecting the rights of individuals, in order that all our citizens may live in a free and decent society. Unlike totalitarian states, we do not believe that any government has a monopoly on truth.

When Government infringes those rights instead of nurturing and protecting them, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated.

Free government depends upon the ability of all its citizens to speak their minds without fear of official sanction. The ability of ordinary people to be heard by their leaders means that they must be free to join in groups in order more effectively to express their grievances. Constitutional safeguards are needed to protect the timid as well as the courageous, the weak as well as the strong. While many Americans have been willing to assert their beliefs in the face of possible governmental reprisals, no citizen should have to weigh his or her desire to express an opinion, or join a group, against the risk of having lawful speech or association used against him.

Persons most intimidated may well not be those at the extremes of the political spectrum, but rather those nearer the middle. Yet voices of moderation are vital to balance public debate and avoid polarization of our society. The federal government has recently been looked to for answers to nearly every problem. The result has been a vast centralization of power. Such power can be turned against the rights of the people. Many of the restraints imposed by the Constitution were designed to guard against such use of power by the government.

Since the end of World War II, governmental power has been increasingly exercised through a proliferation of federal intelligence programs. The very size of this intelligence system, multiplies the opportunities for misuse.

Exposure of the excesses of this huge structure has been necessary. Americans are now aware of the capability and proven willingness of their Government to collect intelligence about their lawful activities and associations. What some suspected and others feared has turned out to be largely true — vigorous expression of unpopular views, association with dissenting groups, participation in peaceful protest activities, have provoked both government surveillance and retaliation.

Over twenty years ago, Supreme Court Justice Robert Jackson, previously an Attorney General, warned against growth of a centralized power of investigation. Without clear limits, a federal investigative agency would “have enough on enough people” so that “even if it does not elect to prosecute them” the Government would, he wrote, still “find no opposition to its policies”. Jackson added, “Even those who are supposed to supervise [intelligence agencies] are likely to fear [them].” His advice speaks directly to our responsibilities today:

I believe that the safeguard of our liberty lies in limiting any national police or investigative organization, first of all to a small number of strictly federal offenses, and secondly to nonpolitical ones. The fact that we may have confidence in the administration of a federal investigative agency under its existing head does not mean that it may not revert again to the days when the Department of Justice was headed by men to whom the investigative power was a weapon to be used for their own purposes.[1577]

Failure to Apply Checks and Balances. — The natural tendency of Government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty. Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which ‘keep men free. In the field of intelligence those restraints have too often been ignored.

The three main departures in the intelligence field from the constitutional plan for controlling abuse of power have been:

(a) Excessive Executive Power. — In a sense the growth of domestic 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 activities was the exclusive prerogative of the Chief Executive and his surrogates. 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 Secrecy. — 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 activities 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 allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.

(c) Avoidance of the Rule of Law. — Lawlessness 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 specific prohibitions of the criminal code. The experience of our investigation leads us to conclude that such rationalizations are a dangerous delusion.

B. Principles Applied in Framing Recommedations 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 controlling intelligence must be brought back within the constitutional scheme.

Some of our proposals are stark and simple. Because certain domestic 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 complex 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 followed:

(1) Governmental action which directly infringes the rights of free speech and association must be prohibited. The First Amendment recognizes that even if useful to a proper end, certain governmental 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.[1578]

(3) Procedural safeguards — “auxiliary precautions” as they were characterized in the Federalist Papers[1579]-- must be adopted along with substantive restraints. For example, while the Fourth Amendment prohibits only “unreasonable” searches and seizures, it requires a procedural check for reasonableness-the obtaining of a judicial warrant upon probable cause from a neutral magistrate. Our proposed procedural 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 embodied in a comprehensive legislative charter defining and controlling the domestic security activities of the Federal Government. Accordingly, 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 Constitution and our fundamental values require a substantial curtailment of the scope of domestic surveillance, we deal after Part i with five basic questions:

1. Which agencies should conduct domestic security investigations?

The FBI should be primarily responsible for such investigations. Under the minimization principle, and to facilitate the control of domestic intelligence operations, only one agency should be involved in investigative activities which, even when limited as we propose, could give rise to abuse. Accordingly, Part ii of these recommendations reflects the Committee’s position that foreign intelligence agencies (the CIA, NSA, and the military agencies) should be precluded from domestic security activity in the United States. Moreover, they should only become involved in matters involving the rights of Americans abroad where it is impractical to use the FBI, or where in the course of their lawful foreign intelligence operations[1580] they inadvertently collect information relevant to domestic security investigations. In Part iii the Committee recommends that non-intelligence agencies such as the Internal Revenue Service and the Post Office be required, in the course of any incidental involvement in domestic security investigations, to protect the privacy which citizens expect of first class mail and tax records entrusted to those agencies.

2. When should an American be the subject of an investigation at all; and when can particularly intrusive covert techniques, such as electronic surveillance or informants, be used?

In Part iv, which deals with the FBI, the Committee’s recommendations seek to prevent the excessively broad, ill defined and open ended investigations shown to have been conducted over the past four decades. We attempt to change the focus of investigations from constitutionally protected advocacy and association to dangerous conduct. Part iv also sets forth specific substantive standards for, and procedural controls on, particular intrusive techniques.

3. Who should be accountable within the Executive branch for ensuring that intelligence agencies comply with the law and for the investigation of alleged abuses by employees of those agencies?

In Parts v and vi, the Committee recommends that these responsibilities fall initially upon the agency heads, their general counsel and inspectors general, but ultimately upon the Attorney General. The information necessary for control must be made available to those responsible for control, oversight and review; and their responsibilities must be made clear, formal, and fixed.

4. What is the appropriate role of the courts?

In Part vii, the Committee recommends the enactment of a comprehensive, civil remedy providing the courts with jurisdiction to entertain legitimate complaints by citizens injured by unconstitutional or illegal activities of intelligence agencies. Part viii suggests that criminal penalties should attach in cases of gross abuse. In addition, Part iv provides for judicial warrants before certain intrusive techniques can be used.

5. What is the appropriate role of Congress:

In Part xii the Committee reiterates its position that the Senate create a permanent intelligence oversight committee. The recommendations deal with numerous other issues such as the proposed repeal or amendment of the Smith Act, the proposed modernization of the Espionage Act to cover modern forms of espionage seriously detrimental to the national interest, the use of the GAO to assist Congressional oversight of the intelligence community, and remedial measures for past victims of improper intelligence activity.

Scope of Recommendations. — The scope of our recommendations coincides with the scope of our investigation. We examined the FBI, which has been responsible for most domestic security investigations, as well as foreign and military intelligence agencies, the IRS, and the Post Office, to the extent they became involved incidentally in domestic intelligence functions. While there are undoubtedly activities of other agencies which might legitimately be addressed in these recommendations, the Committee simply did not have the time or resources to conduct a broader investigation. Furthermore, the mandate of Senate Resolution 21 required that the Committee exclude from the coverage of its recommendations those activities of the federal government which are directed at organized crime and narcotics.

The Committee believes that American citizens should not lose their constitutional rights to be free from improper intrusion by their Government when they travel overseas. Accordingly, the Committee proposes recommendations which apply to protect the rights of Americans abroad as well as at home.

1. Activities Covered

The Domestic Intelligence Recommendations pertain to: the domestic security activities of the federal government;[1581] and any activities of military or foreign intelligence agencies which affect the rights of Americans[1582] and any intelligence activities of any nonintelligence agency working in concert with intelligence agencies, which affect those rights.

2. Activities Not Covered

The recommendations are not designed to control federal investigative activities directed at organized crime, narcotics, or other law enforcement investigations unrelated to domestic security activities.

3. Agencies Covered

The agencies whose activities are specifically covered by the recommendations are:

(1) the Federal Bureau of Investigation; (ii) the Central Intelligence Agency;

(111) the, National Security Agency and other intelligence agencies of the Department of Defense; (iv) the Internal Revenue Service; and (v) the United States Postal Service.

While it might be appropriate to provide similar detailed treatment to the activities of other agencies, such as the Secret Service, Customs Service, and Alcohol, Tobacco and Firearms Division (Treasury Department), the Committee did not study these agencies intensively. A permanent oversight committee should investigate and study the intelligence functions of those agencies and the effect of their activities on the rights of Americans.

4. Indirect Prohibitions

Except as specifically provided herein, these Recommendations are intended to prohibit any agency from doing indirectly that which it would be prohibited from doing directly. Specifically, no agency covered by these Recommendations should request or induce any other agency, or any person, whether the agency or person is American or foreign, to engage in any activity which the requesting or inducing agency is prohibited from doing itself.

5. Individuals and Groups Not Covered

Except as specifically provided herein, these Recommendations do not apply to investigation of foreigners[1583] who are officers or employees of a foreign power, or foreigners who, pursuant to the direction of a foreign power, are engaged in or about to engage in “hostile foreign intelligence activity” or “terrorist activity”.[1584]

6. Geographic Scope

These Recommendations apply to intelligence activities which affect the rights of Americans whether at home or abroad, including all domestic security activities within the United States.

7. Legislative Enactment of Recommendations

Most of these Recommendations are designed to be implemented in the form of legislation and others in the form of regulations pursuant to statute. (Recommendations 85 and 90 are not proposed to be implemented by statute.

C. Recommendations

Pursuant to the requirement of Senate Resolution 21, these recommendations set forth the new congressional legislation [the Committee] deems necessary to “safeguard the rights of American citizens.”[1585] We believe these recommendations are the appropriate conclusion to a traumatic year of disclosures of abuses. We hope they will prevent such abuses in the future.

i. Intelligence Agencies Are Subject to the Rule of Law

Establishing a legal framework for agencies engaged in domestic security investigation is the most fundamental reform needed to end the long history of violating and ignoring the law set forth in Finding A. The legal framework can be created by a two-stage process of enabling legislation and administrative regulations promulgated to implement the legislation.

However, the Committee proposes that the Congress, in developing this mix of legislative and administrative charters, make clear to the Executive branch that it will not condone, and does not accept, any theory of inherent or implied authority to violate the Constitution, the proposed new charters, or any other statutes. We do not believe the Executive has, or should have, the inherent constitutional authority to violate the law or infringe the legal rights of Americans, whether it be a warrantless break-in into the home or office of an American, warrantless electronic surveillance, or a President’s authorization to the FBI to create a massive domestic security program based upon secret oral directives. Certainly, there would be no such authority after Congress has, as we propose it should, covered the field by enactment of a comprehensive legislative charter.[1586] Therefore statutes enacted pursuant to these recommendations should provide the exclusive legal authority for domestic security activities.

Recommendation 1. — There is no inherent constitutional authority for the President or any intelligence agency to violate the law.

Recommendation 2. — It is the intent of the Committee that statutes implementing these recommendations provide the exclusive legal authority for federal domestic security activities.

(a) No intelligence agency may engage in such activities unless authorized by statute, nor may it permit its employees, informants, or other covert human sources[1587] to engage in such activities on its behalf.

(b) No executive directive or order may be issued which would conflict with such statutes.

Recommendation 3. — In authorizing intelligence agencies to engage in certain activities, it is not intended that such authority empower agencies, their informants, or covert human sources to violate any prohibition enacted pursuant to these Recomendations or contained in the Constitution or in any other law.

ii. United States Foreign and Military Agencies Should Be Precluded from Domestic Security Activities

Part iv of these Recommendations centralizes domestic security investigations within the FBI. Past abuses also make it necessary that the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, and the military departments be preeluded expressly, except as specifically provided herein, from investigative activity which is conducted within the United States. Their activities abroad should also be controlled as provided herein to minimize their impact on the rights of Americans.

a. Central Intelligence Agency

The CIA is responsible, for foreign intelligence and counterintelligence. These recommendations minimize the impact of CIA operations on Americans. They do not affect CIA investigations of foreigners outside of the United States. The, main thrust is to prohibit past actions revealed as excessive, and to transfer to the FBI other activities which might involve the CIA in internal security or law enforcement matters. Those limited activities which the CIA retains are placed under tighter controls.

The Committee’s recommendations on CIA domestic activities are similar to Executive Order 11905. They go beyond the Executive Order, however, in that they recommend that the main safeguards be made law. And, in addition, the Committee proposes tighter standards to preclude repetition of some past abuses.

General Provisions

The first two Recommendations pertaining to the CIA provide the context for more specific proposals. In Recommendation 4, the Committee endorses the prohibitions of the 1947 Act upon exercise by the CIA of subpoena, police or law enforcement powers or internal security functions. The Committee intends that Congress supplement, rather than supplant or derogate from the more general restrictions of the 1947 Act.

Recommendation 5 clarifies the role of the Director of Central Intelligence, in the protection of intelligence sources and methods. He should be charged with “coordinating” the protection of sources and methods — that is, the development of procedures for the protection of sources and methods.[1588] (Primary responsibility for investigations of security leaks should reside in the FBI.) Recommendation 5 also makes clear that the Director’s responsibility for protecting sources and methods does not permit violations of law. The effect of the new Executive Order is substantially the same as Recommendation 5.

Recommendation 4 — To supplement the prohibitions in the 1947 National Security Act against the CIA exercising “police, subpoena, law enforcement powers or internal security functions,” the CIA should be prohibited from conducting domestic security activities within the United States, except as specifically permitted by these recommendations.

Recommendation 5 — The Director of Central Intelligence should be made responsible for “coordinating” the protection of sources and methods of the intelligence community. As head of the CIA, the Director should also be responsible in the first instance for the security of CIA facilities, personnel, operations, and information. Neither function, however, authorizes the Director of Central Intelligence to violate any federal or state law, or to take any action which is otherwise inconsistent with statutes implementing these recommendations.

CIA Activities Within the United States

1. Wiretapping, Mail Opening and Unauthorized Entry. — The Committee’s recommendations on CIA domestic activities apply primarily to actions directed at Americans. However, in Recommendation 6 the Committee recommends that the most intrusive and dangerous investigative techniques (electronic surveillance;[1589] mail opening; or unauthorized entry[1590]) should be used in the United States only by the FBI and only pursuant to the judicial warrant procedures described in Recommendations 53, 54 and 55.

This approach is similar to the Executive order except that the Order permits the CIA to open mail in the United States pursuant to applicable statutes and regulations (i.e., with a warrant). The Committee’s recommendations (see Parts iii and iv), places all three techniques — mail opening, electronic surveillance and unauthorized entry — under judicial warrant procedures and centralizes their use within the FBI under Attorney General supervision. The Committee sees no justification for distinguishing among these techniques, all of which represent an exercise of domestic police powers[1591] which is inappropriate for a U.S. foreign intelligence agency within the United States and which inherently involve special dangers to civil liberties and personal privacy.

2. Other Covert Techniques. — The use of other covert techniques[1592] by the CIA within the United States is sharply restricted by Recommendation 7 to specific situations.

The Committee would permit the CIA to conduct physical surveillance of persons on the premises of its own installations and facilities. Outside of its premises, the Committee would permit the CIA to conduct limited physical surveillance and confidential inquiries of its own employees[1593] as part of a preliminary security investigation.

Although the Committee generally centralizes such investigations within the FBI, it would be too burdensome to require the Bureau to investigate every allegation that an employee has personal difficulties, which could make him a security risk, or allegations of suspicious behavior suggesting the disclosure of information. Before involving the FBI, the CIA could conduct a preliminary inquiry, which usually consists of nothing more than interviews with the subject’s office colleagues, or his family, neighbors or associates, and perhaps confrontation of the subject himself. In some situations, however, limited physical surveillance might enable the CIA to resolve the allegation or to determine that there was a serious security breach involved. Unlike the Executive Order, however, the Committee recommendations limit this authority to present CIA employees who are subject to summary dismissal. The only remedy available to the Government for security problems with past employees is criminal prosecution or other legal action. All security leak investigations for proposed criminal prosecution should be centralized in the FBI. Authorizing the use of any covert technique against contractors and their employees, let alone former employees of CIA contractors, as the Executive Order does, would authorize CIA surveillance of too large a number of Americans. The CIA can withdraw security clearances until satisfied by the contractor that a security risk has been remedied and, in serious cases, any investigations could be handled by the FBI.

The recommendation on the use of covert techniques within the United States also precludes the use of covert human sources such as undercover agents and informants,[1594] with one exception expressly stated to be limited to “exceptional” cases. The Committee would authorize the CIA to place an agent in a domestic group, but only for the purpose of establishing credible cover to be used in a foreign intelligence mission abroad and only when the Director of Central Intelligence finds it to be “essential” to collection of information “vital” to the United States and the Attorney General finds that the operation will be conducted tinder procedures designed to prevent misuse.[1595]

Apart from this limited exception, the CIA could not infiltrate groups within the United States for any purpose, including, as was done in the, past, the purported protection of intelligence sources and methods or the general security of the CIA’s facilities and personnel. (The Executive Order prohibits infiltration of groups within the United States “for purposes of reporting on or influencing its activities or members,” but does not explicitly prohibit infiltration to protect intelligence sources and methods or the physical security of the agency.)

3. Collection of Information. — In addition to limiting the use of particular covert techniques, the Committee limits, in Recommendation 8, the situations in which the CIA may intentionally collect, by any means, information within the United States concerning Americans. The recommendation permits the CIA to collect information within the United States about Americans only with-respect to persons working for the CIA or having some other significant affiliation or contact, with CIA. The CIA should not be in the business of investigating Americans as intelligence or counterintelligence targets within the United States — a responsibility which should be centralized in the FBI and performed only under the circumstances proposed as lawful in Part iv.

The Executive Order only restricts CIA collection of information about Americans if the information concerns “the domestic activities of United States citizens.” Unlike the Committee, the Order does not restrict CIA collection of information about foreign travel or wholly lawful international contacts and communication of Americans. As the Committee has learned from its study of the CIA’s CHAOS operation, in the process of gathering information about the international travel and contacts of Americans, the CIA acquired within the United States a great deal of additional information about the domestic activities of Americans.

The Executive Order also permits collection within the United States of information about the domestic activities of Americans in several other instances not permitted under the Committee recommendations:

(a) Collection of “foreign intelligence or counterintelligence” about the domestic activity of commercial organizations. (The Committee’s restrictions on the collection of information apply to investigations of organizations as well as individuals.) ;

(b) Collection of information concerning the identity of persons in contact with CIA employees or with foreigners who are subjects of a counterintelligence inquiry. (Within the United States, the Committee would require any investigations to collect such information to be conducted by the FBI, and only if authorized under Part iv, and subject to its procedural controls.) ;

(c) Collection of “foreign intelligence” from a cooperating source within the United States about the domestic activities of Americans. “Foreign intelligence,” is an exceedingly broad and vague standard. The use of such a standard raises the prospect of another Project CHAOS. (The Committee would prohibit such collection by the CIA within the United States, except with respect to persons presently or prospectively affiliated with CIA.) ;

(d) Collection of information about Americans “reasonably believed” to be acting on behalf of a foreign power or engaging in international terrorist or narcotic activities. (The Committee would require investigations to collect,such information within the United States, to be conducted by the FBI, and only if authorized under Part iv.) ;

(e) Collection of information concerning persons considered by the CIA to pose a clear threat to intelligence agency facilities or personnel, provided such information is retained only by the “threatened” agency and that proper coordination is established with the FBI. (This was the basis for the Office of Security’s RESISTANCE program investigating dissent throughout the country.) (The Committee would require any such “threat” collection outside the CIA be conducted by the FBI, and only if authorized by Part iv, or by local law enforcement.)

Recommendation 6. — The CIA should not conduct electronic surveillance, unauthorized entry, or mail opening within the United States for any purpose.

Recommendation 7. — The CIA should not employ physical surveillance, infiltration of groups or any other covert techniques against Americans within the United States except:

(a) Physical surveillance of persons on the grounds of CIA installations;

(b) Physical surveillance during a preliminary investigation of allegations an employee is a security risk for a limited period outside of CIA installations. Such surveillance should be conducted only upon written authorization of the Director of Central Intelligence and should be limited to the subject of the investigation and, only to the extent necessary to identify them, to persons with whom the subject has contact;

(c) Confidential inquiries, during a preliminary investigation of allegations an employee is a security risk, of outside sources concerning medical or financial information about the subject which is relevant to those allegations;[1596]

(d) The use of identification which does not reveal CIA or government affiliation, in background and other security investigations permitted the CIA by these recommendations, and the conduct of checks, which do not reveal CIA or government affiliation for the purpose of judging the effectiveness of cover operations, upon the written authorization of the Director of Central Intelligence;

(e) In exceptional cases, the placement or recruitment of agents within an unwitting domestic group solely for the purpose of preparing them for assignments abroad and only for as long as is necessary to accomplish that purpose. This should take place only if the Director of Central Intelligence makes a written finding that it is essential for foreign intelligence collection of vital importance to the United States, and the Attorney General makes a written finding that the operation will be conducted under procedures designed to prevent misuse of the undisclosed participation or of any information obtained therefrom.[1597] In the case of any such action, no information received by CIA from the agent as a result of his position in the group should be disseminated outside the CIA unless it indicates felonious criminal conduct or threat of death or serious bodily harm, in which case dissemination should be permitted to an appropriate official agency if approved by the Attorney General.

Recommendation 8. — The CIA should not collect[1598] information within the United States concerning Americans except:

(a) Information concerning CIA employees,[1599] CIA contractors and their employees, or applicants for such employment or contracting;

(b) Information concerning individuals or organizations providing, or offering to provide,[1600] assistance to the CIA;

(c) Information concerning individuals or organizations being considered by the CIA as potential sources of information or assistance;[1601]

(d) Visitors to CIA facilities;[1602]

(e) Persons otherwise in the immediate vicinity of sensitive CIA sites;[1603] or

(f) Persons who give their informed written consent to such collection.

In (a), (b) and (c) above, information should be collected only if necessary for the purpose of determining the person’s fitness for employment, contracting or assistance. If, in the course of such collection, information is obtained which indicates criminal activity, it should be transmitted to the FBI or other appropriate agency. When an American’s relationship with the CIA is prospective, information should only be collected if there is a bona fide expectation the person might be used by the CIA.

CIA Activities Outside of the United States

The Committee would permit a wider range of CIA activities against Americans abroad than it would permit the CIA to undertake within the United States, but it would not permit the CIA to investigate abroad the lawful activities of Americans to any greater degree than the FBI could investigate such activities at home.

Abroad, the FBI is not in-a position to protect the CIA from serious threats to its facilities or personnel, or to investigate all serious security violations. To the extent it is impractical to rely on local law enforcement authorities, the CIA should be free to preserve its security by specified appropriate investigations which may involve Americans, including surveillance, of persons other than its own employees.

The Committee gives to the FBI the sole responsibility within the United States for authorized domestic security investigations of Americans. However, when such an investigation has overseas aspects, the FBI looks to the CIA as the overseas operational arm of the intelligence community. The recommendations would authorize the CIA to target Americans abroad as part of an authorized investigation initiated by the FBI.

The Committee does not recommend permitting the CIA itself to initiate such investigations of Americans overseas.[1604] Present communications permit rapid consultation with the Department of Justice. Moreover, the lesson of CHAOS is that an American’s activities abroad may be ambiguous, such as contact with persons who may be acting on behalf of hostile foreign powers at an international conference on disarmament. The question is who shall determine there is sufficient information to justify making an American citizen a target of his government’s intelligence apparatus?

The limitations contained in Recommendation 9 only pertain to the CIA initiating investigations or otherwise intentionally collecting information on Americans abroad. The CIA would not be prohibited from accepting and passing on information on the illegal activities of Americans which the CIA acquires incidentally in the course of its other activities abroad.

The Committee believes that judgments should be centralized within the Justice Department to promote consistent, carefully controlled application of the appropriate standards and protection of Constitutional rights. This is the same position taken by Director Colby in setting current CIA policy for mounting operations against Americans abroad. In March 1974, Director Colby formally terminated the CHAOS program and promulgated new guidelines for future activity abroad involving Americans, which, in effect, transferred such responsibilities to the Department of Justice.[1605]

The Committee is somewhat more restrictive than the Executive Order with respect to collection of information on Americans. As mentioned earlier, the Order only restricts CIA collection of information about the “domestic activities” of Americans and does not prohibit the collection of information regarding the lawful travel or international contacts of American citizens. This creates a particularly significant problem with respect to CIA activities directed against Americans abroad.

The Order permits the CIA wider latitude abroad than do the Committee’s Recommendations in two other important respects. The Order permits collection of information if the American is reasonably believed to be acting on behalf of a foreign power. That exemption on its face would include Americans working for a foreign country on business or legal matters or otherwise engaged in wholly lawful activities in compliance with applicable registration or other regulatory statutes. More importantly, the Order permits the CIA to collect “foreign intelligence” or “counterintelligence” information abroad about the domestic activities of Americans. The Order then broadly defines “foreign intelligence” as information about the intentions or activities of a foreign country or person, or information about areas outside the United States. This would authorize the CIA to collect, abroad, for example, information about the domestic activities of American businessmen which provided intelligence about business transactions of foreign persons.

The CIA does not at present specifically collect intelligence on the economic activities of Americans overseas. The Committee suggests that appropriate oversight committees examine the question of the overseas collection of economic intelligence.

Use of Covert Techniques Against Americans Abroad

Recommendation 11 requires the use of all covert techniques be governed by the same standards, procedures, and approvals required for their use by the Justice Department against Americans within the United States. Thus, in the case of electronic surveillance, unauthorized entry, or mail opening, a judicial warrant would be required. As a matter of sound Constitutional principle, the Fourth Amendment protections enjoyed by Americans at home should also apply to protect them against their Government abroad. It would be just as offensive to have a CIA agent burglarize an American’s apartment in Rome as it would be for the FBI to do so in New York.

Requirements that a warrant be obtained in the United States would not present an excessive burden. Electronic surveillance and unauthorized entries are not presently conducted against Americans abroad without prior consultation and approval from CIA Headquarters in Langley, Virginia. Moreover, the, present Deputy Director of CIA for Operations has testified that bona fide counterintelligence investigations are lengthy and time consuming and prior review within the United States, including consultation with the Justice Department, would not be a serious problem.[1606] Indeed electronic surveillance of Americans abroad under present administration policy also requires approval by the Attorney General.

The Committee reinforces the general restrictions upon overseas targeting of Americans by recommending that the CIA be prohibited from requesting a friendly foreign intelligence service or other person from undertaking activities against Americans which the CIA itself may not do. This would not require that a foreign government’s use of covert techniques be conducted under the same procedures, e.g., warrants, required by those Recommendations for the CIA and the FBI. It would mean that the CIA cannot ask a foreign intelligence service to bug the apartment of an American unless the circumstances would permit the United States Government to obtain a judicial warrant from a Federal Court in this country to conduct such surveillance of the American abroad.

The Committee places greater restrictions upon the CIA’s use of covert techniques against Americans abroad than does the Executive Order. For example, the Order permits the CIA to conduct electronic surveillance and unauthorized entries under “procedures approved by the Attorney General consistent with the law.” No judicial warrant procedure is required. In addition, the Order’s restriction on CIA’s opening mail of Americans is limited to mail “in the United States postal channels.” In other words, under the Order the CIA is not prevented from intercepting abroad and opening a letter mailed by an American to his family, or sent to him from the United States.

The Order also contains no restrictions on the CIA infiltrating a group abroad, even if it were one composed entirely of Americans engaged in wholly lawful activities such as a political club of American students in Paris. Furthermore, the Order permits the CIA to conduct physical surveillance abroad of any American “reasonably believed to be” engaged in “activities threatening to the national security.” On its face this language appears overly permissive and might be read to authorize a repetition of the CHAOS program in which Americans were targeted for surveillance because of their participation in international conferences critical of the U.S. role in Vietnam.

Recommendation 9. — The CIA should not collect information abroad concerning Americans except:

(a) Information concerning Americans which it is permitted to collect within the United States;[1607]

(b) At the request of the Justice Department as part of criminal investigations or an investigation of an American for suspected terrorist,[1608] or hostile foreign intelligence[1609] activities or security leak or security risk investigations which the FBI has opened pursuant to Part iv of those recommendations and which is conducted consistently with recommendations contained in Part iv.[1610]

Recommendation 10. — The CIA should be able to transmit to the FBI or other appropriate agencies information concerning Americans acquired as the incidental byproduct of otherwise permissible foreign intelligence and counterintelligence operations,[1611] whenever such information indicates any activity in violation of American law.

Recommendation 11. — The CIA may employ covert techniques abroad against Americans:

(a) Under circumstances in which the CIA could use such covert techniques against Americans within the United States;[1612] or

(b) When collecting information as part of Justice Department investigation, in which case the CIA may use a particular covert techniques under the standards and procedures and approvals applicable to its use against Americans within the United States by the FBI (See Part iv); or

(c) To the extent necessary to identify persons known or suspected to be Americans who come in contact with foreigners the CIA is investigating.

CIA Human Experiments and Drug Use

Recommendation 12 tracks similar restrictions in the Executive Order but proposes an additional safeguard — giving the National Commission on Biomedical Ethics and Human Standards jurisdiction to review any testing on Americans.

Recommendation 12 — The CIA should not use in experimentation on human subjects, any drug, device or procedure which is designed or intended to harm, or is reasonably likely to harm, the physical or mental health of the human subject, except with the informed written consent, witnessed by a disinterested third party, of each human subject, and in accordance with the guidelines issued by the National Cornmission for the Protection of Human Subjects for Biomedical and Behavioral Research. The jurisdiction of the Commission should be amended to include the Central Intelligence Agency and other intelligence agencies of the United States Government.

Review and Certification

Recommendation 13 ensures careful monitoring of those CIA activities authorized in the recommendations which are directed at Americans.

Recommendation 13 — Any CIA activity engaged in pursuant to Recommendations 7, 8, 9, 10, or 11 should be subject to periodic review and certification of compliance with the Constitution, applicable statutes, agency regulations and executive orders by:

(a) The Inspector General of the CIA;

(b) The General Counsel of the CIA in coordination with the Director of Central Intelligence;

(c) The Attorney General; and

(d) The oversight committee recommended in Part xii.

All such certifications should be available for review by congressional oversight committees.

b. National Security Agency

The recommendations contained in this section suggest controls on the electronic surveillance activities of the National Security Agency insofar as they involve, or could involve, Americans. There is no statute which either authorizes or specifically restricts such activities. NSA was created by executive order in 1952, and its functions are described in directives of the National Security Council.

While, in practice, NSA’s collection activities are complex and sophisticated, the process by which it produces foreign intelligence can be reduced to a few easily understood principles. NSA intercepts messages passing over international lines of communication, some of which have one terminal within the United States. Traveling over these lines of communication, especially those with one terminal in the United States, are the messages of Americans, most of which are irrelevant to NSA’s foreign intelligence mission. NSA often has no means of excluding such messages, however, from others it intercepts which might be of foreign intelligence value. It does have, however, the capability to select particular messages from those it intercepts which are of foreign intelligence value. Most international communications of Americans are not selected, since they do not meet foreign intelligence criteria. Having selected messages of possible intelligence value, NSA monitors (reads) them, and uses the information it obtains as the basis for reports which it furnishes the intelligence agencies.

Having this process in mind, one will more readily understand the recommendations of the Committee insofar as NSA’s handling of the messages of Americans is concerned. The Committee recommends first that NSA monitor only foreign communications. It should not monitor domestic communications, even for foreign intelligence purposes. Second, the Committee recommends that NSA should not select messages for monitoring, from those foreign communications it has intercepted, because the message is to or from or refers to a particular American, unless the Department of Justice has first obtained a search warrant, or the particular American has consented. Third, the Committee recommends that NSA be required to make every practicable effort to eliminate or minimize the extent to which the communications of Americans are intercepted, selected, or monitored. Fourth, for those communications of Americans which are nevertheless incidentally selected and monitored, the Committee recommends that NSA be prohibited from disseminating such communication, or information derived therefrom, which identifies an American, unless the communication indicates evidence of hostile foreign intelligence or terrorist activity, or felonious criminal conduct, or contains a threat of death or serious bodily harm. In these cases, the Committee recommends that the Attorney General approve any such dissemination as being consistent with these policies.

In summary, the Committee’s recommendations reflect its belief that NSA should have no greater latitude to monitor the communications of Americans than any other intelligence agency. To the extent that other agencies are required to obtain a warrant before monitoring the communications of Americans, NSA should be required to obtain a warrant.[1613]

Recommendation 14. — NSA should not engage in domestic security activities. Its functions should be limited in a precisely drawn legislative charter to the collection of foreign intelligence from foreign communications.[1614]

Recommendation 15. — NSA should take all practicable measures consistent with its foreign intelligence mission to eliminate or minimize the interception, selection, and monitoring of communications of Americans from the foreign communications.[1615]

Recommendation 16. — NSA should not be permitted to select for monitoring any communication to, from, or about an American without his consent, except for the purpose of obtaining information about hostile foreign intelligence or terrorist activities, and then only if a warrant approving such monitoring is obtained in accordance with procedures similar[1616] to those contained in Title Ill of the Omnibus Crime Control and Safe Streets Act of 1968.

(This recommendation would eliminate the possibility that NSA would re-establish its “watch lists” of the late 1960s and early 1970s. In that case, the names of Americans were submitted to NSA by other federal agencies and were used as a basis for selecting and monitoring, without a warrant, the international communications of those Americans.)

Recommendation 17. — Any personally identifiable information about an American which NSA incidentally acquires, other than pursuant to a warrant, should not be disseminated without the consent of the American, but should be destroyed as promptly as possible, unless it indicates:

(a) Hostile foreign intelligence or terrorist activities; or

(b) Felonious criminal conduct for which a warrant might be obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; or

(c) A threat of death or serious bodily harm.

If dissemination is permitted, by (a), (b) and (c) above, it must only be made to an appropriate official and after approval by the Attorney General.

(This recommendation is consistent with NSA’s policy prior to the Executive Order.[1617] NSA’s practice prior to the Executive Order was not to disseminate material containing personally identifiable information about Americans.)

Recommendation 18. — NSA should not request from any commercial carrier any communication which it could not otherwise obtain pursuant to these recommendations.

(This recommendation is to ensure that NSA will not resume an operation such as SHAMROCK, disclosed during the Committee’s hearings, whereby NSA received for almost 30 years copies of most international telegrams transmitted by certain international telegraph companies in the United States.)

Recommendation 19. — The Office of Security at NSA should be permitted to collect background information on present or prospective employees or contractors of NSA, solely for the purpose of determining their fitness for employment. With respect to security risks or the security of its installations, NSA should be permitted to conduct physical surveillances, consistent with such surveillances as the CIA is permitted to conduct, in similar circumstances, by these recommendations.

c. Military Service and Defense Department Investigative Agencies

This section of the Committee’s recommendations pertains to the controls upon the intelligence activities of the military services and Department of Defense insofar as they involve Americans who are not members of or affiliated with the armed forces.

In general, the restrictions seek to limit military investigations to activities in the civilian community which are necessary and pertinent to the military mission, and which cannot feasibly be accomplished by civilian agencies. In overseas locations where civilian agencies do not perform investigative activities to assist the military mission, military intelligence is given more latitude. Specifically, the Committee recommends that military intelligence be limited within the United States to conducting investigations of violations of the Uniform Code of Military Justice; investigations for security clearances of Department of Defense employees and contractors; and investigations immediately before and during the deployment of armed forces in connection with civil disturbances. None of these investigations should involve the use of any covert technique employed against American civilians. In overseas locations, the Committee recommends that military intelligence have additional authority to conduct investigations of terrorist activity and hostile foreign intelligence activity. In these cases, covert techniques directed at Americans may be employed if consistent with the Committee’s restrictions upon the use of such techniques in the United States in Part iv.

Recommendation 20. — Except as specifically provided herein, the Department of Defense should not engage in domestic security activities. Its functions, as they relate to the activities of the foreign intelligence community, should be limited in a precisely drawn legislative charter to the conduct of foreign intelligence and foreign counterintelligence activities and tactical military intelligence activities abroad, and production, analysis, and dissemination of departmental intelligence.

Recommendation 21. — In addition to its foreign intelligence responsibility, the Department of Defense has a responsibility to investigate its personnel in order to protect the security of its installations and property, to ensure order and discipline within its ranks, and to conduct other limited investigations once dispatched by the President to suppress a civil disorder. A legislative charter should define precisely — in a manner which is not inconsistent with these recommendations — the authorized scope and purpose of any investigations undertaken by the Department of Defense to satisfy these responsibilities.

Recommendation 22. — No agency of the Department of Defense should conduct investigations of violations of criminal law or otherwise perform any law enforcement or domestic security functions within the United States, except on military bases or concerning military personnel, to enforce the Uniform Code of Military Justice.

Control of Civil Disturbance Intelligence

The Department of the Army has executive responsibility for rendering assistance in connection with civil disturbances. In the late 1960s, it instituted a nationwide collection program in which Army investigators were dispatched to collect information on the political activities of Americans. This was done on the theory that such information was necessary to prepare the Army in the event that its troops were sent to the scene of civil disturbances. The Committee believes that the Army’s potential role in civil disturbances does not justify such an intelligence effort directed against American civilians.

Recommendation 23. — The Department of Defense should not be permitted to conduct investigations of Americans on the theory that the information derived therefrom might be useful in potential civil disorders. The Army should be permitted to gather information about geography, logistical matters, or the identity of local officials which is necessary to the positioning, support, and use of troops in an area where troops are likely to be deployed by the President in connection with a civil disturbance. The Army should be permitted to investigate Americans involved in such disturbances after troops have been deployed to the site of a civil disorder, (i) to the extent necessary to fulfill the military mission, and (ii) to the extent the information cannot be obtained from the FBI. (The FBI’s responsibility in connection with civil disorders and its assistance to the Army is described in Part IV.)

Recommendation 24. — Appropriate agencies of the Department of Defense should be permitted to collect background information on their present or prospective employees or contractors. With respect to security risks or the security of its installations, the Department of Defense should be permitted to conduct physical surveillance consistent with such surveillances as the CIA is permitted to conduct, in similar circumstances, by these recommendations.

Prohibitions and Limitations of Covert Techniques

During the Army’s civil disturbance collection program of the late 1960s, Army intelligence agents employed a variety of covert techniques to gather information about civilian political activities. These included covert penetrations of private meetings and organizations, use of informants, monitoring amateur radio broadcasts, and posing as newsmen. This provision is designed to prevent the use of such covert techniques against American civilians. The Committee believes that none of the legitimate investigative tasks of the military within the United States justified the use of such techniques against unaffiliated Americans.

Recommendation 25. — Except as provided in 27 below, the Department of Defense should not direct any covert technique (e.g., electronic surveillance, informants, etc.) at American civilians.

Limited investigations Abroad

The military services currently conduct preventive intelligence investigations within the United States where members of their respective services are agents of, or are collaborating with, a hostile foreign intelligence service. These investigations are coordinated with, and under the ultimate control of, the FBI. The Committee’s recommendations are not intended to prevent the military services from continuing to assist the FBI with such investigations involving members of the armed forces. They are intended, however, to place responsibility for these investigations, insofar as they take place within the United States, in the FBI, and not in the military services themselves. The military services, on the other band, are given additional responsibility to conduct investigations of Americans who are suspected of engaging in terrorist activity or hostile foreign intelligence activity in overseas locations.

Recommendation 26. — The Department of Defense should be permitted to conduct abroad preventive intelligence investigations of unaffiliated Americans as described in Part iv below, provided ‘Such investigations are first approved by the FBI. Such investigations by the Department of Defense, including the use of covert techniques, should ordinarily be conducted in a manner consistent with the recommendations pertaining to the FBI, contained in Part iv; however, overseas locations, where U.S. military forces constitute the governing power, or where U.S. military forces are engaged in hostilities, circumstances may require greater latitude to conduct such investigations.

iii. Non-Intelligence Agencies Should Be Barred From Domestic Security Activity

a. Internal Revenue Service

The Committee’s review of intelligence collection and investigative activity by IRS’ Intelligence Division and of the practice of furnishing information in IRS files to the intelligence agencies demonstrates that reforms are necessary and appropriate. The primary objective of reform is to prevent IRS from becoming an instrumentality of the intelligence agencies, beyond the scope of what IRS, as the Federal tax collector, should be doing. Recommendations 27 through 29 are designed to achieve this objective by providing that IRS collection of intelligence and its conduct of investigations are to be confined strictly to tax matters. Moreover, programs of tax investigation, in which targets are selected partly because of indications of tax violations and partly because of reasons relating to domestic security, are prohibited where they would erode constitutional rights. Where otherwise appropriate, such programs must be conducted under special safeguards to prevent any adverse effect on the exercise of those rights.

These recommendations should prevent a recurrence of the excesses associated with the Special Services Staff and the Intelligence Gathering and Retrieval System.

Targeting of Persons or Groups for Investigations or Intelligence-Gathering by IRS[1618]

Recommendation 27. — The IRS should not, on behalf of any intelligence agency or for its own use, collect any information about the activities of Americans except for the purposes of enforcing the tax laws.

Recommendation 28. — IRS should not select any person or group for tax investigation on the basis of political activity or for any other reason not relevant to enforcement of the tax laws.

Recommendation 29. — Any program of intelligence investigation relating to domestic security in which targets are selected by both tax and non-tax criteria should only be initiated:

(a) Upon the written request of the Attorney General or the Secretary of the Treasury, specifying the nature of the requested program and the need therefore; and

(b) After the written certification by the Commissioner of the IRS that procedures have been developed which are sufficient to prevent the infringement of the constitutional rights of Americans; and

(c) With congressional oversight committees being kept continually advised of the nature and extent of such programs.

Disclosure Procedures

The Committee’s review of disclosure of tax information by IRS to the FBI and the CIA showed three principal abuses by those intelligence agencies: (1) the by-passing of disclosure procedures mandated by law, resulting in the agencies obtaining access to tax returns and tax-related information through improper channels, and, sometimes, without a proper basis; (2) the failure to state the reasons justifying the need for the information and the uses contemplated so that IRS could determine if the request met the applicable criteria for disclosure; and (3) the improper use of tax returns and information, particularly by the FBI in COINTELPRO. Recommendations 30 through 35 are designed to prevent these abuses from occurring again.

While general problems of disclosure are being studied by several different congressional committees with jurisdiction over IRS, these recommendations reflect this Committee’s focus on disclosure problems seen in the interaction between IRS and the intelligence agencies.

Recommendation 30. — No intelligence agency should request[1619] from the Internal Revenue Service tax returns or tax related information except under the statutes and regulations controlling such disclosures. In addition, the existing procedures under which tax returns and tax-related information are released by the IRS should be strengthened, as suggested in the following five recommendations.

Recommendation 31. — All requests from an intelligence agency to the IRS for tax returns and tax-related information should be in writing, and signed by the bead of the intelligence agency making the request, or his designee. Copies of such requests should be filed with the Attorney General. Each request should include a clear statement of:

(d) The purpose for which disclosure is sought;

(e) Facts sufficient to establish that the requested information is needed by the requesting agency for the performance of an authorized and lawful function;

(f) The uses which the requesting agency intends to make of the information;

(g) The extent of the disclosures sought;

(h) Agreement by the requesting agency not to use the documents or information for any purpose other than that stated in the request; and

(i) Agreement by the requesting agency that the information will not be disclosed to any other agency or person except in accordance with the law.

Recommendation 32. — IRS should not release tax returns or taxrelated information to any intelligence agency unless it has received a request satisfying the requirements of Recommendation 31, and the Commissioner of Internal Revenue has approved the request in writing.

Recommendation 33. — IRS should maintain a record of all such requests and responses thereto for a period of twenty years.

Recommendation 34. — No intelligence agency should use the information supplied to it by the IRS pursuant to a request of the agency except as stated in a proper request for disclosure.

Recommendation 35. — All requests for information sought by the FBI should be filed by the Department of Justice. Such requests should be signed by the Attorney General or his designee, following a determination by the Department that the request is proper under the applicable statutes and regulations.

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

These recommendations are designed to tighten the existing restrictions regarding requests by intelligence agencies for both inspection of the exteriors of mail (“mail cover”) and inspection of the contents of first class mail (“mail opening”). As to mail cover, the Committee’s recommendation is to centralize the review and approval of all requests by requiring that only the Attorney General may authorize mail cover, and to eliminate unjustified mail covers by requiring that the mail cover be found “necessary” to a domestic security investigation. With respect to mail opening, the recommendations provide that it can only be done pursuant to court warrant.

Recommendation 36. — The Post Office should not Permit the FBI or any intelligence agency to inspect markings or addresses on first class mail, nor should the Post Office itself inspect markings or addresses on behalf of the FBI or any intelligence agency, on first class mail, except upon the written approval of the Attorney General or his designee. Where one of the correspondents is an American, the Attorney General or his designee should only approve such inspection for domestic security purposes upon a written finding that it is necessary to a criminal investigation or a preventive intelligence investigation of terrorist activity or hostile foreign intelligence activity.

Upon such a request, the Post Office may temporarily remove from circulation such correspondence for the purpose of such inspection of its exterior as is related to the investigation.

Recommendation 37. — The Post Office should not transfer the custody of any first class mail to any agency except the Department of Justice. Such mail should not be transferred or opened except upon a judicial search warrant.

(a) In the case of mail where one of the correspondents is an American, the judge must find that there is probable cause to believe that the mail contains evidence, of a crime.[1620]

(b) In the case of mail where both parties are foreigners:

(1) The judge must find that there is probable cause to believe that both parties to such correspondence are foreigners, and one of the correspondents is an officer, employee or conscious agent of a foreign power; and

(2) The Attorney General must certify that the mail opening is likely to reveal information necessary either (i) to the protection of the nation against actual or potential attack or other hostile acts of force of a foreign power; (ii) to obtain foreign intelligence information deemed essential to the security of the United States; or (iii) to protect national security information against hostile foreign intelligence activity.

iv. Federal Domestic Security Activities Should Be Limited and Controlled to Prevent Abuses Without Hampering Criminal Investigations or Investigations of Foreign Espionage

The recommendations contained in this part are designed to accomplish two principal objectives: (1) prohibit improper intelligence activities and (2) define the limited domestic security investigations which should be permitted. As suggested earlier, the ultimate goal is a statutory mandate for the federal government’s domestic security function that will ensure that the FBI, as the primary domestic security investigative agency, concentrates upon criminal conduct as opposed to political rhetoric or association. Our recommendations would vastly curtail the scope of domestic security investigations as they have been conducted, by prohibiting inquiries initiated because the Bureau regards a group as falling within a vaguely defined category such as “subversive,” “New Left,” “Black Nationalist Hate Groups,” or “White Hate Groups.” The recommendations also ban investigations based merely upon the fact that a person or group is associating with others who are being investigated (e.g., the Bureau’s investigation of the Southern Christian Leadership Conference because of alleged “Communist infiltration”).

The simplest way to eliminate investigations of peaceful speech and association would be to limit the FBI to traditional investigations of crimes which have been committed (including the crimes of attempt and conspiracy). The Committee found, however, that there are circumstances where the FBI should have authority to conduct limited “intelligence investigations” of threatened conduct (terrorism and foreign espionage) which is generally covered by the criminal law, where the conduct has not yet reached the stage of a prosecuteable act.

The Committee, however, found that abuses were frequently associated even with such intelligence investigations. This led us also to recommend: precise limitations upon the use of covert techniques (Recommendations 51 to 60) ; restrictions upon maintenance and dissemination of information gathered in such investigations (Recommendations 64 to 68) ; and a statutory requirement that the Attorney General monitor these investigations and terminate them as soon as practical (Recommendation 69).

a. Centralize Supervision, Investigative Responsibility, and the Use of Covert Techniques

Investigations should be centralized within the Department of Justice. It is the Committee’s judgment that if former Attorneys General had been held accountable by the Congress for ensuring compliance by the FBI and the intelligence agencies with laws designed to protect the rights of Americans, the Department of Justice would have been more likely to discover and enjoin improper activities. Furthermore, centralizing domestic security investigations within the FBI will facilitate the Attorney General’s supervision of them.

Recommendation 38. — All domestic security investigative activity, including the use of covert techniques, should be centralized within the Federal Bureau of Investigation, except those investigations by the Secret Service designed to protect the life of the President or other Secret Service protectees. Such investigations and the use of covert techniques in those investigations should be centralized within the Secret Service.

Recommendation 39. — All domestic security activities of the federal government and all other intelligence agency activities covered by the Domestic Intelligence Recommendations should be subject to Justice Department oversight to assure compliance with the Constitution and laws of the United States.

b. Prohibitions

The Committee recommends a set of prohibitions, in addition to its later recommendations limiting the scope of and procedural controls for domestic security investigations.

The following prohibitions cover abuses ranging from the political use of the sensitive information maintained by the Bureau to the excesses of COINTELPRO. They are intended to cover activities engaged in, by, or on behalf of, the FBI. For example, in prohibiting Bureau interference in lawful speech, publication, assembly, organization, or association of Americans, the Committee intends to prohibit a Bureau agent from mailing fake letters to factionalize a group as well as to prohibit an informant from manipulating or influencing the peaceful activities of a group on behalf of the FBI.

Subsequent recommendations limit the kinds of investigations which can be opened and provide controls for those investigations. Specifically, the Committee limits FBI authority to collect information on Americans to enumerated circumstances; limits authority to maintain information on political beliefs, political assocations, or private lives of Americans; requires judicial warrants for the most intrusive covert collection techniques (electronic surveillance, mail opening, and surreptitious entry); and proposes new restrictions upon the use of other covert techniques, particularly informants.

Recommendation 41. — The FBI should be prohibited from engaging on its own or through informants or others, in any of the following activities directed at Americans:

(a) Disseminating any information to the White House, any other federal official, the news media, or any other person for a political or other improper purpose, such as discrediting an opponent of the administration or a critic of an intelligence or investigative agency.

(b) Interfering with lawful speech, publication, assembly, organizational activity, or association of Americans.

(c) Harassing individuals through unnecessary overt investigative techniques[1621] such as interviews or obvious physical surveillance for the purpose of intimidation.

Recommendation 41. — The Bureau should be prohibited from maintaining information on the political beliefs, political associations, or private lives of Americans except that which is clearly necessary for domestic security investigations as described in Part c.[1622]

c. Authorized Scope of Domestic Security Investigations

The Committee sought three objectives in defining the appropriate jurisdiction of the FBI. First, we sought to carefully limit any investigations other than traditional criminal investigations to five defined areas: preventive intelligence investigations (in two areas closely related to serious criminal activity — terrorist and hostile foreign intelligence activities), civil disorders assistance, background investigations, security risk investigations, and security leak investigations.

Second, we sought substantially to narrow, and to impose special restrictions on the conduct of, those investigations which involved the most flagrant abuses in the past: preventive intelligence investigations and civil disorders assistance. Third, we sought to provide a clear statutory foundation for those investigations which the Committee believes are appropriate to fill the vacuum in FBI legal authority.

Achieving the first and second objectives will have the most significant impact upon the FBI’s domestic intelligence program and indeed, could eliminate almost half its workload. Recommendations 44 through 46 impose two types of restrictions upon the conduct of intelligence investigations and civil disorders assistance. First, the scope of intelligence investigations is limited to terrorist activities or espionage, and the scope of civil disorders assistance is limited to civil disorders which may require federal troops. Second, the Committee suggests that the threshold for initiation of a full intelligence investigation be “reasonable Suspicion.”[1623] Preliminary intelligence investigations — limited in scope, duration, and investigative technique — could be opened upon a “specific allegation or specific or substantiated information.” A written finding by the Attorney General of a likely need for federal troops is required for civil disorders assistance.

The Committee’s approach to FBI domestic security investigations is basically the same as that adopted by the Attorney General’s guidelines for domestic security investigations. Both are cautious about any departures from former Attorney General Stone’s maxim that the FBI should only conduct criminal investigations. For example, neither the Committee nor the Attorney General would condone investigations which are totally unrelated to criminal statutes (e.g., the FBI’s 1970 investigation of all black student unions).

However, the Committee views its recommendations as a somewhat more limited departure from former Attorney General Stone’s line than the present Attorney General’s guidelines. First, the Committee would only permit intelligence investigations with respect to hostile foreign intelligence activity and terrorism. The Attorney General’s guidelines have been read by FBI officials as authorizing intelligence investigations of “subversives” (individuals who may attempt to overthrow the government in the indefinite future). While the Justice Department, under its current leadership, might not adopt such an interpretation, a different Attorney General might. Second, the guidelines on their face appear to permit investigating essentially local civil disobedience (e.g., “use of force” to interfere with state or local government which could be construed too broadly).

There are two reasons why the Committee would prohibit intelligence investigations of “subversives” or local civil disobedience. First, those investigations inherently risk abuse because they inevitably require surveillance of lawful speech and association rather than criminal conduct. The Committee’s examination of forty years of investigations into “subversion” has found the term to be so vague as to constitute a license to investigate almost any activity of practically any group that actively opposes the policies of the administration in power.

A second reason for prohibiting intelligence investigations of “subversion” and local civil disobedience is that both can be adequately handled by less intrusive methods without unnecessarily straining limited Bureau resources. Any real threats to our form of government can be best identified through intelligence investigations focused on persons who may soon commit illegal violent acts. Local civil disobedience can be best handled by local police. Indeed, recent studies by the General Accounting Office suggest that FBI investigations in these areas result in very few prosecutions and little information of help to authorities in preventing violence.

The FBI now expends more money in its domestic security program than it does in its organized crime program, and, indeed, twice the amount on “internal security” informant operations as on organized crime informant coverage. “Subversive investigations” and “civil disorders assistance” represent almost half the caseload of the FBI domestic security program. The national interest would be better served if Bureau resources were directed at terrorism, hostile foreign intelligence activity, or organized crime, all more serious and pressing threats to the nation than “subversives” or local civil disobedience.

For similar reasons, the Committee, like the Attorney General’s guidelines, requires “reasonable suspicion” for preventive intelligence investigations which extend beyond a preliminary stage. Investigations of terrorism and hostile foreign intelligence activity which are not limited in time and scope could lead to the same abuses found in intelligence investigations of subversion or local civil disobedience. However, an equally important reason for this standard is that it should increase the efficiency of Bureau investigations. The General Accounting Office found that when the FBI initiated its investigations on “soft evidence” — evidence which probably would not meet this “reasonable suspicion” standard — — it usually wasted its time on an innocent target. When it initiated its investigation on harder evidence, its ability to detect imminent violence improved significantly.

The Committee’s recommendations limit preventive intelligence investigations to situations where information indicates that the prohibited activity will “soon” occur, whereas the guidelines do not require that the activity be imminent. This limit is essential to prevent a return to sweeping, endless investigations of remote and speculative “threats.” The Committee’s intent is that, to open or continue a full investigation, there should be a substantial indication of terrorism or hostile foreign intelligence activity in the near future.

The Committee’s restrictions are intended to eliminate unnecessary investigations and to provide additional protections for constitutional rights. Shifting the focus of Bureau manpower in domestic security investigations from lawful speech and association to criminal conduct by terrorists and foreign spies provides further protection for constitutional rights of Americans as well as serving the nation’s interest in security.

1. Investigations of Committed or Imminent Offenses

Recommendation 42. — The FBI should be permitted to investigate a committed act which may violate a federal criminal statute pertaining to the domestic security to determine the identity of the perpetrator or to determine whether the act violates such a statute.

Recommendation 43. — The FBI should be permitted to investigate an American or foreigner to obtain evidence of criminal activity where there is “reasonable suspicion” that the American or foreigner has committed, is committing, or is about to commit a specific act which violates a federal statute pertaining to the domestic security.[1624]

2. Preventive Intelligence Investigations

Recommendation 44. — The FBI should be permitted to conduct a preliminary preventive intelligence investigation of an American or foreigner where it has a specific allegation or specific or substantiated information that the American or foreigner will soon engage in terrorist activity or hostile foreign intelligence activity. Such a preliminary investigation should not continue longer than thirty days from receipt of the information unless the Attorney General or his designee finds that the information and any corroboration which has been obtained warrants investigation for an additional period which may not exceed sixty days. If, at the outset or at any time during the course of a preliminary investigation the Bureau establishes “reasonable suspicion” that an American or foreigner will soon engage in terrorist activity or hostile foreign intelligence activity, it may conduct a full preventive intelligence investigation. Such full investigation should not continue longer than one year except upon a finding of compelling circumstances by the Attorney General or his designee.

In no event should the FBI open a preliminary or full preventive intelligence investigation based upon information that an American is advocating political ideas or engaging in lawful political activities or is associating with others for the purpose of petitioning the government for redress of grievances or other such constitutionally protected purpose.

The second paragraph of Recommendation 44 will serve as an important safeguard if enacted into any statute authorizing preventive intelligence investigations. It would supplement the protection that would be afforded by limiting the FBI’s intelligence investigations to terrorist and hostile foreign intelligence activities. It re-emphasizes the Committee’s intent that the investigations of peaceful protest groups and other lawful associations should not recur. It serves as a further reminder that advocacy of political ideas is not to be the basis for governmental surveillance. At the same time Recommendation 44 permits the initiation of investigations where the Bureau possesses information consisting of a “specific allegation or specific or substantiated information that [an] American or foreigner will soon engage in terrorist activity or hostile foreign intelligence activity.”

This recommendation has been among the most difficult of the domestic intelligence recommendations to draft. It was difficult because it represents the Committee’s effort to draw the fine line between legitimate investigations of conduct and illegitimate investigations of advocacy and association. Originally the Committee was of the view that a threshold of “reasonable suspicion” should apply to initiating even limited preliminary intelligence investigations of terrorist or hostile foreign intelligence activities. However, the Committee was persuaded by the Department of Justice that, having narrowly defined terrorist and hostile foreign intelligence activities, a “reasonable suspicion” threshold might be unworkable at the preliminary stage. Such a threshold might prohibit the FBI from investigating an allegation of extremely dangerous activity made by an anonymous source or a source of unknown reliability. The “reasonable suspicion” standard requires that the investigator have confidence in the reliability of the individual providing the information and some corroboration of the information.

However, the Committee is cautious in proposing a standard of “specific allegation or specific or substantiated information” because it permits initiation of a preliminary investigation which includes the use of physical surveillance and a survey of, but not targeting of, existing confidential human sources. The Committee encourages the Attorney General to work with the Congress to improve upon the language we recommend in Recommendation 44 before including it in any legislative charter. If adopted, both the Attorney General and the appropriate oversight committees should periodically conduct a careful review of the application of the standard by the FBI.

The ultimate goal which Congress should seek in enacting such legislation is the development of a standard for the initiation of intelligence investigations which permits investigations of credible allegations of conduct which if uninterrupted will soon result in terrorist activities or hostile foreign intelligence activities as we define them. It must not permit investigations of constitutionally protected activities as the Committee described them in the last paragraph of Recommendation 44. The following are examples of the Committee’s intent.

Recommendation 44 would prohibit the initiation of an investigation based upon “mere advocacy:”

-An investigation could not be initiated, for example, when the Bureau receives an allegation that a member of a dissident group has made statements at the group’s meeting that “America needs a Marxist-Leninist government and needs to get rid of the fat cat capitalist pigs.”

The Committee has found serious abuses in past FBI investigations of groups. In the conduct of these investigations, the FBI often failed to distinguish between members who were engaged in criminal activity and those who were exercising their constitutional rights of association. The Committee’s recommendations would only permit investigation of a group in two situations: first, where the FBI receives information that the avowed purpose of the group is “soon to engage in terrorist activity or hostile foreign intelligence activity”; or second, where the FBI has information that unidentified members of a group are “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 information 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 commit terrrorist acts, the FBI could investigate all members of a particular “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 information 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 intelligence 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 association 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 conferences 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 meeting 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 riot he 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 activist 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 preliminary investigation of the activist.

The Committee cautions the Department of Justice and FBI that in opening investigations of conduct occurring in the context of political activities, it should endeavor to ensure that the allegation prompting the investigation is from a reliable source.

Certainly, however, where the FBI has received a specific allegation 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 intelligence agent.

Recommendation 45. — The FBI should be permitted to collect information 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 140 U.S.C. 331 for the use of federal militia or other federal armed forces as a countermeasure;[1625] 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 collecting information necessary for

1) the President in making decisions concerning the introduction of federal troops;

2) military officials in positioning and supporting such troops; and

3) state and local officials in coordinating their activities with such military officials.

4) Background Investigations

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 determine whether additional legislation is necessary to:

(a) modify criteria based on political beliefs and associations unrelated to suitability for employment; such modification should make those criteria consistent with judicial decisions regarding privacy of political association,[1626] and

(b) restrict the dissemination of information from name checks[1627] of information related to suitability for employment.

5) Security Risk Investigations

Recommendation 48. — Under regulations to be formulated by the Attorney General, the FBI should be permitted to investigate a specific allegation that an individual within the Executive branch with access to classified information is a security risk as described in Executive Order 10450. Such investigation should not continue longer than thirty days except upon written approval of the Attorney General or his designee.

6) Security Leak Investigations

Recommendation 49. — Under regulations to be formulated by the Attorney General, the FBI should be permitted to investigate a specific allegation of the improper disclosure of classified information by employees or contractors of the Executive branch.[1628] Such

investigation should not continue longer than thirty days except upon written approval 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., interviews), (2) name checks (review of existing government files), and (3) covert techniques (which range, for example, from electronic surveillance 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 applied to it. Therefore, the recommendation would permit overt techniques and name checks in any of the investigative areas described above.

With respect to covert technique, the Committee decided upon procedures 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 circumstances giving rise to the request for use of the technique (whether the facts warrant a full investigation or only a preliminary investigation). 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 techniques in domestic security investigations would be subject to review and in some cases to prior approval by the Attorney General’s office, as described in Recommendations 55 through 62.[1629]

The judicial warrant requirement the Committee recommends for electronic surveillance is similar in many respects to the Administration’s bill, which is a welcome departure from past practice. The Committee, like the Administration, believes that there should be no electronic 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 employees of foreign powers, 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.[1630] The Committee also would require that no American be targeted for electronic surveillance except upon a judicial 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 commit 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 authorized 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.

There are some differences between the Attorney General and the Committee on the use of informants.[1631] 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 informant 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. Therefore, the restrictions suggested in Recommendations 55 through 57 are designed to impose standards for the sustained targeting of informants 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 investigation. Furthermore, the Committee would require that the informant cannot be targeted for more than ninety days[1632] in the intelligence 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 General finds compelling circumstances he may permit an additional sixty days.

Other than the restrictions upon the use of informants, the Committee 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 Attorney General or his designee. Interviews (including interviews of existing informant’s), name checks (including checks of local police intelligence files), and physical surveillance and review of credit and telephone records would be permitted during the preliminary investigation. The Attorney General or his designee would have to review that investigation within one month. Under the guidelines, preliminary investigations do not require approval by the Attorney General or his designee and can continue for as long as ninety days with an additional 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 require the Attorney General or his designee to authorize the initiation of the full investigation and the use of covert techniques in the investigation.

1. Overt Techniques and Name Checks

Recommendation 50. — Overt techniques and name checks should be permitted in all of the authorized domestic security investigations 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 surveillance, 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.[1633]

b. Judicial Warrant Procedures (Electronic Surveillance, Mail Opening, Search and Seizure, and Surreptitious Entry)

The requirements for judicial warrants, set forth below, are not intended to cover NSA communication intercepts. Recommendations 14 through 18 contain the Committee’s recommendations pertaining to NSA intercepts, the circumstances in which a judicial warrant is required and the standards applicable for the issuance of such a warrant.

Recommendation 51. — All non-consensual electronic surveillance, mail-opening, and unauthorized entries should be conducted only upon authority of a judicial warrant.

Recommendation 52. — All non-consensual electronic surveillance should be conducted pursuant to judicial warrants issued under authority 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.

(d) Such electronic surveillance should be exempt from the disclosure requirements of Title III of the 1968 Act as to foreigners generally and as to Americans if they are involved in hostile foreign intelligence activity.[1634]

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 incorporate 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 pursuant to a judicial warrant issued upon probable cause of criminal activity as described in Recommendation 37.

Recommendation 54. — Unauthorized entry should be conducted only upon judicial warrant issued on probable cause to believe that the place to be searched contains evidence of a crime, except unauthorized entry, including surreptitious entry, against foreigners who are officers, employees, or conscious agents of a foreign power should be permitted upon judicial warrant under the standards which apply to electronic surveillance described in Recommendation 52.

(e) Administrative Procedures (Covert Human Sources, Mail Surveillance, Review of Tax Returns and Tax-Related Information, and Other Covert Techniques)

Recommendation 55. — Covert human sources may not be directed[1635] at an American except:

(1) In the course of a criminal investigation if necessary to the investigation provided that covert human sources should not be directed at an American as a part of an investigation of a committed act unless there is reasonable suspicion to believe that the American is responsible for the act and then only for the purpose of identifying the perpetrators of the act.

(2) If the American is the target of a full preventive intelligence investigation and the

Attorney General or his designee makes a written finding that[1636] (i) he has considered and rejected less intrusive techniques; and (ii) he believes that covert human sources are necessary to obtain information for the investigation.

Recommendation 56. — Covert human sources which have been directed at an American in a full preventive intelligence Investigation should not be used to collect information on the activities of the American 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 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[1637] unless the covert human source could be directed against an American in a criminal investigation or a full preventive intelligence investigation under these recommendations.

Recommendation 58. — Mail surveillance and the review of tax returns and tax-related information should be conducted consistently with the recommendations contained in Part iii. In addition to restrictions 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 investigation;

(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[1638] (i) he has considered and rejected less intrusive techniques; and (ii) he believes that the covert technique requested by the Bureau is necessary to obtain information necessary to the investigation.

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-warrant 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 62. — If Congress enacts a statute attaching criminal sanctions to security leaks, covert techniques should be directed at Americans in the course of security leak investigations only if such techniques are consistent with Recommendation 55 (1),[1639] (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 58 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 Overhears

Recommendation 63. — Except as limited elsewhere in these recommendations or in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, information obtained incidentally through an authorized 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 authorized domestic security investigation.

e) Maintenance and Dissemination of Information

The following limitations should apply to the maintenance and dissemination 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. Sealing or Purging

Recommendation 65. — Personally identifiable information on Americans obtained in the following kinds of investigations should be sealed or purged as follows (unless it appears on its face to be necessary for another authorized investigation):

(a) Preventive intelligence investigations of terrorist or hostile foreign 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 terminated by the Attorney General or his designee pursuant to Recommendation 69, provided that where troops have been introduced such information need be sealed or purged only within a reasonable period after their withdrawal.

Recommendation 66. — Information previously gained by the FBI or any other intelligence agency through illegal techniques should be sealed or purged as soon as practicable.

3. Dissemination

Recommendation 67. — Personally identifiable information on Americans from domestic security investigations may be disseminated outside the Department of Justice as follows:

(a) Preventive intelligence investigations of terrorist activities — personally identifiable information on Americans from preventive criminal intelligence investigations of terrorist activities may be disseminated only to:

(1) A foreign or domestic law enforcement agency which has jurisdiction over the criminal activity to which the information relates; or

(2) To a foreign intelligence or military agency of the United States, if necessary for an activity permitted by these recommendations; or

(3) To an appropriate federal official with authority to make personnel 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 recommendations to similar agencies of the United States; or

(5) Where necessary to warn state or local officials of terrorist activity likely to occur within their jurisdiction; or

(6) Where necessary to warn any person of a threat to life or property from terrorist activity.

(b) Preventive intelligence investigations of hostile foreign intelligence activities -personally identifiable information on Americans from preventive criminal intelligence investigations of hostile intelligence activities may be disseminated only:

(1) To an appropriate federal official with authority to make personnel 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 recommendations 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 disseminated 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.[1640]

(d) Background investigations — to the maximum extent feasible, the results of background 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 subject.

(e) All other authorized domestic security investigations — to governmental officials who are authorized to take action consistent with the purpose of an investigation or who have statutory duties which require the information.

4. Oversight Access

Recommendation 68. — Officers of the Executive branch, who are made responsible by these recommendations for overseeing intelligence activities, and appropriate congressional committees should have access to all information necessary for their functions. The committees should adopt procedures to protect the privacy of subjects of files maintained by the FBI and other agencies affected by the domestie intelligence recommendations.

f. Attorney General Oversight of the FBI, Including Termination of Investigations and Covert Techniques

Recommendation 69. — The Attorney General should:

(a) Establish a program of routine and periodic review of FBI domestic security investigations to ensure that the FBI is complying with all of the foregoing recommendations; and

(b) Assure, with respect to the following investigations of Americans 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 extensions upon a written finding of “compelling circumstances”;

(2) Covert techniques are used in preventive intelligence investigations 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 circumstances”;

(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 circumstances;”

v. The Responsibility and Authority of the Attorney General for Oversight of Federal Domestic Security Activities Must Be Clarified and 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 intelligence agencies of the United States conduct their activities in accordance with the law. The Executive Order, however, places primary 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 General information which relates to possible violations of law by any employee of the respective intelligence agencies. The Order also requires the Oversight Board to report periodically, at least quarterly, to the Attorney General on its findings and to report, in a timely manner, 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 Recommendations:

Recommendation 70. — The Attorney General should review the internal regulations of the FBI and other intelligence agencies engaging in domestic security activities to ensure that such internal regulations 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 interpretations of statutes and regulations adopted pursuant to these recommendations and on such other legal questions as are described in b. below.

Recommendation 72. — The Attorney General should have ultimate responsibility for the investigation of alleged violations of law relating 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 detection of alleged violations of the law by, or on behalf of, their respective agencies and for the reporting to the Attorney General of all such alleged violations.[1641] Each such agency head should also assure his agency’s cooperation with the Attorney General in investigations of alleged violations.

b. General Counsel and Inspectors General of Intelligence

The Committee recommends that the FBI and each other intelligence agency should have a general counsel nominated by the President and confirmed by the Senate. There is no provision in the Executive 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 believes 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 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 General appointed by the agency bead.

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 matter 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 intelligence 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.[1642]

Recommendation 78. — The General Counsel and Inspector General of the FBI and of each other intelligence agency should have unrestricted access to all information in the possession of the agency and should have the authority to review all of the agency’s activities.[1643] 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 illegal 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.

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 activities of the General Counsel and the Office of the Inspector General.[1644]

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 Counsel’s findings concerning these activities, a summary of the Inspector General’s investigations of these activities, and the practices and procedures developed to discover activities that raise questions of legality or propriety.

c. Office 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 General. 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 promulgated pursuant to these recommendations.[1645]

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 exercising his power to appoint Assistant Directors of the FBI. A maximum term of years should be imposed on the tenure of the Assistant Director for the Intelligence Division.[1646]

vi. Administrative Rulemaking and Increased Disclosure Should Be Required

a. Administrative Rulemaking

Recommendation 86. — The Attorney General should approve all administrative regulations required to implement statutes created pursuant to these recommendations.

Recommendation 87. — Such regulations, except for regulations concerning investigations of hostile foreign intelligence activity or other matters which are properly classified, should he 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 regulations:[1647]

(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, authorized investigative techniques, maintenance and dissemination of information by the FBI; and

(d) The termination of investigations and covert techniques as described 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 important mechanisms by which individuals can gain access to information on intelligence activity directed against them. The Domestic Intelligence 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.[1648]

vii. Civil Remedies Should Be Expanded

Recommendation 91 expresses the Committee’s concern for establishing a legislative scheme which will afford effective redress to people who are injured by improper federal intelligence activity. The recommended provisions for civil remedies are also intended to deter improper 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 front deprivation 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 which an injured citizen can seek relief either monetary or injunctive — from the government or from an individual intelligence officer is far front 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 provides the basis for a suit to redress the injury incurred;[1649] but there is no statute which extends the same remedies for identical injuries when they are caused by a federal officer.

In the landmark Bivens case, the Supreme Court held that a federal officer could be sued for money damages for violating a citizen’s Fourth Amendment rights.[1650] Whether monetary damages can be obtained 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 expenditure 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 opposed to the government itself — acted in good faith and with the reasonable belief that his conduct was lawful, he should have an affirmative defense to a suit for damages brought under the proposed statute. To tighten the system of accountability and control of domestic intelligence activity, the Committee proposes that this defense be structured to encourage intelligence officers to obtain written authorization for questionable activities and to seek legal advice about them.[1651]

To avoid penalizing federal officers and agents for the exercise of discretion, the Committee believes that the government should indemnify 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 discovery 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 remedies for the victims of intelligence activity be established along the following lines to clarify the state of the law, to encourage the responsible execution of duties created by the statutes recommended herein to regulate intelligence agencies, and to provide relief for the victims of illegal intelligence activity.

Recommendation 91. — Congress should enact a comprehensive civil remedies statute which would accomplish the following:[1652]

(a) Any American with a substantial and specific claim[1653] to an actual or threatened injury by a violation of the Constitution by federal intelligence officers or agents[1654] 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, without 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.[1655] 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 intelligence activity (as proposed by these Domestic Intelligence Recommendations) 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 constitutional or statutory violation.

(d) Whatever statutory provision may be made to permit an individual 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 defendants and should not extend to the government. Moreover, the defense should not be available to bar injunctions against individual defendants.

viii. Criminal Penalties Should Be Enacted

Recommendation 92. — The Committee -believes that criminal penalties should apply, where appropriate, to willful and knowing 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.[1656]

x. The Espionage Statute Should be Modernized

As suggested in its definition of “hostile foreign intelligence activity” and its recommendations on warrants for electronic surveillance, 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 Congressional 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 Committee 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, including industrial, technological or economic espionage.

xi. Broader Access to Intelligence Agency Files Should be Provided 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 reviews 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 authorized representatives, should have access to, and the right to examine, all necessary materials of any such department or agency.

xii. Congressional Oversight Should Be Intensified

Recommendation 96. — The Committee reendorses the concept of vigorous Senate oversight to review the conduct of domestic security activities through a new permanent intelligence oversight committee.

xiii. Definitions

For the purposes of these recommendations:

A. “Americans” means U.S. citizens, resident aliens and unincorporated associations, composed primarily of U.S. citizens or resident 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 information, 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, including collection from record sources not readily available to a private person (except state or local law enforcement files), in such a manner as not to be detected by the subject.

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 conscious agents of a foreign power, or who, pursuant to the direction of a foreign power, engage in clandestine intelligence activity,[1657] 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 information 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 Archives all personally identifiable information (including references in any general name index).

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 necessity.”

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 government; or

(2) Substantially disrupting interstate or foreign commerce between the United States and another country; or

(3) Directly interfering with the exercise by Americans, of Constitutional rights protected by the Civil Rights Act of 1968, or by foreigners, of their rights under the laws or treaties of the United States.

O. “Unauthorized entry” means entry unauthorized by the target.


Appendix A: Senate Resolution 21

94th Congress
1st Session


In the Senate of the United States

January 21, 1975

Mr. Pastore submitted the following resolution; which was ordered to be placed on the calendar (under general orders)

January 27, 1975

Considered, amended, and agreed to


To establish a select committee of the Senate to conduct an investigation and study with respect to intelligence activities carried out by or on behalf of the Federal Government.

Resolved, To establish a select committee of the Senate to conduct an investigation and study of governmental operations with respect to intelligence activities and of the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency of the Federal Government or by any persons, acting individually or in combination with others, with respect to any intelligence activity carried out by or oh behalf of the Federal Government; be it further

Resolved, That (a) there is hereby established a select committee of the Senate which may be called, for convenience of expression, the Select Committee To Study Governmental Operations With Respect to Intelligence Activities to conduct an investigation and study of the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency or by any persons, acting either’ individually or in combination with others, in carrying out any intelligence or surveillance activities by or on behalf of any agency of the Federal Government.

(b) The select committee created by this resolution--shall consist of eleven Members of the .Senate, six.to be appointed by the President of the Senate from the majority Members of the Senate upon, the recommendation of the majority leader of the Senate, and five minority Members of the Senate to be appointed by the President of the Senate upon the recommendation of the minority leader of -the Senate. For the purposes of paragraph 6 of rule XXV of the Standing Rules of the Senate, service of a Senator as a member, chairman, or vice chairman of the select committee shall not be taken into account.

(c) The majority members of the committee shall select a chairman and the minority members shall select a vice chairman and the committee shall adopt rules and procedures to govern its-proceedings. The vice chairman shall preside over meetings of the select committee during the absence of the chairman, and discharge such other responsibilities as may be assigned to him by the select committee or the chairman. Vacancies in the membership of the select committee shall not affect the authority of the remaining members to execute the functions of the select committee and shall be filled in the same manner as original appointment? to it are made.

(d) A majority of the members of the select committee shall constitute a quorum for the transaction of business huh the select committee may affix a lesser number as a quorum for the purpose of taking testimony or depositions.

Sec. 2. The select committee is authorized and directed to do everything necessary or appropriate to make the investigations and study specified in subsection (a) of the first section. Without abridging in any way the authority conferred upon the select committee by the preceding sentence, the Senate further expressly authorizes and directs the select committee to make a complete investigation and study of the activities of any agency or of any and all persons or groups of persons or organizations of any kind which have any tendency to reveal the full facts with respect to the following matters or questions:

(1) Whether the Central Intelligence Agency has conducted an illegal domestic intelligence operation in the United States.

(2) The conduct of domestic intelligence or counterintelligence operations against United States citizens by the Federal Bureau of Investigation or any other Federal agency.

(3) The origin and disposition of the so-called Huston Plan to apply United States intelligence agency capabilities against individuals or organizations within the United States.

(4) The extent to which the Federal Bureau, of Investigation, the Central Intelligence Agency, and other Federal law enforcement or intelligence agencies coordinate their respective activities, any agreements--which govern that coordination, and the extent to which a lack of coordination has contributed to activities or actions which are illegal, improper, inefficient, unethical, or contrary to the intent of Congress.

(5) The extent to which the operation of domestic intelligence or counterintelligence activities and the operation of any other activities within the United States by the Central Intelligence Agency conforms to the legislative charter of that Agency and the Intent rtf the Congress.

(6) The past and present interpretation by the Director of Central Intelligence of the responsibility protect intelligence sources and methods as it relates the provision in section 102 (d) (3) of Sie National Security Act of 19’47 (50 U.S.C-. 4Q3’(d)-(3)) that “... the agency shall have no police, subpena, law enforcement powers, or internal security functions...”

(7) Nature and extent of executive branch oversight of all United States intelligence activities.

(8) The need for specific legislative authority to govern the operations of any intelligence agencies Of the Federal Government now existing without that explicit statutory authority, including but not limited tangencies such as the Defense Intelligence Agency anil the National Security Agency.

The nature and extent to which Federal agencies--Cooperate and exchange intelligence information and, the adequacy of any regulations or statutes which govern such cooperation and exchange of intelligence information.

(9) The extent to which United States Intelligence agencies are governed by Executive orders, rules, Upregulations either published or secret arid the extent to which those Executive orders, rules’, or regulation^ interpret, expand, or are in Conflict with specific legslative authority.

(10) The violation or suspected violation of any State or Federal statute by any intelligence agency or by Any person by or on behalf of any intelligence agency of the Federal Government including but not limited, .to surreptitious entries, surveillance, wiretaps, or eavesdropping, illegal opening of the United States mail, or the monitoring of the United States mail.

(11) The need for improved, strengthened, or consolidated oversight of United States intelligence activities by the Congress.

(12) Whether any of the existing laws of the United States are inadequate, either in their provisions or manner of enforcement, to safeguard the rights of American citizens, to improve executive and legislative control of intelligence and related activities, and to resolve uncertainties as to the authority of United States intelligence and related agencies.

(13) Whether there is unnecessary duplication of expenditure and effort in the collection and processing of intelligence information by United States agencies.

(14) The extent and necessity of overt and covert intelligence activities in the United States and abroad.

(15) Such other related matters as the committee.’ deems necessary in order to carry out its responsibility under section (a).

Sec. 3. (a) To enable the select committee to make the investigation and study authorized and directed by this resolution, the Senate hereby empowers the select committed has an agency of the Senate (1) to employ and fix the compensation of such clerical,, investigatory, legal, technical, and other assistants as it deems necessary or appropriate^ but it may not exceed the normal Senate salary schedules: (2) to sit and act at any time or place during sessions, recesses, and adjournment periods of the Senate.; (3) to hold hearings for taking testimony on oath or