Domestic Intelligence: Monitoring Dissent in America 9781477300299

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DOMESTIC INTELLIGENCE

Monitoring Dissent in America

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Domestic Intelligence MONITORING DISSENT IN AMERICA by Richard E. Morgan

University of Texas Press

A u s t in

and

Lo n d o n

Copyright 0 1980 by the University of Texas Press All rights reserved Printed in the United States of America Library of Congress Cataloging in Publication Data Morgan, Richard E 1937Domestic intelligence. Includes index.

1. Intelligence service—United States. 2. Civil rights—United States. I. Title. JK 4 6 8 .16 M 6 6 3 5 3 -0 0 7 4 ISBN 0-292-76463-4 ISBN 0-292-71529-3 (p bk.)

8 0 -13 2 5 4

To Athern Park Daggett, teacher and friend

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Contents

Preface i. Introduction

ix

3. The FBI in Cold War and Social Turbulence

3 15 37

4. Other Domestic Intelligence Operations

60

5. Covert Techniques

88

2. From Intermittence to Permanence

6. Is Domestic Intelligence Unconstitutional ?

104

7. The Dangers and the Needs: Weights in the Balance 8. Further Reform ?

126 144

Notes

169

Index

189

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Preface

AS THE N EW Y E A R OPENED, Senator Edward Kennedy was struggling in frozen New England to keep his presidential campaign alive. In Washington the staff of the Senate Judiciary Committee waited for the return of its chairman so that floor action could be planned and begun on a bill which would pro­ vide an investigative charter for the Federal Bureau of Investi­ gation. And as they waited, the Judiciary Committee staffers concerned with FBI operations had much to think about. Mas­ sive leaks to the press of the details of operations ABSCAM and BRILAB had once again focused public attention on the propriety of investigative techniques employed by the bureau. The coming months are likely to see nation-wide debate on the future of the bureau and on what should and should not be included in an FBI charter. If this book helps its readers by pro­ viding some background to these debates, and if it helps in thinking about some of the issues involved, my ambition for it will be fulfilled. If my arguments persuade some readers, I will be delighted. The research for this work on the history and problematics of political surveillance in America was supported by The Twentieth Century Fund, Inc. I am grateful to a number of past and present Fund staff members for their advice and support, especially Jack Howard, Marc Plattner, David Swickard, and Carol Barker. A number of scholars and participant observers took time to read all or parts of successive drafts; I particularly want to thank Christopher Pyle, John Elliff, James Q. Wilson, Neil Welsh, and John Hotis. They saved me from many errors of fact and judgment and deserve complete dissociation from those that remain.

X

PREFACE

During the life of the project Christopher W olf, Nancy Helmus, Elizabeth Keohan, and Jessica Birdsall served me well as research assistants. Grace Lott and Virginia Richardson both put up with much more than typists should have to bear, and Suzanne Theberge loyally kept the drafts, revisions, and edi­ torial retakes in order, and kept correspondence flowing. A travel grant from the Faculty Development Fund of Bowdoin College is also gratefully acknowledged. R.E.M. Morgan Hill Harpswell, Maine February 1980

DOMESTIC INTELLIGENCE

Monitoring Dissent in America

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i. Introduction

Domestic intelligence information coming into the White House has been fragmentary and unevaluated. We have not had, for example, a community-wide estimate of what we might expect short or long-term in the cities or on the campuses or within the military establishment.. . . I believe that we will be making a major contribution to the security of the country if we can work out an arrangement which provides for in­ stitutionalized coordination within the intelligence community and effective leadership from the White House. —Tom Charles Huston to H. R. Haldeman, July 1970 (quoted in the Church Committee Report)

N E A R L Y A DECADE has passed since the American people became aware of a variety of questionable and sometimes illegal practices employed by government agencies to monitor political dissent in this country. Not surprisingly, as sensational exposés about the activities of such formerly unimpeachable institutions as the Federal Bureau of Investigation, the Central Intelligence Agency, and the military intelligence services mounted, so too did the demand for reform of those agencies. Reform has been an arduous task— the subject of several well-publicized congres­ sional investigations, many legislative proposals, and a number of executive regulations. The reform process is far from com­ plete, and the debate continues. This book is part of that debate. It has four objectives: 1. To trace the way in which government agencies became involved with domestic intelligence gathering.

4

INTRODUCTION

2. To review the record of intelligence abuses revealed in the mid-1970s. 3. To examine critically intelligence reforms adopted thus far. 4. To suggest what additional reforms are necessary. It is difficult to date the beginning of the process that led to our current concern for reforming the FBI and other domestic intelligence collectors and users. But if one were to select a watershed, it would be March 8, 19 7 1— the day on which a small group of radical activists calling themselves the Commis­ sion to Investigate the FBI burglarized the FBI office in Media, Pennsylvania.1 The group made off with a number of files and FBI internal working documents, and over the course of the following year many of these documents were published, most notably in the March 1972 issue of W IN magazine. The Media documents suggested a much more intrusive pattern of FBI ac­ tivity against antiwar and New Left targets than had previously been known. The documents also were the first public disclosure of the COINTELPRO tactics— covert FBI efforts to disrupt legitimate political activities that were soon to become infamous. On October 29 and 30, 19 71, barely six months after the Media break-in, the Committee for Public Justice, a civil liber­ ties watchdog group, and the Woodrow Wilson School of Princeton University jointly sponsored a conference called In­ vestigating the FBI.2 While the idea for the conference ante­ dated the burglary at Media, the disclosures then leaking into the press fueled the eagerness of the conferees to expose FBI abuses of power. Although the conference represented a limited range of opinion, the participants were prestigious, including a salting of Harvard and Yale law professors, journalist Robert Sherrill, and then private citizen Andrew Young. It was as if the dammed-up resentments of American liberals against the FBI had suddenly broken loose; the news media widely publicized the Princeton meeting and the criticisms of the bureau that were developed there. However, the most important date in the exposure of FBI abuses is May 2, 1972. On that morning, J. Edgar Hoover’s housekeeper failed to get a response when she knocked on the director’s bedroom door. Hoover was dead, and an era was over.

INTRODUCTION

5

With Hoover gone, critics of the bureau, both within govern­ ment and outside it, could conceivably pressure more informa­ tion out of the FBI concerning such excesses as COINTELPRO. Not only did Hoover pass from the scene in the spring of 1972, but a wave of scandal was about to break over the Nixon White House. Only six weeks after Hoover’s death, on June 17, 1972, five men were caught burglarizing the Democratic Com­ mittee headquarters at the Watergate complex in Washington, D.C. Although almost a full year would pass before the full ex­ tent and meaning of the incident would begin to be made pub­ lic, the scandal focused public attention even more sharply on intelligence gathering and law enforcement agencies. Richard Nixon’s appointment of L. Patrick Gray, a former Nixon advance man and submarine officer, as acting director of the FBI following Hoover’s death further weakened the bu­ reau’s image of efficiency and political independence. In March 1973, at Gray’s confirmation hearing for appointment as perma­ nent FBI director, the details of the Watergate cover-up began to emerge. Gray told the Senate Judiciary Committee that con­ fidential FBI files on the Watergate investigation had been given to White House counsel John Dean (even though Gray ad­ mitted knowing that Dean had lied to the F B I); Gray also ad­ mitted destroying, at Dean’s request, evidence from E. Howard Hunt’s White House safe (he "deep-sixed it” in his own words). Gray resigned in disgrace in April 1973, but his ad­ mitted complicity in the Watergate affair provided another weapon for those demanding a full investigation of the political use of the FBI. Gray’s resignation was soon followed by more revelations of how far domestic intelligence activity had been carried. Criminal charges against former defense analyst Daniel Ellsberg for his role in leaking the Pentagon papers to the press had to be dis­ missed when it was revealed that a special White House unit, the "Plumbers,” had burglarized his psychiatrist’s office in an effort to discredit him. The existence of a secret White House plan authored by Nixon aide Tom Charles Huston was made public a few weeks later by John Dean. Initially approved by President Nixon in 1970 but ultimately abandoned when J. Edgar Hoover raised objections, the Huston plan coordinated

6

INTRODUCTION

domestic intelligence from within the White House and en­ dorsed the use of a number of questionable methods to monitor domestic dissent. Suddenly everyone seemed to be talking about bugs, wiretaps, and illegal entries. From concern over the ex­ cesses of dissent that had marked the late 1960s, the mood of the country appeared to shift in the early 1970s to alarm over the excesses of governmental response to that dissent. With his administration crumbling under the weight of Watergate disclosures in the spring of 1973, Richard Nixon ap­ pointed William Ruckelshaus, then the director of the Environ­ mental Protection Agency and untainted by the scandals, as act­ ing director of the FBI, replacing Gray. Ruckelshaus’s task was to restore respectability to the bureau, a task he immediately emphasized by announcing that, unlike Gray, he had no desire to be named permanent director. Ruckelshaus also announced that President Nixon had assured him that no one would be spared in the FBI’s Watergate investigation. But whatever good pub­ licity Ruckelshaus had gained for the bureau during his brief seventy-seven-day tenure was more than offset when he revealed that between mid-1969 and early 1970 the FBI had, at the di­ rection of White House officials, installed without warrants seventeen wiretaps on government officials and newsmen in an effort to determine the source of leaks of foreign policy infor­ mation. In the summer of 1973 Clarence Kelley, a twenty-one-year veteran of the FBI who had been police chief of Kansas City, Missouri, for the past twelve years, succeeded Ruckelshaus as permanent FBI director. Kelley was the choice of then Attorney General Elliot Richardson and Ruckelshaus, who remained in the Justice Department as deputy attorney general. Even though Ruckelshaus and Richardson soon resigned from the Nixon ad­ ministration, casualties of the "Saturday Night Massacre” of October 20, 1973, their efforts to open up and reform the FBI had made the process of unraveling irreversible. A suit brought under the Freedom of Information Act by newsman Carl Stern resulted in the release of portions of the COINTELPRO files in December 1973 and March 1974. And the new attorney general, William B. Saxbe, former i?epu6/ican senator from Ohio, while not a reformer by disposition, added

INTRODUCTION

7

to the growing record of FBI abuses by releasing a report com­ piled by FBI agents and lawyers from the criminal division of the Justice Department that revealed COINTELPRO operations in even greater detail. The impetus created by these revelations continued after Saxbe became U.S. ambassador to India. His successor, Edward H. Levi, continued to make public additional details of FBI abuse of authority. Of course, domestic intelligence abuses were not restricted to the FBI. A modest protest over domestic intelligence gather­ ing by the army had developed as early as 1970, and by 1975 the CIA, the National Security Agency (N SA ), the Internal Rev­ enue Service (IR S ), and even the Secret Service had been added to the media list of federal agencies involved in monitoring political activists in questionable and sometimes illegal ways. The attention focused on intrusive domestic intelligence activity at the federal level triggered concern over political monitoring by local law enforcement agencies. During the sum­ mer of 1975, for example, disclosures were made of monitoring of local political activists by police intelligence units in Chicago and Houston.3 In March 1975, the California Supreme Court found that officers of the Intelligence Division of the Los An­ geles Police Department violated state law by infiltrating the classroom of a UCLA history professor.4 Similar revelations about state and local agencies have surfaced regularly since 1975, perhaps the most serious of which was the finding of a New York legislative investigation in 1977 that the state police had conducted very extensive domestic intelligence operations in the 1960s, collecting materials on liberal and radical political figures without regard to any suspected criminal activity.5 The FBI revelations, coupled with the disclosures of im­ proper activity by the CIA and NSA, caused Congress in early 1975 to establish select committees to investigate such abuses. Both the Senate committee, chaired by Senator Frank Church, and the House committee, chaired by Congressman Otis Pike, were concerned with the broad spectrum of American foreign and domestic intelligence operations. The Church Committee, with its large and able staff, established clear preeminence in the domestic intelligence area. For the first time in the FBI’s history, the public was given a long and detailed look into its inner work­

8

INTRODUCTION

ings. The COINTELPRO abuses of the 1950s and 1960s, the supply of intelligence to the White House, the occasional use of the bureau for the collection of very broad general informa­ tion undertaken since World War II were all amply detailed. Although the Church Committee was careful not to expose much of the foreign or counterintelligence work, the FBI was clearly pressured to alter its domestic intelligence gathering practices. Even while the Church Committee hearings were tak­ ing place, the reform process within the Justice Department, set in motion by Ruckelshaus and Richardson and continued by Levi, began achieving results— new guidelines were promul­ gated for domestic security investigations and for use of infor­ mants. By the summer of 1976, the bureau had broken up the old Domestic Intelligence Division and had dramatically re­ duced the number of active investigations of individuals and groups. In the following years, the work of the Church and Pike Committees enabled the 95th Congress to establish permanent intelligence oversight committees in both the Senate and the House. In the spring of 1978, President Carter issued an execu­ tive order subjecting the intelligence agencies to some new regu­ lations, and at the same time a complicated bill to strictly re­ strain foreign and counterintelligence was introduced in the Senate. A few months later, Congress enacted the Foreign In­ telligence Surveillance Act of 1978, providing new rules for the use of electronic surveillance techniques in foreign intelligence collection. On the domestic intelligence front, the action shifted in early 1979 from the Senate Intelligence Committee to the Sen­ ate Judiciary Committee, which, under its new chairman, Ed­ ward M. Kennedy, took over the task of producing an investi­ gative charter for the FBI. President Carter’s first attorney general, Griffin Bell, pledged his cooperation, and former fed­ eral judge William Webster, Kelley’s successor as FBI director, while stressing the necessity of an adequate U.S. antiterrorism capability, promised bureau cooperation in order to create a new statutory basis for FBI operations. On July 30, 1979, an inves­ tigative charter bill (largely drafted within the bureau) was introduced by Senator Kennedy as S. 16 12. How this legislation

INTRODUCTION

9

will be amended, or whether a charter will even be adopted, is unclear at this writing. Whatever the outcome on Capitol Hill, the debate over the charter is important for the future of the FBI and for all American law enforcement, because the rules adopted for the bureau are likely to become a standard by which all American police are measured. This, in briefest survey, is how the current debate evolved. Before the argument of the book is described, however, a word is in order about the fuzziness of the term domestic intelligence. Why is it coupled in the title with the object of concern, politi­ cal dissent? Why not "police intelligence operations in political contexts” or some such title? A simple reason is that domestic intelligence is the term most commentators use to describe in­ formation gathering and record keeping by law enforcement agencies which is unrelated to a particular, known crime and is directed at persons and groups engaged in political activity.6 The term is thus useful because it distinguishes the investigating of political subjects from that of subjects suspected of criminal but nonpolitical activities. It will be argued here that limited domestic intelligence operations are justifiable, but only when undertaken on the basis of some reasoned expectation that serious criminal activity is contemplated by a particular group or individual. The storing up of general information about dissenters on the grounds that it might be useful in the future has also been described as domestic intelligence. (This was the operational approach, for instance, of the old Domestic Intelligence Division of the FBI.) But such general collection is illegitimate, no matter what it is called. Programs labeled "domestic intelligence” or "domestic security” or "internal security” or "public order” 7 (all code terms at one time or another for government monitoring of political dissent) should be permissible only when there is a criminal predicate— an explicit law enforcement justification for each investigation undertaken. Some domestic intelligence collection is licit, but much that was undertaken in the past was not. The obvious danger arising from domestic intelligence gathering is the ease with which such operations can be used to promote political orthodoxy or to stigmatize critics of those in power. Testifying before the Subcommittee on Civil and Con-

10

INTRODUCTION

stitutional Rights of the House Judiciary Committee, former Attorney General Edward Levi remarked that "government monitoring of individuals or groups because they hold unpopu­ lar or controversial political views is intolerable in our society.” 8 This principle, surely, is basic to any liberal society. The problem is how to limit law enforcement agencies to gathering informa­ tion in aid of the detection and prevention of crime and keep them from gathering information simply because some political positions seem bigoted, crazed, or otherwise "radical.” One cautionary note, however. This book is not about counterintelligence and counterespionage (responding to the activities of foreign intelligence services within the United States and abroad), nor is it about foreign intelligence gather­ ing (also performed at home and abroad). Certainly both sub­ jects are important, perhaps more important than domestic in­ telligence. Moreover, I am under no illusion that these activities are unrelated to domestic intelligence. For example, a continu­ ing problem with setting guidelines for early criminal investi­ gation of political subjects is the possibility of circumventing these rules by emphasizing marginal or speculative foreign connections to a particular case and thereby treating it as a counter­ intelligence case (to which different, less stringent standards should properly apply). I shall do the best I can to identify these problems, but to treat either counterintelligence or foreign intelligence adequate­ ly would require not only a separate study but also access to classified information. A book such as this one, on domestic in­ telligence, is possible only because of the scandals, the committee hearings, and a number of Freedom trf Information Act suits that placed so much previously secret material in the public domain. The debate over how or even whether to conduct domestic intelligence operations touches very sensitive nerves in the par­ ticipants. This is particularly true in this most liberal of politics, committed by moral tradition and constitutional law to protect­ ing individual privacy and to securing the widest latitude for political dissent consistent with public safety. When police in this country seek information concerning politically active in­ dividuals or groups, moral and legal constraints ought to oper­

INTRODUCTION

11

ate at their maximum. Thus, any systematic collection of infor­ mation about political activities can reasonably be regarded as suspect. Descending from that level of generality, however, commentators divide deeply, sometimes venomously. To civil libertarian purists, any political surveillance is re­ pulsive. The American Civil Liberties Union (A C LU ), for in­ stance, holds that law enforcement agencies should be restricted to investigating specific or imminent violations of law; that is, information gathering ought to begin after a substantive crime (not just a conspiracy) has been committed or where there is a very strong reason to believe that such a crime is about to be committed.9 This position has an honorable lineage: Attorney General Harlan Fiske Stone adopted it as policy for the FBI when he took over the scandal-ridden Justice Department in 1924, and the policy remained in effect until the late 1930s, when the FBI began to engage in investigative activity beyond this "Stone line.” The ACLU has articulate allies in support of a very strict investigative standard.10 In The Lawless State, one of the best recent works on the misdeeds of the American intelli­ gence community, Morton Halperin and three co-authors from the ACLU-supported Center for National Security Studies de­ fend this policy, and David Wise supports it in his popular treatment of the subject, The American Police Stated On the other side of the debate, commentators concerned with responding adequately to the threat of terrorism and with containing political dissent within the limits of law call for hero­ ic measures to protect the community against politically moti­ vated crime. Thus, Brian Crozier in A Theory of Conflict urges the need for "courage to invoke laws and statutes that already exist in most legislative systems [that is, sedition and subversion laws], but which have tended to fall into disuse in a general climate of misguided tolerance.” 12 Should this vigorous en­ forcement fail, Crozier urges resort to a state of "internal war” in which some civil liberties are temporarily suspended until terrorism is brought under control. To be ready for such emer­ gencies, Crozier urges that democratic states create depart­ ments of unconventional war,” which would bring together in­ telligence specialists and security police and such specialized military forces as may be necessary for antiterrorist operations

12

INTRODUCTION

(for example, freeing hostages).13 Nor is Crozier alone in his willingness to take drastic measures. Albert Parry, in his widely noticed Terrorism: From Robespierre to Arafat, says that, in responding to terrorism, "If err we must, it is better to err on the side of precaution and caution.” 14 My own position follows the generous path of middle ground between these extremes. Nothing the United States has experienced or seems likely to experience in the foreseeable fu­ ture justifies a "department of unconventional warfare” or a steely resolve to declare states of emergency. Enforcing antisub­ version laws, in this nation at least, has proven to be much more trouble than it is worth. As a matter of civic morality, an open society must accept a certain degree of risk. On the other hand, the position of civil libertarian purists is overrestrictive of law enforcement generally and the bureau in particular. My position contains five basic elements that can be quickly summarized. The intention in doing so here is not to persuade so much as to forewarn; detailed discussions of the limitations on and justifications for domestic intelligence gathering must fol­ low later. First, people commit crimes for political reasons, and people justify crimes with political rhetoric. Recent history does not suggest that, either domestically or internationally, serious po­ litically motivated crime (what I call "terrorism” ) is declining. This book insists that such crime be taken seriously. Terrorism is only "political crime” in its motivation or justification. It is violent and serious disruption of society with which the police are properly concerned; as for subversion and sedition laws— so-called speech crimes— I shall urge repeal of those that still survive in the United States. Second, modern law enforcement is as much concerned with preventing crime as with apprehending criminals.15 While nineteenth-century law enforcement agencies characteristically began their activity post hoc—with broken bodies littering the street— twentieth-century law enforcement is properly concerned with preventing the planting of the bomb in the first place. Early investigation not only allows for prevention but can aid in re­ sponse and detection after crimes have been committed. It can be argued that the use of the word intelligence to describe early

INTRODUCTION

13

investigating carries an unnecessarily sinister (or glamorous) connotation. Ordinary, nonpolitical criminal investigations are routinely begun on the basis of tips, educated guesses, and slight but suggestive indications that fall far short of what the law calls "probable cause” to believe a specific felony has been or is about to be committed— circumstances "sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” 10 Simple common sense requires that some information gathering and retention be allowed on rather slight expectations of crime. Third, ordinary law enforcement intelligence and domestic intelligence share many characteristics and pose many of the same problems for civil liberties. Certain techniques employed in both (for example, electronic surveillance) are constitutional­ ly limited. In many local and state police intelligence units, the two operations are managed by the same sets of officers; both kinds of early investigating involve potential intrusions into per­ sonal privacy. But when political subjects are involved, an im­ portant dimension is added. Not only is privacy jeopardized by the policef activity, but dissent may also be discouraged. This consideration requires that special rules apply to early informa­ tion gathering in political contexts. Fourth, the particular limitations that should be imposed on domestic intelligence (as opposed to "routine” criminal in­ telligence) are not, in the main, found in constitutional law. The speech clause of the First Amendment has been interpreted by the Supreme Court to constrain American government in a variety of ways in responding to political dissent, but most of the techniques of domestic intelligence collection are not for­ bidden by the First Amendment. It is neither likely nor desirable that they will be. Our concern to protect dissent is not confined to the scope of the First Amendment, any more than our concern for individual privacy is bound by the Fourth Amendment’s prohibition of unreasonable searches and seizures. What is needed is a flexible combination of statutory and administrative rules with oversight mechanisms adjusted so that compliance is strongly encouraged, but without paralyzing law enforcement agencies when crime is suspected in political contexts. The Su­ preme Court, pronouncing ex cathedra on the meaning of the

14

INTRODUCTION

Constitution, characteristically speaks in majestic generalities and, supposedly, for the ages. Rules governing domestic intelli­ gence need to be both subtly nuanced and amenable to quick revision. Fifth, in creating and adjusting these legislative and ad­ ministrative rules, there is no way to avoid balancing (and re­ balancing in the light of experience) our desire to maximize privacy and protect dissent against our need to protect the safety of the community. This balancing requires continuing attention and institutionalized monitoring of the monitors. But recogniz­ ing that it will be difficult is not the same as concluding that it will be impossible. We are not facing a choice between the repe­ tition of past abuses or no domestic intelligence gathering at all. We are facing more complicated questions about the rules we ought to make and the institutional mechanism we ought to create. In what follows, I shall emphasize the importance of guard­ ing against overreacting to the disclosures of the mid-1970s. Reform is necessary; some has already been undertaken, and more is needed. But obsessively libertarian proposals are being advanced that, if adopted, could seriously disable government’s ability to mount crime control operations. The pendulum has swung away from excessive domestic intelligence gathering; it must not be allowed to overrun the stops and leave us with too little.

2 . From Intermittence To Permanence

Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father, or a brother, or friend into a public meeting, and there working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptible government. . . . I think that in such a case, to silence the agitator and save the boy is not only constitutional, but withal a great mercy. — Abraham Lincoln, letter to Erastus Corning and others, June 12, 1863

IN THE LA TE N IN ETEEN TH CEN TU RY, most Americans believed that their government and politics were fundamentally different from the old, corrupted, monarchial, and aristocratic political systems of Europe.1 Americans were confident that they enjoyed the blessing of "free speech” 2 and, as a corollary, that their society was naturally free from the dirty business of do­ mestic spies and political surveillance. The widespread belief in America’s "natural freedom” was rooted in the decentralization and limited character of the federal government in the nine­ teenth century. The federal government did little, if any, domes­ tic spying; but then, it did very little of anything else. However, the notion that no domestic intelligence collec­ tion took place in America before this century is incorrect. After all, the American nation was conceived in a frenzy over internal security and fear over the subversive activities of an "enemy within.” The spying out and summary punishment of Tories was

16

FROM INTERMITTENCE TO PERMANENCE

routine for bully boys during the American Revolution. Vigi­ lante bands, sometimes styling themselves the Sons of Liberty and often operating with the approval and cooperation of local officials, routed out those whose enthusiasm for the cause of American independence was deemed insufficient. Loyalty oaths were administered forcibly, and in many instances those found to be harboring loyalist sentiments were driven from the com­ munity.3 The first century and a half of American democracy was marked by intermittent episodes of internal intelligence gather­ ing. Monitoring dissent, by the federal government at least, was undertaken only in response to a crisis of the moment; with the passing of the crisis, the monitoring ceased, and the federal ma­ chinery that supported it was dismantled or retooled for other tasks. But if government surveillance activity prior to World War II was episodic, it is nevertheless germane to this study. Whenever the federal government perceived itself as faced with a severe crisis of disloyalty, it quickly got into the business of monitoring dissent. In addition, extensive monitoring of politi­ cal radicals was carried on by the private sector in the late nine­ teenth century. With World War II, which marked in so many ways the modernization of the American national government, this distinctly pre-modern pattern of intermittent public-private efforts was broken, and a permanent, specialized domestic in­ telligence capacity was institutionalized at the federal level. In examining the development of political surveillance in America, it is important to understand that the problem of con­ taining dissent within the boundaries of the law has troubled earlier generations. Looking at how our ancestors grappled with the problem and the mistakes they made should help to dispel some of the breathless sense of facing unique dangers that has hallmarked the disclosures of intelligence abuses in the 1970s. By examining the transition from intermittence to perma­ nence, we shall see that the country has not gone from pristine virtue to hopeless vice. An institutionalized and rather highly centralized domestic intelligence gathering system may be more dangerous than ad hoc efforts because it does not go away; but it is also a great deal easier to regulate and control and hold to a book of rules. This is the advantage of modernity over the

FROM INTERMITTENCE TO PERMANENCE

17

rickety and spasmodic workings of our nineteenth-century na­ tional government. ADAMS AND IN TERNAL SECURITY

The first federal effort at monitoring political dissent in Ameri­ can history occurred in the first decade under our present Con­ stitution. Two concerns came together in the Federalist adminis­ tration of John Adams to create an obsessive preoccupation with the internal security of the new republic. The disorders in France that followed the revolution of 1789 worried many American politicians who saw the fabric of an entire society being torn to tatters in the name of liberté, égalité, and fraternité. The Federalists were disturbed by events in France and feared that French agents were spreading Jacob­ inism in the United States, particularly among the growing Je f­ fersonian (Democratic-Republican) opposition party. The pos­ sibility that the Jeffersonians would unseat the Federalists, who had presided over the creation of American national institutions, aroused alarming visions of social upheaval in the United States. President Adams and his cabinet saw a very real prospect of an opposition party, insufficiently attached to the Constitu­ tion—which had only been ratified ten years before— aligning itself with France, which they regarded as a hostile, foreign power. N o doubt existed as to the relative openness of Republi­ cans to French ideas. The next step, active intrigue by the Je f­ fersonians with French agents, was thought by Adams and his secretary of state, Timothy Pickering, to be only a short one. The perceived threat created a classic situation in which new regimes resort to political repression.4 The Federalists went to Congress arguing that "if Congress did not have the power of restraining seditious persons and of expelling dangerous aliens. . . it did not have the power to pro­ mote the general welfare by preserving peace and to provide for the common defense.” 5 William Nisbet Chambers has argued that this initiative by the Federalists created a fundamental crisis for the new republic.0 If the political party dominant during the founding period had completely suppressed its opposition party,

18

FROM INTERMITTENCE TO PERMANENCE

a stable electoral process might never have developed in the United States. Congress responded to the Adams administration’s initia­ tive in mid-1798, enacting three laws that collectively became known as the Alien and Sedition Acts. The Naturalization Act of 1798 created a fourteen-year residency requirement before an immigrant could become a U.S. citizen. The Alien Act gave the president the power in times of war or threat of war to deport resident aliens who were citizens of an enemy power. The Sedi­ tion Act created criminal sanctions against those who interfered with the enforcement of any law; who threatened "any officer of the United States Government with any damage to his character, person, or property” ; or who were found guilty in a court of law of "printing, writing or speaking in a scandalous or malicious way against the government of the United States, either house of Congress, or the President, with the purpose of bringing them into contempt, stirring up sedition, or aiding and abetting a foreign nation in hostile designs.” The Sedition Act, by far the most repressive of the three new laws, was limited to two years’ duration and expired in 1800 without being further extended by Congress. The Alien and Sedition Acts, although the objects of heated debate, were not much used while they remained in force and did little to prevent Jefferson’s victory in the presidential election of 1800.7 The reasons why the Adams internal security program did not successfully suppress the Jeffersonian opposition are not well understood. One possibility is that the Federalists were psycho­ logically unprepared to engage in full-scale repression, such as widespread roundups and jailings of the opposition. The Fed­ eralists were, after all, men who shared the liberal ethos of the revolutionary and constitutional periods. Historian Leonard Levy has suggested that American ideas concerning free speech were going through an important development in the decade 1790-1800 and that by the end of the decade public opinion simply would not support vigorous enforcement of the Alien and Sedition Acts.8 Most probably, the political strength of the Jeffersonian party is what forestalled the new laws. Another factor is worth considering, however. Writing in the 1830s, Alexis de Tocqueville noted the absence of adminis­

FROM INTERMITTENCE TO PERMANENCE

19

trative bureaucracy as the strangest aspect of the American gov­ ernment he studied.9 Is it possible that the failure of the Federal­ ists to institute numerous and vigorous prosecutions under the Alien and Sedition Acts was the result, not of moral scruple or adverse public opinion, but of the absence of administrative ma­ chinery to enforce the laws? James Morton Smith, the leading modern student of the Adams internal security program, has chronicled the enforcement mechanisms for the Alien and Sedi­ tion Acts developed by President Adams and Secretary of State Pickering.10 For example, Pickering tried to keep track of "po­ tentially dangerous Frenchmen” through personal requests to loyal Federalists and former Revolutionary W ar officers around the country who were in positions to furnish the information. No investigative bureaucracy was established, and the prosecutorial bureaucracy needed to enforce the laws amounted to very little. Whatever the mix of reasons, the Adams administration’s program of surveillance failed. The Alien and Sedition Acts mercifully expired, and within a very few years they came to be viewed as a symbol of unacceptable government interference in the political process. This first, legislatively authorized attempt at political repression, rather than setting a dangerous precedent, served instead to constrain future leaders in responding to dis­ sent— a rather pleasant irony in our political tradition. LINCOLN AND DISSENT

The Civil War, the greatest crisis of loyalty our nation has ever faced, was the next occasion in our history when the federal government exerted itself to monitor political dissent. The Union’s internal security program began in a hit-or-miss fashion early in 18 6 1.11 Initially, Secretary of State William H. Seward coordinated the monitoring and containment of dangerous po­ litical dissent in much the same manner as Timothy Pickering, Adams’s secretary of state, had supervised enforcement of the Alien and Sedition Acts. As Union troops were being mustered following the attack on Fort Sumter, for example, Seward or­ dered the arrest and incarceration in military jails of prominent Confederate sympathizers residing in the District of Columbia. Unlike Pickering, Seward slowly bureaucratized and profession­

20

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alized the Union’s internal security activity by employing secret agents on a continuing rather than ad hoc basis. As the war progressed, most of the internal security func­ tions of government were taken over by the War Department. President Lincoln’s 1861 proclamation suspending the writ of habeas corpus and the Habeas Corpus Act of 1863 gave the de­ partment considerable power to round up suspected spies, sabo­ teurs, and Copperheads without having to adhere to the niceties of due process of law. A provost marshal general, James P. Fry, was established in the War Department to deal with draft eva­ sion and military desertion, and the principal clandestine service within the War Department was headed by a brilliant and ruth­ less character named Lafayette C. Baker. Baker worked for both Seward and the War Department in 1861. His only previous experience that might have qualified him for his work was as a vigilante in California in the 1850s. Baker developed a network of informers around the country and enjoyed especially good relations with postal authorities that led to his operatives opening and examining U.S. mail. He also re­ fitted the Old Capitol Building (where Congress sat before the present building was completed) as a military prison. In 1862, Secretary of War Edwin H. Stanton placed Baker’s rather informal operation, along with his control of the Old Capitol Prison, under the supervision of General Holt, the judge advocate. Baker was commissioned a colonel, and from this bureaucratic niche his "Secret Service” conducted a three-year war against the "Copperhead Fifth Column.” Baker’s opera­ tives scored some important successes, and if their chief was in­ sensitive to civil liberties, the crisis of the war seemed to justify extreme measures aimed at stifling treason and sedition. President Lincoln was personally close to Allan Pinkerton, the founder of the well-known detective agency; it was Pinker­ ton who persuaded Lincoln to enter Washington secretly for his 1861 inauguration to escape the so-called Baltimore Plot.12 Pink­ erton came to Washington immediately after the outbreak of hostilities in April 1861 to offer his agency to the Union as its principal intelligence arm. When Lincoln hesitated to accept the offer, Pinkerton left the city in a huff and went to work for an­ other old friend, General George B. McClellan, then command­

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21

ing the Department of the Ohio. Pinkerton moved with Mc­ Clellan when he assumed command of the Army of the Potomac and left with him when the general was relieved of command following the Battle of Antietam.13 While serving with McClellan, Pinkerton acted as both field intelligence officer and coordinator of security behind the lines. Pinkerton’s performance as a military intelligence officer seems to have left much to be desired (he once overestimated the forces opposing McClellan by a factor of two). However, Pinkerton agents enjoyed some success in the South. In the latter years of the war, Pinkerton directed his agents’ anti-Copperhead activity from New Orleans, and he cracked one important es­ pionage ring in Washington.14 The most extensive domestic intelligence of the Civil War was carried out directly by the military commanders of the vari­ ous departments throughout the North. They conducted both counterintelligence and antisubversive operations and, in a num­ ber of well-publicized instances, tried Copperheads by military tribunal.15 On April 19, 1862, for example, General John A. Dix arrested members of the Maryland legislature suspected of fa­ voring secession. They were soon joined by a long list of Copper­ head politicians, peace-Democratic editors, and Irish political leaders— headed by the most infamous Copperhead of the Civil War, former Congressman Clement L. Vallandigham— who were summarily incarcerated in army stockades. In a few areas of the North, political and labor radicalism combined with Copperheadism. In October 1862, for example, coal miners, many supposedly associated with the radical miner’s group the Molly Maguires, obstructed the rail passage of draftees leaving towns in Schuylkill County, Pennsylvania. Do­ mestic violence was also aggravated by the Conscription Act, which culminated in the New York City draft riots of 1863, and the domestic intelligence apparatus of the Union was increasing­ ly used to ferret out the ringleaders of this type of "sedition” against the Union. With the coming of peace, the domestic security program of the Lincoln administration was dismantled. Baker became an embittered civilian writing and rewriting his memoirs, and with Lee now disarmed, the Supreme Court, in Ex parte Milligan,10

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found the use of military tribunals in areas where civilian courts were still open and functioning to be unconstitutional. (The Court had denied certiorari in an almost identical case brought before it only two years earlier.) THE LATE N IN ETEEN TH CEN TURY: Pi n k e r t o n ' s a s n a t i o n a l p o l i c e

When the Justice Department was established in 1870, a provi­ sion in the authorizing legislation allowed the attorney general to establish a national investigative service, but the creation of such an agency was put off for nearly forty years. In fact, there was a good deal of politically motivated crime committed in the late nineteenth century, much of it interstate in nature. Never­ theless, sensational terrorist incidents, such as the 1886 Haymarket Square bombing, were not sufficient to provoke a na­ tional response, although many urban police "red squads” and at least one state police force were formed to cope with it. Instead, attorneys general throughout the latter part of the nineteenth century were content to hire operatives from private detective agencies when necessary or occasionally to borrow men from the Secret Service, the investigative service of the Treasury that dealt almost exclusively with tracking down counterfeiters. The gap left by the absence of any more general national law enforcement service was filled to some extent by the private de­ tective agencies— largely the Pinkerton organization and a few competitors such as Thiel and Burns. While other nations were developing national police systems, the United States, in the spirit of the Gilded Age, relied on private enterprise. Pinkerton’s had offices in Chicago, Philadelphia, New York, Denver, and Seattle. Much of the work the agency carried out would be classified today as ordinary criminal investigation, but it also developed specialized expertise in antiterrorism, co­ operating routinely with Scotland Yard and the Sûreté in such matters. Pinkerton’s pioneered many criminal intelligence tech­ niques. It was the first to establish a rogue’s gallery; an early proponent of the Bertillon system of individual identification (which involved a series of body measurements), the agency became early in this century the first American police organiza­

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23

tion to adopt the use of fingerprint identification. Pinkerton’s gave the country its most formidable domestic spy, James McParland, a combative redheaded Ulsterman who successfully in­ filtrated the Molly Maguires in Pennsylvania’s anthracite coal­ fields in the early 1870s.17 McParland’s testimony sent a number of men whom we would now call terrorists to the gallows, and as a result monitoring dissent, both for the government and for private enterprise, came to be an important part of Pinkerton’s business in the late nineteenth century. Walter Laqueur has noted in his study of terrorism that terrorist acts in the United States in the period between the Civil War and World War I resembled those of the pistoleros in Spain in that they were largely the by-product of stormy, often bloody labor disputes that broke out in a nation with a tradition of violence.18 This was particularly true among miners and con­ tinued from the days of the Molly Maguires to the Western Federation of Miners under Bill Haywood and ultimately to the Industrial Workers of the World (IW W ), which became the most visible symbol of lawless radicalism in the United States by the 1890s.10 Following the arrival of German radicals and later Eastern European proponents of “ propaganda by deed,” an ideological element was infused into American terrorism that did not exist in Spain. The foremost proponent of these ideologies of violence was Johann Most, whose anarchist weekly newssheet, Friheit, proudly advocated violence. Most received on the job training in the production of explosives while working in a Jersey City mu­ nitions plant and pioneered the development of the letter bomb. While anarchists and other radicals formed only a tiny frac­ tion of the total foreign immigration to the United States be­ tween 1870 and 1910, they contributed greatly to the overall psychological impact of the great Eastern and Southern Euro­ pean waves of immigration on the white Anglo-Saxon American elite. John Roche has noted that between 1900 and the outbreak of World War I "over 13 million immigrants reached the gold­ en shore” and that the country was suddenly "full of foreigners jabbering away in unknown tongues, insecure and secretive, and worst of all perhaps, Romans, members of that international conspiracy against religious freedom which Protestant children

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learned in their cradle and conventicle to dread.” 20 The combi­ nation of labor violence, foreign radicalism, and mass immigra­ tion eventually developed into another major spasm of internal security concern that resulted in the development of a national apparatus to monitor political dissent during World War I. THE FOUNDING OF "TH E BUREAU” AND WORLD WAR I

In 1908 President Theodore Roosevelt proposed the creation of a bureau of investigation within the Justice Department. The immediate precipitant was neither labor unrest nor the activity of radicals or terrorists. Instead, the impetus came from corrup­ tion within the U.S. Congress. The indictments in 1906 of Senator John H. Mitchell and Congressman John N. Williamson, both of Oregon, in connec­ tion with fraud in the management of federal lands created a furor on Capitol Hill. The Justice Department’s use of borrowed Secret Service agents to investigate the two legislators made their colleagues in Congress wary of other possible excursions into the conduct of members of Congress. On May 27, 1908, Congress prohibited the further employment of Secret Service agents by other departments of government. Roosevelt was furious, remarking, "It is not too much to say that [the prohibition of the use of Secret Service agents] has been of benefit only to the criminal classes. . . . The chief argu­ ment in favor of the provision was that Congressmen did not themselves wish to be investigated by Secret Service men.” 21 The president called in his attorney general, Charles J. Bonaparte, and directed him to develop an investigative capability within his own department. Bonaparte did not have easy going. He assured nervous congressmen, afraid that the new bureau might become Roose­ velt’s version of the tsarist secret police, that his operatives would be confined to investigating frauds and crimes against the government and would operate under his direct supervision. The original appropriation for investigators carried a restriction on funds for detection and prosecution of crime against the United States. But in the next year, 1910, the authorization was ex­

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25

panded to allow the money to be used "for such other investi­ gations regarding the official matters under the control of the Department of Justice as may be directed by the Attorney Gen­ eral.” These were the modest beginnings (consisting of twenty permanent and eighteen temporary investigators) of what At­ torney General G. W. Wickersham, Bonaparte’s successor, desig­ nated the Bureau of Investigation and that Congress in 1935 renamed the Federal Bureau of Investigation. In its early years, the bureau was not involved in domestic security activity; most of its investigations involved interstate theft and prosecutions under the newly passed Mann Act, which prohibited transporting women across state lines for immoral purposes. Even as late as 1915, amidst growing concern in the United States over foreign espionage within its borders, it was the position of the Justice Department that it had no authority under existing law to investigate such activity. The Secret Service, under Treasury Secretary William Gibbs McAdoo, was much less hesitant to become involved in monitoring and exposing the activities of foreign agents. Begin­ ning in 19 15, various British intelligence agencies furnished the Wilson administration with information about agents of the Central Powers operating in the United States. McAdoo ordered the Secret Service to follow up on these leads, and on several occasions McAdoo leaked information to the N ew York World in the hope of discouraging espionage through publicity.22 At­ torney General Thomas W. Gregory was furious at McAdoo’s actions, especially since the publicity resulted in political pres­ sure for him to act when he believed he could not. Gregory at­ tempted to turn the blame back on Congress, which had not pro­ vided authority for the attorney general to initiate investigations into espionage. With the entry of the United States into World War I, Congress promptly remedied Gregory’s lack of authority to in­ vestigate internal security matters. The enactment of the Espio­ nage ( 19 17 ) , Immigration ( 19 18 ), and Sedition (19 18 ) Acts gave the Justice Department and its Bureau of Investigation, then headed by A. Bruce Bielaski, all the power it needed to make the nation secure against spies, saboteurs, and alien radi­ cals. Much of the bureau’s effort was directed at the supposedly

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disloyal "non-Americanized” populations, especially ethnic Ger­ mans. While it is true that America entered World W ar I on the crest of a nationalist and nativist wave, spectacular incidents of sabotage during 19 17 -18 , such as the Black Tom explosion (which demolished a munitions plant in Jersey City, New Jer­ sey, in July 19 16 ), fanned the flames of hyperpatriotism and xenophobia. Incidents of sabotage inspired the creation of a vigilante force, the American Protective League, the members of which assisted the Bureau of Investigation by providing infor­ mation on supposed spies and disloyal radicals in their own communities. The league was encouraged by bureau Director Bielaski, and so intrusive was its snooping that Treasury Secre­ tary McAdoo wrote Bielaski that the voluntary organization Sons of Liberty that was formed during the American Revolu­ tion had "committed grave abuses and injustices” and that "the American Protective League contains the same evil potentiali­ ties.” 23 What may have bothered McAdoo most, however, was the loss of domestic intelligence primacy by the Secret Service to the Bureau of Investigation. (A mark of this is that two post­ war heads of the bureau, William J. Flynn and William J. Burns, were "promoted” to that place after serving as heads of the Secret Service.24) And others experienced in law enforcement were becoming concerned over the excesses of domestic intelligence gathering by the bureau during World W ar I. At the outbreak of the war, William Pinkerton, son of Allan and then head of the Pinker­ ton Agency, offered the services of his organization to the fed­ eral government, much as his father had in 1861. The burgeon­ ing government intelligence agencies were not inclined to turn their authority over to private operatives, however, and Pinker­ ton was rebuffed. Angered, Pinkerton criticized "these hastily organized Intelligence and Secret Service Departments,” chiefly the Secret Service, the Bureau of Investigation, and the military intelligence agencies, noting that they were staffed by "doctors, bankers, merchants, architects, etc.” He denounced army intelli­ gence for making public a list of "dangerous alien sympathiz­ ers” without prior case-by-case investigation and proposed the

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27

creation of a single federal investigative force responsible for both foreign and domestic intelligence.23 By the end of the war, the Bureau of Investigation had emerged as the nation’s chief domestic security agency, and its manpower had increased substantially from its prewar level. The bureau did not reach its peak in fighting radicalism, however, until the immediate postwar years. It was a peak that brought the bureau into temporary disgrace. THE RED SCARE

The Bolshevik revolution in Russia increased concern over po­ litical radicalism in the United States. When the country experi­ enced a series of terrorist bombings in the spring of 1919, Attor­ ney General A. Mitchell Palmer set up a General Intelligence Division (G ID ) within the Justice Department to increase the federal capacity for dealing with political militants. During the war, bureau agents working on espionage and subversion were assigned ad hoc; the GID was set up to coordinate their work at the Justice Department level on an ongoing basis.20 A young lawyer named John Edgar Hoover was assigned to be assistant director of the General Intelligence Division, and he would soon head it. Hoover joined the department in 19 17 after completing his law degree at George Washington University. His experience in the Justice Department up to his appointment to the GID had been focused on espionage, radical dissent, and problems of supposed subversion, an orientation that would shape much of the bureau's structure in his latter career. Shortly after the GID was established, the Senate adopted a resolution calling upon the attorney general to report what ac­ tion the Justice Department had taken to arrest and punish those attempting to overthrow the government and preaching "anarchy” and "defiance of law and authority.” 27 In November 1919, special agents of the Bureau of Investigation directed by the GID and working with agents of the Immigration Bureau under the new immigration act, carried out simultaneous anti­ radical raids in eleven cities— the first of the so-called Palmer raids. The principal target was the Federation of the Union of

28

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Russian Workers. Some 249 of those arrested were found sub­ ject to deportation, and they were shipped out of the country unceremoniously by army transport (referred to by the press as the "Soviet Ark” ) on December 2 1,19 19 . On January 2, 1920, a second raid by bureau agents took place, involving a much larger, wholesale roundup of radicals. Some 3,000 arrests took place, many unconstitutional even by the standards of that time. The second Palmer raid resulted in a backlash. Some of those arrested in Boston petitioned in federal district court for habeas corpus, and the court released them. Even though the district court was partially overruled on appeal, Circuit Judge George W. Anderson, sitting in Boston, sharply criticized the government: I refrain from any extended comment on the lawlessness of these proceedings by our supposedly law enforcing officials. . . . It may, however, fitly be observed that a mob is a mob, whether made up of government officials acting under in­ structions from the Department of Justice, or of criminals, loafers, and the vicious classes.28 In the spring of 1920, a report was issued by the National Popu­ lar Government League bearing the names of twelve distin­ guished lawyers, including Harvard law professor Felix Frank­ furter and Zachariah Chafee.29 The report reviewed the illegal arrests and searches carried out by the bureau, and it charged the bureau with the use of agents provocateurs, among other abuses, in carrying out the raids. The Senate Judiciary Committee held hearings to investi­ gate these charges early in 19 2 1. Attorney General Palmer ap­ peared along with Hoover. Palmer disclaimed any direct super­ vision of the investigations leading up to the raids and testified that he had no personal knowledge of many of the arrests. Pal­ mer stressed that "the supervisory officers in the Department of Justice cannot know all that is being done by their agents.” 30 Hoover reinforced this view by stating that local agents were accorded great discretion in carrying out their duties and that he did not know whether or not warrants were issued beforehand for all arrests. Hoover, who could reasonably have been expect­ ed to be more familiar with the particulars of the raids than

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29

Palmer, was not pushed to elaborate on how much knowledge he had of particular cases. The committee ultimately divided in its findings. Senator Walsh of Montana prepared a highly critical report, while Sena­ tor Sterling of South Dakota prepared another that exonerated the Justice Department and attacked its critics. Only three sena­ tors favored Walsh’s report, and the full committee adopted neither. The investigation was, however, the first congressional effort at examining the bureau. The Justice Department and the bureau were placed on the defensive, and there was worse to come. With the accession to the presidency of Warren G. Harding in 19 2 1, the bureau fell under the shadow of corruption that followed Harding to Washington. Harding appointed Harry M. Daugherty attorney general, and Daugherty installed as bureau director detective William J. Burns, a Daugherty crony. Hoover continued to head the General Intelligence Division and became assistant director under Burns. Already tarnished by the abuses of the Palmer era, the bureau plummeted even further in public esteem under the un­ happy direction of Burns. When the Harding administration scandals began to break, demands were made on Capitol Hill that the Justice Department investigate members of the ad­ ministration. Instead, Burns used bureau agents to spy on mem­ bers of Congress who were pressing for the investigation. Gas­ ton B. Means, an old friend of Burns who was hired as a bureau agent by him, subsequently testified at the trial of Harry Daugh­ erty that he had directed other agents to make illegal entries to Senate offices, to open mail, to open files, and to engage in physical surveillance. Means personified involvement of the bu­ reau in what, until Watergate, was the most sensational political scandal to rock the Republic.31 The ever-present danger of the bureau being used for partisan political purposes had finally, and dramatically, become a reality. Restoring confidence in the Department of Justice, par­ ticularly in the Bureau of Investigation, was a top priority for Calvin Coolidge when he succeeded Harding in 1923. Coolidge appointed Harlan Fiske Stone, former dean of the Columbia University Law School, to the attorney generalship. Stone had

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been a public critic of the Palmer raids, and among his first acts at the Justice Department was the ouster of Burns, whose resig­ nation he quickly accepted. On May 10, 1924, Hoover was sum­ moned to the attorney general’s office, where Stone offered him the directorship of the bureau. Hoover agreed to accept on con­ dition that the bureau be removed from politics, that appoint­ ment and promotion be made solely on merit, and that the bu­ reau be responsible only to the attorney general. Stone agreed, and several days after Hoover’s appointment, a memorandum of agreement and instructions was issued. Just as one of Stone’s first acts had been the replacement of Burns, one of Hoover’s first acts was to dismiss Gaston B. Means and to have his name stricken from the roll of agents and former agents. In addition, Stone placed his famous restriction on the bureau— what became known in the recent debate over domestic intelligence as the "Stone Line.” In his memorandum of in­ structions to Hoover, the attorney general established as formal policy that the bureau was to be limited strictly to investigation of particular violations of federal laws. This directive precluded, with Hoover’s agreement, any intelligence gathering. The G ID was disbanded, after accumulating close to half a million index cards on individuals and groups, and Hoover, whose own career had been so deeply entwined in intelligence activities during and immediately after the war, pledged to live by the "Stone Line.” For the next decade, it seemed the bureau indeed was out of the domestic intelligence business. The automobile and the increasing mobility of Americans moved the federal government step by step into fields of law enforcement previously left to the states. The Dyer Act of 1919 , for instance, put the bureau in the business of policing the interstate transportation of stolen motor vehicles. Prohibition and the associated rise of gangsterism thrust the FBI and its ambitious director to the center of the national stage in a leading but nonpolitical law enforcement role. THE RISE OF THE DICTATORS

Hoover’s energies, however, were once again focused on internal security in the mid-i930s. As before in our history, heightened

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31

sensitivity' to interna), security dangers resulted from the per­ ceived threat of enemies abroad, chiefly Nazi Germany, Imperial Japan, and Stalinist Russia. The only record we have of the cru­ cial events concerning the FBI’s mandate for expanding its op­ erations are two memoranda (dated August 24 and 25, 1936) written by Hoover himself. In the main, these memos are prob­ ably accurate, although with respect to nuances of meaning one is entitled to be skeptical. On the morning of August 24, 1936, with Hitler’s designs in Europe becoming distressingly clear and Japanese expansion­ ism in Asia gaining momentum, Hoover was summoned to the White House. The president, Hoover recorded, was interested in having a better intelligence picture of the domestic activities of Communists, Fascists, and other potentially subversive groups. Almost forty years later, with the domestic intelligence activities of the FBI a matter of heated public debate, the General Ac­ counting Office (G A O ), at the request of the Chairman of the House Judiciary Committee, undertook a review of these activi­ ties and the authority for them. With respect to this crucial con­ versation between Hoover and Roosevelt, the GAO report ar­ gues that Roosevelt’s concern was only with groups with possible foreign connections and that his authorization did not extend to all potentially subversive formations.32 Hoover’s memos, how­ ever, testify to a more spacious presidential intention. Whatever the breadth of F.D.R.’s concern (and it is most likely that the president had not defined for himself precisely what intelligence it was he wanted), Hoover told him that no internal security information was then being collected and that the bureau lacked authority to collect it because being a Com­ munist or a Fascist was not a violation of U.S. law. The presi­ dent then asked the director to suggest how better domestic in­ telligence information collection could be accomplished by the bureau. Hoover replied that under its Appropriation Act the bureau was authorized to undertake investigations at the request of the secretary of state. Perhaps Cordell Hull might request such investigating as the president desired through Attorney General H. S. Cummings. The president seemed surprised at having to take a roundabout route and wondered why he could not make the request himself. He agreed to Hoover’s proposal,

32

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however, and asked the director to return to the Oval Office the following afternoon. Shortly after Hoover’s arrival the next day, he and the president were joined by Secretary of State Hull. Roosevelt re­ peated his concern (apparently with no greater precision than before) and concluded, "Edgar says he can do this, but the re­ quest must come from you [H ull] to make it legal.” Hoover remembered Hull’s reply as "go ahead and investigate the ----- — ! thing.” 33 On September 5, Hoover sent confidential let­ ters to his special agents in charge of field offices. They were instructed that: The Bureau desires to obtain from all possible sources infor­ mation concerning subversive activities being conducted in the United States by Communists, Fascists and representatives or advocates of other organizations or groups advocating the overthrow or replacement of the Government of the United States by illegal methods. No investigation should be initiated into cases of this kind in the absence of specific authorization from the Bureau.34 Attorney General Cummings had been out of the office in late August and early September 1936. On September 10, after his return, Hoover briefed Cummings concerning the RooseveltHull "tasking” and Hoover’s letter to the field giving Roosevelt’s instructions a broad reading. In a memo written after this ses­ sion with Cummings on September 10, Hoover indicated that the attorney general had approved of his response to the Roosevelt-Hull request and approved investigations of "the sub­ versive activities in this country, including communism and fascism.” 35 Over the next two years, FBI domestic intelligence activity increased, and in October 1938 Roosevelt appointed Cummings chairman of a committee to report on the need for "an addi­ tional appropriation for domestic intelligence.” 36 The attorney general recommended that the appropriation be increased for the FBI by $300,000 and by $35,000 each for the Military In­ telligence Department of the army and the Office of Naval Intelligence. Cummings’s report was accompanied by a memo from Hoover stating that executive direction under the terms of

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33

the bureau’s Appropriation Act was sufficient authorization for the expansion in activity that was taking place, that secrecy was important to the success of that work, and that there was no need to seek new legislation. This conclusion was not challenged by the director’s superiors. By 1939 problems of overlapping jurisdictions and bureau­ cratic competition were developing between the bureau and the service agencies, and there were signs that the World War I pattern of uncoordinated home-front security operations was again developing. In June 1939 Roosevelt issued another secret directive establishing the FBI as the agency with the sole re­ sponsibility for coordinating investigations under the espionage statutes and, although this is less clear, for collecting more gen­ eral domestic intelligence. This was followed on September 6 of the same year (after the outbreak of the European war) by a public directive stating that: The Attorney General has been requested by me to instruct the Federal Bureau of Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regu­ lations.37 In addition, and significantly for the future, this directive also charged: . . . all police officers, sheriffs, and other law enforcement offi­ cers in the United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any in­ formation obtained by them relating to espionage, counter­ espionage, sabotage, subversive activities and violations of the neutrality laws.38 On the basis of the 1939 directives, Hoover in 1940 en­ tered into a Delimitations Agreement with army intelligence and the Office of Naval Intelligence, which survives with minor changes to the present day. An interdepartmental Intelligence Conference was formed to monitor implementation of the agree­ ment. Lists of potentially dangerous subversives were set up within the new FBI Security Division. The first of these was the Custodial Detention List. Planned in 1940 and formalized after the attack on Pearl Harbor, it was composed of persons (both

34

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aliens and citizens) who were considered, on the basis of intelli­ gence investigations, so dangerous that their arrest might be necessary in a home-front emergency. In 1943 Attorney General Francis Biddle decided that further maintenance of this list was unnecessary and directed the FBI to abandon it. Hoover’s re­ sponse, however, was to "abolish” it by changing its name to the Security Index and making additions to it. The Church Committee concluded of this period that: President Roosevelt never formally authorized the FBI or Military Intelligence to conduct domestic intelligence investi­ gations of "subversive activities,” except for his oral instruc­ tion in 1936 and 1938. His written directives were limited to investigations of espionage, sabotage, and violations of the neutrality regulations. Nevertheless, the President already knew of and approved informally the broad investigations of "subversive activities” carried out by the FBI.39 Given the request to local law enforcement concerning subver­ sive activities in the public directive of 1939, this understates the clarity of the presidential directives. However ambiguous the original presidential authorization of domestic intelligence collection, new federal laws during the late 1930s and 1940s provided new bases for FBI monitoring of radical politics. The Foreign Agents Registration Act of 1938 applied to any concealed agent-principal relationship where the agent was engaged in disseminating propaganda for a foreign government. The Smith Act of 1940 created several new crimes: "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety for overthrowing any government of the United States by force or violence” and "to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence.” 40 This statute also created crimes of attempting to commit or conspiring to commit the primary crimes. The Smith Act was followed in 1941 by the Voorhis Act, which required the registration of subversive organizations (those with foreign connections and those advocating violent overthrow) 41 During the war years, the FBI began to employ most of the

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35

intrusive techniques of investigation that would create so much furor thirty years later. Until the spring of 1940, for example, the Federal Communications Commission had resisted FBI sug­ gestions that wiretapping by agents was not illegal as long as the contents of messages were not disclosed. Now its opposition was swept aside. On May 21, 1940, Roosevelt directed Attorney General Robert H. Jackson to authorize wiretaps to combat po­ tential espionage and subversive activities.42 High officials of the Justice Department remained ambivalent about wiretapping, but the bureau was into it now. Physical surveillance, elaborate record keeping, mail covers, and mail openings (with lessons given by British intelligence, which had developed the business into a high art) were prac­ ticed during the war, and a whole generation of special agents came to regard them as routine in both foreign and domestic in­ telligence collection. Special agents, in cooperation with military intelligence and sometimes the local police, entered the consu­ lates and embassies in New York and Washington to gather foreign intelligence— information about the activities of hostile or potentially hostile powers. It has even been suggested that certain isolationist members of Congress were under FBI sur­ veillance in the months before the attack on Pearl Harbor. The only "technique” that seems not to have been fully developed during World War II (although even here there was some in­ struction by the British) was the use of deception to disrupt a target group.43 That would come later. Don Whitehead, in his laudatory history of the bureau, makes much of the contrast between the FBI’s operations in World War II as opposed to those in World War I. Under Hoover, there was no vigilante activity comparable to that of the American Protective League; the director quickly discouraged such impulses. Furthermore, with the exception of the intern­ ment of ethnic Japanese on the West Coast, which Hoover strongly opposed, there was no general roundup of aliens or radicals in World War II. Nor was there anything like the "slacker raids” of World War I, in which thousands of sup­ posed draft evaders were rounded up in dragnet operations. In World W ar II, by contrast, each case of draft evasion was in­ dividually investigated before arrest.

}6

FROM INTERMITTENCE TO PERMANENCE

Whitehead’s praise of the bureau and Hoover is not un­ justified. It should be noted, however, that the temper of the country in World War II was different from that in World War I. The anti-alien and antiradical hysterias that had built up in 19 17 - 18 did not reemerge. Dramatic instances of sabotage were rare. That the World War II experience was better than that of World W ar I on the domestic front might be credited as much to the character of the times as to the character of Hoover and the FBI. More important for our purposes, World W ar II and the preparations for it in the late 1930s resulted in the institu­ tionalization of the domestic intelligence function of the bureau. No more would the federal government be only intermittently involved in monitoring dissent.

3- The FBI in Cold War and Social Turbulence

In the course of the talk . .. Bob Jackson told of the circumstances, after Henry Wallace was nominated as Vice President in ’40, attending the disclosure of Wallace’s silly letters to that woman correspondent in the Eastern cult in which Wallace was interested. As is well known, he had code names for the President and Hull and others in the administration and wrote stuff that would have been embarrassing to F.D.R. . . . When the President got back from the West, he called Jim Byrnes, Harry Hop­ kins, and Bob Jackson into conference for a consideration of the prob­ lems raised by these letters. The President amusedly said, "Bob, you have the F.B.I. and Edgar Hoover in your shop. Can’t they somehow or other discover that Wallace had a love affair with this woman ? The American people could understand a romance.” And Jimmy Byrnes said, "Can’t you find him registered on some hotel blotter with this woman?” — From the Diaries of Felix Frankfurter

FO LLO W IN G W ORLD W A R II, the nation’s domestic se­ curity apparatus was not dismantled. Instead, the task of pro­ tecting internal security was further consolidated in the Justice Department, primarily within the Federal Bureau of Investiga­ tion (F B I).1 For the next thirty years, the FBI engaged in ex­ tensive monitoring of radical politics, largely in response to three separate waves of domestic unrest: the perceived danger of domestic communism in the 1940s and early 1950s, the civil rights movement of the mid-1960s, and the anti-Vietnam war movement of the late 1960s and early 1970s. Did the FBI have the authority to monitor radical political activities as it did in the decades following World W ar II? As

38

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the bureau’s abuses of power came to light in the mid-1970s, many critics maintained that no such mandate existed. Yet even though the bureau unquestionably abused it, the FBI did have some measure of authority to engage in intelligence collection in investigating domestic security threats. This authority came from three sources: executive statements and directives, newly enacted federal antisubversive laws, and a series of executive orders aimed at ensuring the loyalty and security fitness of fed­ eral employees. FBI AUTHORITY

A portion of the blame for the controversy surrounding the F B I’s domestic security powers lies in an ambiguity of Franklin Roosevelt’s initial public directive to the bureau in September 1939. From the wording, it was not clear whether the president intended the FBI to gather information only about groups with possible foreign connections or to conduct broader, more gen­ eralized investigation on a variety of subversive and possibly violent political formations. The 1939 directive ordered the FBI to investigate groups that might violate certain specific cate­ gories of federal law, and it requested all law enforcement agencies to furnish the FBI with information concerning possi­ ble violations of federal statutes and other subversive activities. The 1939 directive was reissued in slightly altered form in 1943 without any resolution of the ambiguity. The question is whether it is credible, as some have argued, that Roosevelt’s intention was for the FBI merely to hold such information (serve as a "clearinghouse” ) but to conduct no investigative activities of its own. On the contrary, as the Church Committee report con­ cluded, "the President clearly knew of and approved informally the broad investigations of ’subversive activities’ carried out by the FB I.” 2 Some of the confusing discontinuity of World War II do­ mestic intelligence policy may be traced to Roosevelt’s wartime attorney general, Francis Biddle, whose dislike for internal se­ curity was legend.3 Biddle embraced the "clearinghouse” theory of the presidential directives and resisted the White House on one hand and Hoover on the other. Until the middle of the war,

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39

the Justice Department, through its Special War Policies Unit, reviewed FBI intelligence reports and prepared "danger cards” on organizations and individuals who it thought bore watching.4 Biddle eliminated the Special War Policies Unit in 1943, once it became clear to him that an allied victory was certain and that major disruptions of the home front by saboteurs or domestic radicals were no longer likely. As a result, departmental interest in encouraging domestic intelligence by the bureau declined, and while Hoover disagreed with Biddle’s de-emphasis of the work (and quietly disobeyed certain orders), FBI antisubversive ac­ tivity was cut back. With the development of cold war tensions in 1945, how­ ever, both the Justice Department and the bureau placed re­ newed emphasis on internal security matters, and FBI domestic intelligence collection again increased. Furthermore, any con­ fusion over the FBI’s original presidential mandate to investi­ gate "subversive activities” was eliminated in July 1950, when President Truman issued a new internal security directive. This order, drafted by Attorney General J. Howard McGrath, re­ ferred back to Roosevelt’s orders of 1939 and 1943. This time, however, the FBI was charged directly with "investigative work in matters relating to espionage, sabotage, subversive activities, and related matters”—a significant change from the previous directives.® Some students of this history have argued that President Truman did not fully understand the implications of the differ­ ence between his July 1950 directive and those issued by his predecessor.0 The difference in wording, according to this argu­ ment, was a power play by the attorney general or a trick by J. Edgar Hoover. But it is more likely that Truman meant to do exactly what the directive stated— to confirm broad investigative powers in the FBI. This likelihood increases to near certainty in light of a secret National Security Council directive of 1949 that confirmed in the FBI (and to a lesser extent military intelli­ gence) responsibility to investigate subversive activities.7 Clarifying presidential intent, however, does not answer the larger constitutional question of whether presidential executive power enables a president to order such intelligence gathering activities. This question was not raised at the time of Truman s

40

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order, however, and over the years there was general acceptance of such executive authorization. Shortly after the Truman direc­ tive was issued, Attorney General McGrath created a new In­ ternal Security Section of the Justice Department’s Criminal Division to perform an intelligence analysis function similar to that of the old Special War Policies Unit. President Eisenhower adopted Truman’s formulation for the FBI’s investigative man­ date in a 1953 internal security directive, and his attorney gen­ eral, Herbert Brownell, elevated the Internal Security Section to full division status.8 Another basis for the F B I’s information gathering in po­ litical contexts was the series of antisubversive laws enacted in the 1940s and 1950s. In 1936, J. Edgar Hoover could tell Presi­ dent Roosevelt that there was nothing illegal about being a Com­ munist and that, therefore, the FBI had no grounds for infor­ mation gathering. It was quite another matter after the passage of the Smith Act in 1940, the Voorhis Act in 1941 (requiring the registration of all "subversive” organizations having foreign links), the Internal Security Act in 1950, and the Communist Control Act in 1954, with its congressional finding of fact that the Communist party of the United States was a foreign-dominated conspiracy that should be "outlawed.” But the questions remained: when may investigative activity begin, and how close­ ly must it be linked to particular violations of these laws ? The formal authority for FBI investigation of all sorts is found in 28 U.S.C. 533, which empowers the attorney general to appoint officials "to detect and prosecute crimes against the United States.” The crucial question, insofar as domestic intelli­ gence is concerned, is how to interpret the verb detect. The Comptroller General’s Report of 1976 argues that the use of detect in conjunction with prosecute indicates that the former activity was intended to be undertaken only in immediate con­ templation of the latter.” However, the reason for this interpre­ tation is not obvious. Detection might, with equal reason­ ableness, be undertaken to determine whether a crime (say, advocating the overthrow of the government) has taken place. The third subsection of 28 U.S.C. 533, in addition, au­ thorizes the attorney general to appoint officials "to conduct such other investigations regarding official matters within the

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41

control of the Department of Justice and the Department of State as may be directed by the attorney general.” The reference to the Department of State is the statutory authority for the FBI’s foreign intelligence gathering activity. As to directions by the attorney general regarding "other matters,” it appears that such could be issued to aid the performance of any task properly required of the department by statute or by the president. This is how a series of attorneys general seem to have understood the provision. Such directives have been issued and accepted as licit by all hands at the time. For example, in September 1967, against a background of serious urban rioting, Attorney General Ramsey Clark urged the FBI to "use maximum available re­ sources, investigative and intelligence, to collect all facts bearing on the question of whether there has been or is a scheme or con­ spiracy by any groups of whatever size, effectiveness, or affilia­ tion to plan, promote or aggravate riot activity.” 10 The final source of FBI authority for domestic intelligence gathering activities is the Federal Employee Loyalty-Security Program, which was established in its present form by Executive Order 10450 of April 27, 1953, and Executive Order 11605 July 2, 19 71. President Truman had set up the initial federal employee loyalty program in 1947 by Executive Order 9835, but the Eisenhower administration revised the system. These orders were the closest source of bureau authority to gather informa­ tion quite unrelated to violations of law. Executive Order 10450 provided that each federal agency conduct evaluations of its personnel. Any information developed by any agency indicating that an employee might be subject to influence or pressure prejudicial to national security was to be forwarded to the FBI. The order also specified that the attorney general provide the various federal agencies with the names of foreign and domestic organizations, associations, movements, groups, or combinations of persons that, "after appropriate in­ vestigation and determination,” might be designated as totali­ tarian, Fascist, Communist, or subversive. Thus, the attorney general was made responsible for informing himself about do­ mestic political formations in order to provide up-to-date lists of subversive organizations to the other departments of govern­ ment. If the attorney general was to furnish such lists "after

42

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appropriate investigation/’ it was obvious that the FBI must do the investigating.11 The Internal Security Division of the Justice Department maintained the Attorney General’s List of suspected subversive organizations and substantial files of its own for both its prose­ cutorial and its antisubversive administrative functions. The di­ vision also provided information to the Subversive Activities Control Board (SA CB), which was established by the Internal Security Act of 1950, but stumbled through almost a quarter of a century of useless activity. Much of the material that the FBI generated over the years on members of "Communist front” groups and other "subver­ sives” was provided to and examined by Justice Department personnel and the staff of the SACB. Curtis Smothers, minority counsel of the Church Committee, observed that, as late as 1967, the Internal Security Division [of the Department of Justice] received reports on approximately 400 organizations, an an­ nual total of about 14,000 memoranda, about 150 reports a day. And yet we see little evidence that anybody asked “ Where are you [the bureau] getting all this stuff from?” 12 Executive Order 11605 in 1971 changed the loyalty-security program in only minor respects. For instance, it directed the SACB to hold hearings, upon petition of the attorney general, to determine whether an organization was totalitarian, Fascist, Communist, or subversive, or sought to overthrow the govern­ ment of the United States or of any state by unlawful means. But the task of creating the data basis for the SACB remained with the bureau. The loyalty-security program continues in effect today, even though it has been deemphasized by successive administrations since Eisenhower. Despite the fact that the Subversive Activities Control Board was mercifully closed down on June 30, 1973, after Congress declined to appropriate further funds for its operation, and the attorney general’s list of subversive organiza­ tions is no more, the attorney general, through the bureau, is still responsible for determining what sorts of political involve­ ment render a person unsuitable for federal employment as a national security risk.

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43

As of March 23, 1973, with the ebbing of concern over Communist enemies within, the work of the Justice Depart­ ment’s Internal Security Division was folded back to the Crimi­ nal Division. Today, the Criminal Division has the continuing responsibility of representing the Justice Department on the In­ terdepartmental Committee on Internal Security. In addition, "the Division maintains a continuing liaison with federal in­ vestigative agencies and the U.S. Attorneys in order to maintain an intelligence posture calculated to insure a carefully measured response to civil disorder.” 13 Despite the ominous sound, the focus of the division’s current internal security activity is prose­ cution, not storing up general information about "subversive” persons and groups. The signals now being given by the division to the FBI emphasize prosecution as well. Even so, the loyaltysecurity program is still there as a possible basis for the most wide-ranging sorts of information gathering— quite unrelated to anticipation of any particular crime. Taking all the asserted bases of FBI authority for domestic intelligence activities together, the comptroller general con­ cluded in his 1976 report that the authority "is not clearly spelled out, but must be distilled through an interpretive pro­ cess that leaves it vulnerable to continuous questioning and de­ bate.” 14 The Church Committee report agreed that the bureau’s mandate for wide-ranging domestic intelligence collection was "vague.” 10 In fact, the evidence seems to favor the F B I’s au­ thority more strongly than either the comptroller general or the Church Committee recognized— especially if authority is taken to mean presidential direction. It may be argued that presidents went beyond their constitutional warrants in giving these direc­ tions; that the directions were given is clear. Despite the comptroller general’s report, only a very strained interpretation of language, wrenched out of the political con­ text in which it was formulated, supports the view that succes­ sive presidents did not intend the FBI to engage in broad in­ telligence gathering. The key to such investigations was not meant to be a connection to foreign espionage, but whether groups or individuals were so disaffected ("radical” in bureau parlance) that they might pose some present or future danger to the government. The investigations authorized under the

44

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Federal Employee Loyalty-Security Program are surely an exam­ ple of this kind of inquiry. In 1938, J. Edgar Hoover wrote of the new domestic intelli­ gence capability that was being developed within his bureau: . . . it is believed imperative that it be proceded [sic] with the utmost degree of secrecy in order to avoid criticism or objec­ tions which might be raised to such an expansion by either ill-informed persons or individuals having some ulterior mo­ tive. . . . Consequently, it would seem undesirable to seek specific legislation which would draw attention to the fact of what is being done.10 Here was the seat of the mischief: legislation was never sought. In fact, it was purposefully avoided by Hoover, Roosevelt, and Truman. Hoover feared that Congress would not provide enough authority; Roosevelt had higher priorities; and Truman was afraid Congress would provide too much authority. The problem of the bureau’s power to engage in domestic security investigations was not lack of authorization (there was, in fact, too much), but that the bureau proceeded on broad (and am­ biguous) executive grants rather than on the basis of a specific legislative mandate. FBI ABUSES

Care is needed in examining the FBI domestic intelligence abuses disclosed during the mid-seventies because, while they were disconcerting, the abuses were sometimes exaggerated by the news media. Overstatement is the seed of overreaction, and the soil of the American imagination is artificially fertilized to receive such at the moment. The facts themselves are bad enough. Of all of J. Edgar Hoover’s peculiarities, none is more in­ teresting or important than his fervent, but essentially naive, conviction that America faced a dangerous internal Communist menace. There is no question that serious citizens should be con­ cerned about the activities of the Soviet intelligence agencies (the K G B and the GRU ) in America; nor is there any question

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45

that a variety of Marxist-Leninist political movements around the world do pose varying degrees of threat to American inter­ ests. What is today so hard to understand about Hoover’s view of communism is the position he accorded to the Communist Party of the United States (CPU SA). A review of the evidence that the Soviet Union used the American party in the 1930s and 1 940s as an instrument of espionage would not be germane to our present discussion. Suffice it to say that some Soviet espio­ nage was mounted with the support of the Communist party and that such use continued well into the 1940s. This was a proper area for bureau intelligence gathering, whether as counterintelli­ gence or as domestic intelligence. But in retrospect, it also is clear that the American Communist party was on the decline after 1945 and that by the 1950s it was simply not an effective organization for espionage or subversion.17 The real magnitude of the threat simply did not justify more than continuing nonintrusive observation. But Hoover fixated on domestic communism, and this view became part of the bureau’s internal culture.18 Thus, in the 1960s, the offices of the Trotskyite Socialist Workers party were subject to monthly illegal entries by the FBI. While the Socialist Workers party was in "fraternal association” with Trotskyite parties abroad, which themselves were committed to violence, bureau spokesmen were unable, when pressed to do so, to identi­ fy one violent act committed by the American counterpart or any of its members acting in concert. In fact, Hoover’s morbid preoccupation with Communists and Marxists generally gave birth to the first counterintelligence program (CO IN TELPRO ). The bureau in the late 1940s and early 1950s was frustrated by the difficulty in securing convic­ tions of members of the Communist party under the Smith and McCarran acts. This difficulty convinced some within the bu­ reau, and J. Edgar Hoover agreed, that "unconventional” meth­ ods used against foreign agents were necessary in order to re­ spond to the domestic Communist menace. The COINTELPROs were simply the use of the techniques of secret international warfare against domestic targets. The FBI never made any pretense that these kinds of po­

46

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litical wrecking operations (for COINTELPRO-Communist party never dealt with the K G B or with other foreign intelli­ gence services) were authorized by law— only, it was thought, by necessity. As a result, the COINTELPRO operations were a closely guarded secret within the bureau. COINTELPRO-Communist party alone grew into 2600 separate actions undertaken between 1956 and 19 71. Most were directed against groups, some against individuals. COINTELPRO-Communist party (and COINTELPROSocialist Workers party) involved such dirty tricks (and worse) as distributing anonymous or fictitious material to competing groups and members of groups; selectively leaking information, sometimes false, through news media; directing informants within targeted groups to disrupt the activities of those groups through misinformation or by fomenting factionalism; disrupt­ ing the personal lives and careers of subjects; requesting tax audits of targeted individuals and checkups by local police for routine violations; impeaching the credibility of targeted group members by planting materials that suggested they were agents of the bureau; and simple interviewing and reinterviewing of targeted individuals in order to harass and intimidate them.19 Ultimately, these COINTELPRO techniques were extended to targets other than Communists— including groups that lacked any remote connection to a foreign power.20 The impetus for this expansion was the development of the civil rights movement and the cross pressures it brought to bear on and within the bureau. From World War I on, Hoover re­ garded American blacks, especially black leaders, as easy re­ cruits for a Moscow-directed conspiracy. The highly publicized Marxist-Leninist conversions of such blacks as W. E. B. DuBois and Paul Robeson seem to have confirmed his suspicions. The reality was quite different. Fieldwork carried out by Hoover’s own agents again and again failed to support the di­ rector’s prejudice. In late August 1963, for example, the bu­ reau’s Domestic Intelligence Division prepared a memorandum concerning the efforts of the Communist party to "exploit the American Negro.” This memorandum concluded that "the Com­ munist Party in the next few years may fail dismally with the

THE FBI IN COLD WAR AND SOCIAL TURBULENCE

47

American Negro. It has in the past.” 21 After reading this, Hoover noted in the margin: This memo reminds me vividly of those I received when Castro took over Cuba. You contended then that Castro and his cohorts were not Communists and not influenced by Com­ munists. Time alone proved you wrong. For one I can’t ig­ nore memos about [a list of people] as having only an in­ finitesimal effect on the efforts to exploit the Negro com­ munity by the Communist.22 The head of the Domestic Intelligence Division, Assistant FBI Director William Sullivan, responded to this cue and apolo­ gized to Hoover for the memo: "W e regret greatly that the memorandum did not measure up to what the Director has a right to expect from our analysis.” 23 Later memos from the divi­ sion dealing with black leaders were to reflect what the director wanted to hear. Sullivan informed his immediate superior with­ in the bureau hierarchy that We regard Martin Luther King to be [ w ] the most danger­ ous and effective Negro leader in the country. May I repeat that our failure to measure up to what the Director expected of us in the area of Communist-Negro relations is a subject of very deep concern to us. We are disturbed by this and ought to be. I want him [Hoover] to know that we will do every­ thing that is humanly possibly to develop all of the facts.24 Domestic intelligence was, therefore, tailored to the preconcep­ tions of those at the top. As we know, King was the subject of sustained special surveillance, electronic eavesdropping, and, finally, vicious COINTELPRO-type operations. While the preoccupation of the bureau with King is the most publicized of its excesses regarding the civil rights move­ ment, it is by no means an isolated example. A counterintelli­ gence program undertaken in August 1967 was called "Black Nationalists— Hate Groups.” The label was interpreted quite broadly within the bureau; not only were Black Panthers, Blackstone Rangers, and the Deacons for the Defense of Justice in­ vestigated and interfered with, but so was the Southern Chris­

48

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tian Leadership Conference. The NAACP, while never sub­ jected to disruptive operations, was also checked from time to time for signs of Communist infiltration. Although the FBI did not regard the entire civil rights movement as subversive, civil rights groups using unconventional tactics (for example, street demonstrations and the deliberate provocation of countervio­ lence) were regarded by Hoover’s FBI as dangerous. In several instances, COINTELPRO techniques were em­ ployed to set one group of black militants against another and to encourage violence, including homicide.25 The Nation of Islam, the black Muslims, was the object of continuing COINTELPRO efforts, including bureau collaboration in preparing a television "documentary” that portrayed the Muslims as a pseudoreligious organization preaching hatred of the white race.26 These efforts against elements of the civil rights movement were counte­ nanced and encouraged by the highest command level within the bureau; some were personally supervised by Sullivan as chief of the Domestic Intelligence Division. In fact, it was Sullivan who in 1964 directed the first COINTELPRO operation targeted against a non-Communist organization— the Ku Klux Klan. Be­ fore this project, called COINTELPRO-White Hate Groups, only Communists had been subject to disruptive operations. COINTELPRO techniques were also employed promiscu­ ously against antiwar and student activist groups in the late 1960s. Under the rubric COINTELPRO-New Left, a common tactic was the circulation of phony news stories through the socalled mass media program within the Intelligence Division. While the COINTELPRO operations were inexcusable, most of them involved counterpropaganda against groups, not attacks on individuals. In 1976, when Attorney General Edward Levi sought to notify individuals that they had been targets of CO IN­ TELPRO attacks, he was hard put to find more than sixty names. In mounting the program against the New Left, Sullivan and the F B I’s Domestic Intelligence Division found an impor­ tant ally in Assistant Attorney General Robert C. Mardian, who headed the Internal Security Division under Attorney General John N. Mitchell. Considerable evidence shows that Sullivan and Mardian wished to press even harder against student radi­

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49

cals than did Hoover. Sanford Ungar writes that at meetings of the U.S. Intelligence Board Sullivan, representing the FBI, occasionally complained of restrictions imposed by J. Edgar Hoover that impeded the response of the Domestic Intelligence Division to subversion, especially to espionage.27 In June 1970, President Nixon ordered a meeting of Hoover and the directors of the Central Intelligence Agency (C IA ), the Defense Intelligence Agency, and the National Se­ curity Agency to consider the need for more extensive domestic intelligence activity in light of the disorders that were then com­ mon across the country. Sullivan became the central figure in the working group established by the meeting. The work of this group was coordinated by White House aide (and former army intelligence officer) Tom Charles Huston. Ultimately, the group recommended presidential approval of such clearly illegal practices as surreptitious entries, mail in­ terception, and extensive electronic eavesdropping. Ironically, both the bureau and the CIA had been conducting such activi­ ties all along—principally in foreign and counterintelligence work, but to some extent in purely domestic operations. In the mid-1960s, Hoover, fearing exposure and adverse publicity, ordered cutbacks of these techniques, even in espionage cases. By 1970, Sullivan’s Domestic Intelligence Division was evading some of Hoover’s restraints, and wanted the rest removed. The White House committee was seen as a way around the director.28 These recommendations, which became infamous as the Huston Plan, were approved initially at the White House level. Hoover, however, refused to go along, and most of the pro­ posals were abandoned in the face of his opposition. As Ungar points out, President Nixon later claimed that "Hoover’s veto was the reason he found it necessary to establish the Special Investigations Unit, better known as the plumbers, in the White House.” 29 Hoover’s resistance to escalate FBI penetration and surveillance of domestic radical groups in the early 1970s also explains why pressure mounted on the CIA and military intelli­ gence to become active on the domestic front. A fascinating disagreement developed between Sullivan and Hoover during this period. Hoover, still convinced of the menace of the Communist party of the United States, refused to

50

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give up on the idea of Communist influence among blacks. Sulli­ van, on the other hand, was quite skeptical about the influence of the Communist party in general and with blacks in particular. However, Sullivan’s views on campus radicals, on the leaking of classified material by government officials, and on counterespio­ nage operations were all far more extreme than those of the director. While Hoover certainly reacted strongly against the antiwar and campus radical movements, he tended to regard leaks of classified information as internal housekeeping matters with which the security offices of the agencies involved should deal. Consequently, Sullivan’s relations with Nixon, who ad­ hered to a similar view, were much closer and warmer than were Hoover’s. The institutionalization of the long-standing Hoover prac­ tice of supplying juicy tidbits of political intelligence directly to the White House was another way in which the FBI abused its authority. In a statement before the Church Committee, John Elliff, the committee staff member who directed the investiga­ tion of domestic intelligence activities, detailed the history of FBI-White House traffic in political investigative favors. Elliff described the FBI as willing "to carry out White House requests without question.” 30 The White House requests, from Franklin Roosevelt’s administration onward, were not always routine in­ quiries about prospective appointees to positions of responsi­ bility. Many were for information from the presidents and from the men around them and were aimed at uncovering data about political opponents. Roosevelt apparently received informal re­ ports from Hoover on groups and persons "in opposition to na­ tional defense.” 31 Harry Truman, while he initially reacted with exasperation to Hoover’s offers of information concerning ad­ ministration critics, regularly received reports labeled "Personal and Confidential” from Hoover with bits and pieces of intelli­ gence that the director thought might be of interest to the White House. White House requests for information and FBI initia­ tives proffering it became intertwined in a casual but continuing and substantial flow of communication.32 Sometimes the information involved activities arguably of a "subversive” nature, such as the role of Communists in the

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civil rights movement. Sometimes the White House was inter­ ested in finding out something about an opponent through a records check or light surveillance. In most cases the FBI, on its own initiative, warned the administration of developments that might be embarrassing, such as an upcoming newspaper expose. The White House practice of asking the FBI for name checks, or even for full field investigations, on persons in whom it was interested in obtaining information surfaced dramatically in 19 71. The news media disclosed that CBS-TV correspondent Daniel Schorr had been the subject of a full FBI background investigation. When the story broke, the White House issued a cover story that Schorr had been under consideration for a fed­ eral appointment. This was not the case; indeed, H. R. Haldeman was simply following a well-established practice. President Johnson had asked for similar name checks on at least seven other journalists, including N B C ’s David Brinkley.33 In the troubled late 1960s, the FBI practice of supplying incidental intelligence to the White House was formalized. On November 26, 1969, a directive was issued from Hoover to all FBI field offices concerning an intelligence letter (IN LE T ) that the bureau intended to prepare on a regular basis for the presi­ dent and the attorney general. According to the directive, IN ­ LET would "not be a vehicle for routine dissemination; rather it will be comprised of information obtained in connection with our investigations which has the qualities of importance and timeliness necessary to secure the President’s interest.” 34 The field offices were directed to furnish headquarters, on a continu­ ing basis, with materials suitable for the IN LET program. The appropriate sorts of information included "items with an un­ usual twist or concerning prominent personalities which may be of special interest to the President or the Attorney General.” 35 The definition of "items with an unusual twist” seems to have been very broad. In one case, material on the personal life of an actress, obtained in the course of an intelligence investigation of an extremist organization, was included in an IN LET report. The IN LET program was formally discontinued in December 1972. Changes in communications capability, particularly the bureau’s ability to furnish intelligence to the White House im­

52

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mediately by teletype and the development of new periodic re­ ports such as the Summary of Extremists’ Activities, made the intelligence letter redundant. Field offices were advised, how­ ever, that they had a continuing responsibility to be alert for the type of intelligence described in the original IN LET directive. The same pattern of cozy FBI-White House relations that gave rise to the IN LET program also resulted in the occasional assignment of FBI personnel to perform tasks of pure partisan espionage. Perhaps the most famous such escapade involved the use of bureau agents at the 1964 Democratic National Conven­ tion at Atlantic City in order to avoid "embarrassment to the President.” 36 As a result of the surveillance initiated by these agents, the deliberations and tactics of the insurgent Mississippi delegation (the Freedom Democratic party) were reported to White House personnel.37 The broadest but least intrusive of the bureau’s intelligence efforts in the decades following World War II was the continu­ ing collection program (CO M IN FIL), which was supposed to determine the extent of Communist infiltration of political groups and other American social institutions.38 COM INFIL in­ telligence was gathered for the following categories: political activities, legislative activities, domestic administration issues, black questions, youth matters, women’s matters, farmers’ mat­ ters, cultural activities, veterans’ matters, religion, education, and industry. This was a pure intelligence program, aimed at producing general information for the use of the attorney gen­ eral and the president and determining if groups had come un­ der "subversive domination,” although all sorts of political ac­ tivities were reported on.39 CO M INFIL operations made no pretense of investigating even potential crime, nor was the program intended to counter the influences of known or suspected Soviet intelligence agents. CO M IN FIL’s concern was the Communist party’s influence and that elastic category of political "subversives.” In fact, consider­ able evidence shows that from the early 1960s on, actual counter­ espionage work was reduced and sacrificed to programs such as CO M IN FIL and various COINTELPROs. This slacking of counterintelligence effort is a subject that

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must be approached with considerable care. The various investi­ gators of the FBI have largely respected the secrecy of the bureau’s activities in this area and in that of foreign intelligence gathering. Nevertheless, sufficient hints emerged to justify men­ tioning it. For instance, in the course of his final, traumatic break with Hoover and retirement from the bureau, William Sullivan directed a long and rather pathetic letter to the director, cataloging what Sullivan saw as Hoover’s major mistakes over the years. One of these indictments had to do with counter­ intelligence and charged in part: . . . you abolished our main programs designed to identify and neutralize the enemy agents. I just cannot understand this. It simply is not a rational thing to do.. . . You know the high number of illegal agents operating along the east coast alone. As of this week, the week I am leaving the FBI for good, we have not identified even one of them,40 In evaluating the FBI’s performance during the decades following World War II, five aspects of its domestic intelli­ gence operations seem particularly troubling: 1. The FBI’s collection of domestic intelligence was much too broad. Large quantities of accumulated general information were essentially unrelated to anticipated criminal conduct. 2. Very intrusive techniques of collecting information were used routinely with little consideration given to their legality. 3. Authority for the FB I’s internal security activities came from ambiguous presidential directives from the Federal Em­ ployee Loyalty-Security Program. The only possible statutory authority for the FBI’s actions came from the grant of power "to detect” lodged with the attorney general, an activity that by law must be undertaken in connection with a federal crime. The crime most widely used to justify the FBI’s wide-ranging collec­ tion of domestic security information was the prohibition of the ill-found Smith Act against "conspiracy to advocate the over­ throw of the United States government.” 4. The bureau engaged in secret political sabotage opera­ tions and used domestic intelligence tidbits to cement its rela­ tions with the White House.

54

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5. Considerable resources were expended in collecting do­ mestic intelligence information without relating the costs to specific law enforcement goals. While the intrusion by the FBI into individual and organi­ zational privacy was considerable, perhaps more troubling is the fact that law enforcement resources were squandered for these activities. In the mid-1960s, very substantial bureau resources were being poured into domestic intelligence work. The appar­ ent success indicator for these efforts was the number of inves­ tigations being pursued in each field office— that is, the number of open files. As a result, the number of files proliferated. Added to this preoccupation with numbers was an element of middle-class overreaction by bureau agents to the militant bohemianism of radical dissent in the 1960s. As Ungar has written: . . . the Bureau men were not just scandalized middle Ameri­ cans feeling that their values were being insulted and threat­ ened by such aspects of the "movement” lifestyles as drugs, communal living, and abundant hair. They were the nation’s elite law enforcement force; their very work was, in a real sense, the maintenance of a national law and order. For the typical FBI man, a personal sense of disgust fed professional concern; the result was too often absurd overstatement of the dangers posed by new organizations and individual activists.41 As the bureau found it more and more difficult to determine the plans and likely behavior of New Left militants (because in most cases they did not know themselves), FBI use of illegal techniques increased. Just as in the case of the Communist party, disruption was justified because of the difficulty of securing suc­ cessful prosecutions. But even with the dirty tricks, did it do any good ? Was any crime prevented ? In the course of the Church Committee hearings on the FBI, Majority Counsel Frederick A. O. Schwartz, Jr., asked W il­ liam Ruckelshaus this very question: "Can you from your ex­ perience come up with any cases where clearly useful results were obtained through a domestic intelligence investigation that could not have been obtained by investigating an actual criminal act or a planned criminal act?” 42 Ruckelshaus bounced the ques­ tion to former Assistant Attorney General Henry Petersen, who

THE FBI IN COLD WAR AND SOCIAL TURBULENCE

55

was testifying with him. Petersen juggled it awkwardly for a few minutes, and everybody agreed it was a hard question. The comptroller general estimated in 1976 that in the decade from 1965 to 1975 about 19 percent of FBI investiga­ tions were of the intelligence type—but intelligence broadly de­ fined, foreign intelligence, counterintelligence, and domestic in­ telligence. This figure was not broken down on the theory that to do so would prove useful to foreign intelligence services. On the basis of this combined assessment, the comptroller general went on to attempt a judgment on the effectiveness of these in­ vestigations. Selected for review were 797 individual case files, and two success indicators were established: actual prosecutions and foreknowledge of specific acts of violence. Only twenty-four of these cases (about 3 percent) were referred by the FBI to the Justice Department or local authorities for possible prosecution. In only seventeen of the 797 cases (about 2 percent) did the comptroller general find instances in which violence was pre­ vented. The report stressed the lack of specific positive results flowing from bureau activity.43 In this analysis, however, we run squarely into the difficulty posed by the "noneventful” character of successful law enforce­ ment. That the comptroller general’s staff failed to understand this principle is illustrated by its treatment of one of the cases of FBI investigative foreknowledge. Here, the file revealed an al­ leged conspiracy to blow up a bridge in a large metropolitan area. The comptroller general commented that "the bridge is still standing.” 44 But the point of the example was to emphasize the uselessness of FBI foreknowledge, and that point would only have been made if the bridge were destroyed. The number of crimes that were avoided because the bureau possessed some advance knowledge of the activities of some radical groups in the 1960s is a matter accessible only to informed intuition. One of the hard truths of social science is that there is no good way to count nonevents or to measure their "causes.” Nor is the sim­ plemindedness regarding the FBI’s role in preventing violent acts the only difficulty with the comptroller general’s assessment. Only individual investigative files were chosen for review by the comptroller general. Within the Church Committee staff, which

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had access to all the materials, it was conceded that the FBI’s investigations of organization files were considerably more pro­ ductive— even by the comptroller general’s standards. Never­ theless, undoubtedly the FBI performed too much investigating with far too little result. In his Spying on Americans, Athan Theoharis concludes that the F B I’s domestic intelligence operations had, by the early 1970s, brought about "the breakdown of the American constitu­ tional system and the emergence of a ’ 1984’ society.” 45 This is, obviously, the wildest sort of overstatement; there is no denying, however, that there was a bizarre and almost surrealistic aspect to the workings of the old Domestic Intelligence Division. The surest sign that far too much was being done with far too little payoff was the ease (sweet relief in many field offices) with which the activity was cut back. The D ID (and its successor, the Intelligence Division) was staffed largely by "national security” careerists who reinforced one another’s weaknesses; it was dubbed by the irreverent "The House of Incest” and pressured field offices to keep the numbers of open investigations up. REFORM

As the domestic disorder of the late 1960s and early 1970s abated and as the intelligence scandals began to break, the in­ fluence of the Intelligence Division declined. And so did case loads. The number of active domestic intelligence investigations fell steadily through the mid-1970s. In the spring of 1976, Director Kelley decided on a major reorganization of domestic intelligence work at headquarters. Kelley summoned Neil Welsh, Special Agent in Charge of the Philadelphia field office and a critic of domestic security work within the bureau. Welsh was ordered to conduct a complete re­ view of all ongoing investigations, and as a result hundreds of investigations were closed out. All remaining domestic investi­ gations were transferred (for purposes of headquarters super­ vision) from the Intelligence Division to the General Investiga­ tion Division. (This left the Intelligence Division with only foreign intelligence and counterintelligence work.) The file on the CPUSA was left with Intelligence on the grounds that the

THE FBI IN COLD WAR AND SOCIAL TURBULENCE

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fruits of this ongoing investigation would be principally of counterintelligence interest. The reorganization was significant both symbolically and functionally. Domestic intelligence was now linked in the bu­ reau structure with ordinary law enforcement activity, and case loads declined still further. By February 1977, for instance, the Philadelphia field office had reduced its domestic intelligence work by 83 percent from its 1975 level.46 As of May 1977, there were only 22 organizations and 168 individual domestic intelli­ gence investigations open nationwide.47 By October 1977, the numbers had declined to 17 organization and 130 individual investigations.48 And reform was proceeding along other lines in 1976. At­ torney General Levi, prodded by congressional and media critics in the wake of the scandals, issued two sets of guidelines for FBI operations. The second of these regulated the use of in­ formants, and will be examined in Chapter 4. The first and more important set concerned when, and at what levels of intrusive­ ness, the bureau may undertake "domestic security” investiga­ tions. The first section of these guidelines constitutes the criminal predicate. It provides that information may be sought concern­ ing "the use of force or violence” that violates federal law "for the purpose of: overthrowing the government of the United States or the government of a state; substantially interfering, in the United States, with the activities of a foreign government or its representative; substantially impairing, for the purpose of influencing U.S. government policies or decisions, the function­ ing of the government of the United States, the functioning of the government of a state, or interstate commerce; and depriv­ ing persons of their civil rights under the Constitution, law, or treaties of the United States.” 49 The guidelines further provide that a preliminary investi­ gation may be begun by an FBI field office, on its own initiative, on the basis of "allegations or other information” that a subject, group, or individual may be engaged in activities that will in­ volve the use of force or violence. Such investigations are limit­ ed to ninety days and may only be extended on written authori­ zation from bureau headquarters. Only relatively nonintrusive

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techniques may be employed in the first phase of investigations. Limited physical surveillance and overt interviewing may also be used if the special agent in charge authorizes it in writing. Under the guidelines, only FBI headquarters may authorize full investigations and then on the basis of "specific and articul­ able facts” that create a reasonable suspicion that serious vio­ lence may follow. Factors to be considered before authorization of such investigations are the magnitude of the threatened harm, the likelihood it will occur, the immediacy of the threat, and the danger to privacy and free expression posed by a full investi­ gation.50 In full investigations, informants may be introduced, mail covers (examination of the exterior of envelopes) laid on, and warrants sought for electronic surveillance. The Department of Justice is obligated to review full investigations at least once a year. No such investigation may continue beyond one year with­ out written approval of the attorney general or a designee. In addition, the bureau is directed to notify the attorney general or a designee of the basis of their full investigation within a week of its commencing. To monitor bureau compliance with his guidelines, Attorney General Levi established an Investigative Review Unit within the Justice Department. Originally, this was composed of three lawyers on permanent assignment. But since the summer of 1976, the job of examining justifications for do­ mestic security investigations has been performed ad hoc by "senior attorneys in the Attorney General’s office and the de­ partment’s office of legal counsel.” 51 A special counsel, Michael Shaheen, was appointed for "in­ telligence coordination,” and upon the issuance of the guide­ lines, Shaheen became director of a new Office of Professional Responsibility, charged with investigating offenses by depart­ ment personnel, including special agents of the bureau. There is some reason to suppose that the future will see more extensive and routinized Justice Department scrutiny of both intelligence gathering and ordinary investigative activities of the bureau. It is unlikely that we shall again see a situation such as existed prior to 1975 in which the most important sorts of internal FBI documents, such as the training manuals and standard operating procedures, are not reviewed by the parent department.

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The permanent congressional intelligence committees that were created on the recommendation of the special Church and Pike Committees in 1976— the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelli­ gence of the House— also oversee the activities of the FBI. The Senate Committee, currently chaired by Birch Bayh (D., Indi­ ana), is staffed by many Church Committee veterans. Oversight of the bureau by the Senate Intelligence Com­ mittee seems, on the early record, to have been persistent and skillful. John Elliff, who headed the domestic task force in the Church Committee staff and who is the foremost academic au­ thority on the bureau, serves as an aide to Senator Bayh, who is emerging as principal spokesman on domestic intelligence mat­ ters. The Intelligence Committee’s first annual report to the Senate evinced considerable optimism about the extent to which oversight was succeeding.52 And so the era of wide-ranging monitoring of dissidents came to an end. The real pathology of Hoover’s FBI did not inhere so much in its apple pie and motherhood "Americanism,” or even in Hoover’s racism or his obsessive fear of Communists, as it did in a flawed professionalism. This professional failure had two aspects. First, and especially evident in the domestic security area, investigation was conducted without rules. Second, success was measured by the number of investigations and in­ formants on the books without any systematic quality control. As James Q. Wilson has pointed out, this was a direct result of Hoover’s paternalistic and essentially defensive managerial style.53 Thus, the numbers proliferated. It would be wrong to suggest that a flawed professionalism, which developed over decades, has been uprooted overnight. Nonetheless, the guide­ lines, the improved oversight, the reorganization and reduction of domestic intelligence efforts, and the impact of the new man­ agerial styles of Kelley and now William Webster have moved the FBI into' a distinctly post-Hoover professionalism.

4- Other Domestic Intelligence Operations

The only way of preventing politically motivated hijackings is to know about them in advance, or to identify the potential hijackers before they board airplanes as members of terrorist groups. This is possible only as the result of information that cannot be obtained except by spying. Un­ fortunately, the nature of leftist extremists being what it is, it necessi­ tates spying on a lot of innocent people. — Miles Copeland, Without Cloak or Dagger

W HILE THE FBI has been, and will continue to be, the major domestic intelligence agency in America, other federal and state agencies have been involved in intelligence gathering in the past. It is now widely concluded that much of this involvement was mistaken and some was illegal. This judgment generally is correct. But it is not a simple matter of saying to all other agen­ cies "go and sin no more.” The army must, to some limited ex­ tent, be a consumer of domestic intelligence, and there are con­ tinuing questions as to how the military, CIA, and N SA should relate to the FBI when they are in possession of information of possible interest to the bureau, or where the bureau requests in­ formation or services. Finally, the larger state and local police forces continue to have a legitimate domestic intelligence role. MILITARY INTELLIGENCE

The furor over domestic intelligence gathering by the army pre­ ceded the other intelligence scandals of the 1970s by several years. Unlike the CIA or the IRS, the military has always had some domestic security functions. Historically, the military ser­

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vices have had responsibility for intelligence gathering for their own self-protection— the early investigation of threats and po­ tential threats to military personnel and establishments both in the United States and abroad. The army, in addition, is responsi­ ble for backing up civil authorities in situations where the local police are overwhelmed. Yet army intelligence became so farreaching in the 1960s that it was the first agency to come under close congressional scrutiny. From World War I until the late 1930s, both army and navy intelligence maintained extensive domestic intelligence op­ erations. Following the 1939 Delimitations Agreement, which confirmed the F B I’s primacy in domestic intelligence, the mili­ tary intelligence agencies were restricted to their traditional role of protecting military personnel and installations. As civil dis­ orders increased in the 1960s, however, the army dramatically intensified its domestic intelligence activity. The army began the Continental United States (CONUS) Intelligence Program in the summer of 1965 to provide early warning of civil distur­ bances that it might be called on to quiet. Two years later, the program was expanded to include collecting materials concern­ ing the political beliefs and actions of groups and individuals active in the civil rights movement, the white supremacy move­ ment, the black power movement, and the movement against the war in Vietnam. Such information was believed necessary for army commanders who might be called on to intervene in civil disturbances and for the army to protect itself against threats to its facilities and personnel. The actual legwork of the CONUS Program— attending meetings and in some instances infiltrating organizations— was carried out by military intelligence agents around the country. At the height of the program, between 1968 and 1969, an esti­ mated one thousand "plain clothes investigators worked out of some thirty offices from coast to coast, keeping track of political protests of all kinds— from Klan rallies in North Carolina to antiwar speeches at Harvard.” 1 In addition, personnel of the Army Security Agency occasionally monitored the radio com­ munications of dissidents engaged in street demonstrations. Among the organizations targeted for penetration by the army were the Poor People’s March to Washington in April

6l

OTHER DOMESTIC INTELLIGENCE OPERATIONS

1968 and its encampment, Resurrection City, and groups rang­ ing from the National Mobilization Committee to a welfare mothers’ organization in Milwaukee and a church youth group in Colorado Springs. The Southern Christian Leadership Con­ ference was the object of army intelligence scrutiny in 1968, and army agents reportedly infiltrated a hippie commune in Wash­ ington, D.C., in 1969. This penetration was not always restricted to information gathering. While army agents generally re­ frained from harassment on the scale of the FBI COINTELPRO operations, there were occasional abuses. Some agents made harassing phone calls to surveillance targets, and one recalled the high adventure of sending orders of fried chicken to the offices of the Chicago Seven defense team.2 The existence of the CONUS program was disclosed in January 1970 in a magazine article by Christopher Pyle, a former military intelligence officer.3 The article was widely re­ ported on in the media, and the Constitutional Rights Subcom­ mittee of the Senate Judiciary Committee, then chaired by Sena­ tor Sam Ervin (D., S.C.), quickly began investigating Pyle’s allegations. Senator Ervin initiated a lengthy correspondence with the Secretary of Defense to determine the scope of the CONUS program, while his committee began hearings on mili­ tary surveillance of domestic political activity. The Church Committee Report in 1976 identified four gen­ eral areas of army involvement in illegal or at least problematic domestic intelligence activity: the collection of information con­ cerning the political activities of individuals and groups; the monitoring of domestic radio transmissions despite a Federal Communications Commission opinion that such monitoring was illegal; investigations of groups that the military considered threats to their own personnel and installations; and assistance rendered to other agencies— ranging from the Justice Depart­ ment to local police forces— engaged in keeping track of mili­ tant dissent.4 The files that the army maintained on civilians were quite extensive. CONUS agents indiscriminately photographed thou­ sands of individuals attending political meetings and demon­ strations. The Church Committee, relying on research o ( the ubiquitous Christopher Pyle, who was hired as a committee staff

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consultant, concluded that the army "probably maintained files on at least 100,000 Americans from 1967 until 1970.” 5 In addi­ tion, extensive files were maintained on groups ranging from the American Civil Liberties Union and the Business Executives’ Move to End the War in Vietnam, to the National Organization for Women. The Church Committee reported that information collected on civilian political activity, combined with material garnered from the FBI and local police forces, was stored at a number of army facilities throughout the United States. Army materials, in turn, were routinely transmitted to the FBI, the Office of Naval Intelligence, and the Air Force Office of Special Investigation. Army materials were also circulated to the CIA and the Defense Intelligence Agency. The Church Committee investigated serious reports that military intelligence indirectly subsidized a violent right-wing terrorist group in Chicago called the Legion of Justice. The committee concluded that the allega­ tions that agents encouraged the Legion in illegal harassment of left-wing groups were unsupportable. The army clearly went beyond its proper domestic role in the 1960s; the Johnson administration encouraged its excesses. During a January 10, 1968, meeting on civil disorders, former army Chief of Staff Harold K. Johnson recalls that the army was urged to use "every resource” in the effort to defuse civil dis­ turbances.6 The most offensive army domestic intelligence activi­ ties took place under a plan issued by the Department of De­ fense in May 1968, after the White House had made it clear that it wanted the army to intensify its domestic intelligence efforts. In June 1970, after public criticism began, the 1968 plan was rescinded, and an order was issued stating: Under no circumstances will the army require, report, process, or store civil disturbance information on civilian individuals or organizations whose activities cannot, in a reasonably direct manner, be related to a distinct threat of civil disturbance exceeding the law enforcement capabilities of local and state authorities.7 This order proved to be merely an intermediate step. Smarting under congressional criticism and press scrutiny, the Department

04

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of Defense issued a new directive on May i, 19 7 1, to govern domestic intelligence activities by the military.8 The directive prohibited military intelligence agencies from collecting or re­ taining information on ' unaffiliated” persons and organizations. Also included were strict provisions governing the disposition of records then held on domestic political activity. The directive recognized a continuing service interest in investigating threats to military establishments, and it did not prohibit the military from supplying information to civilian law enforcement agen­ cies. Clearly, the 19 71 directive left many loose ends. What do­ mestic intelligence information does the army really need to carry out its civil responsibilities ? How widely may the army (or any other military service) range in its investigations of threats to military bases and personnel ? On the first question, Article IV, Section 4, of the Constitution provides that "The United States shall . . . protect each [state] . . . on application of the Legislature, or of the Executive [when the Legislature cannot be convened] against domestic violence.” As a practical matter, the armed forces, particularly the land forces, are the instruments that enable the federal government to be the ultimate guarantor of civil peace. In 1795, Congress authorized the president to use the mili­ tia of any state to "suppress insurrection,” and in 1805, it au­ thorized the use of federal troops for this purpose and to counter "obstruction to the laws, either of the United States or of any individual State or Territory.” These early statutes sur­ vive almost intact as Sections 33 1-33 4 of Title 10 of the United States Code. However, American political culture is powerfully opposed to the use of troops, especially federal troops, to main­ tain order.9 Over the last half century, we have been generally successful in using civilian police and national guardsmen to cope with civil disturbance. The army mission of stepping in to maintain order when state resources prove inadequate is none­ theless clear. Even so, the preparations that the army may take to prepare for intervention in civil disturbances are unclear. In 19 7 1, Penta­ gon spokesmen argued that "military commanders must ¿now all that can be learned about [an] area and its inhabitants” 10 to

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protect persons and property in areas of civil disturbance when ordered to do so. This interpretation seems too broad. The sort of information relevant to the army’s civil backup mission must be identified with a greater precision. Military commanders certainly need to know a good deal about the terrain in which they will be operating. (The tactical commander of the federal troops deployed during the 1967 Detroit riot was reduced to using an oil company road map to find his way into the city.) Army commanders also need to know the identities of the civilian political and governmental leaders with whom they will be working in riot situations, and they need to be told in general terms about the politics of the com­ munity.11 What they do not need, however, is a large amount of information about particular dissident individuals and groups. The army’s concern should be with riot control, not with military government. The civilian authorities continue to func­ tion during civil disorders, except that their police forces have been overwhelmed. The army mission is to supply force as an adjunct to civilian law enforcement—not to supplant it. In ordi­ nary civil disturbance operations, the army should not be called on to apprehend particular individuals or to negotiate with political factions. If unusual cases arise, army information needs can be supplied either by the FBI or by local law enforcement. The second question left open by the 19 71 directive— the proper scope of military intelligence gathering for self-protec­ tion—creates ambiguities that need to be resolved. The Delinea­ tions Agreement of 1940, as confirmed by the National Security Council in 1949, authorized the military services to investigate matters that directly endangered their own establishments. Even though the military possesses an independent role in investigat­ ing threats to its personnel and facilities, that function still requires critical examination. When should the military intelli­ gence branches investigate themselves, and when should investi­ gation be conducted by civilian law enforcement agencies? These delineations of authority should not be left to the mili­ tary to make on an ad hoc basis. At the very least, military investigations within the United States should be restricted to "on-post” surveillance. "Off-post” information gathering should be left to the FBI (except for less

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intrusive sorts of activities, such as interviewing consenting re­ spondents). Special problems arise for the military overseas. Stationing forces in a foreign country involves risks, strains, and responsibilities for military commanders that do not exist at home. The legal settings are quite different. Commanders in such contexts should be able to employ their intelligence agents in a more wide-ranging fashion to gather information about military personnel, employees, and even unaffiliated civilians than may be permissible at home. After all, there is no possi­ bility of handing over these tasks to the FBI. Whatever balances are ultimately struck should be enumerated in public rules (D e­ partment of Defense directives or service regulations) that can be examined by the Congress and the public. THE CENTRAL INTELLIGENCE AGENCY

While the army had at least some basis for its domestic intelli­ gence activity in the 1960s, the same cannot be said for the Central Intelligence Agency. The CIA charter states clearly that the agency has no law enforcement or internal security responsi­ bilities within the United States, but in the late 1960s, under White House pressure, this restriction was violated. Through several different programs, the CIA became involved in domes­ tic intelligence activities. The agency used clandestine infor­ mants and maintained elaborate files on thousands of individ­ uals and groups. Domestic intelligence work was considered "extremely sen­ sitive” at CIA headquarters, and even within the agency, it was a closely guarded secret. James Schlesinger, when he replaced Richard Helms as director of central intelligence in 1973, soon became aware of improper CIA domestic operations, and he ordered a review of these activities. This report, known within the agency as "the family jewels,” was eventually leaked to the press, principally to Seymour Hersh of The N ew York Times, by Schlesinger’s successor, William Colby.12 The spectacular press disclosures of CIA misdeeds were enough to force Presi­ dent Ford in January 1975 to appoint a blue-ribbon commission, chaired by Vice-President Nelson Rockefeller, to investigate the CIA and to make recommendations for reform.

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67

On June 6, 1975, the Rockefeller Commission issued its re­ port. A briefing paper for the media describing the 350-page re­ port concluded that: "There are things that have been done which are in contradiction to the statutes, but in comparison to the total [C IA ] effort, they are not major.” 13 Despite this, the commission made some thirty specific recommendations, and on February 18 ,19 76 , President Ford issued Executive Order 11905, which reemphasized the exclusively foreign intelligence and counterintelligence mission of the CIA.14 The CIA was established by the National Security Act of 1947. This legislation, the culmination of American frustrations with command and intelligence arrangements during World W ar II, set up new structures for the armed forces, for intelli­ gence gathering, and for advising the president. The act created a unified Department of Defense, and it established the Nation­ al Security Council to coordinate, at the highest governmental level, intelligence, foreign policy, and military policy.15 The act also created the post of director of central intelligence. The di­ rector was to have responsibility for overseeing and coordinating all U.S. foreign intelligence activities as head of the new Central Intelligence Agency, which was developed from the old N a­ tional Intelligence Authority, a remnant of the wartime Office of Strategic Services.16 The CIA was "to correlate and evaluate in­ telligence relating to national security, and provide for the ap­ propriate dissemination of such intelligence within the govern­ ment.” The act stipulated, however, that the agency was to have "no police, subpoena, law enforcement powers, or internal se­ curity functions.” 17 The original intent of the act was clear: the CIA was re­ stricted to foreign subjects, while the FBI would continue to provide internal security law enforcement, including counter­ espionage and foreign intelligence collection within the United States. The job of responding to the activities of foreign intelli­ gence agencies was thus divided, with the FBI having responsi­ bility at home, and the CIA abroad. Unfortunately, the 1947 act made the director of central intelligence responsible "for pro­ tecting intelligence sources and methods from unauthorized disclosure.” This mandate implied a limited, but perhaps sub­ stantial, capacity to investigate the security of all American in­

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telligence establishments whether at home or abroad.18 In addi­ tion, the CIA was charged "to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.” Despite the language excluding a domestic role for the CIA, this provision opened the door, at least a crack, to the sort of internal collection activities ordered by the Nixon administration. CIA involvement in monitoring domestic political dissent in the 1960s was a direct result of the concern at the White House and the Justice Department over ghetto riots, the antiwar movement, campus takeovers, and what was perceived as a gen­ eral peril to domestic order. The Church Committee report con­ cluded that beginning in 1967, "in response to White House pressure for intelligence about foreign influence upon American dissent,” 19 the CIA launched its largest domestic program— CHAOS. The agency rapidly became involved in a variety of problematic activities. Operation CHAOS, which ran from 1967 to 1974, was ad­ ministered by a special office within the C IA ’s counterintelli­ gence staff, then headed by James Angelton. Richard Ober, who had earlier been involved with CIA inquiries into possible for­ eign involvement in domestic American radicalism, was chosen to head the special operations group responsible for the pro­ gram.20 The program intensified at the end of October 1967, when the White House requested a study of the international connections of the U.S. peace movement.21 The CHAOS pro­ gram developed files on New Left activities, campus radicals, and black nationalists. CIA operatives also infiltrated domestic political groups, and the agency performed surveillance for the FBI on Americans traveling abroad.22 CHAOS intelligence in­ formation came mainly from the FBI, from reports of CIAdeveloped informers, and from information received on Ameri­ cans from overseas stations.23 The most objectionable feature of CHAOS, clearly, was the use of CIA operatives within the United States to report on Americans. Several other CIA operations in the 1960s and early 1970s involved domestic intelligence activity. Project RESISTANCE was a campus-oriented program, undertaken by the CfA Office of Security as a service for embattled CIA recruiters, although

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whether the project ever aided CIA recruiters or the agency’s personnel office in evaluating the campus activities or prospec­ tive employees is still unknown. The Church Committee found no evidence that Project RESISTANCE used informers. Some of the information in RESISTANCE files came from open sources such as newspaper clippings; occasional contributions were made by local law enforcement officers and campus police, along with a few ’ cooperating confidential sources” (that is, * walk-in” in­ formers) and some FBI material. Eventually, 6,700 RESIS­ TANCE files containing an estimated 12,000 to 16,000 names were amassed. The project was terminated in June 1973.24 Project MERRIMAC was created within the CIA ’s Office of Security to protect the agency itself— its institutions and per­ sonnel— against dangers perceived in the domestic disorders of the 1960s. The program’s managers initially chose four "indi­ cator organizations” thought to be typical of the wave of protest sweeping the country: the Women’s Strike for Peace, the Wash­ ington Peace Center, the Congress of Racial Equality, and the Student Nonviolent Coordinating Committee. By studying these groups, the agency hoped to divine the potential for further domestic disorder. A few part-time informants were hastily trained and em­ ployed by MERRIMAC. In the fall of 1967, for example, MERRIMAC operatives sought to obtain information about the "leadership and plans of organizations participating in the N a­ tional Mobilization Committee to End the W ar.” 25 By the summer of 1968, six more groups had been targeted for MERRIMAC coverage, and information obtained through MERRIMAC was made available to the CHAOS recordkeepers. The Church Committee report concluded that while the "last reports from MERRIMAC agents found in CIA files were gathered in late 1968,” 20 the program was not formally termi­ nated until September 1970. The investigative techniques employed in RESISTANCE, MERRIMAC, and even CHAOS were relatively nonintrusive— there were no reported instances of electronic surveillance or unauthorized entries. However, intrusive methods were em­ ployed in investigations by the Office of Security of CIA em­ ployees, prospective employees, employees of contractors, and

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"other persons being considered as cooperative sources of in­ formation or assistance.”27 Frequently, these investigations in­ volved American citizens, some of whom were subjected to phys­ ical surveillance, electronic surveillance, unauthorized entry, opening of mail, and inspection of income tax records.28 Eventually, these security investigations were scaled down. In a memorandum dated August 29, 1973, Director Colby or­ dered that no surveillance, tap, or surreptitious entry be con­ ducted against potential, present, or former employees of the agency "outside agency property.” 29 The Office of Security was instructed to work through the appropriate civilian authorities (presumably the FBI) when the activities of employees and former employees of the agency appeared to constitute viola­ tions of law. Several other CIA programs involved possible violations of law. The most highly publicized of these was the CIA mailopening program that ran intermittently, sometimes in coopera­ tion with the FBI and sometimes not, from 1954 to 1973.30 The CIA was involved in mail-opening operations on both coasts aimed, supposedly, at discovering items of foreign intelligence in mail from the Soviet Union, South America, and (briefly) certain Asian countries. Many CIA programs still involve con­ tact with American citizens, such as the voluntary interviewing of Americans returning from travel abroad and "advisory” rela­ tions between some university scholars and the agency. Some of these contacts may be unwise, but they are not domestic intelli­ gence collection in the sense we are concerned with here. Much of the C IA ’s past involvement with domestic intelli­ gence has been the subject of reform within the agency. In order­ ing the termination of CHAOS in March 1974, CIA Director William Colby delineated how the CIA would, in the future, handle information and inquiries about Americans without re­ sorting to illegal methods: A. Whenever information is uncovered as a byproduct result of CIA foreign-targeted intelligence or counterintelligence operations abroad which makes Americans abroad suspect for security or counterintelligence reasons, the information will be reported by CIA in the following manner. ( 1) With respect to private American citizens abroad, such information will be reported to the FBI

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(2) With respect to official U.S. personnel abroad, such in­ formation will be reported to their parent agency’s security authorities, and to the FBI if appropriate.. . . B. CIA may respond to written requests by the FBI for clan­ destine collection abroad by CIA of information on foreign terrorist or counterintelligence matters involving private American citizens. Such collection activity may involve both liaison services and unilateral operations... ,31 In January 1978, President Carter issued Executive Order 12036, "United States Intelligence Activities.” 32 Like the Ford administration order that preceded it, a section of the executive order foreclosed domestic intelligence by the CIA. It restricts the agency to foreign intelligence gathering, to intelligence gathering concerning the "foreign aspects” of traffic in narcotics, and to the conduct of foreign counterintelligence activities out­ side the United States. The order requires the agency’s counter­ intelligence and foreign intelligence activities within the United States to be conducted "in coordination with the FBI subject to the approval of the Attorney General.” The order does permit the agency to conduct investigations of applicants, employees, and other persons with similar associations with the agency. The Carter order also places a number of specific restric­ tions on what the CIA (and other foreign intelligence agencies) may do. These restrictions are formulated in terms of a new legal construct called a "United States person,” meaning a U.S. citizen, a resident alien, or any association substantially com­ posed of such people. The CIA is forbidden to engage in any electronic surveillance or unconsented physical searches within the United States. Both mail openings and mail covers (exami­ nation of envelopes) are proscribed at home. Physical surveil­ lance of U.S. persons within the United States is forbidden, with a significant exception for security surveillance of employees, former employees, employees of agency contractors, and certain military personnel. CIA employees are prohibited from undis­ closed participation in domestic organizations unless the organi­ zation is composed primarily of individuals who are not U.S. persons and who are reasonably believed to be acting on behalf of a foreign power. The Carter order also limits CIA use of in­ trusive techniques against U.S. persons overseas, allowing their use only in accordance with "procedures established by the (D i­

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rector of the CIA) and approved by the Attorney General.” Disposing of the problem of domestic CIA activity by simply saying there should be none would be a pleasant solution to a troublesome issue. There is little disagreement that the CIA should have no direct domestic intelligence role. The domestic adventures of the late 1960s and 1970s were a serious mistake that even the agency’s most ardent defenders have admitted. But even after closing down CHAOS, RESISTANCE, M ERRIM AC, the mail-opening program, and the implementation of Executive Order 12036, the FBI and CIA will remain interlocked in cer­ tain important respects. In order to carry out its domestic missions, for instance, the FBI must have information about the activities of certain Ameri­ cans abroad. Colby acknowledged this need in his directive ter­ minating CHAOS, and President Carter recognized it in Execu­ tive Order 12036. If FBI activity abroad is not to be extended beyond the present liaison offices in major American embassies, then the CIA must perform certain overseas services (for exam­ ple, physical surveillance) for the bureau. The bureau must sup­ ply background information on "U.S. persons” traveling abroad if the agency is to respond effectively to these "levies.” Con­ versely, the bureau is charged under Executive Order 12036 with performing domestic electronic surveillance for foreign intelli­ gence and counterintelligence purposes forbidden to the CIA.33 The distinction between foreign and domestic intelligence is not always easy to maintain. With citizens, resident aliens, and foreign nationals jetting in and out of the country, considerable information sharing between the FBI and the CIA will continue to exist. Executive Order 12036, as it applies to the CIA, is very vague at crucial points. For example, information-sharing coun­ terintelligence operations are to be conducted in accordance with more of those "procedures agreed upon by the Director of Cen­ tral Intelligence and the Attorney General,” and these are se­ cret. CIA surveillance of "U.S. persons” overseas is governed by similar procedures— also secret. Given the past abuses by both the FBI and the CIA, at least the outlines of these guidelines should be made public. Complete secrecy spawns fears that cer­

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tain essentially domestic law enforcement cases may be treated as "foreign,” allowing too much CIA participation, or that the executive branch may alter or ignore the procedures at will. Furthermore, the "personnel security exception” to the prohibition on CIA domestic physical surveillance is of ques­ tionable necessity. If the agency can rely on the bureau for sur­ veillance services in domestic counterintelligence, why would a similar reliance be impractical for personnel security ? Executive Order 12036 is a salutary gloss on the original CIA charter, and only that. The original security mandate of the director of cen­ tral intelligence to protect all intelligence sources and methods remains in effect until Congress provides a new charter. CIA reform should not be left wholly to the executive branch. While the president has primary constitutional responsibility in foreign affairs and defense (despite currently fashionable suggestions to the contrary), new legislation is necessary to limit CIA missions and more clearly define its domestic activity and surveillance of U.S. persons abroad. THE NATIONAL SECURITY AGENCY

During the summer of 1975, the press reported that the Nation­ al Security Agency (N SA ) supplied domestic intelligence infor­ mation gathered from intercepted electronic communications to army intelligence, the FBI, the CIA, and the Secret Service throughout the 1960s and early 1970s. The disclosures revealed that N SA regularly monitored much of the cable traffic into and out of the United States, as well as microwave transmissions of international telephone calls. Not many Americans are familiar with the function of NSA. Founded by a top secret directive in 1952 from President Truman, N SA intercepts and deciphers all foreign encrypted electronic traffic incoming and outgoing from the United States.34 N SA ’s technical capacity for monitoring communica­ tions, especially radio communications, is most impressive. V ir­ tually every electronic transmission through the air, anywhere in the world, can be picked up by NSA, which is capable of scan­ ning 300,000 radio communications simultaneously. Telegraph

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and telex relays of written words are recorded directly into com­ puter banks, and computers scan these for key words. Voice communications are also monitored, and the relevant conversa­ tions are then recorded. N SA officials contend that their man­ date extends to unencrypted messages as well. N SA ’s mission has always been foreign intelligence collection. While nothing in executive directives to N SA specifically prohibits the agency from intercepting wholly domestic communications within the United States, N SA policy has excluded it. Where communica­ tions to and from the United States are concerned, however, N SA maintains that the Fourth Amendment’s requirement of a judicial warrant for electronic eavesdropping does not apply to its monitoring for foreign intelligence purposes.35 Implicit in N SA ’s mission is the troubling possibility that the agency can, i f ,necessary, monitor the communications of Americans. From "the late 1960s until 1973, for example, N SA specifically targeted the international communications of certain American citizens.30 No warrants were sought or obtained for these "nonforeign intelligence” interceptions.37 N SA determined the relevance of the communications it scanned by picking out certain key words, and the key words were maintained on "watch lists.” Domestic watch lists were created by outside agencies submitting names to NSA. The first domestic watch list began in the late 1960s, when, as we have already seen, the military focused its attention on civil disturbances. Major General William P. Yarborough, as­ sistant chief of staff for intelligence from 1967 through 1968, asked the N SA to monitor international communications for signs of foreign involvement in stimulating domestic civil dis­ order.38 This civil disturbance watch list was formalized by N SA in 1969 under the code name M IN ARET, and other agencies, notably the FBI, made use of the intelligence gathered in this manner. By 1973, the FBI had supplied approximately 950 of the 1200 American names on N SA ’s civil disturbance list; other names were supplied by the Secret Service and the CIA. Some 2000 reports were eventually distributed under M IN A RET .39 A second watch list of American names was maintained during this period at the request of the Bureau of Narcotics and Dangerous Drugs (B N D D ). The Church Committee reported that this

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narcotics watch list resulted in the dissemination of about 1900 reports on drug traffickers to the BN D D and the CIA. Both the narcotics and the civil disturbance watch lists were discontinued in 1973, after their legality was questioned by At­ torney General Elliott Richardson. Despite the argument that N SA ’s domestic intelligence collection was incidental to its for­ eign intelligence monitoring, court decisions of the early 1970s made it impossible even for N SA to ignore its legal vulner­ ability. On October x, 1973, the attorney general sent memoran­ da to FBI Director Kelley and to the director of the Secret Ser­ vice ordering them to cease requests for N SA information collected "by means of electronic surveillance,” 40 and required that both agencies obtain the attorney general’s approval prior to any future requests for N SA information. In October 1975, Air Force Major General Lew Allen, then the new N SA direc­ tor, told the Church Committee that N SA would no longer ac­ cept requests for targeting Americans (by inclusion on watch lists): . . . the attorney general’s direction is that we may not accept any requirement placed on the names of U.S. citizens unless he personally approved such a requirement; and no such ap­ proval has been given.41

In 1976, Attorney General Levi issued new, secret N SA guide­ lines concerning the retention and dissemination of information on Americans collected in the course of foreign intelligence monitoring. Another N SA program that involved invasion of privacy was called Operation SHAMROCK, a massive program in com­ parison with M IN ARET. From August 1945 until May 1975, N SA (and its predecessor organizations) routinely received copies of international telegrams sent to, from, or retransmitted from the United States. The Church Committee concluded that SHAMROCK was the largest governmental interception pro­ gram affecting American citizens, "dwarfing C IA ’s mail opening program.” 42 While N SA had steadfastly maintained that SHAM ­ RO CK’S purpose was to obtain information only on foreign targets, the program gave the agency access to almost all tele­

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grams sent by Americans over the facilities of RCA Global and IT T World Communications.43 Once N SA had copies of these telegrams, they were disseminated according to existing agency criteria, which meant the watch lists. Operation SHAMROCK was ended on May 15, 1975, by Secretary of Defense James Schlesinger, who felt that the program was no longer a valuable source of foreign intelligence. By the time SHAM ROCK was discontinued, however, it was no longer needed. Almost all in­ ternational telegrams are now relayed by radio waves, which N SA can monitor electronically, without the approval or consent of the communications companies involved. Like the CIA and army intelligence, N SA also committed abuses in the name of organizational security. From the incep­ tion of the agency until October 1974, N SA ’s Office of Security maintained extensive files on Americans. The Church Commit­ tee pointed out that, unlike the C IA ’s operation CHAOS, "these files were not created for the purpose of monitoring the activi­ ties of Americans, but for carrying out N SA ’s legitimate foreign intelligence mission.” 44 During the 1950s and 1960s, N SA suffered some embar­ rassing security lapses, and espionage and defections by N SA employees to the Soviet Union were matters of acute concern. The files accumulated by N SA ’s Office of Security (which in­ cluded the names of a number of political, literary, and artistic figures) were intended, however mistakenly, to help ensure the security of N SA personnel. However, the other agencies soon had free and easy access to these N SA files, especially the CIA during the period of operation CHAOS.45 N SA destroyed its background files in 1974.46 Nevertheless, the Office of Security still maintains suitability files on its employees and continues to maintain a few files on journalists and writers who publish books and articles relating to NSA. In addition to maintaining files, N SA attempted to mount an "external collection program” out of its Office of Security between 1963 and 1967. In a few instances, N SA personnnel were placed under physical surveillance away from N SA facili­ ties to establish whether they were in contact with foreign agents. This program was spontaneously abandoned, apparentfy

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because the Office of Security realized it did not have the re­ sources to sustain it.47 President Carter’s Executive Order 12036 in 1978 deals with N SA as well as with the CIA. The relevant provision com­ mands that no agency within the Intelligence Community shall engage in any electronic surveillance directed against a United States person abroad or designed to intercept a communication sent from, or intended for receipt within, the United States except as permitted by procedures.. . established by the head of the agency concerned and approved by the Attorney General.48 Executive Order 12036 does not concern N SA surveillance of communications wholly outside the United States where no U.S. person is involved. Routine N SA monitoring of incoming and outgoing radio signals for foreign intelligence purposes is gov­ erned by the words "directed” and "designed.” Surveillance may not be directed at U.S. persons at home or abroad; they may not, in other words, be targeted. However, routine N SA moni­ toring can continue unaffected as long as the code words for re­ cording and review on the watch lists are subjects rather than persons. U.S. persons can be targeted only in accordance with secret guidelines worked out between the N SA director and the attorney general. Other provisions of Carter’s 1978 executive order allow NSA to disseminate information about the activities that may violate federal or state laws to the appropriate law enforcement agencies and, as with the CIA, to conduct security investigations within the United States (including physical sur­ veillance) of present employees or contractors. Some problems still remain with N SA ’s relationship to do­ mestic intelligence. On the whole, Executive Order 12036 strikes an acceptable balance between the goal of keeping the N SA out of domestic law enforcement, while allowing it to get on with its proper role in foreign intelligence. But just as with the case of CIA-FBI relations, there is an overreliance on secret guide­ lines. What are the criteria used in making exceptions to the general prohibition against targeting Americans? To give no in­ dication of them invites suspicion.

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Regulating the enormous technical capacity of N SA solely by executive directives is also problematic. A statutory charter for N SA would formalize the foreign intelligence limitation on the agency. The Foreign Intelligence Surveillance Act of 1978 improved on Executive Order 12036 by mandating "minimiza­ tion” procedures to reduce retention of information acquired about U.S. persons in the course of N SA ’s foreign intelligence collection.49 While this statute falls short of providing an N SA charter, its limitations are welcome. There is also the nagging question of N SA security. Clear­ ly, a very sensitive agency like N SA must be accorded some lati­ tude when it collects information about employees and even about certain nonaffiliated persons. The presumption should be, however, that when sustained surveillance is undertaken within the United States, it should be conducted by the FBI. Carter’s order fails on this point, just as it fails with respect to other agencies conducting their own security investigations. THE IN TERN AL REVENUE SERVICE

The Internal Revenue Service ( 1RS) maintains very large amounts of personal information about Americans. Consequent­ ly, it was especially troubling when exposés in the mid-1970s revealed that the 1RS had been promiscuously supplying tax re­ turn information to other agencies of the federal government— and especially to the FBI and the White House— and from 1969 to 1973, had deployed a special service staff to target political dissidents, both individuals and groups, for scrutiny. The latter came close to being an 1RS "CO IN TELPRO .” According to section 6103 of the Internal Revenue Code, tax returns are open to inspection "only upon order of the Presi­ dent,” and according to "rules and regulations prescribed by the Secretary or his delegate and approved by the President.” "R e­ turn” has been broadly interpreted to include all information received concerning an individual or group tax liability. Trea­ sury Department regulations provide that U.S. attorneys and Department of Justice lawyers may have access to returns when necessary to perform their duties, but they must state, in writing, why they need to inspect the records. Other government agen­

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cies may inspect tax returns by providing written reasons for the inspection, but in these cases, inspection is at the discretion of the Secretary of the Treasury or a designate, the commissioner of internal revenue.50 By statute, the IRS has been granted impressive powers to invade the financial privacy of American citizens. To collect tax revenues, the IRS may obtain financial records without the tra­ ditional showing of probable cause necessary to obtain warrants or without the judicial procedure necessary to obtain subpoenas. The FBI, through the Department of Justice, can have easy ac­ cess to IRS files. Tax returns were used by the FBI in the course of several COINTELPRO operations, and the FBI occasionally requested the IRS to review the returns of its surveillance targets. (Pre­ sumably with an eye on an audit or even prosecution.) Easy FBI access to IRS data enabled the bureau to identify contributors to organizations it was monitoring and add these names to their files. The CIA also obtained information from the IRS, appar­ ently on an informal basis, from employees within its Com­ pliance Branch.51 The performance of the IRS’s special service staff (SSS) during the 1960s and 1970s was particularly troublesome. Pres­ sure to create the special service staff came from both the White House and the Senate Government Operations Committee.52 The SSS was composed of representatives from four IRS divi­ sions— audit; collection; intelligence; and alcohol, tobacco, and firearms— and it worked in secret in liaison with the Internal Security Division of the Justice Department and the FBI. Typi­ cally, the SSS selected individuals and organizations for their extremist politics and then routinely examined their sources of income to determine whether they were violating the tax laws. The SSS cast an extremely wide net. For example, a series of memoranda from the assistant commissioner for compliance to regional IRS commissioners in 1968 and 1969 requested infor­ mation from the returns of such diverse organizations as the New Left Movement, the Medgar Evers Rifle Club, and the Fund for the Republic.53 The Church Committee report con­ cluded that the FBI was by far the largest source of SSS targets. The SSS was not a peculiar response of the Nixon administra­

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tion to dissent, however. In 1961, the IRS engaged in a similar, if smaller, venture at the request of President Kennedy; eighteen organizations were selected for "concentrated tax enforcement” in what was called the Ideological Organizations Project.54 Like the army, the CIA, and NSA, the IRS claims it is no longer involved in any domestic intelligence collection as such. The SSS has been disbanded. Stricter internal procedures have been instituted for the release of tax return information to other units of government, and better controls over field intelligence activities have been introduced. Debate continues over proposals to limit access to tax information by non-IRS federal users.55 The central question in the debate is whether government, hav­ ing gathered information for the specific purpose of enforcing the tax laws, should use that information to enforce other laws. When organized crime is the target of such use, the IRS has been applauded, but when a political group is the object of con­ cern, the matter appears not quite so simple. Americans are not purists in their attitude toward the tax laws. The Internal Revenue Code, with its various credits and exemptions, is intended (through "tax expenditures” ) to serve other social purposes than raising federal revenues. In the same way, it has been accepted that tax investigations may be under­ taken for reasons other than protecting the integrity of the in­ ternal revenue laws. But is it really legitimate to target an in­ dividual for IRS investigation for any reason other than the likelihood of tax violations? Should we continue to accept the argument that those suspected of other forms of criminality may properly be subject to special tax scrutiny as well ? If we could answer this question in the negative, then controlling the IRS would be easier. But if tax returns were for tax purposes only, and not available for broader law-enforcement purposes, the cost to law enforcement would probably outweigh the benefit in allaying suspicions of misuse. A distinction between types of enforcement activity in allowing access might help relieve this difficulty. The Tax Reform Act of 1976 provided that nonlawenforcement access to IRS information that had been provided by taxpayers could be obtained only by the order o f a federaf judge at the request of a federal agency head, the attorney gen­

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eral, the deputy attorney general, or an assistant attorney gen­ eral. Nonlaw-enforcement access to other tax return information can be obtained only by the written request of agency heads and the Justice Department officials named above. The act does not distinguish between the law-enforcement purposes for which access may still be easily had. Thus, it does not speak to the problem sketched above, but in encumbering access for nonlawenforcement purposes, it is a welcome initiative. THE SECRET SERVICE

The U.S. Secret Service is the oldest federal law enforcement agency. Title 18, Sec. 3056, of the United States Code defines the service’s present functions: to protect the president, vice-presi­ dent, their families, and presidential candidates; to protect the nation’s currency; to enforce the Government Losses in Ship­ ment Act and the Gold Reserve Act; to manage personnel se­ curity for the Treasury Department; and to safeguard U.S. his­ toric documents. In addition, 3 U.S.C. 202-209 charges the service with protecting the executive mansion and certain for­ eign diplomatic missions. In order to carry out these missions, the service must be a major "consumer” of domestic intelli­ gence.56 The Secret Service legitimately needs information about political dissidents whose rhetoric or activity indicates the possi­ bility of physical aggression against high government officials. As a consequence, continuing files on violence-prone groups and individuals must be maintained by the service. However, the Secret Service does not need to know everything about all po­ litical extremists and does not need to keep as many names (once over a million, now reported down to 39,000) in its files as it does at present. In fact, the service’s approach to dealing with potential "threats to the president” needs to be improved.57 In February 1965, still reeling from the assassination of President Kennedy, the Secret Service and the FBI negotiated a new jurisdictional agreement concerned with protecting the life of the chief executive.58 The agreement reemphasized the FB I’s "general jurisdiction” over "subversion,” while the Secret Service was given operational responsibility for temporary ac­

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tions necessary to neutralize a threat to the president. The ser­ vice agreed to "conduct no investigation” of members of any groups without first notifying the FBI. The bureau was to sup­ ply intelligence to the Secret Service, and the service would then interview individuals thought to pose threats to the president and plan security arrangements. Under liaison guidelines established with the FBI in 1974,09 the following categories of information are transmitted to the Secret Service by the F B I: 1. information pertaining to a threat, plan, or attempt by an individual, a group, or an organization to physically harm, kidnap, or embarrass the persons protected by the Secret Ser­ vice, or any other high government official; 2. information pertaining to threats, incidents, or demon­ strations against foreign diplomatic missions; 3. information pertaining to any person who makes oral or written statements about high government officials in the following categories: threatening statements; irrational state­ ments; abusive statements; 4. information pertaining to terrorists (individuals and groups) and their activities; 5. information regarding anti-American or anti-U.S. Government demonstrations in the United States or overseas; 6. information regarding civil disturbances. This shopping list is coupled with a disclaimer that states that "information pertaining to individuals or groups expressing legitimate criticism of, or political opposition to, the policies and decisions of government or government officials is not desired or being solicited by the Secret Service.” In this context, however, the disclaimer does not inspire much confidence. The Secret Ser­ vice’s information requirements, as stated in the 1974 guidelines, imply a broad, continuing, political intelligence operation quite independent from the FBI. The 1974 requirements were derived from a 1969 "criteria study” prepared for the Secret Service by the Bio-Engineering Corporation. Public debate of these criteria would not be in the national interest, but some congressional review would be use­ ful. Perhaps examination by some new panel of independent experts would clarify the proper extent o f Secret Service infor­ mation needs. The only information the Secret Service should

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expect to obtain from the bureau is what the FBI has collected as a natural by-product of its criminal intelligence operations. The bureau should not undertake general political intelligence gathering to identify, for instance, more people who make "abu­ sive statements” about "high government officials.” The Secret Service’s basic need for information is valid, nevertheless. Com­ mon sense dictates that extensive Secret Service interviewing and surveillance of high-risk individuals does deter aggression against potential targets. Unless we want to create an elaborate investigative mechanism within the Secret Service itself, the ser­ vice must be allowed to draw some information from the FBI and local police. LOCAL POLICE

The disorders of the middle 1960s spawned the rapid develop­ ment of state and local police units, commonly known as "red squads,” concerned with monitoring dissent. Such police units had existed intermittently since the late nineteenth century, but, as with national intelligence gathering, were sporadic in nature, usually created to meet some crisis of the moment. Today, while there is lessened concern in local law enforcement agencies over extremist political activity,60 most domestic intelligence opera­ tions that began or were expanded in the 1960s continue to exist. Some police departments have special sections for crime in po­ litical contexts, some handle "domestic intelligence” matters interchangeably with "ordinary” criminal intelligence. A few urban "red squads” were notorious for their political policing in the 1960s. In a N ew York Times interview of Octo­ ber 10, 19 7 1, for example, then Police Commissioner (later Mayor) Frank L. Rizzo of Philadelphia boasted that his intelli­ gence unit, called the civil disobedience squad, had amassed 18,000 separate files on dissidents in the City of Brotherly Love. The experience of two cities, New York and Chicago, will suf­ fice here to illustrate the difference between a police intelligence unit that functions properly and one that does not. The problem that developed in Chicago (and this is a dan­ ger for all police intelligence units) arose because the police intelligence unit was too intimately linked with the city s ruling

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political structure. There were two unhappy results. First, the political structure— the Cook County Democratic Organization of Mayor Richard C. Daley— was hypersensitive to political dis­ sent, and as a result the intelligence unit of the Chicago Police Department devoted excessive time and energy to monitoring it.61 Second, the mayor’s office received politically useful infor­ mation from the intelligence unit. The Chicago red squad conducted surveillance of radical and reformist groups opposed to the Daley organization and maintained intelligence files on a number of Daley political op­ ponents. The activities of a number of organizations were co­ vertly observed by undercover officers or were penetrated by informants who attended meetings. Organizations such as the Citizens Action Program, which opposed the mayor’s plans for a crosstown expressway; People to Save Humanity, headed by the Reverend Jesse Jackson; and the Alliance to End Repression, which had campaigned against police brutality, were monitored by the Chicago police. Files were kept on prominent individuals, including Republican State’s Attorney Bernard Cary; State Sen­ ator Richard H. Newhouse, who had challenged Daley for the mayoral nomination; and the Reverend Theodore M. Hesburgh, president of Notre Dame University and former chairman of the U.S. Commission on Civil Rights. The Chicago police justified their actions by claiming they needed to know about disruptive demonstrations in advance.62 The Chicago intelligence unit sur­ vived a seven and one-half month grand jury investigation in 1975. No indictments were returned, but the grand jury issued a report critical of the Chicago red squad. The police depart­ ment refused to cooperate with this investigation, and no sig­ nificant reform has yet taken place in Chicago. The intelligence division of the New York City Police De­ partment (known for years as the Bureau of Special Services and Intelligence or BOSSI) has a very different record than that of the Chicago force. Anthony Bouza, an assistant police chief who served for eight years in BOSSI, has written that BOSSI wiretapped, infiltrated, bugged, photographed, sur­ veyed, investigated, spied, and unashamedly undertook m y strategy that enabled it to do its job effectively. The unit was

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kept under only one restraint: the bureau had to obey the law punctiliously.03 BOSSI stressed the use of only lawful techniques (as de­ fined by the courts at particular times), and, even more im­ portantly, made it clear to its members that they were working for the police department and only the department. BOSSI did not respond to City Hall concerns about political opponents and prided itself on its independence. In contrast to Chicago, the New York operation focused on the law enforcement utility of the information it gathered. Nevertheless, BOSSI fell victim to the fear of the police "spying” that, as with so many things good and bad, took hold in New York City before it spread to the rest of the country. Mayor John V. Lindsay and his liberal Police Commissioner Patrick V. Murphy terminated BOSSI in the mid-1960s. In its place, a new, comprehensive Intelligence Division was created in the police department, with responsibility for both organized crime and public security matters. New guidelines for public se­ curity intelligence were issued.64 These guidelines are specific on some points, such as access to files, but are too general in other areas, such as when moving from overt to covert collection tech­ niques is justified. The present commander of the Intelligence Division be­ lieves it is as effective as the old BOSSI.65 Bouza, however, has doubts: Ten years ago, the bombers of Fraunce’s Tavern would have likely participated in picketings, distributed pamphlets, and prepared tracts. Some kind of public evidence would have been available, because a cause must be articulated.. . . If the names and histories of the bombers did not appear in [the Intelligence Division’s] files in 1975, then I would conclude, not that the terrorists had effectively hidden their traces, but that the agency had failed to meet its responsibility to inves­ tigate potential subversion and criminal activity.66 Despite the occasional abuses by many urban red squads, large metropolitan and state police forces do need a specialized intelligence capability for both organized crime and politically inspired crime. In his widely approved text, Police Administra­

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tion, O. W. Wilson (a one-time Chicago superintendent) wrote that: He [the Chief} should have . . . information regarding those in his community who may be members of secret organiza­ tions that threaten the local or national security through sub­ versive activities or espionage. He should know what or­ ganizations are devoted to engendering racial hatred and disturbances and what their programs are.67 Most informed observers today would fault Wilson’s assessment for overbreadth and for using the vague term "subversive.” Still, police intelligence gathering is essential to preventive law en­ forcement, including prevention of politically motivated crime. The size and extent of a police intelligence operation depend on the size and socioeconomic character of the jurisdiction being policed. In order to overcome the problems of collecting too much data, the misuse of intrusive collection techniques, and Chicagostyle political policing, major departments have begun adopting guidelines to govern intelligence collection. Los Angeles, for instance, has issued both a policy statement in police intelligence and guidelines for its conduct. The policy statement affirms: the principle that public disorder intelligence, properly gathered and maintained, is essential to the performance of [the Department’s] mandated duty—to keep the public order in the City of Los Angeles. At the same time, the Department considers it both unnecessary and wrong to maintain files on any organization, unless its ideology advocates criminal con­ duct. . .. Likewise, it is both unnecessary and wrong to main­ tain a file on an individual unless that person is either a leader of such a group, or unless that person has attempted or threat­ ened such acts.68 The guidelines, unfortunately, deal almost entirely with maintenance and access to files; intelligence collection tech­ niques are barely mentioned.69 Considerably stricter guidelines have been adopted by the Metropolitan Police of Washington, D.C., for its newly re­ organized Investigative Services Division. The division is di­ rected by the guidelines to 'provide the department with data as required to meet its lawful responsibilities,” 70 including crime

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prevention. These guidelines not only address the maintenance of files, but they also specify special training for division person­ nel; procedures for using informants and undercover officers; and procedures for employing physical surveillance, electronic surveillance, and even photography. More importantly, the guidelines specify a threshold for initiating information gather­ ing. All local law enforcement agencies that do any domestic intelligence work should develop and publish guidelines. While no model has been in use long enough to be recommended with ringing confidence, the effort by the Washington, D.C., police might be followed.71 (And failing this, there are always the attorney general’s guidelines for the FBI.) Oversight by local government and internal quality control are also necessary to regulate local police intelligence operations. Finally, the prob­ lem of the relation between local police intelligence units and the FBI must be considered. Most serious politically motivated crime is interstate in character, but often the more serious viola­ tions involved are matters of state law. While some federal crime is usually involved in politically motivated offenses (for example, interstate transportation of explosives), the primary felonies (murder, arson, assault) are state crimes. Yet local law enforcement cannot fulfill its own intelligence needs— either for ordinary criminal intelligence or for domestic intelligence. In the case of state and local police intelligence operations, the American federal system gives rise to a characteristic prob­ lem: how to arrange divisions of domestic intelligence labor between the national force and hundreds of local and state forces, all with different needs and capacities. The FBI, or some national agency, must service local police information needs. On the other hand, the FBI should not be encouraged to duplicate the work of local police. Over a decade ago, Morton Grodzins wrote of the development of a "national police system” in which "there exists the most intimate federal-state-local collabora­ tion.” 72 Domestic intelligence involves some FBI-local collabo­ ration, but these collaborations are largely ungoverned by pub­ lished rules. The Church Committee missed an opportunity to explore this situation, and there ought to be some congressional attempt to rectify this in the near future.

5 . Covert Techniques

These things [C O IN T E LP R O techniques] were great for getting at groups like the Klan and the SLA [Symbionese Liberation Arm y]. You have to break their balls any way you can. . . . Kelley said it won’t be done any more, but I can assure you that it will, informally if not in an official program. — Unnamed Special Agent, quoted in Sanford J. Ungar, FBI

THE STO RY of domestic intelligence abuses in America is more than just the F B I’s COINTELPRO excesses, or its over-broad collection programs, or the dabbling by agencies having no proper business in the area. Often, the techniques of collection employed by government agencies to monitor dissent are them­ selves the most objectionable elements of intelligence gathering. By the early 1970s, a broad array of methods— some of very questionable legality— were used regularly by the intelligence agencies and local police. How these techniques came into use, how they were abused, and how their use should be limited are important questions in the domestic intelligence debate. ELEC TRO N IC SU RV EILLA N C E

Wiretapping and microphone surveillance (bugging)— the use of electronic devices to overhear private conversations— are the investigative techniques most associated with monitoring dissent. While not so widely used for domestic intelligence work as pop­ ularly supposed, the technology of electronic eavesdropping has been seriously abused.

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Harlan Fiske Stone prohibited the use of wiretaps by the Bu­ reau of Investigation when he became attorney general in 1924. Indeed, the bureau’s Manual of Rules and Regulations in effect at that time specifically referred to wiretapping as an unethical practice.1 Agents of the Treasury Department’s Bureau of Prohi­ bition, however, used wiretapping in the 1920s to enforce the Volsted Act, thereby creating a policy dilemma when the Bureau of Prohibition was transferred from the Treasury to the Justice Department in 1930. Then Attorney General William P. Mitch­ ell resolved the difficulty by allowing both bureaus to conduct wiretapping with "senior level approval for limited purposes,” 2 which meant approval by an assistant attorney general or, in the case of the FBI, by the director. In June 1934, Congress enacted the Federal Communications Act, which made it a crime for any person to "intercept and di­ vulge” the contents of any wire or radio communication.3 The Supreme Court, four years later, ruled that the Communications Act required the federal courts to exclude material obtained by wiretaps from evidence.4 The Court reinforced its interpretation of the Communications Act in 1939 by holding that material even indirectly derived from wiretaps was also inadmissible as "the fruit of a poisoned tree.” 5 Some FBI wiretapping must have continued, however, be­ cause on March 15, 1940, Attorney General Robert Jackson, in order no. 3343, reinstated the complete, Stone-style ban on all wiretapping by every section of the department. This prohibition was short-lived. Less than three months later, in what has become a very controversial memorandum, Franklin Roosevelt took ex­ ception to Jackson’s ban. Roosevelt told Jackson that the Court’s decisions permitted wiretapping in connection with "matters con­ cerning the defense of the nation.” GAs a result, wiretaps purely for intelligence purposes came to be considered legal within the Justice Department, with the recognition that any information obtained could not be used in the federal courts. One year later, Jackson wrote to Congressman Hatton Summers that "the only offense under the present law is to intercept any communications and divulge or publish the same___ Any person, with no risk of penalty, may tap telephone w ires. . . and act upon what he hears or make any use of it that does not involve divulging or publi­

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cation.” 7 Jackson’s successor, Attorney General Francis Biddle, personally examined requests to authorize taps and approved them in espionage, sabotage, and kidnapping cases, but later in­ cumbents took a more casual approach to the approval process. During the Truman administration, wiretapping, with the approval of the attorney general, was extended to all sorts of domestic security cases and to situations where life might be en­ dangered. Eisenhower’s attorney general, Herbert Brownell, un­ successfully urged Congress to legitimize warrantless "national security” wiretaps so that information obtained would not taint federal prosecutions (as occurred, for instance, in the Judith Coplon case in 1949). Despite Congress’ refusal, the Justice Department continued to authorize wiretaps for intelligence collection. In fact, the executive branch practice in authorizing taps be­ came so flexible in the decade after World W ar II that, in March 1962, Attorney General Robert Kennedy tidied up mat­ ters by formally rescinding Jackson’s old 1940 prohibition. So many exceptions had been recognized within the department that, to Kennedy, it seemed time to bring policy in line with practice! In the mid-1960s, however, the Johnson administration attempted to limit wiretaps once again. By a directive of June 30, 1965, Johnson prohibited wiretapping "except in connection with investigations related to the national security.” 8 J. Edgar Hoover, reacting to increasing media criticism of government wiretapping, cut back existing FBI wiretaps in Sep­ tember 1965 and told Attorney General Nicholas Katzenbach that the bureau would request no new authorizations. Katzen­ bach quickly reminded Hoover that bona fide national security wiretaps were still considered licit, which was also the position of Ramsey Clark, Katzenbach’s successor. Clark issued guide­ lines to all executive agencies and departments in June 1967, reemphasizing that danger to "national security” justified wire­ tapping.9 The number of taps decreased in the mid-1960s, but the manner in which the government employed wiretapping con­ tinued until 1967, when the Supreme Court again turned its at­ tention to electronic surveillance, both wiretapping and bugging. The use of microphone surveillance developed differently

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from that of wiretapping within the FBI. Since no interception of a radio or wire transmission was involved, the practice did not come under the Communications Act, and the Justice De­ partment did not issue guidelines for microphone surveillance during the 1930s (although it is safe to assume the technique was employed along with wiretapping) .10 There was no case by case approval at the departmental level. In 1942, the Supreme Court held that bugging that involved physical trespass violated the Fourth Amendment.11 However, no attorney general cau­ tioned J. Edgar Hoover that bugging could be resorted to only if it did not involve trespass until 1952, a decade after the Court’s decision.12 But even this stricture was short-lived. Attorney Gen­ eral Herbert Brownell instructed Hoover to disregard the tres­ pass limitation on bugging in national security cases.13 Hoover, in fact, had been using microphone surveillance all along, some of which involved physical trespass. In a 1961 memo to then Deputy Attorney General Byron White, Hoover stated that the bureau was employing microphone surveillance, including bugging that involved trespass, both for domestic se­ curity investigations and for "uncovering major criminal activi­ ties.” 14 The extent of Hoover’s use of microphone surveillance went beyond even the 1954 Brownell memo, but as the Church Committee report noted, Hoover’s disclosure to White "did not lead to further reconsideration of the microphone surveillance policy by Justice Department officials.” 15 FBI use of bugging continued unchanged until 1965, when, as part of his acrossthe-board cutback on controversial techniques, Hoover reported to Attorney General Katzenbach that he had discontinued all microphone surveillance. Presumably, Hoover’s statement re­ ferred only to new installations. Katzenbach promptly replied to Hoover, emphasizing that bugs not involving trespass could be installed lawfully at FBI discretion and that those involving tres­ pass were licit with authorization by the attorney general. In December 1967, the Supreme Court altered the entire legal context of wiretapping and microphone surveillance.16 Rul­ ing in the case of Katz v. U S ., the Court abandoned the distinc­ tion between wiretapping and overhearing by microphone and discarded the physical trespass standard for unlawful micro­

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phone surveillance. The Court held that persons had a Fourth Amendment right to be secure against warrantless electronic overhearing of any sort in circumstances where they enjoyed a reasonable expectation of privacy. Both the Katz decision and Title III of the Omnibus Crime Control and Safe Streets Act of 1968,17 which created a proce­ dure for government officials to obtain judicial warrants for electronic searches, failed to resolve the question of whether or not an exception to the warrant requirement existed in national security cases. Some language in Justice White’s concurring opin­ ion in Katz,18 and echoed in Title III, suggested that the presi­ dent could claim such an exception. Many members of the intel­ ligence community believed that an exception existed to all Fourth Amendment constraints on government for intelligence gathering purposes.19 According to this theory, the Fourth Amendment was interpreted as a rule of criminal procedure that prohibited searching for and seizing potential evidence in the course of criminal investigations. When no prosecutorial pur­ pose— no prospective use of material as evidence in court—was involved, no Fourth Amendment violation took place. In addi­ tion, it was arguable that the president’s "national security ex­ emption” was sufficiently broad to allow warrantless electronic surveillance in domestic intelligence cases whether the purpose of the overhearing was to gather evidence or intelligence. The Supreme Court rejected the idea of a presidential excep­ tion to the warrant requirement in domestic security cases in the Keith case in 1972.20 In a majority opinion by Justice Powell, the Court held that the Fourth Amendment warrant requirement applied to all electronic searches for domestic security pur­ poses.21 Powell demolished the theory of a general intelligence exception to the Fourth Amendment, at least for domestic pur­ poses, writing that "official surveillance [electronic] whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected pri­ vacy and speech.” 22 An exception to the warrant requirement for foreign intelligence gathering has now been formally recog­ nized by the Foreign Intelligence Surveillance Act of 1978. But the Keith case ended the use of warrantless electronic surveil­ lance for domestic intelligence investigations.

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INFORMANTS

The use of undercover officers and paid (or otherwise directed) informants is one of the most intrusive investigative techniques employed by the intelligence agencies; it is also the most pro­ ductive means of gathering intelligence information. James Q. Wilson, in a recent study of FBI and Drug Enforcement Admin­ istration (D EA ) investigations, wrote that "having productive informants is essential in many FBI cases.” 23 The Church Com­ mittee concluded that "the paid and directed informant is the most extensively used technique in FBI domestic intelligence in­ vestigations.” 24 The General Accounting Office, in a 1976 study, reported that informants were involved in 83 percent of the FBI domestic intelligence investigations that it analyzed, in contrast to FBI use of electronic surveillance in only 8 percent of the cases. These findings appear to correlate with the experience of the Intelligence Division of the New York City Police Depart­ ment.20 The Church Committee found that the FBI Manual places few limits on using informers and that informants com­ monly "report on virtually every aspect of a group’s activity serving, in the words of both FBI officials and an informant, as a vacuum cleaner of information.” 26 An informer may report extensively about innocent politi­ cal activity by both targets and nontargets, even in a legitimate investigation. An informant can be either an undercover officer or a paid informer, but the latter category presents special prob­ lems. An undercover officer has at least received some training, and is subject to organizational discipline. An informer is more likely to be unreliable, whether working in exchange for money or favorable prosecutorial treatment, or out of ideological con­ viction or personal spite.27 A variety of considerations might cause an informer to color, selectively omit, or even fabricate information. Different kinds of informants are used in intelligence inves­ tigations, which creates problems in regulating their use. An in­ former may be recruited and paid or may begin his or her rela­ tionship with a law enforcement agency as a walk-in— someone who volunteers information and agrees to continue providing it. Some informers begin their relationship to a law enforcement

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agency by being interviewed voluntarily and agreeing, for what­ ever reason, to continue the contact. The FBI in its investiga­ tions distinguishes between "confidential sources” (noninvolved persons who observe targets inadvertently) and "informants” (persons who either are involved with targets or have special access to them). The use of informers typically means that law enforcement and intelligence agencies must deal with individ­ uals of dubious character. Informants move around where microphones do not, mak­ ing their use extremely intrusive. Problems controlling inform­ ers can arise when fearful or fanatic "civilians” are used. Conse­ quently, the use of informers should always be governed by written regulations.28 The Supreme Court has declined to create any Fourth Amendment limits on using informants, asserting the classic doctrine that when people associate together and vol­ untarily communicate with one another, an "assumption of risk” exists and vitiates any argument that information is being ob­ tained by a "search.” 29 In recent years, only Justice Douglas has expressed the opinion that government use of informers for in­ vestigation represents a search and that it should be governed by the Fourth Amendment.30 Under the current attorney general’s guidelines for FBI domestic security investigations, informants can be used only in full, not in preliminary investigations. The guidelines also pro­ vide for Justice Department review of investigative files to moni­ tor management of informants by the bureau. Bureau officials are still allowed considerable discretion over the selection and control of informants.31 In January 1977, Attorney General Levi issued further guidelines requiring FBI agents to specifically instruct infor­ mants not to participate in acts of violence; or use unlawful techniques [for example, breaking and entering, electronic surveillance, open­ ing or otherwise tampering with the mail] to obtain informa­ tion for the FBI; or initiate a plan to commit criminal acts; or participate in criminal activities of persons under investiga­ tion, except insofar as the FBI determines that such partici­ pation is necessary to obtain information needed for the pur­ pose of federal prosecution.32

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The Church Committee’s recommendations on regulating the use of informants went even further. The committee pro­ posed that the attorney general or a designee make a written finding that "he has considered and rejected less intrusive tech­ niques and [that] he believes that covert human sources are necessary to obtain information for the investigation” ; 33 only then could an informant be introduced. While admirable in principle, the Church Committee’s recommendation would be very cumbersome in practice. For instance, who is an informant? At what point does the relationship between an FBI agent and a particular interviewee become sufficiently routinized to re­ quire the attorney general’s permission? A procedure allowing the FBI to obtain the attorney general’s authorization to use in­ formants should only be considered as a last resort. If evaluation of the FBI’s experience with the 1977 guidelines shows that abuses are continuing, however, written authorization for using informants may be the only alternative to present practice. Two problems with using informers will always resist com­ plete resolution: how early in an investigation is their use justi­ fied, and what time limits should be set on how long they remain in place? Law enforcement operations demand early and sus­ tained infiltration by an informant of a targeted subject. The closer individuals and groups come to the threshold of violence, the more difficult it is for newcomers, or even casual associates, to gain the "insider” status needed to learn about impending ac­ tions. However, if law enforcement agencies deploy informers before a reasonable likelihood that criminal activity will take place, too many informants will be intruding into the dissenting community. By the same token, law enforcement agents are con­ stantly tempted to leave informants in place once they have been recruited, even though "nothing is happening right now.” What could be more humiliating for a law enforcement agency than to mount an investigation based on some reasonable expectation of criminal activity, have that investigation continue for six or twelve months, conclude that the targeted group probably will not commit a criminal act in the immediate future, suspend the investigation, withdraw the informant, and then have half of City Hall blown to hell a year later by the same group? Waiting too long to begin infiltration can also be a horrible

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mistake. The classic example of late introduction from the intel­ ligence trade involves the plight of the British, war-weary and faced in 1920 with an insurrection in Ireland. The rebels had achieved an impressive penetration of the British governmental apparatus in Dublin, and the British authorities were interested in quickly overcoming this intelligence gap. Of the sixteen agents quickly introduced in an attempt to develop information concerning the capabilities and intentions of the insurgents, thir­ teen were just as quickly killed.34 Even the sternest critics of the use of informants are some­ times forced to admit the utility of the practice. Dershowitz, Silverglate, and Baker have written of the dilemma created when the FBI penetrated the Jewish Defense League (JD L ) in an ef­ fort to prevent JD L violence in the early 1970s: This was not a case where the constable understandably bun­ gled. It was a situation in which the government simply could not have penetrated the JD L— and could not, therefore, have prevented the potentially disastrous consequences—without breaking the law. Accordingly it made a calculated and delib­ erate decision at the highest level, to violate the laws—to engage in '"civil disobedience” in the interests of the higher cause.35 Whether the governmental violations of law in the JD L case were as clear as these authors thought is open to question; there is no doubt, however, that the informer involved there was an unsavory character, that bureau agents controlling him were not scrupulous in directing his activities, but that the use averted violence. MAIL OPENINGS

The opening of personal mail by intelligence agencies, while always of questionable legality in America, is a venerable intelli­ gence gathering technique. Bowen and Neal, in their anecdotal history of the Secret Service, record how William P. Wood, first chief of the service, but earlier an intelligence freebooter for the War Department (on the Lafayette Baker model), mounted quite an effective mail opening operation during the Civil W ai.se In the early months of World War II, British intelligence ex­

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perts taught six FBI agents the techniques of "chamfering” (mail opening). The FBI employed the technique against the diplomatic establishments of unfriendly countries in the United States— countries, that is, unfriendly to Britain’s war effort and to America’s stake in it. This wartime mail opening program ended in 1945, but the FBI resumed opening mail in seven sep­ arate counterintelligence operations during the 1950s and the early 1960s. The Church Committee concluded that these pro­ grams "were, in the main, fairly narrowly directed at the detec­ tion and identification of foreign illegal agents.” 37 The volume of mail opened by the FBI was small compared to that of the CIA program, but the FBI mail openings were more offensive in one respect: the CIA opened only international mail, while the FBI opened, in several instances, domestic mail. Both the CIA and FBI mail opening programs were unknown to and unapproved by any senior official outside the two agencies. Apparently, the FBI secured cooperation from middle-level Post Office and Customs Service officials; one of the FBI programs was even instituted without approval from bureau headquarters. The Church Committee found that several mail opening pro­ grams resulted in the successful identification of illegal agents. Nevertheless, J. Edgar Hoover stopped the FBI mail open­ ings in 1966 because their questionable legality made them a po­ tential object of criticism in an atmosphere of increasing public and congressional concern with privacy issues. Hoover stoutly resisted the 1970 proposal to resume domestic mail openings under the Huston Plan, presumably for the same reason. Hoo­ ver’s attitude was also shaped by the fact that, since 1958, the FBI benefited from the CIA mail opening operations without ex­ pending its resources or directly involving its special agents in a potentially embarrassing activity. The CIA conducted much more sustained mail opening op­ erations than the FBI. Four mail opening programs were carried out by the CIA within the United States, the largest of which, the New York-based program, lasted for twenty years, from 1953 to 1973. The other programs— undertaken in San Fran­ cisco intermittently between 1959 and 19 71, in New Orleans for three weeks in 1957, and in Hawaii on several occasions from late 1954 to late 1955—were minor by comparison.38

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The New York City mail interception project— code-named H T LIN G U A L—was conducted by James Angleton’s counter­ intelligence staff. More than 215,000 letters to and from the Soviet Union were opened, and their contents were photo­ graphed. The FBI, learning about H T LIN G U A L in 1958, con­ sidered the project an infringement on its area of responsibility, but after some initial hesitancy, accepted the operation and asked the CIA to forward any relevant information gathered to the bureau.39 The Church Committee reported that copies of nearly 75,000 intercepted letters were sent to the FBI between 1958 and 1973 under the code name Project H UNTER. The CIA Staff, the CIA Office of Security, and the FBI all contributed names to a H T LIN G U A L watch list that eventually totaled ap­ proximately 600 names.40 Whether the mail openings had any foreign or domestic intelligence value has been a matter of con­ troversy within both the CIA and the FBI. James Angleton de­ fended H T LIN G U A L as "probably the most important over­ view {o f Soviet intelligence activities] that counterintelligence had.” 41 Opening someone’s mail without authorization violates U.S. statutory and constitutional law. As early as 1878, the Su­ preme Court held that letters and sealed packages are protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures.42 In 1970, the Court reaffirmed this princi­ ple, stating that "first-class mail such as letters and sealed pack­ ages subject to letter postage-—as distinguished from packages, magazines, pamphlets and other printed matter— is free from inspection by postal authorities except in the manner provided by the Fourth Amendment [that is, in accordance with a warrant based on probable cause].” 43 Federal law, in addition, imposes criminal penalties for obstructing mail, removing it from a postal depository, or opening it.44 The CIA and FBI mail opening programs, it should be em­ phasized, never received authorization from any president or attorney general. The only possible theory to justify the warrant­ less mail openings is the so-called intelligence exemption to the warrant requirement, the same argument offered for unauthor­ ized electronic surveillance, which, for domestic intelligence purposes, perished in the Keith case. Any future ambiguity about

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the legality of mail openings has been resolved by President Carter’s Executive Order 12036, which specifically prohibits opening mail within the United States for any intelligence pur­ pose, foreign or domestic. The Church Committee reported that since 1947 "the FBI has conducted hundreds of warrantless surreptitious entries to gather domestic and foreign intelligence . . . [and from i960 onward performed] more than 500 warrantless surreptitious mi­ crophone installations.” 45 FBI surreptitious entries were directed against both foreign and domestic intelligence targets. The Church Committee concluded that while "several Attorneys General were aware of the FBI practice of break-ins to install electronic listening devices there is no indication that the FBI informed any Attorney General about its entries for gathering and observation.46 J. Edgar Hoover knew that no convincing legal argument could justify the practice of warrantless entry; the FBI authorized break-ins under its "do not file” injunction. WARRANTLESS SURREPTITIOUS ENTRIES

Unconsented entry by government agents to private premises for the purpose of searching their contents is exactly the sort of state activity that the Fourth Amendment was designed to regu­ late. Unauthorized searching of private premises is considerably more intrusive than a telephone tap or an entry onto the prem­ ises by an informant with the permission of the occupant— a point stressed by Judge Gerhard Gesell in U.S. v. Erlichman.i7 Yet surreptitious entry is precisely what the FBI practiced in its renowned "black bag jobs.” The FBI’s Domestic Intelligence Division considered sur­ reptitious entry to be quite useful. Special agents in charge at the various FBI field offices initiated clandestine entry, subject to headquarters’ rather furtive approval. Even after Hoover dis­ continued the use of warrantless entries in 1966, a few were undertaken by the FBI for domestic intelligence gathering, pos­ sibly without the director’s knowledge. The Supreme Court in the Keith case held that warrantless surreptitious entries of the premises of American citizens with "no significant connection with a foreign power, its agents or agencies” violate the Fourth

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Amendment.48 The April 1978 indictment of former Acting FBI Director L. Patrick Gray, former Associate Director Mark W . Felt, and former Assistant Director Ed Miller for authorizing warrantless domestic entries underscores the present attitude of the Justice Department to the practice, at least for domestic intelligence gathering. Nevertheless, law enforcement officials will continue to be tempted to enter private premises without a warrant. Clandes­ tine entry is even more tempting than a telephone tap or micro­ phone placement because it is quick, untraceable, and potentially very productive. Law enforcement agencies will have to take great care to curb the ever-present temptation to enter the prem­ ises of the subject of an investigation without a warrant. LESS INTRUSIVE TECHNIQUES

Other, less intrusive investigative techniques have been abused in the past by the intelligence agencies. Uppermost on the agen­ da for regulation is the disposition of the massive numbers of intelligence files collected over the years, often incidental to other investigations, concerning politically active groups and in­ dividuals. While no constitutional sanction exists preventing the government from keeping records about its citizens, the reten­ tion of large amounts of intelligence reporting, sometimes no more than gossip, is offensive to both individual privacy and the right to political dissent.49 Congress enacted the Freedom of Information Act of 1966 as amended in 197250 and the Privacy Act of 197451 to allow in­ spection of government files under certain circumstances. Along with many similar state laws52 passed in recent years, these statutes exert considerable pressure on the law enforcement agencies to prune their files and to limit their record keeping to investigations undertaken in anticipation of a crime.53 Despite this legislation, however, the fear remains that the intelligence bureaucracies will always retain more information on individ­ uals and groups than they really require. The need to maintain some intelligence files must be balanced against the bureaucratic tendency to keep every shred of data, no matter how irrelevant. Wariness of government recordkeeping dictates that the criteria

COVERT TECHNIQUES

1 01

for striking this balance should be made very explicit. Even though the harm resulting from too much government informa­ tion retention is difficult to specify, no doubt exists that intelli­ gence files, at least until recently, were far too extensive. The use of certain "light” covert intelligence gathering techniques, such as physical surveillance and mail covers, also requires modification. Some legal authorities make the argu­ ment that when someone appears in public— at a meeting or at a demonstration—no expectation of privacy exists. On the other hand, most of us share a strong sense that being followed or watched by the government is different. Placing someone under visual surveillance, even only in public places, can disclose a great deal about that person’s life and associates. Anyone can perform visual surveillance— a jealous spouse or a curious news­ paper reporter, for example. When an agent of the state per­ forms the surveillance, however, there ought to be some guide­ lines governing its use. The examination of the exterior of envelopes can also reveal much about our associations. When mail covers are fol­ lowed by interviews with correspondents, they open many dif­ ferent windows into our affairs. We knowingly disclose some information by releasing envelopes into the mail, but the dis­ closure is for a limited and specific purpose. Surely, some in­ vasion of privacy takes place, at least marginally, when the names and addresses of our correspondents, the dates and post­ marks on our envelopes, and the weight of our mail is recorded and used for intelligence purposes. "Light” surveillance techniques have been employed in the past for subjects who were not suspected of engaging in any criminal activity. This kind of general intelligence gathering can no longer be tolerated. While no precise constitutional prohibi­ tions exist on employing visual surveillance and mail covers, they should be used only when an investigation is undertaken in the reasonable expectation that a crime has been or will be com­ mitted. Guidelines should be instituted for using "light” sur­ veillance techniques, and these should be rigorously monitored by oversight machinery. "Preventive action” is another covert practice occasionally used by law enforcement officers involved with monitoring dis­

10 2

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sent. Police often use techniques other than arrest to prevent crime. A variety of overt crime control techniques are employed under the heading "hardening the targets.” The police can im­ prove the security of obvious targets of political violence and develop more refined programs of airport security. Still, a nag­ ging problem remains. What should happen when an investiga­ tion, properly undertaken, produces some evidence of a con­ spiracy to commit a crime ? Civil libertarian purists answer this question by insisting that an arrest be made as soon as the police obtain evidence of a criminal conspiracy. They argue that the government engages in impermissible activity, if not technical entrapment, when it allows conspirators to proceed with their plans and preparations, especially if an undercover officer or informant is operating within the group. Who can say that the participation of the undercover officer or informant was not crucial to the momen­ tum of the ongoing conspiracy ? Perhaps the government’s fail­ ure to remove its informant and to abort the conspiracy as soon as evidence of criminal activity was obtained caused the later, more serious crime. A ll discussions of preventive action techniques must take into account the FBI’s misconduct during the 1960s and 1970s. The bureau’s COINTELPRO operations set group against group, disrupted the personal lives of activists, and used misin­ formation to embarrass dissenting groups. With the CO IN TEL­ PRO programs, the government purposefully interfered with political expression. Forbidding future interference in the po­ litical process does not necessarily imply that an undercover offi­ cer or an informant, suddenly confronted with the imminence of a violent crime, may not take steps other than arrest to frustrate or forestall that crime. In the simplest instance, almost everyone can agree. Who can object to an officer or an informant who defuses a bomb or warns authorities that a demonstration will not follow an approved route? As the situation becomes more complicated, however, agreement dissolves. Suppose an undercover officer or informer can abort a crime by distributing misinformation, causing a group’s leaders to misperceive reality and to cancel some planned action. No one doubts the propriety of an agent or informant urging lawful

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10 3

conduct. The question here is whether an informant or under­ cover officer, as an extension of the power of the state, can law­ fully use subterfuge rather than arrest to prevent a crime. The situation becomes even more complex if the informant partici­ pates in lesser crimes or conspiracies to maintain the confidence of the group in order to warn of more serious crimes later on. Properly employed, domestic intelligence is merely a spe­ cialized type of ordinary criminal intelligence gathering. The acceptance of limited actions, short of arrest, which may proper­ ly be used to prevent criminal acts, can all too easily lead to the use of disruptive tactics of deception and misinformation. The danger of overreaction in prevention is by no means limited to interference with the activities of crime-prone political groups. Most of the FB I’s COINTELPRO programs were not directed against individuals but involved covert political propaganda. A proper understanding of domestic intelligence as an arm of law enforcement should end police dissemination of counterpropa­ ganda. Christopher Pyle, setting out two principles for governing preventive action, has captured the dilemma of its use beauti­ fully: First, the government has the right and duty to prevent injury to lives and property and, in some instances, should be al­ lowed to do so covertly once the conspirators have ceased ab­ stract discussions and begun to procure weapons or explosives and lay concrete plans to commit crimes of violence. Second, the government has no business manipulating the internal affairs or external political effectiveness of any politically mo­ tivated group, however violent it may be, by clandestine, nonprosecutorial means.54 The difficulty, of course, is that doing almost anything to ad­ vance the first principle must in some way violate the second.

6 . Is Domestic Intelligence Unconstitutional?

Friends of liberty are warmly disposed to any decision that favors freedom against authority. The student of the Constitution requires something more, a workable accommodation of competing values prop­ erly achieved and reasonably justified. — Louis Henkin, "Privacy and Autonomy”

IN THE PAST DECADE, critics of the intelligence agencies have advanced several seriously flawed constitutional arguments. These arguments are invoked so often in the domestic intelli­ gence debate that, like billowing clouds of smoke on the battle­ field, they obscure the terrain, confusing commanders and troops alike. The first holds that any domestic intelligence collection violates established rights of Americans and is unconstitutional; the second contends that some early investigations in political contexts are permissible but that no inherent presidential power exists, without the consent of Congress, to authorize such in­ formation gathering. Adherents of the latter argument add that, even if the president had independent authority to order intelli­ gence gathering, the role of the states in domestic intelligence must take precedence over that of the federal government. The Constitution, as interpreted by the Supreme Court, pro­ vides few precise directions on how domestic intelligence activi­ ties should be conducted. Constitutional law does provide gen­ eral mandates for domestic intelligence collection and certain specific limitations on it, but constitutional law is no substitute for precise operating standards. As we will see, the Constitution does not altogether prohibit the national government from

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10 5

monitoring dissent, and, in fact, a rather strong case can be pil­ lared for the existence of substantial federal and presidential law enforcement powers. THE CONSTITUTIONAL MANDATES

The basic responsibility of government to maintain public order and to protect citizens and private property from violent acts was quite clear to the framers of the Constitution. The men who authored the Constitution delegated the so-called police power to the state governments, but at least some of the more formid­ able of them envisioned a federal responsibility, which can fair­ ly be called a law enforcement responsibility, to cope with dis­ orders that crossed state lines or that were beyond the resources of a single state. Shay’s Rebellion of 1786 was never far from the minds of the men in Philadelphia. In another context, I have written that At the very core of America’s confused response to the crisis in law enforcement is the failure of many opinion makers to remember basic political theory. Whether one looks to the ancient writers (Plato, Aristotle, Cicero) with their "organic” conception of the State as a natural and inevitable structure of human existence, or to the moderns (Hobbes, Locke, Hume) with their conception of the State as resting upon "social con­ tract,” a cardinal responsibility of government has been the maintenance of public order and the protection of persons and property against the unleashed appetites of other persons.1 In the aftermath of Watergate and the intelligence scan­ dals, some outraged critics of domestic intelligence gathering resuscitated the theory of strictly enumerated federal powers that mercifully has lain dormant in constitutional history for several decades. The new states’ rights advocates insist that law enforcement and peacekeeping are primarily responsibilities of the states. Federal law enforcement should focus only on inter­ state crime, and the F B I’s investigations should be strictly con­ fined to violations of federal statutes. No federal interest can justify investigation, these critics argue, unless a violation of federal law is present or imminent.2 An irony underlies the new states’ rights emphasis since its advocates bitterly scorned the

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Southerners who, in the segregation upheavals of the late 1950s, also revived extreme Jeffersonian notions of states’ rights. The case for federal law enforcement power is much stronger than the neo-Jeffersonians suggest. Throughout the his­ tory of American federalism, constitutional experts of the first rank have espoused the view that the federal government is re­ sponsible for coping with all national problems and for activi­ ties that cross state borders— including domestic disorder.3 At the beginning of this tradition is Alexander Hamilton. In his classic discussion in The Federalist No. 84 of the nature of the federal relationship, Hamilton argued that the powers of the national government are equal to problems that are national (today we would say "interstate” ) in scope, a view he also ad­ vanced in The Federalist Nos. 8 and 9. Hamilton believed that the federal government should come to the aid of states con­ tending with local disorder. Thus, Hamilton remarked in The Federalist No. 9 that "A firm union will be of the utmost mo­ ment to peace and liberty of the States, as a barrier against a domestic faction and insurrection.” 4 He returned to this point in The Federalist No. 85: The additional securities to republican government, to liberty, and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the union will impose on local fac­ tions and insurrections... .5 Neither the authors of The Federalist nor other influential members of the 1787 Philadelphia Convention specifically out­ lined the extent of the federal government’s law enforcement role. After all, they dealt mainly with political theory, not spe­ cific regulations. Antifederalists almost immediately developed an alternative interpretation of the relationship of the federal government to the states, one that generally excluded any sig­ nificant law enforcement role for the central government.6 The states’ rights view has enjoyed periods of ascendancy in our con­ stitutional history, but it has become less accepted by both judges and commentators since the 1930s. Hamilton and the other pro­ ponents of a strong central government in the founding genera­

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1 07

tion could not foresee a major law enforcement role for the federal government— any more than they could anticipate the expansion by Congress of the interstate commerce power to create a national economic marketplace. The logic of the Fed­ eralist position supports the development of a national law en­ forcement role in response to new social circumstances, just as other constitutional powers were expanded to meet the needs of our growing society. Successive generations of Americans, interpreting the Con­ stitution in the light of their realities, have generally favored a federal role in law enforcement. Especially significant is the contribution made by the generation of jurists who witnessed the foremost crisis of union, the Civil War, when they were faced with questions about federal peacekeeping. In the 1884 Supreme Court case of ex parte Yarbrough ,'1 Justice Samuel F. Miller, not known as a reflective exponent of expansive federal power, affirmed the law enforcement powers of the national government in a decision upholding the constitutionality of the (Civil Rights) Enforcement Act of 1870. Justice Miller quoted with approval the famous opening sentences of Chancellor Kent’s Commentaries on the Constitution'. The government of the United States was created by the free voice and joint will of the people of America for their common defense and general welfare. Its powers apply to those great interests which relate to this country in its national capacity, and which depend for their protection on the con­ solidation of the Union. It is clothed with the principal at­ tributes of political sovereignty, and it is justly deemed the guardian of our best rights, the source of our highest civil and political duties, and the sure means of national greatness.8 While the opinion in ex parte Yarbrough dealt only with the generalities of national peacekeeping powers, the 1889 case of in re Neagle9 addressed law enforcement directly. The case involved a federal marshal who, acting under presidential orders and without statutory sanction, killed a man while guarding Justice Stephen J. Field, whose life had been threatened while he was on circuit duty in California. California officers arrested the marshal, but he sought release by writ of habeas corpus on

1 08

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grounds that he was properly performing the business of the United States. Justice Miller again wrote the decision for the majority: It is argued that the preservation of peace and good order in society is not within the powers confided to the Government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the Government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that govern­ ment.10 In addition to affirming federal law enforcement authority, in re Neagle also explains how that power is shared between the branches of the national government. Many contemporary critics of the intelligence establishment deny the legitimacy of inherent executive law enforcement powers, an argument that might be called the resurfacing of legocentric constitutional heresy.11 This theory not only denies that a general peace of the United States exists that the federal government has some responsibility to protect; it also suggests that the inner logic of the Constitution makes Congress the primary branch of the national government. (After all, Madison wrote in The Federalist No. 51 that "In republican government, the legislative authority necessarily pre­ dominates/’ ) In re Neagle refutes this theory of American federalism. Attorney General William Miller, in his argument in the case, insisted that: By the Constitution of the United States, a government was created possessed of all the powers necessary to existence as an independent nation; that these powers were distributed in three great constitutional departments, and that each of these departments is, by that Constitution, invested with all those governmental powers, naturally belonging to such depart­ ments, which have not been expressly withheld by the terms of the Constitution. In other words, that Congress is invested not only with expressed but with implied legislative powers; that the judiciary is invested not only with expressed powers granted in the Constitution as its share of the government, but with all the judicial powers which have not been expressly

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10 9

withheld from it; and that the President, in like manner, by the very fact that he is made the Chief Executive of the nation, and is charged to protect, preserve, and defend the Constitu­ tion, and to take care that the laws are faithfully executed, is invested with necessary implied executive powers which neither of the other branches of the government can take away or abridge; that many of these powers, pertaining to each branch of government, are self-executing, and in no way dependent, except as to the ways and means, upon legisla­ tion.12 This, of course, was only the opinion of an attorney general, but Justice Miller, in his opinion for the Court, agreed with it. Miller rhetorically asked whether the president’s duty to enforce the laws was limited to enforcing acts of Congress according to their "express terms” or if this law enforcement responsibility ex­ tended to rights, duties, and obligations "growing out of the Constitution itself,” to provide all the protection "implied by the nature of the government under the Constitution?” 13 Miller subscribed to the latter viewr, and his opinion surely reflected the sentiments of a substantial number of his contemporaries. The theory of inherent executive law enforcement power has been challenged throughout our constitutional history, but even some of its foremost critics acknowledge the honorable lineage of precedent upon which it is based. Well before the mid-1970s and the disgrace of Richard Nixon, skeptics regretted the expansion of executive power by inference. The eminent constitutional scholar Edward S. Corwin, in the introduction to his classic annotation of the Constitution,14 lamented the growth of executive power but nevertheless carefully noted the persis­ tence of the notion of implied executive powers. Corwin argued, quite correctly, that the antiexecutive ele­ ment of American political thought began with colonial resis­ tance to royal governors. In the first state constitutions, Corwin noted, executive power was extremely limited, and notions of executive prerogative—-generically similar to the royal preroga­ tive—were specifically excluded. He went on to point out, how­ ever, that: Fortunately or unfortunately, the earlier tradition of executive power (as possessing certain inherent prerogatives)

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was not to be exorcised so readily. Historically, this tradition traces to the fact that the monarch was first on the ground, that the other powers of government were offshoots from the monarchical power. Moreover, when our forefathers turned to Roman history, as they intermittently did, it was borne in upon them that dictatorship had at one time been a normal feature of republican institutions.15 While Corwin believed that the framers intended in the executive power clause of Article II of the Constitution ("The executive Power shall be vested in a President of the United States of America. . . .” ) to establish a single, rather than a plural, executive, he duly noted that this clause was invoked as a positive grant of power in the first Congress to assemble under the Constitution. He also pointed out Madison’s early accep­ tance of the notion of implied executive powers (Madison later changed his position) and quoted John Marshall’s famous pas­ sage from Marbury v. Madison: By the Constitution of the United States, the President is in­ vested with certain important and political powers, in the exercise of which he is to use his own discretion, and is ac­ countable only to his country in his political character, and to his own conscience.10 Corwin recognized, albeit somewhat gracelessly, that a succes­ sion of attorneys general had taken an expansive view of presi­ dential prerogative. Referring to "these family lawyers of the Administration in power,” 17 Corwin quoted Attorney General John M. Berrien, who, as early as 18 31, argued before the Su­ preme Court that under the take-care clause of the Constitution ("{T h e president] shall take Care that the Laws be faithfully executed. . . .” ), the president "not only may, but . . . is bound to avail himself of every appropriate means not forbidden by law.” 18 Corwin lamented the unanimous Supreme Court deci­ sion in 1895 that upheld the right of the executive to sue for an injunction against a strike that would interfere with interstate commerce, "although it was conceded that there was no statu­ tory basis for such action.” 19 The nineteenth-century develop­ ment of the notion of inherent executive power, which Corwin believed to be in conflict with some pristine preconstitutional

IS DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

Ill

American virtue, culminated in Theodore Roosevelt. In a fa­ mous line from his Autobiography, Roosevelt remarked that the president was duty-bound "to do anything that the needs of the nation demanded unless such action was forbidden by the Con­ stitution or by the laws.” 20 Despite the development of executive power throughout our constitutional history, the notion has al­ ways had critics, including Corwin, who have espoused a "W hig Theory” of presidential power that would reduce the executive to an adjunct of Congress.21 Contemporary critics of inherent executive power frequently support their views with the decision of the Supreme Court in Youngstown Sheet and Tube Company v. Sawyer the steel seizure case of 1952. President Truman, facing a potentially crippling strike against the steel industry during the Korean war, moved to seize the nation’s steel mills, and the mill owners sued to block the seizure. The Supreme Court voted 6 to 3 in a miserably confusing set of opinions to disallow Truman’s action, which administration lawyers had argued was predicated on the implied power of the president to protect national security. Justice Black’s rather simplistic opinion for the Court took a narrow view of inherent executive power, suggesting that if it existed at all it must be intimately related to specific grants of authority in Article II. Black suggested that the executive power clause and the take-care clause only direct the president to en­ force laws enacted by Congress. Black’s opinion, however, even though technically an opinion of the Court, must be discounted because of the concurring opinions in the case. /Only Justice Douglas among the five other majority justices in the Y oungstown case agreed with Black that the seizure of the mills required legislative action. For a bloc of three majority justices (Jackson, Burton, and Clark), the crucial fact in the case was that Congress had provided mechanisms for dealing with strikes that threatened national security (most important, in the Taft-Hartley A ct). Justice Jackson, in the best opinion of the Youngstown case, wrote that, whatever inherent powers the president possessed in vacuo, Congress had not "left the seizure of private property an open field, but had covered it [in this particular instance] by . . . statutory policies inconsistent with ,22

this seizure.” 23

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Felix Frankfurter, the sixth majority justice, found Tru­ man’s action to be illegitimate because of both the absence of any traditional view of presidential powers supporting it and the existence of legislation covering seizures. While concluding that inherent executive power was insufficient to warrant execu­ tive seizure of private property in the absence of a declared war, Frankfurter carefully noted nonetheless that the extent of presi­ dential power could go beyond the mere words of Article II: It is an inadmissibly narrow conception of American consti­ tutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by presidents who have also sworn to uphold the Constitution, making it as it were such exercises of power part of the structure of our government, may be treated as a gloss on "executive power” invested in the President by Section i of Article II.24 Three other members of the Court, Chief Justice Vinson and Justices Reed and Minton, thought inherent executive power was sufficient to seize the steel mills in order to protect the safety of the nation. In the final analysis, three justices in the Youngstown case espoused a very expansive conception of inherent executive power, three justices recognized the notion of inherent executive power but found it inapplicable because of prior congressional action, and two (at best three) justices gave a narrow interpre­ tation of executive power. The steel seizure case must certainly be regarded as one that limits the exercise of inherent executive power, but it clearly does not deny the existence of such power.25 The Keith case, U.S. v. U.S. District Court,26 which fore­ closed the use of unwarranted electronic searches in domestic intelligence investigations, is another Supreme Court decision used by critics of inherent executive power to bolster their argu­ ment. The Keith case specifically deals with the president’s power to order domestic security investigations. However, re­ quiring all domestic intelligence searches to meet ordinary Fourth Amendment standards and denying the existence of any executive power to order domestic intelligence gathering are

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113

very different matters. Justice Powell, writing for the Court in the Keith case, was very careful to observe this distinction. In fact, Powell specifically acknowledged the president’s power to protect domestic security. He referred, for instance, to "the in­ vestigative duty of the executive” in national security matters and suggested that this duty "may be stronger in such cases” than in ordinary criminal contexts.27 Powell concluded that: We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amend­ ment. In this case we hold that this requires an appropriate prior warrant procedure.28 Critics of the inherent powers of the president who rely on cases like Youngstown and Keith to demonstrate that no such power exists for domestic security purposes are mistaken about the limits that the Court places on the executive. As Philip Lacovara, special counsel to Archibald Cox during the Watergate investigation, put it: In the United States, the President bears the primary responsibility for the scope and conduct of intelligence activi­ ties, and his powers in this field are sweeping. The President’s intelligence functions derive from his constitutional offices under Article II of the Constitution as Commander-in-Chief of the Armed Forces (foreign and domestic responsibility), as sole organ of the Nation in foreign relations (foreign re­ sponsibility), and as chief law enforcement officer (domestic responsibility) ,29 Primary presidential responsibility for domestic intelligence does not exclude Congress from participating in governing its conduct. Just as Congress has provided statutory rules for the use of federal troops in domestic emergencies,30 Congress can share with the president policymaking responsibility for intelli­ gence gathering. Our government is one of separated institutions sharing powers. (For instance, in the Keith case, Justice Powell suggested that Congress might cooperate with the executive in the domestic security area by creating procedures different from those used in ordinary crime for seeking warrants.)31 The im­ portant question is not whether the president possesses a gen-

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eral law enforcement power that includes domestic intelligence (he does), but whether Congress will act more effectively in this sensitive area through vigorous oversight mechanisms and new legislation such as a statutory charter for the FBI. Until recently, Congress was all too willing for the president to proceed alone in most intelligence matters. If the executive branch has gone too far, Congress is in part to blame.

t h e c o n s t it u t io n a l c o n s t r a in t s

The argument that domestic intelligence gathering is altogether proscribed by the Constitution is predicated on certain mighty limitations that constitutional law imposes on American law en­ forcement. Police activity in this country is more constrained than in other democracies, and the constitutional presumptions that limit law enforcement activity— the First Amendment’s pro­ tection of political speech and the Fourth Amendment’s guaran­ tee against unreasonable search and seizure— operate at their maximum when politically motivated crime is involved. However, the extent of the restrictions placed on domestic intelligence gathering by the First and Fourth Amendments has been considerably exaggerated by critics of the intelligence agen­ cies. The First Amendment’s protection of political speech does not convey a positive right to individuals to express themselves however they wish or to engage in any sort of political associa­ tion they desire. Instead, it establishes freedom from govern­ mental interference with speech and association. All of us may be inhibited in expressing our views for a variety of reasons: we may join religious orders and take vows of silence, or we may associate with businesses, secret societies, or other groups that limit our freedom to speak. The First Amendment does not operate in this sphere. It guarantees only the absence of restraint by government (originally the federal government and now, through the due process clause of the Fourteenth Amendment, state governments as w ell). Jailing people for making political speeches is classic abridgment of "free speech.” The govern­ ment is also prohibited by the First Amendment from engaging in many of the activities the FBI undertook in its COINTEL-

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PRO programs, such as revealing a husband’s sexual excesses to a wife to silence an opponent of government policy.32 Most constitutional experts agree that overt suppression of political speech by the government violates the First Amend­ ment. Hence, while many of the ill-advised statutes regulating seditious libel and subversive speech remain on the books, they are seldom enforced, and consensus is building for their repeal. However, what abridgment of free speech occurs when the gov­ ernment simply monitors speech and does nothing more to inter­ fere with it ? The early detection of politically inspired conspira­ cies to commit violent or disruptive crimes against persons or property—terrorism— requires law enforcement agents to listen, to watch, and to record a great deal of innocent political activity. Is this monitoring, without more of an intrusion, a violation of First Amendment rights ? As a matter of common sense, government monitoring of political protest (presuming that it is done in accordance with Fourth Amendment requirements) may in some instances dis­ courage some people from engaging in political speech, but these effects are remote and speculative. The Supreme Court of the United States does not like to base its opinions on remote effects that can only be guessed at, or at best tenuously demon­ strated.33 If the corner orator is arrested, that is an interference with speech that the Court will accept or reject depending on the circumstances of the arrest, but how can the Court deal with problems of remote anticipated reactions ? Here is the flaw in the argument that the Constitution prohibits all domestic intelli­ gence gathering. The argument is based on the notion of "chill­ ing effect” — that the Court should interpret the First Amend­ ment to prohibit government activity that, simply because it takes place, may discourage persons from speaking. In a series of cases beginning with Wieman v. Updegraff in 1952,34 various Supreme Court opinions have referred to the possible "chilling effects” of governmental action on free speech. In his dissenting opinion in Walker v. City of Birming­ ham, for instance, Justice Brennan referred to the necessity to provide "breathing space to survive” for First Amendment free­ doms, and the necessity to "insulate all individuals from the chilling effect upon exercise of First Amendment freedoms. 35

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Early invocations of the notion of chilling effect, it is im­ portant to note, occurred in cases involving actual prosecution or regulation of persons under statutes that were found uncon­ stitutionally vague or overbroad, or that vested too much dis­ cretion in the officials who administered them.36 Chilling effect was not in itself the reason for overturning a statute or striking down a governmental program; chilling effect was used to ex­ plain why statutes that regulated speech directly and that were also overbroad and vague were unconstitutional.37 These cases involved specific, identifiable people, and the government had done something to them or was about to take some action ad­ versely affecting them. In his concurring opinion in the 1965 case of Lamont v. Postmaster General, however, Justice Brennan remarked that "Inhibition as well as prohibition against the exercise of First Amendment Rights is a power denied to government.” 38 This tantalizing bit of dicta seemed to indicate a receptiveness, on the part of Justice Brennan at least, to an argument that government activity per se, whether or not it had a demonstrable effect di­ rectly or indirectly upon specific persons might result in a First Amendment violation. Several lower courts subsequently reject­ ed the expansive notion of chilling effect. The District of Co­ lumbia Circuit Court, in National Students Association v. Hershey, suggested that not every person who "shivers in court” was asserting a cognizable constitutional claim.39 The New Jersey Supreme Court noted in Anderson v. Sills that "the very exis­ tence of this Court may 'chill’ some who would speak or act more freely if there were no accounting before us for trespassers against others.” 40 The Supreme Court test of the expansive notion of chilling effect came as a challenge to the army’s CONUS intelligence program. The plaintiffs in the case, which became Laird v. Ta­ tum41 before the Supreme Court, were four individuals and nine unincorporated associations, all of which had been engaged in antiwar activity. The action, which was sponsored by the Ameri­ can Civil Liberties Union, asked for a declaratory judgment against the constitutionality of the army’s domestic intelligence activity, an injunction forbidding such activity in the future, and the destruction of all data obtained in the past.

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117

The U.S. District Court for the District of Columbia dis­ missed the case for want of a justiceable issue— that is, the plaintiffs had failed to identify a legal wrong committed against them. This was the basis on which the case was fought through to the Supreme Court: was there sufficient harm to the plain­ tiffs, in the form of a chill of their First Amendment rights, to allow them to seek legal redress ? The case was appealed to the Circuit Court for the District of Columbia, which voted two to one to reverse the lower court.42 The circuit court’s majority opinion, written by Judge Malcolm Wilkey, was a remarkable production. Wilkey care­ fully exposed the implausibility of the asserted First Amend­ ment violation early on in his written decision: Thus the instant case, at this juncture, involves no concrete, identifiable sanction, no compelled self-identification (except to the extent that the Army may attend meetings thought to be for a faithful few) and no threat of publication. Turning to the authorities claimed to be relevant here, virtually all of the First Amendment cases cited where government activity was enjoined or struck down fell into one of three categories: ( 1) Cases where some legal or criminal sanction was imposed or threatened to be imposed on persons who exer­ cised their First Amendment rights. (2) Cases involving some element of government com­ pulsion, either to testify regarding one’s political ideas or be­ liefs, or to identify oneself in order to exercise First Amend­ ment rights. (3) Situations where the government threatens to publi­ cize the names of allegedly politically controversial persons for the purpose of inhibiting the exercise of their First Amendment rights.43 Having said this, Wilkey surprisingly discovered an argument for upholding the claim of jurisdiction. The case was ripe for adjudication, said Wilkey: Because of the evil alleged in the Army intelligence system is that of overbreadth, i.e., the collection of information that is not reasonably relevant to the Army’s mission to suppress civil disorder, and because there is no indication that a better opportunity will later arise to test the constitutionality of the Army’s action, the issue can be considered justiceable at this time.44

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in t e l l ig e n c e u n c o n s t it u t io n a l

?

This line of reasoning is difficult to fathom. If the First Amendment prohibits government interference, direct or in­ direct, with political speech, which Wilkey had just demonstrat­ ed was not present in any prior decisions, then how could there be a constitutional question to test concerning the army’s activi­ ty? Wilkey’s answer was that the chill of First Amendment rights experienced by the plaintiffs, while not sufficient to give them standing to sue in and of itself, rose to the magnitude of an injury because of its source, in this case, the army. Given America’s historic antipathy to military intervention in civilian affairs, this aspect of the case, in Wilkey’s opinion, gave the plaintiffs standing to sue the army, even though the injury done to them by the CONUS program was vague and unspecified. The question to be settled became, for Wilkey, whether the army’s domestic intelligence collection program exceeded its mission requirements. Laird v. Tatum came to the Supreme Court at the behest of the government and was decided in a five-to-four decision on June 26, 1972, with an opinion for the Court by Chief Justice Burger. Burger’s opinion rejected Judge Wilkey’s strained argu­ ment for jurisdiction. The chief justice pointed out, quite sound­ ly, that standing to sue depended on some specific injury, and without that, no justiceable constitutional issue was presented by the army program. As Judge George MacKinnon, the dissenting judge at the circuit court level, had argued, the question of whether the army was collecting more information than it needed to perform its mission was for the president and Con­ gress to decide, not the courts. Thus, Laird v. Tatum established the principle that the jurisdiction of a federal court cannot be invoked by a complainant who alleges that his or her First Amendment rights are being chilled by the mere fact of govern­ ment information collection. The dissenting opinion by Justice Douglas, joined by Justice Marshall, was weak. In a rambling essay on the dangers of a military establishment for a free society, Douglas asserted that "Army surveillance, like Army regimentation, is at war with the principles of the First Amendment.” Douglas concluded that "the First Amendment was designed to allow rebellion to remain as our heritage.” 45 Somewhere the shade of Jefferson

IS DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

X 19

Davis must have smiled. Justice Brennan’s short dissent, joined by Justices Stewart and Marshall, simply cited Judge Wilkey’s faulty reasoning in the circuit court decision and agreed with it. As a technical matter, Laird v. Tatum is a standing decision rather than a decision on the merits of the basic constitutional question. As a result, an argument can be made that, while mere collection of information does not interfere with individual rights to the extent of permitting standing to sue, if someone could find a way to litigate the question, collection might be found in violation of the First Amendment generally, even though it violated no one’s right in particular. According to this theory, the First Amendment limitations on government interfer­ ence with speech go beyond meddling with the activities of par­ ticular persons— in a fashion similar to the First Amendment clause concerning establishment of religion. This view has gained supporters over the last decade, and while it seems un­ likely that it will attract majority support within the Supreme Court in the near future, it was the basis of the 1975 decision of the Supreme Court of California in the case of White v. Davis .46 In the White case, the Los Angeles Police Department had introduced undercover officers registered as students onto the campus of UCLA. Justice Matthew Tobriner’s opinion for a unanimous California court is rather vague about what the offi­ cers actually did at the university. Certainly, they were observing and filing reports on the activities and speech of a variety of peo­ ple on the UCLA campus. Apparently, the officers also covertly recorded a number of classroom discussions, including some in the class of historian Hayden V. White, who brought suit against the police. Laird v. Tatum did not affect Professor White’s standing to sue because he came to the court as a California taxpayer. Under California law, a taxpayer suit may be brought by anyone within the relevant tax jurisdiction regardless of whether there has been personal injury. White’s claim before the court was not that he had been deprived of his constitutional rights. White, as a taxpayer, was objecting to expenditures by the Los Angeles Police Department in an unconstitutional program. In his opinion for the California Supreme Court, Justice Tobriner argued that, although the police unquestionably have

12 0

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a legitimate interest in gathering information to forestall future criminal acts, they may not "pursue that function by any and all means.” 47 Drawing on language from Supreme Court decisions dealing with education, Tobriner suggested that the academic environment deserves special protection under the First Amend­ ment. Official surveillance of activity in this privileged commu­ nity, said Tobriner, risked compromising free and open dis­ course. No one in the White case alleged any specific inhibition of his or her speech, and Justice Tobriner did not utilize the notion of chilling effect in his opinion. Instead, he articulated a view of the First Amendment in which purely speculative harm to unspecified persons is sufficient to find a program unconsti­ tutional. Justice Tobriner’s argument may seem plausible. The prob­ lem with its reasoning, on reflection, is that the Supreme Court, in deciding in the Laird case that the plaintiffs lacked standing to sue, in effect, decided that no constitutional violation had oc­ curred in the army’s CONUS intelligence program. The question of standing and the basic constitutional question were operation­ ally congruent in Laird. One exalts form and obscures signifi­ cance by ignoring this central fact. The proper analog for the speech clause of the First Amendment is not the establishment of religion clause— a general prohibition of a particular kind of government activity—but the free exercise of religion clause, which also creates an individual right. Tobriner ignored this as­ pect of Laird completely in his reasoning. Other lower court decisions that have relied on Laird, while treating the decision as a standing case and denying jurisdic­ tion48 unless the information collected by the government had been used to damage the subjects of investigations49 have not employed language that contemplates the existence of an "unlitigable” First Amendment prohibition on intelligence investi­ gating. While Laird technically is "just a standing case,” the larger reality is that the Supreme Court has had ample oppor­ tunity to find all intelligence investigations in political contexts in violation of the speech clause of the First Amendment. The Court has not done so. Instead, we find Justice Powell writing in the Keith case that:

IS DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

12 1

We recognize that domestic security surveillance may involve different policy and practical considerations from the surveil­ lance of "ordinary crime.” The gathering of security intelli­ gence is often long range and involves the interrelation of various sources and types of information.50 The Court’s now well-settled view was best expressed by Justice Black almost a decade ago: "the existence of a 'chilling effect’ even in the area of First Amendment rights has never been con­ sidered a sufficient basis, in and of itself, for prohibiting state action.” 51 Just as the First Amendment does not prohibit domestic intelligence gathering, operating instead to provide parameters for its conduct, so too the Fourth Amendment guarantee of "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .” places limitations on domestic intelligence. The cornerstone of contemporary search-and-seizure law is Katz v. United States, 52 decided in 1967. Before Katz, the Supreme Court had regarded physical trespass as the basis for an unconstitutional search— no trespass, no violation.53 With Katz, the test for a constitutional search became the concept of "privacy.” Where individuals en­ tertained "a reasonable expectation of privacy” 54— such as in their homes or offices—any invasion of that privacy by govern­ ment is a search and required to meet the Fourth Amendment standard of being "reasonable.” The second clause of the Fourth Amendment states that "no warrants shall issue, but upon probable cause.” Thus, a search is deemed reasonable if it is authorized by a properly sworn warrant based on probable cause. A number of exceptions to this rule have been held to be constitutional:55 searches that have been consented to properly; routine searches such as cus­ toms inspections, the checking of auto registrations and auto­ mobile safety inspections; and a very small category of searches made under conditions of extreme physical urgency where stop­ ping to obtain a search warrant is impractical, such as a police officer acting to save a human life that may be in imminent peril. In addition to these exceptions to Fourth Amendment war­ rant requirements, Justice White, in his concurring opinion in

12 2

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Katz, referred to the president’s power to engage in electron­ ic surveillance for national security purposes. Justice White remarked, obiter dicta, that this presidential power was not af­ fected by the general requirement that warrants must be ob­ tained for electronic searches that invade the privacy of individ­ uals.56 Congress, in the Omnibus Crime and Safe Streets Act of 1 968,57 acknowledged the existence of certain sorts of electronic national security searches but said nothing about the extent of this "exception.” The Supreme Court, however, has clarified the matter somewhat. In the Keith case, Justice Powell held that any electronic search for domestic security purposes required a war­ rant.58 More recently, the District of Columbia Circuit Court of Appeals in Zweibon v. Mitchell'’'' held that, even for foreign in­ telligence gathering purposes, a warrant must be obtained unless the eavesdropping is specifically directed against a foreign agent or collaborator. Attorney General Levi accepted this limitation, and Attorney General Bell has not altered this position. Critics of domestic intelligence gathering interpret the Fourth Amend­ ment to be more of a constraint, however. Domestic intelligence critics suggest that, when the privacy of a group or individual is violated by a police informer, it should be regarded as a search subject to the Fourth Amend­ ment warrant requirement. Traditionally, the courts have dis­ tinguished between searches and the use of informers with the theory of "assumption of risk.” Basically, this argument con­ tends that in our normal social, business, and political inter­ course we reveal ourselves, by our own choice, to a variety of people, none of whom, except perhaps by bonds of friendship or personal trust, is bound to keep our confidences.60 When we are in the presence of other people, we cannot assume that what we do and say will remain private. Commentators such as Professor Anthony Amsterdam of the Stanford Law School have argued that this distinction is irrational.61 What difference does it make, Amsterdam asks, whether the police listen to conversations on an unwarranted wiretap or send an informer under false pre­ tenses into a living room? Yes, individuals have no right to assume that their conversations will be wholly private when they voluntarily converse with others. No guarantee exists that one’s conversations will not be repeated, and this is a risk that

IS DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

1 23

we all take. However, it is not reasonable, says Amsterdam, to suppose that some person with whom we converse may be a human listening device reporting to the government. Amsterdam’s argument deserves to be taken seriously even if it is not ultimately persuasive. Judicial warrants would be im­ possibly awkward for controlling the use of informants. Poten­ tial informers are a notoriously shy lot and are likely to be put off by the thought that their relationship with the police will be a matter of detailed record. Moreover, there are many types of informers: some are recruited and paid, some volunteer, and some cooperate only intermittently. How stable would the rela­ tionship between the police and an informer have to be before it required a warrant ? Could a warrant be sought prior to the de­ velopment of such relationships ? The problems involved in requiring a warrant for the use of informants do not apply wth the same force in obtaining war­ rants for the use of undercover police officers. Imposing a cum­ bersome judicial warrant requirement on only one sort of in­ former makes little sense, however, especially since undercover police officers are the most reliable and desirable kind of infor­ mant in a universe o f distasteful alternatives. Burdening only the use of the preferred kind of undercover operative is hardly wise, nor is it really necessary. Recognizing that using infor­ mants involves some invasion of privacy does not require one to dismiss the assumption-of-risk argument. The legal distinction between searches and the use of informants is centuries old and is based on a tenable moral distinction. A ll surveillance involves some invasion of privacy, but not all invasions of privacy are governed by the Fourth Amendment. The use of informants may need to be regulated, even severely. Nevertheless, addi­ tional constitutional regulation by the Supreme Court in this sphere is neither necessary nor sensible. A ll intelligence investi­ gating does not have to involve Fourth Amendment problems.

SIGNIFICANCES

The flaws in the arguments offered by critics of domestic intelli­ gence activities have considerable bearing on the debate over reform of domestic intelligence practice. First, the general fed-

12 4

is DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

eral peacekeeping responsibility, coupled with the executive’s inherent law enforcement powers make the past domestic intelli­ gence performance of the FBI seem less abhorrent— not quite so "illegal” — than critics of the theory of inherent executive power suggest. While it is healthy for the executive branch to defend its conduct of domestic security operations, it need not be so abjectly defensive that it surrenders presidential prerogatives. Congress, in its deliberations on legislation to regulate the FBI’s domestic intelligence operations, should recognize that it is in partnership with a coequal branch of government that pos­ sesses independent constitutional power in the area involved. Legislation regulating domestic intelligence gathering should be general in scope and not impose elaborate investigative rules and standards. Congress and the executive branch should agree on basic principles, with operational guidelines left to the executive, subject to congressional oversight. Congress would be unwise to attempt to go further, and such legislation would most likely be found unconstitutional. Domestic intelligence collection is a legitimate law enforce­ ment activity, and as such, it must be conducted within the parameters of constitutional law. Activities like the FBI’s COINTELPRO operations and harassment of dissenters should end, and warrant requirements for electronic or physical searches should be observed. However, it is not unconstitutional per se to collect and to retain intelligence information. Good arguments are offered for restricting domestic intelli­ gence activity more severely than constitutional law requires, but these arguments must be based on prudence— on balancing one civic value against another. Reasonable people may debate how these balances should be struck, and it only impedes discussion to assert that there is "constitutional value” on one side and only ordinary considerations such as public safety on the other. Pro­ tecting privacy and dissent are both important civic values that are properly guarded by constitutional law against serious forms of encroachment. Our concern for privacy should go beyond the protection provided by constitutional interpretation, but because constitutional law makes privacy immune to certain incursions, privacy does not necessarily rise to the stature of a "constitution­ al value.”

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125

The fact that constitutional law does not supply a definitive answer to the question of how best to regulate domestic intelli­ gence is not surprising. The affliction of some Americans to sup­ pose that everything dangerous (or even undesirable) must also be (or made to be) unconstitutional is only a recent phenome­ non. American constitutional law establishes general boundaries within which policy choices concerning domestic intelligence should be made. The fact that the president possesses significant law enforcement power under Article II of the Constitution does not exclude Congress from enacting a legislative charter for the FBI. Recognizing that the First Amendment does not preclude all criminal intelligence gathering in political contexts does not prevent Congress and the executive from protecting dissent be­ yond what constitutional law requires, as a matter of policy. Constitutional law can always be extended by the Supreme Court to provide new specific protections for dissent or privacy. Given the present composition of the Court, however, dramatic changes are unlikely to occur in the forseeable future. Reform of domestic intelligence should be sought principally in litiga­ tion in any case. The Supreme Court would strain its role if it extended First and Fourth Amendment limitations on law en­ forcement intelligence operations. Formulating rules to conduct law enforcement intelligence operations will involve continu­ ously balancing the value of reducing physical danger to the community against other important community values. Balanc­ ing conflicting values to regulate domestic intelligence should be the continuing subject of legislative and administrative rule making coupled with oversight by Congress and occasional re­ view by the courts. Some free play must always be allowed for what Michael Oakshott called "practical knowledge”— the un­ derstanding that comes from being immersed in coping with a particular problem. Guidelines can be easily altered, however; constitutional law cannot.

7 - The Dangers and the Needs: Weights in the Balance

Spokesmen for democratic societies will continue to proclaim that terror­ ism is condemned by the "whole civilized world” ; but the whole civil­ ized world covers no more than about one-fifth of mankind, and it is not at present expanding. — Walter Laqueur, Terrorism

DANGERS

Future regulation of domestic intelligence will require Congress and the executive to weigh constantly the dangers of monitoring political activity against the real need to conduct such opera­ tions. While the necessity to carry out domestic intelligence gathering will always exist to some degree, the dangers inherent in it should not be minimized. These dangers fall into two cate­ gories: extrinsic danger (that is, the threat to society posed by domestic intelligence gathering) and intrinsic danger (that is, the threat that the domestic intelligence agencies themselves pose to society). In America, people enjoy the reasonable expectation that their political activity will not be scrutinized covertly by govern­ ment in the absence of a serious law enforcement reason. The government is not merely another actor in the drama of society; its involvement in surveillance and recordkeeping suggests the potential for punishment or censorship. Harry Kalven points out that America’s commitment to political openness assumes that political ideas will often receive rough intellectual treat­ ment,1 but Kalven argues that the government should restrain

THE DANGERS AND THE NEEDS

1 27

itself from denouncing its critics— not because the Constitution calls for this (it does not)—but because of government’s uniquely threatening nature. Dissent is an important safety valve for discontent that, when articulated well, may enrich the store of ideas that contributes to social dynamics. The Constitution prohibits the government from forbidding or punishing speak­ ing; wise public policy should minimize the attention that gov­ ernment, as law enforcer, pays to dissent. Government should also be perceived by the majority of the public as protecting dissent beyond First Amendment re­ quirements. Nothing can so seriously impair law enforcement, especially when politically motivated crime is concerned, as an uneasy sense that police are singling out for scrutiny people who hold unpopular ideas. Violence-prone groups often claim to be campaigning for "free speech” against a repressive regime. Po­ lice commit an unforgivable blunder when they overreact to such hoaxes, thereby giving credence to the accusations of the dissidents. In the same fashion, excellent reasons exist for going be­ yond Fourth Amendment requirements to protect personal pri­ vacy. We all desire part of our lives to go unobserved and un­ recorded, especially by government, and freedom from being watched should be vigilantly protected by public policy. Alan F. Westin has suggested that three factors should always be consid­ ered when the conflicting interests involved in a decision to ini­ tiate surveillance are weighed: the seriousness of the need; whether or not alternative, less intrusive means are available for meeting that need; and the reliability of the proposed surveil­ lance techniques.2 These kinds of considerations should be in­ cluded in rules governing political monitoring and the use of intrusive investigative techniques. In addition to these extrinsic dangers in domestic intelli­ gence operations to First and Fourth Amendment values, the inherent danger arises that they may lead to political policing— that those engaged in domestic intelligence will use it to influ­ ence the political process. Given the experience of Watergate, this danger may not seem so remote to Americans as it once did. Other danger signs existed as well: J. Edgar Hoover showed

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signs of becoming a political policeman, and in some instances, local law enforcement was used for political purposes. The ex­ perience of other countries in which ’'security police” become transformed into political policemen is too compelling to ignore. Definition of terms is crucial to understand fully what true political policing involves. In socialist thought, a perverted use is made of the term which develops along these lines: the private ownership of property and its distribution within the community are basically illegitimate; the state—v/ith its police, laws, and courts—is not a neutral entity that provides the necessary physi­ cal protection and maintains order, but instead is socially parti­ san, defending "the privileged class.” In this view, whenever the state acts to enforce the law against those who challenge the "system,” that action is political. Distinctions between crime and legitimate dissent break down. Since all laws are political in nature by this reasoning, violating them is always a political crime.3 However, if one accepts the legitimacy of a system of laws and the moral imperative of enforcing them, then political policing becomes a pathology of law enforcement, not the pro­ cess itself. Who is the prototypical political policeman? Himmler, with his steel-rimmed spectacles and vegetarian principles, pre­ siding in the terrible gray building on Prinz Albrechtstrasse with its well-lighted cellars and impeccable files ? Dzerzhensky devel­ oping the OGPU as an instrument for the perfection of Stalin­ ism? Beria, who attempted to use the NKVD as his political base in the struggle to succeed Stalin?4 Of all the political po­ licemen who have operated in the context of what could rea­ sonably be regarded as a modern nation-state, my own choice as a model for the political policeman is Joseph Fouché, Duc d’Otranto. Fouché was, in a very real sense, the original article. One of the most remarkable men of the French Revolution, Fouché began his career as a provincial schoolteacher, rode out the twisting and turning of Directory, Empire, and Restoration, and by the time of his death was one of the richest men in France. We remember him best, however, as Ministre de la Police Gé­ nérale under Napoleon. By his own testimony, Fouché was sure of his function from his first day in office:

THE DANGERS AND THE NEEDS

1 29

The crown was lost in 1789 from the mere incapacity of the high police, the directors of it at that time not being able to penetrate the conspiracies and plots which threatened royalty.5 Fouche was determined to protect the Empire from a simi­ lar downfall. The minister maintained contact with highly placed informers within a wide range of groups, bypassing the bureaucratic police apparatus. Fouche’s agents worked for him personally, and as his operations grew more efficient and his knowledge and penetration of society increased, so did his politi­ cal power. Fouche was an important asset to the regime because he could protect it; at the same time, he was a constant threat because his capacity was personal, not institutional and trans­ ferable. While Fouche never attempted to translate his personal power into ultimate political power (Beria’s mistake), he traf­ ficked in favors at intermediate political levels and amassed great personal wealth. In many ways, Fouche’s career seems foreign to the Ameri­ can experience. We have been fortunate in avoiding the emer­ gence of policing on the Fouche model, but we have come close; closer, in retrospect, than is comfortable. In the person of J. Ed­ gar Hoover, the shadow of a chief of political police passed over us. Despite currently fashionable exaggerations about the extent of Hoover’s misuse of power,6 however, when one looks back over Hoover’s career, many aspects of it nag at the mind. Hoover embodied much that we consider admirable in the American character— hard work, personal honesty. Hoover’s house was cared for gratis, and he accepted dubious hospitality, but he was no Fouche. In most of his actions as FBI director, ad­ herence to the law was paramount. Hoover may have been, as Joseph Kraft called him, the "compleat bureaucrat,” 7 but in some respects, he fitted the older still worthy conception of the professional civil servant. Hoover’s bureau did not have to be taught to advise suspects of their rights after Miranda v. Ari­ zona; 8 the FBI was the model for the procedure required by that decision. In many ways, Hoover made the FBI into the best instrument of law enforcement in America. Hoover kept and used the same sorts of personal dossiers that Fouche employed.9 The man who routinely required strict adherence to rules by his subordinates secretly sanctioned the

1 30

THE DANGERS AND THE NEEDS

infamous counterintelligence programs, encouraged the persecu­ tion of Martin Luther King, and ordered monitoring of dissent­ ers simply because their opinions were extreme— all without seeking or apparently feeling any need for guidance from his political masters. The model civil servant held his nominal supe­ riors at bay with the combination of his personal files and his prestige— if the truth could be known, he probably despised most of them just a little. Hoover was not Fouché by a long shot, but he was as close, let us hope, as America need ever come. Domestic intelligence activity is not synonymous with the evils of political policing. The development of a Fouché or even a Hoover is not an inevitable consequence for a society that monitors dissent or responds to politically motivated crime. The conduct of domestic intelligence operations can create conditions in which the political policeman may develop, which is why do­ mestic intelligence operations must be conducted with great care. Even when the domestic intelligence operations are mount­ ed by scrupulously professional and well-meaning individuals, problems arise. The basic nature of law enforcement is prae­ torian, that is, reflexively protective of society’s established order. Praetorians tend to believe the worst of critics of the sys­ tem that they defend, a frame of mind that affects the career officers of the intelligence services as well as the regular police. In his compendious Bodyguard of Lies, which traces the latticework of allied deception in World War II, Anthony Cave Brown writes of General Sir Stuart Menzies, wartime chief of MI-6: Menzies did not go on from Eton to Oxford; he joined first the Grenadiers and then the Life Guards, that small group of officers drawn from the "most select of families of competent Noblemen and Gentlemen of the Kingdom,” whose duty it was to "guard the King’s life, constantly and without inter­ mission.” It was in the Guards that Menzies became a prae­ torian— "one of a company whose function or interest is to defend an established power or system.” 10 Menzies characterized praetorianism at its formal apex, but the same sort of individual, although in different dress, can be found in the New York City Police Department, the Military Academy

THE DANGERS AND THE NEEDS

1 31

at West Point, the J. Edgar Hoover Building on Pennsylvania Avenue, and CIA headquarters at Langley, Virginia. Praetorians are important to the maintenance of organized society and competent government, but their attitudes toward dissent can sometimes lead to difficulties. Their operating style tends to be overly pragmatic and sometimes overbearing. In a now-famous passage from his testimony before the Church Com­ mittee, for example, William Sullivan remarked: We were just naturally pragmatists. . . . As far as legality is concerned, morals or ethics, [these were] never raised by my­ self or anybody else.11 Praetorians tend to presume that verbal attacks on the existing regime, at least until demonstrated otherwise, mask criminal intent and perhaps criminal activity. The praetorian’s prevailing attitude toward violent-sounding critics is generally that "if they say it, they mean it. Better to check it out than to be sorry after­ wards.” Serious politically motivated crime invokes the praetorian’s protective reflex to a much greater degree than other sorts of crime, such as smuggling or currency violations. Just as an act of terrorism is calculated to outrage— to be a dramatic challenge to the established order— so police and intelligence officers re­ gard it as the premier challenge to them. When one pursues ter­ rorists, however, rummaging around in people’s political activity is impossible to avoid. Radical political dissenters, both left and right, talk a lot, often violently. Most political rhetoric is simply that— threats and veiled hints. Nevertheless, rhetoric sometimes leads to ac­ tion or creates the psychological preconditions of violence. As a result, the praetorian is constantly tempted to react to speech alone. Praetorians defend investigating "just speech” by assert­ ing that, if individuals talked openly about insurance fraud and truck hijacking, they would be prepared to regard it just as seriously. Praetorianism is bureaucratized, which can also create prob­ lems. During the Church Committee hearings, the question asked repeatedly was, "Why was the particular investigation or

13 2

THE DANGERS AND THE NEEDS

program of surveillance continued so long?” Again and again, as in the case of the women’s liberation movement, FBI investi­ gations produced reports indicating no potential for violence in a particular group, but nevertheless, surveillance was continued. One explanation for this behavior, familiar to all political scien­ tists, is that bureaucratic momentum perpetuated the investiga­ tions. Bureaucracies tend to continue doing what they have been doing. A program once undertaken develops a cocoon of per­ sonal career and ego interests around it that protects it and, with­ out strong intervention, perpetuates it in the future.12 The techniques most useful in responding to political crime, especially the use of informers, unfortunately coincide with the natural proclivity of the praetorian to begin investigating too early and to continue the investigation for too long. If militant groups become more difficult to penetrate as they approach vio­ lent action, then, for purely pragmatic reasons, domestic intelli­ gence tactical manuals ought to stress getting informers in place early and keeping them there.13 The FBI did just that during the three decades after World War II by maintaining "pools” of in­ formers on the wilder fringes of American politics without ref­ erence to any particular apprehension of crime. Maximizing the use of informers in this manner, however, is precisely what sound public policy should prevent. Another bureaucratic impulse to conduct surveillance stems from the temptation of technology itself. If ways exist for doing things, the nature of bureaucratized praetorianism is to make use of them. Nowhere is this phenomenon better illustrated than in the way the National Security Agency began its domestic in­ telligence activities. The technology developed by N SA made certain sorts of monitoring very easy, and the "can do” attitude, so common in the master of a new technology, put N SA at the service of not only other domestic intelligence agencies but ordi­ nary law enforcement as well. As new capabilities are added to what Christopher Pyle calls the "intelligence repertoire,” the temptation to use the new technology unchecked may be very difficult to control. The length of time it took for Fourth Amend­ ment doctrine to catch up with the development of microphone surveillance is a good example of this danger.14 Congressional legislation and administrative oversight to control domestic in-

THE DANGERS AND THE NEEDS

1 33

telligence should be geared to deal with new surveillance tech­ nology quickly and effectively. A final aspect of bureaucratized praetorianism should be mentioned— the phenomenon of “ off the record reenforcement.” Praetorians are sometimes encouraged to overreact to political dissent by subtle signals they receive from politicians. These sig­ nals say, in effect, "W e want the job done. We realize you can’t be overscrupulous about methods, but you understand that we cannot say this openly.” Some of the F B I’s more questionable activities in the 1950s and 1960s were begun in this manner— the Church Committee’s account of how the bureau’s COINTELPRO operation against the Ku Klux Klan was started is particularly revealing on this kind of encouragement.15 Over twenty years ago, in The Soldier and the State, Sam­ uel P. Huntington argued that professionalism was the best guarantee of preserving civilian control of the American mili-'° tary, that the military’s sense of its own proper function would operate to restrain it from entering partisan politics.16 The same principle holds true for police and intelligence praetorians; their own conception of their proper role is the most important pro­ tection against abuses of power. In the chaotic atmosphere that usually follows a bombing or an assassination, politicians may attempt to subvert praetorian professionalism by suggesting that desperate situations justify heroic responses. The argument can be made that no amount of rule making, oversight, or advanced reinforcement of professionalism can prevent praetorians from overreacting to the signals they receive from the political struc­ ture. While this danger should not be underestimated, the pro­ fessionalism of those involved in domestic intelligence, if prop­ erly developed, can be a strong counterforce in forestalling serious abuses. PRESENT NEEDS— TERRORISM

Discussing the need for domestic intelligence activity in today’s climate of approbrium is an uncomfortable undertaking. Critics of intelligence gathering find it a much easier task to catalog past abuses, point out potential dangers, and then piously wish it would all go away.17 Without facing up to the continuing

1 34

THE DANGERS AND THE NEEDS

need for some domestic intelligence gathering, however, any discussion or evaluation of reforms and reform proposals is pointless. The most obnoxious aspect of past domestic intelligence gathering was the absence or questionable nature of the criminal basis for investigation. "Subversion” meant many things to many people, and it was never made a crime. "Subversives” were in­ vestigated all the same. Equally troubling were crimes such as "advocating” or "conspiring to advocate” the violent overthrow of the government. These laws, federal and state, are now on the verge of repeal, and to begin even preliminary investigations to detect or prevent such "crime” should offend us. "Speech crimes” were enacted in a time of fear and have survived as anachronisms that should be eliminated. The contemporary need for intelligence gathering in political contexts can be expressed in one word— terrorism— which involves "real crimes” of vio­ lence and disruption, not "speech crimes.” Political theorists have been hard pressed to define terror­ ism precisely. Eduardo Jiminez Arechaga suggests that terrorism consists of Acts—which may themselves be ordinary crimes such as mur­ der, arson, the planting of bombs— but which have the added and defining dimension that they are committed 'with the deliberate intention of causing panic, disorder, and terror within an organized society, in order to destroy social dis­ cipline, paralyze the forces of reaction of a society, and in­ crease the misery and suffering of the community.18 Carl Leiden and Karl M. Schmitt, in The Politics of Violence: Revolution in the Modern W orld, offer this definition: Murder, assassination, sabotage, and subversion, the destruc­ tion of public records, the spreading of rumor, the closing of churches, the sequestration of property, the breakdown of criminal law enforcement, the prostitution of the courts, the narcosis of the press—all of these, as they contribute to a common end, constitute terror.19 Christopher Pyle limits his definition of terrorism to purposeful attacks on persons and excludes attacks on property and massive acts of civil disobedience:

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Focused bombings, like those of the Weather Underground against corporate headquarters, probably do not qualify as terrorist acts since the bombers gave warning and timed their attacks so as to minimize the risk of human life.20 I think that terrorism is most conveniently employed as a shorthand for serious politically motivated or justified crime, in­ cluding the bombing of unoccupied buildings and the "non­ violent” blocking of vital traffic arteries, whether carried out by members of the Weather Underground or opponents of nuclear power. Some types of actions— personal witness and minor acts of civil disobedience, for example—while illegal, do not rise to the level of serious crime. Even the most hard-nosed praetorian would be unlikely to open a preliminary investigation based on the rumor that two Scarsdale matrons and their gynecologist are contemplating withholding portions of their federal income tax payments to protest arms sales to Saudi Arabia. While the IRS might begin such an initiative, this kind of protest should be of little or no concern to law enforcement units that deal with crime in political contexts. Guerrilla warfare is often confused with terrorism in dis­ cussions of political violence. Guerrillas sometimes resort to terrorism as an ancillary tactic, but their style is paramilitary, and their thrust is against military or military-support targets. Terrorism is characteristically employed against civilians, and the objectives for it range from simple expression ("see how we hate” ) to forcing a change in official policy ("Britain, get out of Ulster” ). Sometimes the civilian target is guilty of political sin in the mind of the terrorist. Thus, a bomb in a fashionable restaurant is more likely to wreak havoc on capitalist oppressors than innocent sons of toil. In other instances, victims are chosen at random, which contributes to the psychological impact of the terrorist activity. Politically motivated lawbreaking does not have to involve bullets and bombs to be considered terrorism. Several hundred simultaneous misdemeanors (car stallings, for instance) can seriously disrupt an urban community. As Anthony Burton puts it, if the objective of the terrorist is "to shake the faith of the man in the street in the Government and in its local repre­

1 36

THE DANGERS AND THE NEEDS

sentatives, especially the police,” 21 mass low-level lawbreaking may be just the ticket. Of course, the manifest political rationale for terrorism may not be the actual motivation in individual cases. Two Brit­ ish students of the problem, D. V. Segre and J. H. Adler, have suggested, plausibly, that many recruits to terrorist cells are simply sociopathic personalities who find violence a satisfying activity when it is organized and justified within a particular ideological framework.22 The line between martyrdom and mad­ ness is notoriously fine. Whatever the mix of true believers and sociopaths, however, the highly technological, increasingly in­ terconnected societies of Western Europe and the United States provide new and alarming opportunities for terrorist activities. Small weaponry today is standardized and easy to obtain. Since terrorists choose their own points of attack, they can em­ ploy firepower at least equal to and sometimes more sophisti­ cated than that of the governments which must combat them— a situation that can only get worse. Brian Jenkins of the R A N D Corporation has noted: At present, the terrorist’s capacity for destruction is limited, but the mass production and widespread distribution of in­ creasingly sophisticated and increasingly powerful manportable weapons will greatly add to the terrorist’s arsenal. Weapons have become smaller, more potent, cheaper, and more widely available, all at the same time. Arms control ef­ forts, which naturally have tended to focus on strategic weapons and on conventional war between nations, must now examine the consequences to be faced when weapons now being developed for today’s infantryman are passed second­ hand or third-hand to tomorrow’s terrorists.23 Generally secure electronic communication and excellent air transportation help to create levels of interaction and co­ ordination among terrorist groups previously impossible to achieve. The bandit of the nineteenth century and the terrorist of the twentieth century are vastly different in their ability to shoot, to move, and to communicate. Segre and Adler worry, not unreasonably, that: A determined group can, in point of fact, terrorize a whole population, e.g., by poisoning wells, using biological weapons.

THE DANGERS AND THE NEEDS

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These can easily be acquired today, just as guns and even medium-sized rockets may be bought.24 Segre and Adler go on to point out that we live increasingly in an airport civilization— a "global village” with "interchange­ able runways and waiting rooms.” They argue that this phe­ nomenon has three consequences: ( 1) The detection of the bandits becomes increasingly diffi­ cult in the impersonal society of mass transport; (2) the out­ law’s ability to disrupt air traffic— or any other modern stan­ dardized process— is increasing proportionately with the functional complexity of the process itself, and parallel to the destructive power at their disposal; and (3) the modern sys­ tem of mass communication and mass production allows that permanent "marginal” fringe of the population which exists in every society to congregate for the purpose of committing anti-social acts with a facility that did not exist in the past [emphasis added].25 Thus, contemporary terrorism has a new and distinctly problematical aspect in which concentrations of "related mi­ norities of specialized anti-social populations” have ready access to one another, either physically or by electronic communica­ tion, and . . . they can attack the most vulnerable target, clandestinely and overwhelmingly, literally in a suitcase. Modern terror­ ism— ideology, and other political rationalizations notwith­ standing—is changing into an independent, self-sufficient, self-fulfilling business organization.26 International terrorism is not a transitory phenomenon, nor is it likely to decline soon. Two widely noticed books on terrbrism published recently take pessimistic views of the problem. J. Bowyer Bell begins his study, A Time of Terror, with the obser­ vation that, "Today terror, a forrp of political violence that falls between war and peace and offers a model to madmen and criminals, appears to be endemic in open, liberal societies.” 27 Bell is skeptical that any practical strategies can be developed to prevent or even dramatically reduce terrorism and advises that Western societies steel themselves for a long and painful siege. Walter Laqueur, in Terrorism, is only slightly more optimistic.

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THE DANGERS AND THE NEEDS

While arguing that the Western world has known outbursts of terrorism before and that the "frequent invocation of 'the steady growth of terrorism’ . . . is not borne out by fact and figures,” Laqueur has little hope that terrorism will diminish.28 Laqueur might have been even more negative in his assess­ ment of terrorism had he withheld publication of his book for a few months. In that space of time, a TW A flight was skyjacked from New York by Croatian nationalists, leaving one member of the New York Police Department bomb squad dead; the same Croatian nationalists briefly seized the Yugoslavian Con­ sulate in New York; the skyjacking to Mogadishu took place; Hans Martin Schleyer was murdered by Baader-Meinhof; the second (and far more serious) round of South Moluccan terror­ ism rocked Holland; the Japanese government acceded to de­ mands of "Red Army” skyjackers at Dacca; the Hanafi Moslem outrages convulsed Washington, D.C.; and the Red Brigade’s terror in Italy reached its apogee with the kidnapping-slaying of Aldo Moro and almost daily attacks on lesser figures. (This chronicle does not even include the actions of the PLO during the same period.) Does the ubiquity of international terrorism have any seri­ ous implications for the United States? We have no Ulster, no hostile states on our borders, no destabilizing, totalitarian party within our midst. The urban riots and the confrontation politics of the 1960s have given way to what seems a more orderly and "normal” style of dissent. Most of the famous radical fugitives of the last decade have turned themselves in, President Carter says that we can be proud of America again, and there is less chic talk about "creative chaos” and the purifying qualities of violence. Despite the apparent social tranquillity of the 1970s, not all the signs point toward domestic peace. Only a very deter­ mined optimist can ignore the possibility that Americans will be increasingly faced with events such as the Fraunces Tavern bombing in January of 1975 and the Hanafi Moslem takeover of the District Building in Washington in March of 1977. Ac­ cording to FBI statistics, twenty-four bombings occurred in 1973 that can reasonably be described as terrorist attacks, forty-five in 1974, and eighty in 1975. In 1975, seventy-six persons were in­

THE DANGERS AND THE NEEDS

1 39

jured and six died in these attacks, and monetary damage was estimated at $2.7 million.29 From the New York Public Library to the gates of the White House and the headquarters of "cor­ porate America,” political bombers were busy. Terrorist acts within the United States are not restricted to major metropolitan areas. In the spring of 1976, for instance, the computerized control room of the Central Maine Power Company in Augusta, Maine, was damaged by two explosions. Fortunately, a bombproof backup control room— one mark of our society’s increasing sophistication in anticipating and re­ sponding to such emergencies—was able to allocate power throughout the portion of the grid controlled from Augusta. Of course, not all bombings are terrorist bombings any more than all murders or kidnappings are acts of terrorism. The eighty terrorist bombings in 1975 constitute a relatively small portion of the over 1,900 bombing incidents reported to the FBI that year; nevertheless, the trend is not reassuring. In March 1977, the National Advisory Committee on Crim­ inal Justice Standards and Goals submitted the 650-page report of its Task Force on Disorders and Terrorism to the attorney general. This group, headed by Jerry V. Wilson, former chief of the Washington, D.C., Metropolitan Police, concluded that, although the number of deaths and injuries from terrorism in the United States had been small (520 deaths and 830 injuries between January 1968 and April 1974), the potential for po­ litically motivated crime should be "taken very seriously in­ deed.” 30 The report observed that conditions in the United States made it unlikely that terrorism would develop into guerrilla warfare or direct confrontation with authorities, but it concluded that "covert terrorism” as "surrogate warfare” might increase. Criticism of the report for its "alarmist” tone was just begin­ ning to be heard in Washington when, three days after its re­ lease, the Hanafis struck at two locations in the city. In October 1977, another government report, Facing To­ morrow’s Terrorist Incident Today ,31 was issued. Funded by the Law Enforcement Assistance Administration and written by Robert H. Kupperman, chief scientist at the Arms Control and Disarmament Agency, the tract was principally concerned with appropriate government responses to terrorism. Kupperman had

14 0

THE DANGERS AND THE NEEDS

been at the center of ongoing interagency discussions of terror­ ism since 1974. His report stressed the fragility and vulner­ ability of highly industrialized societies to disruption and con­ cluded that I t . . . is foolish to make confident probablistic estimates of terrorist trends, for we can extrapolate only from scant data. Yet there are useful, qualitative statements to make concern­ ing [vulnerability and new weaponry], none of which is re­ assuring.32 In its 1969 report, the National Commission on the Causes and Prevention of Violence linked political violence in America to general levels of social disturbance and political turmoil. While today we are enjoying a period of greater stability, a num­ ber of social and political destabilizing factors could easily alter that state of affairs. The first is international contagion. Given the mobility of terrorists and the extent to which events abroad are lavishly and immediately reported by the American news media, the likelihood exists that such exploits will be imitated here. A second factor that could give rise to politically motivated crime in this country is America’s attractiveness as a staging area for terrorist operations aimed elsewhere. Ours is an open society that places extensive limitations on police power. Los Angeles, Miami, and New York are magnets for "exile groups” from around the world. We should not comfort ourselves with the thought that the bombs of the extremist exiles here go off some­ where else, however. The United States has an international re­ sponsibility (often specific foreign policy commitments) to pre­ vent plots against foreign governments. "Exile groups” often find domestic targets for their violence as well. A third, more subtle factor creating a potential for terror­ ism in the United States stems from the deep cultural and po­ litical divisions that have developed within American society. Respect for formal authority within the American intellectual elite has been eroded over the past decade and a half, a phe­ nomenon that can no longer be considered a passing effect o f Vietnam and Watergate. The professional intellectual sector of

THE DANGERS AND THE NEEDS

141

American society has grown enormously since World War II, both in size and in social and political influence. During the 1960s, major portions of this intellectual elite developed serious doubts about the morality of using American power in the world and about the equity and legitimacy of our basic social and eco­ nomic arrangements at home. These "adversary” convictions have intensified in recent years, sometimes to the point of mili­ tancy. Despite their positions at the commanding heights of the communications media and the academic world, however, the intellectual elite has not had much success persuading the vast majority of its fellow citizens to its viewpoint. As a result, the most articulate segment of the population cannot approve of much of our foreign and domestic policy. As long as this dicho­ tomy exists, the communications skills of the intellectuals will be used, albeit in indirect ways, to impeach the authority of government.33 While most of our preoccupation with terrorism concerns the political left, the terrorist potential of the right should not be ignored. The vigilante impulse is still close to the surface of American life.34 Anyone interested in the extent of the phe­ nomenon today has only to turn to the pages of such new, glossy periodicals as Vigilante and Soldier of Fortune. Page after page of advertisements for weapons and security and surveillance de­ vices surround articles dealing with the breakdown of law en­ forcement and the desirability of individuals organizing and arming themselves for protection. As two recent commentators put it, "For many Americans, there is apparently a thin blue line between order and chaos. Break it and untold furies lie be­ yond.” 35 Terrorism by the left can easily stimulate rightist re­ sponses. Whether Americans will resort to violence and disruption as idioms of political expression depends in the final analysis on one’s estimate of the depth of the cleavages and the intensity of the conflicts within American society. In a recent discussion of the increase of civil violence in Great Britain, a society previous­ ly thought immune, Lord Chalfont wrote: Any comprehensive study of the nature of revolution suggests that there are a number of factors which, if they coincide,

1 42

THE DANGERS AND THE NEEDS

create conditions for drastic and violent social change. They include weak and discredited political leadership; crisis and instability in the economy, rapid social change resulting in a growing disenchantment with traditional structures and val­ ues; and a state of hostility between the ruling establishment and a militant intelligentsia.36 All of these factors, although at varying levels of intensity, exist in America at the beginning of the 1980s. Even though the advocacy crimes and other statutory de­ tritus of the 1940s and 1950s, such as the FBI responsibility for servicing the Federal Employee Loyalty-Security Program, should be swept away, the FBI will still be involved in some monitoring of dissent. The hodgepodge of state antiradical laws may be mercifully forgotten, but local police forces will con­ tinue to find it necessary to pay attention to some individuals involved in protected First Amendment activity. The question is not whether, but how—with what checks against excess. Indro Montanelli, editor of the Milan daily 11 Giornale Nuovo, has speculated that the almost incredible success of the Red Brigade can be attributed to the low state of readiness of the Italian police and their past failure to gather domestic in­ telligence that is needed now: The Moro case has demonstrated in a traumatic fashion how all state defense services are blind and deaf. It was the Com­ munists who called for the demolition of the intelligence agencies; the Christian Democrats gave it to them. It was the Communists who demanded the removal of prefects and police heads who had given any evidence of efficiency; the Christian Democrats obeyed.37 Montanelli does not suggest that any dark, sinister plot was in­ volved; rather that Italian law enforcement (at least in the area of politically motivated crime) was constrained, almost inad­ vertently, by men of good intentions surrendering to pressure from the nonterrorist left. W e must not allow our justifiable enthusiasm for curbing bureaucratized praetorianism to cause us to overreact. By care­ fully weighing the threat and by guarding against the repetition of past excesses, we can fashion policy to allow sufficient moni­

THE DANGERS AND THE NEEDS

1 43

toring to help contain dissent within the limits of the law. At the same time, we can prevent the praetorians from offending our values of protecting dissent and individual privacy through legislative and administrative controls.

8. Further Reform?

There is a considerable difference between being high-minded and soft-headed. —Sir William Stephenson, A Man Called Intrepid

W H EN A LL RHETORIC about "trampling the rights of Americans” and "needs of national security” is stripped away from the debate over domestic intelligence, we are left to bal­ ance values and weigh dangers and needs. The answer to the problem of domestic intelligence is certainly "more law” —but law of a more modest, detailed, and flexible order than consti­ tutional law. The basic question that remains is what limits there should be on what is permissible in early investigation of sus­ pected crime in political contexts. Bearing in mind the dangers and the needs, this chapter will ( i ) summarize the shortcomings of reform thus far; (2) suggest several innovations that appear desirable; (3) call attention to several widely discussed but un­ desirable proposals; and (4) hazard a few concluding observa­ tions on the monitoring of dissent in America. REFO RM S TH US FAR

The obvious first question is how good are the guidelines— how close do the attorney general’s rules for domestic security inves­ tigations and the use of informants come to a reasonable balance between the need to collect criminal intelligence on the violenceprone fringes of our politics and our concern to protect dissent

FURTHER REFORM ?

14 5

and privacy ? A careful response has to be that it is too early to tell. As of late 1979, we simply have not had enough experience with the bureau’s performance under the guidelines to make a judgment. However, some difficulties are already apparent. The Domestic Security Guidelines rest on a very awkward statement of the criminal predicate for investigative activity (see Chapter 3). This statement described a category of crimes that might serve as the basis for an investigation: those where force or violence, in violation of federal law, is employed for the pur­ pose of overthrowing, impairing, or interfering with the func­ tioning of government or depriving persons of their civil rights. It would be far better to refer simply to "violent or disruptive acts” that appear to be politically motivated and involve some violation of federal or state law. (As a practical matter, some plausible federal ground can always be found to justify bureau activity in response to potential or actual terrorism, but it is the politically motivated quality of the conspiracy that should de­ termine FBI jurisdiction, not pettifoggery over how many po­ tential state or federal crimes may be involved.) The drafters of the present language apparently wanted to exclude minor viola­ tions of law as investigative predicates and to exclude the ad­ vocacy crime of the Smith Act as a basis for collecting informa­ tion. But these restrictions can be accomplished more simply and clearly. The present vague wording exposes the guidelines to needless criticism for being directed at "political crimes.” Another difficulty with the Domestic Security Guidelines is the language used to describe the circumstances under which investigations may be initiated. The guidelines state that the FBI may undertake preliminary and limited investigations "on the basis of allegations or other information that an individual or group may be engaged in activities which involve or will in­ volve the use of force or violence.” The word "allegation” in this context conveys a specific meaning, but what is one to make of "other information” ? How this phrase is interpreted in the daily administration of the guidelines will be crucial to their ultimate success. A sensible interpretation would have the responsible offi­ cial specify at the opening of the record what crime is appre­ hended, whether the investigation rests on an allegation or

14 6

FURTHER REFORM ?

"other information,” and, if the latter, what this information is. While the creation of this paper trail is necessary for internal FBI supervision and for Justice Department and congressional oversight, a broad construction must be given to the "other in­ formation” requirement. The phrase must not be read to require more than the threat of violence by the subject to be investi­ gated, plus any circumstantial indication to which the investiga­ tor is willing to commit himself for the record as making it ap­ pear that the threat is substantial. Rhetorical invocation of violence should be sufficient if there is circumstantial confirma­ tion of its seriousness, but the threat and circumstances that jus­ tified the investigator’s apprehension should appear in the rec­ ord. Where there are serious reasons to believe that a group may engage in terrorism, there should be investigation. The guide­ lines must not be altered by interpretation to establish a higher standard. There has been considerable pressure to establish a higher threshold for investigations. The Church Committee, in its Rec­ ommendation 44, suggested that the FBI "be permitted to con­ duct a preliminary preventive intelligence investigation of an American or foreigner where it has a specific allegation or spe­ cific or substantiated information” to the effect that the subject will "soon engage in terrorist activities. . . " 1 The committee clearly intended that the phrase "specific or substantiated infor­ mation” encompass more than just threats of violence and prob­ ably more than the "threat and circumstantial indication of seri­ ousness” standard that I am suggesting. The committee’s recom­ mendations also went further than the Domestic Security Guide­ lines by insisting on "soon engage” as a proximity requirement. The differences between the Church Committee formulations and the present attorney general’s guidelines are subtle but im­ portant; any suggestion that the committee’s recommendations be looked to for a clarifying gloss of the guidelines should be vigorously scouted. Even more extreme proposals are being made. The Ameri­ can Civil Liberties Union, drawing on the 1968 decision of the Supreme Court in Terry v. Ohio2 (the "stop-and-frisk” case)f would require that "reasonable suspicion” exist before any in­ formation gathering in political contexts is undertaken. The

FURTHER REFORM ?

14 7

ACLU defines a "reasonable suspicion” as an inference drawn from "specific and articulable facts.” 3 Without pausing on the interesting question of what constitutes an "articulable fact,” it may be enough to say that the constitutional standard required to be met by a law enforcement officer in stopping and physical­ ly handling a person does not seem suitable as the trigger for the much less intrusive process of a preliminary or limited investiga­ tion. But what of the step up to a full investigation ? A ll parties to the domestic intelligence debate agree that more indication of the likelihood of criminal activity is necessary when more in­ trusive methods of intelligence gathering, such as sustained physical surveillance or penetration by an informer or under­ cover agent, are to be employed. The present guidelines provide that full investigations must be authorized by FBI headquarters "on the basis of specific and articulable facts giving reason to believe that an individual or group is or may be engaged” in the sorts of criminal activities described in the guidelines. While the term "reasonable suspicion” is not used, there is an unmistakable echo of Terry v. Ohio, and the casual observer could be forgiven for thinking that here, at least, there is agreement between the ACLU and the Justice Department. This is not correct. In the guidelines, "articulable facts” are defined as substantial facts that justify an inference that criminal activity may be afoot. But the ACLU will not rest with that. In their statement prepared for the Senate Judiciary Committee in April 1978, ACLU law­ yers urged a version of reasonable suspicion in which a "reason­ able suspicion of a specific act in violation of law” would be re­ quired. If there remained any doubt as to how stringent a stan­ dard the ACLU desired, the statement specifically recommended that their version intended a "higher degree of certainty” than the original Terry version. There is more wrong with the ACLU position than the solecism involved in "degree of certainty.” What is being at­ tempted is the elevation of the investigative threshold close to the level of probable cause— that specific knowledge necessary for a search or arrest warrant— and excludes criminal conspira­ cies as a basis for investigation. If this narrow standard were to become operative, domestic

14 8

FURTHER REFORM ?

intelligence investigation would be shackled to the common law of attempts; unless something specific had happened, or was about to happen, or an attempt was under way; and unless the FBI somehow, without any prior activity on its part, came to know about this crime, near crime, or attempt, it could take no action. To state the position is to refute it. The kind of specific knowledge required for probable cause is a proper end product of investigation, not its requisite starting point. All sorts of law enforcement investigations begin on the suspicion that "some­ thing is going on out there.” Much white-collar crime, for in­ stance, is discovered only after enforcement agencies go looking for it. Criminal conspiracies may be inchoate with no particular attempt imminent, but nonetheless can be dangerous and worthy of law enforcement attention. It is part of the argument of this book that individuals and groups involved in political activity deserve protection from law enforcement intelligence operations beyond that provided for those suspected of ordinary crime. But a near-probable-cause threshold for starting investigation, which could not for a moment be contemplated for other areas of FBI information gathering (or for the work of other law enforce­ ment agencies, federal or state) goes too far. Nevertheless, by 1976 this position had commended itself to Congressman Herman Badillo (D., N .Y .) and several of his House colleagues. They wrote it into a bill for regulating the intelligence community, introduced in the first session of the 95th Congress as H.R. 6051. In addition, an umbrella group had sprung up in Washington— the Campaign to Stop Government Spying— which seeks to coordinate the activities of a number of the groups rallying behind the general position expressed in H.R. ¿051. Organizations associating themselves with the cam­ paign ranged from Americans for Democratic Action through the Black Panther party to the Church of Scientology and the Friends of the Earth.4 There is little danger of such restrictive legislation pass­ ing— even with law enforcement agencies on the defensive after the excitements of the last few years. But it is still important to make the case forcefully as to why some scope should be left to the bureau for early investigation in political contexts. What we want to prevent is political harassment and frivolous intrusions

FURTHER REFORM ?

14 9

into privacy; what we want to encourage is early information gathering concerning those likely to resort to violence. The first objective can be achieved by requiring the statement of criminal predicate and by the creation of an investigative file (a paper trail) that can be reviewed objectively and upon the adequacy of which the career of the investigator ultimately rests. Setting a very high formal threshold of knowledge and imminence for investigation would only serve to defeat the second objective. The present guidelines are a hard-won accommodation be­ tween conflicting but legitimate interests. Unless they are fla­ grantly ignored, which is unlikely under the new oversight ar­ rangements, they severely limit the sort of intelligence gathering in which the bureau may engage. For instance, it is now difficult to maintain a pool of "generalist” informers on the radical fringes. (As one special agent put it, "Nothing in the guidelines prevents us investigating where we have worrying facts; the problem is whether we are getting enough facts.” ) Informants can only be used within the framework of particular investiga­ tions, and this is to the good. But to adopt a very high investi­ gative threshold would be to risk signaling the FBI and other law enforcement agencies that they are to do no early investiga­ ting of crime in political contexts and that anyone not heeding this message proceeds at the risk of his or her career. Such an outcome would be a victory for a shrill— and extreme— minority. Inevitably, in any future outbreak of terrorism, such a result would be reversed and might even undo much of the good ac­ complished over the past few years. Even so, the existing guidelines still need to be refined. A l­ though they are better than nothing, they could be made con­ siderably more precise about what is permissible in running an informant and what justifies the initial penetration of a political group. New public guidelines are also needed to govern the re­ lations between the bureau and the other intelligence services— the CIA, NSA, the army, and the Secret Service. Counterintelli­ gence is another continuing problem. The Church Committee dealt so circumspectly with counterintelligence operations that, by comparison to domestic intelligence, very little information about them was made public. In May 1976, Attorney General Levi issued classified guidelines governing the foreign intelli­

1 50

FURTHER REFORM ?

gence collection and counterintelligence operations of the FBI. Two years later, portions of this document were disclosed as the result of a Freedom of Information Act appeal by Morton Halperin.5 While what was disclosed is better than nothing and does include some important definitions, all material relating collection techniques (when, where, and how) was edited out. It is abundantly clear from what does appear (especially in pro­ visions for safeguarding information collected by "extraordinary techniques” ) that the counterintelligence guidelines allow the bureau to undertake more intrusive operations in that context than in the context of domestic political crime. Thus, the "fit” between the counterintelligence and the domestic security guide­ lines remains a matter of concern. Until the attorney general makes clearer just how much indication of foreign involvement it takes to justify treating a case as counterintelligence rather than as domestic security, the suspicion that it may be possible for the bureau to transform what is basically a domestic case into a counterintelligence matter in order to evade the more restric­ tive domestic guidelines will linger. Another important question to ask is whether the oversight mechanisms created thus far are sufficient. Establishing guide­ lines, creating paper trails, and requiring the statement of a criminal predicate as the first line of every investigative file will have little significance if no one is watching in a sustained fash­ ion. Both the adequacy of reasons given for initiating an inves­ tigation and the necessity for the levels of intrusiveness involved must be periodically evaluated. It must be made clear with the FBI (and within state and local police intelligence units) that getting caught giving frivolous or obscure reasons for initiating information gathering will adversely affect one’s career. At the federal level such review will be conducted first within the bu­ reau, but most observers now agree that outside review, at least some outside sampling of the filés, is also necessary. The Domestic Security Guidelines provide for full investi­ gations to be reviewed periodically at the Justice Department level and provide for the department to be notified of all pre­ liminary or limited investigations extended beyond ninety days. If the job of monitoring investigative files is taken seriously at the departmental level, it will go a long way toward keeping the

FURTHER REFORM ?

1 51

system honest. Even more important to the long range success of the oversight process, however, is ensuring that eyes outside the executive branch— preferably the staff of the Senate Intelli­ gence Committee— periodically scrutinize the adequacy of the criminal predicates and techniques employed in domestic intelli­ gence investigation. It is unlikely that both Justice Department and congressional reviewers will err toward leniency; if any­ thing, the danger is the reverse. Of course, there is more to establishing proper oversight of the FBI than just monitoring guidelines. The Office of Profes­ sional Responsibility (OPR) was created in the Justice Depart­ ment to act as a watchdog over the entire departmental per­ formance, including that of the bureau. A problem has already developed as to whether the OPR should operate as a small, elite oversight force, routinely observing all aspects of depart­ mental operations and making general recommendations to the attorney general, or whether it should develop its own investi­ gative force to actively pursue evidence of wrongdoing in par­ ticular cases. There are costs both ways. John Elliff has described the problem this way: Oversight works best when performed by a small unit. The larger an office gets, the more likely it is to have its own bureaucratic interests to defend. A smaller office focuses ac­ countability and encourages frank and candid judgments. By contrast, investigating serious allegations of misconduct re­ quires a staff of field investigators and attorneys. The more people involved and the more complex the inquiry, the more likely the staff is to have a special interest in the outcome. It [the core staff] becomes less capable of detached and effec­ tive assessments, and this evaluation responsibility is passed back to the Attorney General.0 If the oversight unit is kept small, more intensive investigations will still have to be mounted from time to time. Thus far, the Counsel for Professional Responsibility, Michael Shaheen, has proceeded by creating ad hoc task forces of FBI special agents and department attorneys when the situation calls for it; these small groups handle a discrete matter and then are disbanded. This procedure sometimes involves special agents investigating other special agents, and this has resulted in some congressional

15 2

FURTHER REFORM ?

grumbling. But over the long haul, this operating style may be preferable to bureaucratizing the OPR. The principal oversight mechanism within the Justice De­ partment, the Investigation Review Unit (IRU ) created by Attorney General Levi to monitor FBI compliance with the guidelines, has had only an intermittent existence.7 The IRU was originally composed of three attorneys, but the volume of domestic intelligence investigations was so reduced by mid-1977 that the need for its continuation was under review. It would, of course, be possible to handle reviews on an ad hoc basis using senior attorneys from different divisions of the department, but there are risks in going this route. In the immediate aftermath of the intelligence scandals, anyone in the Justice Department assigned the task of reviewing an FBI domestic intelligence in­ vestigation will naturally take it seriously. But inevitably, if the task is an additional duty for those who must undertake it, it may become devalued to a quick look and a routine "sign off.” By mid-1979, it appeared that the IRU would serve as an on­ going structure; its bureaucratic life was assured by combining in the unit responsibility for overseeing FBI counterintelligence and foreign intelligence collection. This is greatly to be wel­ comed as a hedge against the investigative review function de­ clining in effectiveness, and will encourage the development of expertise and continuity of practice at the departmental level. While there are growing pains with intelligence oversight within the Justice Department, a more serious problem may be developing for the future of congressional oversight. Initially, in 1976, the Senate Intelligence Committee, with a carry-over of skilled personnel and momentum from the Church Committee days, established itself as premier congressional mechanism for overseeing FBI domestic intelligence work. However, in the spring of 1978, the introduction of S.2525 (dealing with foreign intelligence, counterintelligence, and international terrorism) required a major effort by the Senate Committee’s staff, and other tasks associated with seeing a foreign intelligence bill through Congress continue to take up much of the committee staff’s time. As a result, the principal responsibility for FBI over­ sight and charter legislation has been taken up by the Senate Judiciary Committee with the House Judiciary Committee in­

FURTHER REFORM ?

1 53

creasingly ready to assert its oversight and legislative preroga­ tives. In shifting responsibility to the Judiciary Committees, it was argued, quite correctly, that domestic intelligence is part of domestic law enforcement and that the Senate Intelligence Com­ mittee should be relieved of that particular burden. This is good logic, but it may be bad policy. Effective congressional oversight of the bureau’s activity in investigating politically motivated crime requires expertise and reputation for discretion, which exists at present only in the staff of the Senate Intelligence Com­ mittee. In its brief existence, the Senate Intelligence Committee has acquired prestige that will not be easily transferred to the Senate Judiciary Committee under its new chairman, Edward M. Kennedy, or to the House Judiciary Committee, which numbers among its members such extremist critics of the bureau as Con­ gressmen Don Edwards (D., Calif.) and Robert Drinan (D., Mass.) Coincident with the assertion of authority over domestic intelligence by the Judiciary Committees has been a stiffening of opposition by FBI director Webster to the review of actual in­ vestigative files by persons outside the Justice Department. Web­ ster worries that the confidence of present and potential infor­ mants in bureau confidentiality will be shaken if it becomes known that congressional eyes are scanning working documents. While this concern is altogether proper, it need not preclude the working out of low-key compromise: a random sampling of expurgated files could be reviewed without imperiling FBI credibility. This was the arrangement rumored to have operated informally with the staff of Senate intelligence. The danger now is that the fragile bonds of trust between the Hoover Building and Capitol Hill, forged with such pain in the wage of the scan­ dals, will be strained unduly by involving too many too quickly. Despite the jurisdictional anomaly, the Senate Intelligence Committee staff should continue to be involved with domestic intelligence oversight— at least through the process of charter legislation. ' Another reform of FBI domestic intelligence activity in­ volves the management and retention of domestic intelligence files. Today, it is a widely accepted principle that keeping rec­ ords about people is a form of surveillance and an intrusion into

1 54

FURTHER REFORM ?

privacy. Record keeping is, in a sense, a continuing intrusion as long as the file exists. But to accept this notion encourages over­ reaction in our sensitivity to records. Just as no one was ever se­ duced by a book, the injury done by the mere existence of a file is trivial. Real injury assumes the possibility that the file will, in the future, be read and even acted upon to the detriment of the subject of the file by unknown bureaucrats for unknown reasons. The destruction of a file reduces the risk of future misuses to zero, something that no system of restricted dissemination and access can accomplish. But this problem does not lend itself to such simpleminded cures. The retention of files from past in­ vestigations to help in future investigations is the heart of any criminal intelligence operation. Carefully drawn restrictions on the maintenance and use of domestic intelligence files, including narrowly drawn ground rules for sharing with other agencies, can reduce the risk of abuse considerably. The difference be­ tween zero risk and very low risk should be an acceptable price for an intelligence system that benefits crime control. The present Domestic Security Guidelines do a fair job of specifying which agency and personnel may have access to do­ mestic intelligence files. There is still room for improvement, especially where transfers of information to the service intelli­ gence branches and to local police forces—which may them­ selves have little or no restriction on access— are concerned. As a model, the Metropolitan Police [Washington, D .C.] guide­ lines (see Chapter 4) are superior. In another respect, however, reform may have gone too far. The Freedom of Information Act (FO IA) and the Privacy Act operate to discourage vacuum cleaner recordkeeping at the fed­ eral level. While the broad impact of those statutes has been salutary, they could ultimately have unfortunate consequences for FBI criminal intelligence operations. The Privacy Act exempts files pertaining to "the enforce­ ment of criminal laws, including police efforts to prevent con­ trol, or reduce crime.” 8 This would seem fully adequate to protecting properly predicated domestic intelligence files. The Freedom of Information Act, however, exempts "investigatory files” that are "compiled for law enforcement purposes.” 9 The difficulty is in the words "investigatory files” ; any properly pred­

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155

icated domestic intelligence file would so qualify while an in­ vestigation was under way. But what is the status of a file once an investigation (let us say a ninety-day preliminary) is termi­ nated because insufficient information is developed to justify proceeding further ? If the courts should interpret “ investigatory” to mean "ac­ tive,” the capacity of the bureau to maintain preliminary files for future investigative purposes would be severely limited. The intelligence function of law enforcement is important precisely because it allows a tip or a clue or an event to be checked against some institutional memory. Requiring disclosure of all inactive investigative files would simply result in their being purged, and an intelligence system based on such procedure would have no room to breathe. Indeed, requiring disclosure of these sorts of records is tantamount to destroying them. (The ugly potential here is illustrated by Director Webster’s early 1979 announce­ ment that 16 percent of all FOIA requests received by the bu­ reau were from prisoners seeking to identify the informers who helped to place them in jail.10) Nevertheless, some critics argue that when an investigation is closed, because no present wrongdoing has been found, it is unfair to allow information to remain on file about people whose behavior falls short of justifying continuing investiga­ tion. The consequence of accepting such a suggestion— effective­ ly prohibiting the retention of any nonactive intelligence file— would surely weigh seriously against law enforcement interests. Yet perhaps these fears are groundless. A good argument can be made for the Privacy Act, rather than the FOIA, to control criminal intelligence files because material unavailable to the subject under the more recent Privacy Act could hardly be avail­ able to others under the earlier Freedom of Information statute. Still, those who oppose all domestic intelligence work on princi­ ple will not miss the chance of seeking access to sensitive in­ telligence files through the FOIA; the courts will be presented with quite plausible briefs for choosing unwisely. Right now, the army is perhaps the least problematic of the former offenders as far as domestic intelligence gathering is con­ cerned. With the elimination of the CONUS intelligence pro­ gram, the disbanding of the military intelligence groups around

1 56

FURTHER REFORM ?

the country, and the issuance of the directive ending widespread domestic intelligence gathering, there seems little danger of the army reemerging as a major collector of domestic intelligence. There are some loose ends still left dangling, however. The De­ fense Department should give more attention to defining the needs of commanders in civil disturbance situations, and formal liaison rules governing the relations of army (and other military intelligence services) personnel in such situations to the FBI and local police should be drafted. In terms of the CIA, the problems are somewhat more seri­ ous; the basic difficulty involves the split in the American coun­ terintelligence mission that requires close cooperation between the FBI and the agency. While it is unlikely that the agency will resume its domestic adventuring, there will continue to be con­ siderable sharing of information between the CIA and the FBI. Not only must data on counterintelligence subjects be passed back and forth between the two agencies, but information about some domestic intelligence subjects, when they travel abroad, may become legitimate objects of counterintelligence interest. Counterintelligence activity at both the FBI and the CIA takes place in secret, which brings us back to a familiar weakness in the reforms instituted thus far. When may information on an American citizen (or "U.S. person” ) be collected by counter­ intelligence methods? As long as there are no public ground rules concerning this shared FBI-CIA responsibility, the suspi­ cions will continue that the agency is becoming involved in essentially domestic work and that the bureau is using the counterintelligence rubric to avoid its guidelines for domestic intelligence collection. The best way to solve the problem of potential CIA in­ volvement in domestic intelligence is by modifying the agency’s charter. New legislation could resolve the ambiguity of Execu­ tive Order 12036 as to when and where an American is a legiti­ mate foreign intelligence subject and could place much needed restrictions on the techniques that the agency could use against Americans overseas. Such legislation could also close several of the well-known "loopholes” in the present charter, Thepxeseiit reference to protecting intelligence sources and methods might

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be tightened to include only CIA personnel and security; similar­ ly, the open-ended phrase "such other missions as the National Security Council shall direct” may no longer include any domes­ tic security chores. New legislation for the National Security Agency, which has 110 statutory charter, is also desirable. Executive Order 12036 is an authoritative gloss on the secret presidential directive that established NSA, but it is not enough. N SA poses a peculiar problem: in the course of its routine, warrantless monitoring of international communications, it will be overhearing the conver­ sations of many Americans. It can be argued that the approach of Executive Order 12036 generally satisfies the Fourth Amend­ ment standard of reasonableness because of the executive’s spe­ cial responsibility for national defense and foreign policy. N SA overhearings may be considered exempt from the warrant re­ quirements on the same theory as border searches or searches in fresh pursuit. But such an exception should be confirmed by legislation, and the crucial matter of when Americans may be targeted should be specified by statute. As a corollary to this, the principle that the techniques of electronic overhearing properly available to N SA for foreign intelligence surveillance may not be purposefully employed for domestic intelligence gathering should be spelled out. Electronic searches in domestic cases can never be considered exempt from the warrant requirement, they do not have to do with defense or foreign policy or the KG B, but with criminal law enforcement. However, it would be un­ necessary and unwise to require the N SA to suppress informa­ tion of domestic law enforcement interest when it is obtained by chance in pursuit of foreign intelligence. The law must not go out of its way to be, as Mr. Bumble termed it in Oliver Twist, "a ass.” Legislation has already improved the situation at the Inter­ nal Revenue Service. The access restrictions contained in the 1976 Tax Reform Act (P.L. 94-455) provide more stringent safeguards on tax returns and taxpayer information. The law represents a compromise on the basic issue of whether tax in­ formation should be available for wider law enforcement use at all, but it appears a reasonable compromise.

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For the Secret Service, however, domestic intelligence re­ form has brought a problem of its own. W hile the terms of the liaison agreement between the FBI and the Secret Service are formally unchanged, the vastly reduced amount of domestic in­ telligence collection by the bureau has resulted in a decline in the amount of information furnished to the Secret Service. The Secret Service chief now worries publicly about whether or not he is getting enough information to carry out his mission.11 The present bureau position on such complaints is that Secret Service requirements do not constitute a separate mission of the F B I; that domestic intelligence gathering can be undertaken only un­ der the current guidelines, and that if the Secret Service feels it needs more information than the by-product of this activity it must make its own case to Congress. Those who draft future FBI charters will have to evaluate whether the tension between an overbroad liaison agreement and a reduced information flow deserves rectifying. Finally, it is important to note how spotty and piecemeal domestic intelligence reform has been below the federal level. W hile good progress has been made in some jurisdictions (for example, New York City), little has been made in others (for example, Chicago). Local police intelligence operations— whether called "intelligence units” or not— have published guidelines for their operations in political contexts. At a mini­ mum, these guidelines should include an investigative threshold modeled on the federal domestic security guidelines, with some provisions for the handling of informants. Policy statements as to the purpose, scope, and function of the intelligence unit, based on the Los Angeles or the Washington, D.C., models, would also be useful. WHAT WOULD HELP

The most important reform of domestic intelligence gathering that remains is the enactment of a legislative charter for the F B I.12 Allowing the bureau’s domestic intelligence responsibility to continue to rest on the infirm foundation of vague presiden­ tial directives is worrisome. The imprecise language of these di-

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rectives contributed to the domestic intelligence excesses of the past. Although it is possible to interpret Article II of the Con­ stitution as giving the president power to order that certain do­ mestic intelligence activities be undertaken, it would be prefer­ able for the bureau’s role to be fixed by legislation. FBI charter legislation should clearly and authoritatively exclude any general political intelligence gathering responsibili­ ty, and the bureau should be formally relieved of responsibility for servicing the personnel security programs of the various federal agencies, limiting the FBI to background checks for ap­ pointments to sensitive positions. The charter should clearly state that domestic intelligence is no more than a branch of law enforcement intelligence, requiring a criminal predicate to in­ vestigation. While it would be unwise for Congress to supplant the attorney general’s guidelines with detailed statutory stan­ dards for conducting investigations, a charter would provide a foundation for the present guidelines and for future revisions as experience (especially concerning the nature and extent of domestic terrorism) suggests. In addition, the new FBI charter should deal with the prob­ lem of overlapping federal-state responsibility for politically motivated crime. It should be the bureau’s responsibility to un­ dertake the initial investigation of all crimes that seem to be politically motivated. If, after initial investigation, the matter seems wholly local, that is time enough for the bureau to with­ draw. It is a fact of contemporary life that those who resort to political violence characteristically do not confine their activities to a single jurisdiction. Sound policy would create a presump­ tive federal responsibility for preventive law enforcement in this special, troublesome, and distinctly "national” area of anti­ terrorism. Furthermore, while the police in certain large metropolitan jurisdictions can certainly perform limited domestic intelligence activities on their own, and while it is a desirable exercise in federalism that they do so, they must be backed up and serviced in this respect by a superstate agency. Many jurisdictions lack both the resources and the continuing need to engage in domes­ tic intelligence activities. It makes no sense to encourage pro­

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vincial police departments to undertake intelligence gathering that they cannot sustain in a professional fashion. Just as certain presumptions of interstate activity operate in kidnapping cases, so too should they operate when a bus is seized in New York City or an automobile is driven into spectators at a Ku Klux Klan rally in Georgia. If such a crime turns out to be the isolated act of a deranged individual without ramifications outside New York or Georgia, nothing has been lost by having the "feds” in early. America can do without a comprehensive national police force, but it cannot do without what Morton Grodzins has called a "national police system” to deal with special sorts of crime.13 In his recent book, veteran urban police chief Patrick V. Murphy describes the law enforcement establishment in the United States as a "Tower of Babel,” with far too little information sharing and cooperation. Reflecting on his experience as police chief of Syracuse, New York, Murphy recalls that the chief and his department were virtually on their own. The state police might help in some cases, and in the background were the feds— Hoover’s great F.B.I., the Bureau of Narcotics, the Treasury men. There was some sharing of information among us, as there is perhaps to a greater extent today, but not enough to brag about.14 Another very desirable possible legislative action is the re­ peal of the Smith Act of 1940, which was contained in the pro­ posed Criminal Code Reform Act of 1978. While that legisla­ tion was not enacted, there is now wide agreement that the FBI should not be basing even preliminary investigations on the crimes of advocating or conspiring to advocate the violent over­ throw of the government. What the present FBI guidelines at­ tempt to say, and what future versions will hopefully say more clearly, is that politically motivated violence and disruption— threatened, contemplated, or planned— are the necessary crimi­ nal predicates of early investigating. The fact that an advocacy crime still exists in federal law and that the FBI is technically responsible for enforcing this law, casts a shadow over the anti­ terrorist activity of the bureau. We do not want FBI officials thinking about long-range "conspiracies” to overthrow the gov­ ernment; we want them to concentrate their attention on those

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l6 l

who may, in the near future, resort to violence Oi disruption ^s a political tactic. W H AT WOULD N O T

There is one proposed reform of the bureau, indeed of the whole federal intelligence community, that should be examined with the greatest care: the argument for the creation of stiff new criminal penalties for law enforcement and intelligence officers who behave improperly and for the parallel creation of new civil remedies against such officials by those whom they supposedly wrong. At first glance, the creation of these penalties and remedies may seem a good idea. Why should not those who enforce the law abide by it scrupulously? But "the law” is not a simple con­ cept. In some of its manifestations, it is very clear, in others quite opaque. "The law” that makes it a crime to deprive some­ one of life with malice aforethought or to set a fire with reckless disregard for its consequences is considerably clearer than "the law” that governs the activities of those who seek to anticipate the actions of murderers and arsonists and apprehend them. Certain clear violations of law have taken place in the past in connection with domestic intelligence gathering, but most do­ mestic intelligence gathering offenses were not against "the law” but against broadly shared community values. There are certainly specific federal crimes that are well un­ derstood and unexceptional. The opening of mail and the insti­ tution of electronic surveillance in violation of Title III of the Omnibus Crime Control Act of 1968 are examples. Beyond this, one enters a treacherous swamp of suggestions, overstatement, and ambiguity. If an attempt is to be made to deter future mis­ behavior by police and intelligence officers by creating new crimes, these must be carefully delimited. It is one thing to tell a praetorian not to maintain a particular record for longer than five years; it is quite another thing to tell him not to violate the First Amendment rights of Americans under pain of criminal sanction. The latter "standard” is simply too vague. The deci­ sions of the Supreme Court (the form in which constitutional rights exist for legal purposes) are fragmentary, elliptical, and

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often closely bound up with facts of particular cases—very un­ satisfactory bases for criminal action. To ignore this would ex­ pose praetorians to an undeterminable degree of risk, and will paralyze law enforcement rather than restrain it. In addition, if these new crimes are established, a limited defense of proper authorization must be recognized. There is great confusion on this point at the moment. It is fashionable to refer to any defense based on authorization as "a Nuremburg defense.” This is seriously misleading. If we read the Nurem­ burg tribunals as establishing that no subordinate in any organi­ zation may legally rely on the judgment of a superior to deter­ mine whether some action is proper, then we strike not at nazism or law enforcement, but at all complicated human or­ ganizational activity. Where the law is gray (and in the area of civil liberties it often is), then not only wise public policy but simple fairness requires us to accept the explanation that the attorney general, or the director, or the special agent in charge, or the chief authorized the operation. The "Do Not File” in­ struction on orders for warrantless FBI entries indicated the legally dubious nature of these searches. But to prosecute special agents who simply followed what they correctly perceived as established practice would be reckless and unfair. Top-level decisionmakers are another matter. This distinc­ tion was recognized by Attorney General Bell and the Carter administration when, in the spring of 1978, the prosecution of retired FBI Special Agent John J. Kearney was dropped, and instead, indictments for conspiracy to violate civil rights were sought and obtained against former FBI Acting Director L. Patrick Gray and former bureau executives Edward S. Miller and W . Mark Felt. Kearney had led "Squad 47,” a specialized antiradical task force in the New York field office in the early 1970s, which apparently conducted unauthorized entries and laid on warrantless wiretaps (before and after the Keith deci­ sion) . As the man on the spot, Kearney committed these actions in accordance with the expectations and with the knowledge of bureau higher-ups, such as Miller and Felt. It is altogether

proper that the question of whether crimes were committed hy "Squad 47” be tested by prosecuting the top commanders, not the line officers.

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163

The real question in this controversy is whether new crimi­ nal laws are needed to encourage the praetorians to play by the rules; the answer is probably not. If oversight mechanisms work effectively, new criminal law is redundant. If the praetorian bureaucracies perceive that violation of basic policy, as embodied in guidelines and other internal rules, will jeopardize careers, then the addition of criminal sanctions is likely to yield little extra payoff. If new criminal sanctions against official misconduct are of doubtful utility, the new civil remedies being sought are a down­ right bad idea. In the case of criminal remedies, at least there must be a judgment by a responsible official that the public in­ terest would be served by the proceeding. A prosecutor is not likely to go forward (except in very special cases) where he or she knows success is extremely unlikely. Such restraint cannot be expected from those who, as a result of incautious legislation, are allowed to lodge civil actions against praetorians. The po­ tential demoralization of intelligence and police officers subject to debilitating nuisance suits is too great a risk to take. Present federal law allows civil suits only in cases of intentional viola­ tion of specific constitutional rights or statutes. It should be left at that. Sustaining systematic bureaucratic activity is impossible if leaders within the bureaucracy cannot give directions that will be accepted and if those who must do the work perceive them­ selves as being ordered into situations that entail possible per­ sonal criminal and civil risks. In addition, the threat of civil ac­ tion may operate to discourage the imposition of internal sanctions, the technique of control with the best long-term po­ tential for success. An administrative censure, which might be used later in a lawsuit, would thus be less likely.15 Finding someone in the FBI or in a position of responsi­ bility in an intelligence unit of a major metropolitan police department who is not being sued by somebody for something is difficult. W hile it may be true that the plaintiffs in some of these suits are entitled to damages, it is not in the public interest that individual law enforcement officers should have to pay them. A better approach was embodied in a bill that the Justice Depart­ ment sent to Capitol Hill in the summer of 1977* This proposal provided an exclusive remedy against the United States for

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claims for money damages resulting from constitutional rights violations by federal employees.16 The bill would provide dam­ ages when justified, yet avoid the risk of police officers dodging or refusing commands based on their appreciation of the likeli­ hood of personal financial ruin.17 The objective, again, is to alter the operational struggles of the praetorian bureaucracies with­ out breaking down morale or internal discipline. The "tort claims” bill failed in the 95th Congress, and has been held up in the 96th, hostage to action on the FBI and intelligence charters. AFTERTHOUGHTS

It is an interesting comment on the state of the American intel­ lectual community today— on its thralldom to civil liberties purists— that a major achievement of the late 1970s has gone almost unremarked. However one comes down on particular issues such as investigative thresholds or retention of law en­ forcement intelligence files, there is one overriding issue on which politicians, police officers, activists, and academics who have taken part in the debate agree: that routine, general col­ lection and storage of information concerning political dissi­ dents, on the grounds that it may be useful sometimes in the future, is illegitimate. A broad consensus has emerged on the necessity of some criminal predicate for any monitoring of dis­ sent, a point on which agreement could not have been secured as recently as five years ago. When one reviews the list of more specific reforms achieved, flawed though they may be, it is per­ verse to deny that important progress has been made. We must be prepared to defend this reform through the next American internal security crisis (for it will surely come) and resist any suggestions of a return to general domestic intelligence opera­ tions. Certainly, we should press for further reform; there is no such thing as relaxing in the presence of something as prob­ lematic as monitoring political activity. There is a danger, how­ ever, that some extreme measures now being urged may make all reform and reformers look like reflexively antilaw-enforce­ ment crazies who do not take political crime seriously, fnteifi-

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16 5

gence operations aimed at anticipating criminal activity are necessary in a complex, highly vulnerable society. I f guidelines, investigative quality control, and oversight function properly, it should be possible to maintain domestic intelligence operations that contribute to social peace, w hile at the same time preventing law enforcement from harassing those whose view s are unpopu­ lar. T o the extent that the generality o f Am ericans conclude that this common sense is lost sight o f by their leaders, they are likely to react politically— and they w ill be right. In testimony before the Subcommittee on Constitutional Rights o f the House Judiciary Committee, Jerry Berman, an A C L U W ashington office staff member and a leading bureau critic, remarked that the F B I should only begin investigation on clear indication o f criminal activity. H e suggested that i f the F B I seeks to discover terrorist organizations before the shooting starts, "they w ill discover us .” 18 Such a view is surely highstrung, if not downright eccentric. M ore seriously, its policy im ­ plication is regressive. M uch o f the more subtle sort o f modern crime (frauds, political corruption, as w ell as terrorist conspira­ cies) is discovered only after law enforcement inform ation gathering has begun on the basis o f an inform ed guess. W h ile special rules are justified where political subjects are concerned, to disallow intelligence investigations altogether w ould unneces­ sarily disarm society. In the best treatment to date o f the dilemmas confronting liberal politics in responding to terrorism, Paul W ilkinson writes: A crucial requirement for defeating any political terror­ ist campaign therefore must be the development of high quality intelligence, for unless the security authorities are fortunate enough to capture a terrorist red-handed at the scene of the crime, it is only by sifting through comprehen­ sive and accurate intelligence data that the police have any hope of locating the terrorists. It is all very well engaging in fine rhetoric about maximizing punishment and minimizing rewards for terrorists. In order to make such a hard line effec­ tive the government and security chiefs need to know a great deal about the groups and individuals that are seeking rewards by terrorism, about their aims, political motivations and align-

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ments, leadership, individual members, logistic and financial resources and organizational structures.19 In his excellent study, The Breakdown of Public Security, Tom Bowden stresses the importance of police intelligence operations to the effectiveness of the larger governmental response in countering politically motivated challenges: In a swiftly moving crisis situation sound information is an essential prerequisite of effective governmental policy. The police and their intelligence units should be capable of pro­ viding such information.20 When William Webster is called from a dinner party, as he was one evening in January of 1979, to decide on tactics for han­ dling an air hijacking, he needs to know as quickly as possible whether he is dealing with terrorism as opposed to crime for gain or simple madness. If it is terrorism, knowledge about the sort of group involved and where other members or activists might be found is also essential. Should the matter be politically sensitive (say the kidnapping of a senator or a foreign diplo­ mat), the president, as chief crisis manager, is going to want and expect that information. Webster will not always have the information. A surprise-proof police intelligence system would not be worth the costs, even if it were possible, but where a group or individual proclivity toward political violence has manifested itself previously, it is inexcusable for nothing to have been done by way of follow-up. In a recent article warning against overreaction to terror­ ism, Irving Louis Horowitz wrote that "risk is a part of the nature of the democratic system” ; he reminded us that "auto­ cratic states . . . can reduce the dangers of terrorism well below levels possible in an open society.” 21 This is the right answer to the wrong question. The question is whether we should opt for high antiterrorism efficiency. We cannot do that while still pro­ tecting our shared values of encouraging dissent and preserving privacy. But to accept some risk is not to accept all risk. A demo­ cratic state must still be a state— it must be perceived as deliver­ ing satisfactory levels of social control. O f course, democracies will not suppress terrorism as effectively as totalitarian or even

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authoritarian systems. But the liberal state also has the responsibility to anticipate danger, and its principles, properly under­ stood, do not altogether prevent it from taking initiatives to inform itself about possible politically motivated violence or disruption.

THIS PAGE INTENTIONALLY LEFT BLANK

Notes

I . INTRODUCTION

1. Jack Nelson and Ronald J. Ostrow, The F B I and the Berrigans (N ew Y ork: Coward, McCann & Geohegan, 19 7 2 ), pp. 18 7 -18 8 . 2. For an account of the proceedings of the conference, see Investigat­ ing the F B I, ed. Pat Watters and Stephen Gillers (Garden City: Doubleday & Co., 19 7 3 ) . 3 .N e w York Times, May 18 and June 9, 1975. See also "Security Agency Activities in Chicago, Illinois,” compiled by the Mideast Research Group, January, 1976. 4. N ew York Times, March 3 1, 1975. 5. Ibid., May 9, 1977. 6. In his report to the House Committee on the Judiciary (F B I Domes­ tic Intelligence Operations— Their Purpose and Scope) of February 24, 1976 (hereafter referred to as Comptroller General’s Report), the Comptroller General adopted a narrower definition by which "domestic intelligence” applied to "gathering information on indi­ viduals within the United States who allegedly attempt to overthrow the government or deprive others of their civil liberties or rights.” Both the Church and Pike Committees used the term but, interest­ ingly, did not offer definitions. 7. Attorney General Levi has used the rubric "Domestic Security In­ vestigations” for the purpose of formulating F B I guidelines (mimeo­ graphed draft, March 10, 19 7 6 ). The Church Committee, in its recommendation, preferred "preventive intelligence.” 8. U.S., Congress, House, Committee on the Judiciary, Hearings on F B I Oversight, before the Subcommittee on Civil and Constitutional Rights, 94th Cong., 2d sess., 1976, Part 3, p. 257. 9. See "Controlling the Intelligence Agencies,” American Civil Liber­ ties Union position paper, mimeographed (Washington, D .C., D e­ cember 12 , 19 7 5 ) , p. 5. And this position was embodied in pro­ posed legislation introduced in the spring of 1976 by Congressman Herman Badillo (D ., N .Y .) ; see N ew York Times, April 18, 1976. 10. Morton H. Halperin, Jerry J. Berman, Robert L. Borosage, and Christine M. Marwick, The Lawless State: The Crimes of the U.S. Intelligence Agencies (N ew York: Penguin Books, 19 7 6 ), pp. 270— 27 1.

17 0

NOTES TO PAGES I I - l 8

1 1 . David Wise, The American Police State (N ew Y o rk: Random House, 19 7 6 ). 12 . Brian Crozier, A Theory of Conflict (London: Hamish Hamilton, 19 7 4 ), p. 210. 13 . Ibid., pp. 207-208. 14. Albert Parry, Terrorism: From Robespierre to Arafat (N ew York: Vanguard, 19 7 6 ), p. 561. 15 . On the development of prevention as a coordinate goal of law en­ forcement (along with order maintenance and post hoc detection), see Robert M. Fogelson, Big-City Police (Cambridge, Mass.: Har­ vard University Press, 19 7 7 ) , pp. 67-92 and 94-95. 16. Beck v. Ohio, 379 U.S. 89, 91 ( 19 6 4 ). "Probable cause” is, of course, a far from pellucid term. The leading Supreme Court de­ cisions on probable causes are: Carroll v. U.S., 267 U.S. 13 2 ( 1 9 2 5 ) ; Brinegar v. U.S., 388 U.S. 160 ( 19 4 9 ) ; Draper v. U.S., 358 U.S. 307 ( 19 5 9 ) ; and Beck v. Ohio, 379 U.S. 89 ( 19 6 4 ). A summary of the scholarly literature may be found in Frank W . Miller, Robert O. Dawson, George E. Dix, and Raymond I. Parnas, Cases and M a­ terials on Criminal Justice Administration (Mineola, N .Y .: Founda­ tion Press, 1 9 7 1 ) , pp. 18 3 -3 9 3 .

2 . FROM INTERMITTENCE TO PERMANENCE

1. On the matter of American attitudes toward the older countries of Europe, see M ax Lerner, America as a Civilization (N ew Y ork: Si­ mon and Schuster, 19 5 7 ), pp. 55-56. 2. Paul L. Murphy, The Meaning of Freedom of Speech (Westport, Conn.: Greenwood, 19 7 2 ), pp. n - 3 7 . 3. The intensity of political intolerance among 'Am erican patriots” of the immediate pre-Revolutionary period is conveyed by Bernard Bailyn, The Ordeal of Thomas Hutchinson (Cambridge, Mass.: Harvard University Press, 19 7 4 ), pp. 2 2 1-2 7 3 . For a popular ac­ count of the excesses of the Sons of Liberty, see Nathaniel Weyl, The Battle Against Disloyalty (N ew York: Crowell, 1 9 5 1 ) , pp. 1 0 25. A scholarly book on the persecution of the loyalists is Robert McClary Calhoon, The Loyalists in Revolutionary America, 17601781 (N ew Y ork: Harcourt Brace Jovanovich, 19 7 3 ) . For eyewit­ ness accounts of the gory details, see Catherine S. Cary, ed., The Price of Liberty (N ew Y ork: M cGraw-Hill, 19 7 3 ) . 4. W illiam Nisbet Chambers, Political Parties in a N eiv Nation (N ew York: Oxford University Press, 19 6 3 ), pp. 13 5 - 14 2 . 5. See James Morton Smith, Freedom’s Fetters: The Alien and Sedi­ tion Laws and American C ivil Liberties (Ithaca, N .Y .: Cornell U ni­ versity Press, 19 5 6 ), p. 68. 6. Chambers, Political Parties, pp. 14 2 -14 9 . 7. Page Smith, John Adams, vol. 2 (Garden City: Doubleday & Co.,

NOTES TO PAGES 1 8 -2 6

171

19 6 2 ), pp. 975-978. 8. Leonard W. Levy, "Liberty and the First Amendment: 17 9 0 -18 0 0 ,” 68 American Historical Review 1 (19 6 2 ) . 9. Alexis de Tocqueville, Democracy in America, trans. Henry Reeve (N ew Y ork: Oxford University Press), p. 233. 10. Smith, Freedom’s Fetters, pp. 15 9 -18 7 . 1 1 . On the Union’s internal security program, see Wood Gray, The H id ­ den Civil War (N ew Y ork: Viking Press, 19 4 2 ); George Fort M il­ ton, Abraham Lincoln and the Fifth Column (N ew York: Van­ guard Press, 19 4 2 ); and Harold C. Relyea, The Evolution and Or­ ganization of the Federal Intelligence Function: A B rief Overview 1776- 1975. Relyea’s study appears in U.S., Congress, Senate, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, 94th Cong., 2d sess., 1976, Book V I, pp. 24-59. This is the Church Committee Report, and will be cited hereafter as Senate Select Committee, Report. T2. Allan Pinkerton’s account of the so-called Baltimore Plot has been published. See Norman B. Cuthbert, ed., Lincoln and the Baltimore Plot, 1861: From Pinkerton Records and Related Papers (San M ari­ no, Calif.: Huntington Library, 19 4 9 ). 13 . See James D. Horan, The Pinkertons (N ew York: Crown, 19 6 7 ), pp. 5 2 -6 1. 14. Ibid., pp. 62-97. See also John Bakeless, Spies of the Confederacy (Philadelphia: Lippincott, 19 7 0 ). 15 . A good treatment of the legal problem of the military arrest and trial is James G. Randall’s classic Constitutional Problems Under Lincoln, rev. ed. (Gloucester, Mass.: Peter Smith, 19 6 4 ), pp. 14 0 185. 16. 4 W all. 2 ( 18 6 7 ) . 17 . Wayne G. Broeh, Jr., The M olly Maguires (Cambridge, Mass.: Harvard University Press, 19 6 5 ). 18. Walter Laqueur, Terrorism (Boston: Little, Brown, 19 7 7 ) , p. 54. 19. William Preston, Aliens and Dissenters (Cambridge, Mass.: Har­ vard University Press, 19 6 3 ), pp. 35-6 3. 20. John P. Roche, The Quest for the Dream (N ew Y ork: Macmillan,

1963), pp. 5-6. 2 1. Quoted in Vern Countryman, "The History of the F B I: Democracy’s Development of a Secret Police,” in Investigating the FB I, ed. W at­ ters and Gillers, p. 36. 22. See also Joan M. Jenson, The Price of Vigilance (Chicago: Rand McNally, 19 6 8 ), pp. 8 2 -10 4 , and see generally Harry N . Scheiber, The Wilson Administration and C ivil Liberties, 1 9 1 7 - 1 9 2 1 (Ithaca, N .Y .: Cornell University Press, i9 6 0 ). 23. Quoted in Don Whitehead, The F B I Story (New Y ork: Random House, 19 5 6 ), p. 35.

17 2

NOTES TO PAGES 2 Ö~ 3 5

24. Michael Dorman, The Secret Service Story (N ew York: Delacorte, i 967 ) ? PP- I 2 7~ i 3425. Quoted in Horan, The Pinkertons, p. 495. 26. Homer Cummings and Carl McFarland, Federal Justice (N ew Y ork: Macmillan, 19 3 7 ) , pp. 4 13 - 4 3 1. 27. For citation for this Senate resolution and for an overview of the Palmer raids, see Robert K . Murray, Red Scare (Minneapolis: U ni­ versity of Minnesota Press, 19 5 5 ). On the technical defects in many of the arrests, see Stanley Coben, A. M itchell Palmer: Politician (N ew Y ork: Columbia University Press, 19 6 3 ), pp. 2 17 -2 4 5 . 28. Colyer v. Skeffington, 265 Fed. 17 , 43 (D . Mass. 19 2 0 ). 29. R. G. Brown et. al., Report Upon the Illegal Practices o f the United States Department of Justice (Washington, D .C .: National Popular Government League, 19 2 0 ). 30. Countryman, "Th e History of the F B I,” pp. 45-46. 3 1. Accounts of these sorry matters are in Whitehead, The F B I Story, pp. 55 -74 ; and Sanford J. Ungar, F B I (Boston: Little, Brown,

• 1976), pp. 45-48. 32. Comptroller General’s Report, pp. 19 -2 0 . (The Comptroller Gen­ eral is the head of the G A O .) 33. Quoted in Whitehead, The F B I Story, p. 158. 34. Ibid., p. 159. 35. Senate Select Committee, Report, Book III, p. 396. 36. Ibid., p. 397. 37. Quoted in Comptroller General’s Report, p. 19. 38. Ibid. 39. Senate Select Committee, Report, Book III, p. 405. 40. 18 U.S.C. 2385. 4 1. 18 U.S.C. 2386. 42. Section 605 of the Federal Communications Act of 19 34 forbade the interception and disclosure of interstate electronic messages. The bureau’s position was that it did not disclose. Roosevelt’s order to Jackson is quoted in Victor Navasky and Nathan Lewin, "Electronic Surveillance,” in Investigating the F B I, ed. Watters and Gillers, pp. 3 16 -3 x 7 . 43. Ungar, F B I, pp. 10 6 -10 7 . See also William Stevenson, A Man Called Intrepid (N ew Y ork: Harcourt Brace Jovanovich, 19 7 5 ) , pp. 288-295. This is the first attempt at a full dress account of the cooperation between the American president (and F B I) and British intelligence in the period 19 3 9 -4 1. W hile doubtless quite incom­ plete and marred by distortions of perspective and recollection, it makes clear what a powerful model the British provided for the FBI. Hoover deeply resented the British operating with presidential

blessing in his own backyard. He was furious at the British support given to William Donovan’s fledgling OSS. But he undoubtedly learned from Churchill’s "secret warriors.”

NOTES TO PAGES 3 7 - 4 4

173

3. THE FBI IN COLD WAR AND SOCIAL TURBULENCE 1. It is now generally accepted that under the president the attorney general is the premier federal law enforcement officer. It is interest­ ing to note that the role of the attorney general as the cabinet officer formally responsible for the conduct of domestic intelligence opera­ tions was finally confirmed only in 1962, when President Kennedy transferred supervision of the Interdepartmental Intelligence Con­ ference from the National Security Council to the attorney general. Two years later, Robert Kennedy confirmed the old Delimitations Agreement between the F B I and the military services, stating that the committee chaired, as always, by the director of the FBI would continue "the coordination of all investigation of domestic espio­ nage, counterespionage, sabotage, and subversion, and other related intelligence matters affecting internal security.” (Memorandum of Attorney General Kennedy to J. Edgar Hoover, March 5, 1964; quoted in Senate Select Committee, Report, Book III, p. 464.) 2. Senate Select Committee, Report, Book III, p. 405. 3. See Francis Biddle, In B rief Authority (Garden City: Doubleday, 19 6 2 ), pp. 203-226, 2 3 3 - 2 5 1, 3 2 1-3 4 3 . 4. See John T. EllifF, "The Scope and Basis of F B I Data Collection,” in Investigating the F B I, ed. Watters and Gillers, pp. 264-265. 5. Quoted in Comptroller General’s Report, p. 20. 6. See, for instance, Athan G. Theoharis, "The F B I’s Stretching of Presidential Directives,” Political Science Quarterly, vol. 9 1, no. 4 (Winter 19 7 6 -19 7 7 ), pp. 649-672. 7. Senate Select Committee, Report, Book III, p. 458. 8. See Luther A. Huston, The Department of Justice (N ew Y ork: Praeger, 19 6 7 ), pp. 15 3 -16 8 . 9. Comptroller General’s Report, p. 22. 10. Ibid. 1 1 . For a description of the early variations of the Federal Employees Loyalty-Security Program, see Eleanor Bontecou, The Federal Loyalty-Security Program (Ithaca, N .Y .: Cornell University Press, 19 5 3 ) and Ralph S. Brown, Jr., Loyalty and Security: Employment Tests in the United States (N ew Haven: Y ale University Press, 19 5 8 ). 12 . U.S., Congress, Senate, Hearings Before the Senate Select Committee to Study Governmental Operations with Respect to Intelligence A c­ tivities, 95th Cong., 1st sess., 1975, vol. 6, p. 40. Hereafter cited as Senate Select Committee, Hearings. 13 . U.S. Government Manual 19 7 4 -19 7 5 (Washington, D .C.: U.S. Government Printing Office, 19 7 5 ) , p. 3° 914. Comptroller General’s Report, p. 22. 15 . Senate Select Committee, Report, Book III, p. 464. 16. Quoted in the statement of Frederick A. O. Schwartz, Jr., before the

1 74

NOTES TO PAGES 4 4 - 5 1 Church Committee. See Senate Select Committee, Hearings, vol. 6,

P- 517 . On the CPUSA espionage role, see David J. Dallin, Soviet Espio­ nage (N ew Haven: Y ale University Press, 19 5 5 ) and Allen W ein­ stein, Perjury: The Hiss-Chambers Case (N ew Y ork: Knopf, 19 7 8 ). For a survey of the literature on the Communist party in the late 1940s and 1950s, see David A. Shannon, The Decline of the Com­ munist Party of the United States Since 1945 (Chatham, N .J.: Chatham Bookseller, 1 9 7 1 ) . 18. See Ungar, F B I, p. 649. Here Ungar quotes at length from the fas­ cinating letter of W illiam C. Sullivan to Hoover, dated October 6, 19 7 1, in which Sullivan, forced into premature retirement by the director, takes him to task for his obsession concerning the Com­ munist party. 19. N ew York Times, March 29, 19 76; and Senate Select Committee, Hearings, vol. 6, pp. 3 7 0 -3 7 1. 20. There would eventually be seven separate programs of disruption, each including hundreds of separate operations: C O IN TELPRO Socialist Workers Party Disruption Program; COINTELPRO -Soviet Satellite Intelligence; CO IN TELPRO -Black Nationalist Hate Groups; CO IN TELPRO -W hite Hate Groups; Counterintelligence and Special Operations Program; and CO IN TELPRO -N ew Left. For a case history of one operation undertaken under C O IN TELPRO-Communist party, see Frank Donner, "Let Him Wear a W o lf’s Head: What the FBI Did to William Albertson,” 3 C ivil Liberties Review, No. 1 (19 7 6 ) , p. 12. 21. Senate Select Committee, Hearings, vol. 6, p. 55. 22. Ibid. 23. Ibid., p. 56. 24. Ibid., p. 57. 25. N ew York Times, April 2 9 ,19 7 6 . 26. N ew York Times, February 22, 1976, and May 6, 1976. See also Senate Select Committee, Report, Book III, pp. 18 7 -2 2 3 . 27. Ungar, FB I, pp. 304-305. Sullivan’s posthumous book sheds further light on these tangled relationships. See W illiam C. Sullivan, The Bureau (N ew Y ork: Norton, 19 7 9 ), pp. 14 7 -2 3 7 . 28. Ibid., p. 305. 29. Ibid. 30. Senate Select Committee, Hearings, vol. 6, p. 159. See also pp. 4 5 2 4543 1. Ibid., pp. 15 9 -16 0 . 32. See Barton J. Bernstein, "The Road to Watergate and Beyond: The Growth and Abuse of Executive Authority Since 19 40 ,” 40 Law and

Contemporary Problems 58, 68 (1976). 33. Senate Select Committee, Hearings, vol. 6, p. 16 1. 34. Ibid., p. 368.

NOTES TO PAGES 5 1 - 6 4 35. 36. 37. 38. 39. 40. 4 1. 42. 43. 44. 45.

175

Ibid., p. 369. Ibid., p. 163. Ungar, F B I, pp. 288-289. Senate Select Committee, Report, Book II, p. 48. See, for instance, Letty Cottin Pogrebin, "The FB I Was Watching Y ou ,” Ms., June 1977. Ungar, F B I, p. 350. Ibid., p. 462. Senate Select Committee, Hearings, vol. 6, pp. 274-275. Comptroller General’s Report, p. 138. Ibid., p. 14 1. Athan Theoharis, Spying on Americans'. Political Surveillance from Hoover to the Huston Plan (Philadelphia: Temple University Press,

1978), p. 230. 46. Interview with Neil J. Welsh, Special Agent in Charge, Philadelphia Field Office, February 27, 1977. 47. Interview with F B I Deputy Associate Director James B. Adams, May 10, 1977. 48. F B I Domestic Intelligence Operations: A n Uncertain Future, Report of the Comptroller General of the United States, November 9, 1977 (hereafter referred to as Second Comptroller General’s Report), p.

I 549. Office of the Attorney General, "Domestic Security Investigations,” March 10, 1976, p. 1. ‘ 50. Ibid., p. 3. 5 1. Second Comptroller General’s Report, p. 1 1 . 52. N ew York Times, May 17 ,19 7 7 . 53. James Q. Wilson, The Investigators (N ew York: Basic Books, I 978), pp- 19 2 - 2 15 .

4.

OTHER DOMESTIC INTELLIGENCE OPERATIONS

1 . Christopher H. Pyle, "C O N U S Intelligence: The Army Watches Civilian Politics,” Washington Monthly, January 1970, p. 4. 2. Senate Select Committee, Report, Book III, p. 802. 3. Pyle, "C O N U S Intelligence.” 4. Senate Select Committee, Report, Book III, p. 788. 5. Ibid., p. 803. 6. Ibid., p. 797. 7. Ibid., pp. 805-806. 8. DO D Directive 5200.27, May 1, 19 7 1, Subject: The Acquisition of Information Concerning Persons and Organizations Not Affiliated with the Department of Defense. 9. Another misconception about the role of army intelligence arose during the period of critical concern over domestic intelligence in xc>75—76. Some legal experts argued that the Posse Comitatus Act

1 76

10. 11.

12 .

13 .

14. 15 .

NOTES TO PAGES 6 4 -6 7

of 1878 (surviving as 18 U.S.C. 13 8 5 ) prohibits all involvement by the armed services in domestic law enforcement. The act does forbid the army to "execute the laws,” but the law was addressed to the sequestering of troops by federal marshals to augment their fire­ power. Congress in 1878 was not addressing the problem of pro­ tecting the civilian community from the military, but rather the re­ verse. On the legislative history of the act, see 7 Cong. Rec. 3849 ( 18 7 8 ). For background, see Edward S. Corwin, The President: Office and Powers, 1787-1957 (N ew Y o rk: New Y ork University Press, 19 5 7 ) , pp. 13 0 - 13 8 . A contrary view of constitutional and statutory bases of the army’s civil disturbance mission has been ele­ gantly, if unpersuasively, developed by David E. Engdahl in "Th e New Civil Disturbance Regulations,” 49 Indiana Law Journal 58 ( 19 7 3 - 7 4 ) ; and "Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders,” 57 Iowa Law R e­ view 1 ( 1 9 7 1 ) . Better guides to evolving American understandings concerning the use of the army to quell civil disturbances w ill be found in Robin Higham, ed., Bayonets in the Streets (Lawrence: University of Kansas Press, 19 6 9 ). Senate Select Committee, Report, Book III, p. 794. The best discussion of the sorts of intelligence actually needed by the army for its civil peacekeeping mission is contained in Christo­ pher Pyle’s written testimony in U.S., Congress, Senate, Judiciary Committee, Military Surveillance, Hearings before the Constitu­ tional Rights Subcommittee, 93rd Cong., 2d sess., April 9 and 10, 1974, pp. 17 7 -18 9 . On the running battle between Senator Ervin’s Constitutional Rights Subcommittee and the Department of Defense over military surveillance, see Lawrence N . Baskir, "Reflections on the Senate Investigation of Army Surveillance,” 49 Indiana Laiv Journal 6 18 ( 19 7 3 - 7 4 ) . On the competition between papers and reporters for C IA leaks during this period, see Taylor Branch, "The Scandal-Makers,” More, March 19 75. For an inside view of this, see Harry Rositzke, The C IA ’s Secret Operations (N ew Y ork: Reader’s Digest Press, I 9 7 7 ), PP- 209-225. W illiam Colby and Peter Forbath, Honorable Men (N ew Y ork: Simon and Schuster, 19 7 8 ), pp. 389-440, and N ew York Times, June 7, 1976. Federal Register, 12 (19 7 6 ) 234. See Harry Howe Ransom, The Intelligence Establishment (Cam­ bridge, Mass.: Harvard University Press, 19 7 0 ), pp. 4 8 -8 1. For an inside view of the development of the CIA, see Lyman B. K irk ­ patrick, The Real C IA (N ew Y ork: Macmillan, 19 6 8 ); and The

U S. Intelligence Community (New York: Hill and Wang,; 1973). 1 6. The OSS had only external functions. It was concerned with intelli­

NOTES TO PAGES 6 7 - 7 4

*77

gence gathering, irregular military operations, and to a lesser extent counterintelligence in the theaters in which it operated. See R. Har­ ris Smith, OSS (Berkeley: University of California Press, 19 7 2 ). 17 . 6 1 Stat. 102 (d) ( 3 ) . 18. This ambiguity, among others, was discussed and its elimination recommended in a report issued in March of 1975 by the pres­ tigious Association of the Bar of the City of New York. Entitled The Central Intelligence Agency: Oversight and Accountability, it received wide circulation and media comment. 19. Senate Select Committee, Report, Book III, p. 681. 20. See ibid., pp. 689-690. It is interesting that there was no written directive from Helms to Thomas Kanamessines, the head to the Plans Directorate (which included Angel ton’s counterintelligence staff), to set up CHAOS. The first formal authorization was con­ tained in a memorandum from Kanamessines to Angelton of A u­ gust 15 ,19 6 7 . 21. Ibid., p. 691. 22. Ibid., p. 703. O f the over forty recruits considered as possible CHAO S informers, half were referred by the FBI. 23. W hile Helms did not issue a written directive setting up CHAOS, he did confirm its importance and its claim on internal agency re­ sources in a memorandum of September 6, 1969. See Commission on C IA Activities Within the United States [Rockefeller Commission], Report to the President (Washington, D .C .: U.S. Government Print­ ing Office, June 19 7 5 ), p. 136. 24. Ibid., pp. 7 2 1-7 2 3 . 25. Ibid., pp. 723-726. 26. Ibid., p. 725. 27. Ibid., p. 726. 28. See Jerry J. Berman and Morton H. Halperin, The Abuses of the Intelligence Agencies (Washington, D .C .: Center for National Se­ curity Studies, 19 7 5 ) , pp. 1 3 1 - 1 3 2 . 29. Senate Select Committee, Report, Book III, p. 7 3 1. 30. This operation is examined in great detail in Senate Select Com­ mittee, Hearings, vol. 4. 3 1. Senate Select Committee, Report, Book III, pp. 707-708. 32. Federal Register, 43 (19 7 8 ) 3674. 33. For a discussion of C IA counterintelligence operations, see Senate Select Committee, Report, Book I, pp. 16 3 -17 8 . 34. These several directives are quoted at Senate Select Committee, R e­ port, Book III, pp. 736 -737. 35. Ibid., p. 738. 36. For a popular presentation of the controversy surrounding N SA , see David Kahn, "B ig Ear or Big Brother,” N ew York Times Maga­ zine, May 16, 1975.

17 8

NOTES TO PAGES 7 4 - 8 1

37. These developments are detailed in Senate Select Committee, Hear­ ings, vol. 5. 38. Senate Select Committee, Report, Book III, pp. 745-747. 39. Ibid., p. 743. 40. Senate Select Committee, Report, Book III, p. 760. 4 1. Senate Select Committee, Hearings, vol. 5, p. 16. 42. Senate Select Committee, Report, Book III, p. 740. 43. The third international telegraph company, Western Union Inter­ national, provided only limited outgoing (to foreign destination) traffic between 1945 and 1972. Nothing was provided after 1972. This difference in participation resulted partly from differing tech­ nologies (R C A and IT T stored messages more efficiently), and partly from internal Western Union’s unease over the matter. 44. Senate Select Committee, Report, Book III, p. 778. 45. Ibid. 46. Ibid. 47. Ibid., p. 783. 48. Federal Register, 43 (19 7 6 ) 3674, 3685. 49. S. 1566 proposed "Foreign Intelligence Surveillance Act of 19 7 7 ,” 95th Cong. 1st sess. 1977. Also appears as Title III o f the proposed "National Intelligence Reorganization and Reform Act of 19 7 8 ,” 95th Cong., 2d Sess. 1978. 50. For a review of the legal structure of IRS, see Senate Select Com­ mittee, Report, Book III, pp. 846-847. 5 1. This "informal channel” was open between 19 57 and 1972. The Church Committee report concluded that all but one of the C IA re­ quests would have been legal under existing statutes and regulations if made through the proper channel. The exception involved Ram­ parts magazine, and even this case is arguable. The real vice lay in the informality of the practice and the fact that no real records of the access were maintained. See Senate Select Committee, Report, Book III, pp. 857-859. 52. See ibid., pp. 876-897, and U.S., Senate, Judiciary Committee, Political Intelligence in the Internal Revenue Service, Staff study, Subcommittee on Constitutional Rights, December 1974. 53. Memos dated March 28, 1968; July 14, 1969; and November 24, 1969 from the files of the Center for National Security Studies. 54. Senate Select Committee, Report, Book III, pp. 890-894. 55. See, for instance, N ew York Times, March 12 , 1976. See also Se­ nate Select Committee, Report, Book III, pp. 863-875. 56. The story of how the Secret Service was assigned the presidential protection function after the McKinley assassination is told by Dor­ man, The Secret Service Story. 57. Timothy H. Ingram, "The President’s Asylum: The Secret Services Preventive Detection,” Washington Monthly, October 1972, pp. 3 5 - 4 2-

NOTES TO PAGES 8 1 - 8 9

1 79

58. Senate Select Committee, Report, Book II, pp. 85-86. 59. "Secret Service-FBI Liaison Guidelines,” November 1974. Copy in author s files. 60. See Richard E. Morgan, "On Law Enforcement in America,” in Focus on Police, ed. Christian P. Potholm and Richard E. Morgan (N ew Y ork: Wiley/Halsted, 19 7 6 ), pp. 3-22. 6 1. "Security Agency Activities in Chicago, Illinois,” pp. 24 -25. 62. Ibid., p. 27. 63. Anthony J. Bouza, Police Intelligence: The Operations of an Inves­ tigative Unit (N ew Y ork: AM S Press, 19 7 6 ), p. 4. 64. "Procedures: Public Security Activities of the Intelligence Division of the New Y ork City Police Department.” 65. Interview with Deputy Chief James Meehan, New York, N .Y ., February 20, 1976. 66. Bouza, Police Intelligence, p. 8. 67. O. W . Wilson, Police Administration, rev. ed. (N ew Y o rk : McGraw Hill, 19 6 3 ), p. 119 . A widely distributed "how-to” book in the area is Law Enforcement Assistance Administration, Basic Ele­ ments of Intelligence Units, by Don R. Harris, rev. ed. (W ashing­ ton, D.C.: U.S. Government Printing Office, 19 7 6 ) ; interestingly, no mention is made of intelligence gathering in the area of po­ litically motivated crime. 68. "Statement of the Los Angeles Board of Police Commissioners,” April 10 ,19 7 5 . 69. "Public Disorder Standards and Procedures,” Intelligence Division, Los Angeles Police Department, April 10, 1975. 70. "Policies and Guidelines for the Conduct and Operation of the In­ vestigative Services Division,” Metropolitan Police, Washington, D .C., August 1, 1976. 7 1. It is encouraging to note that requests from other departments for the Washington guidelines are being made. Interview with Inspector John Zink, Investigative Services Division, Metropolitan Police, Washington, D C ., December 16, 1976. 72. Morton Grodzins, The American System (Chicago: Rand McNally, 19 6 6 ), p. 89.

5.

COVERT TECHNIQUES

1. Senate Select Committee, Report, Book III, p. 227. 2. Ibid., p. 228. 3. 47 U.S.C. 605. 4. Nardone v. U.S., 302 U.S. 397 (1937) • 5.N ardone v. U.S. 308 U.S. 338 (1939), the so-called Second N ar­ done Case. 6. Quoted in Senate Select Committee, Report, Book III, p. 279. For a sample of the controversy over Roosevelt’s memo, see A than G.

l 80

NOTES TO PAGES 8 9 - 9 4

Theoharis and Elizabeth Meyer, "The 'National Security’ Justifica­ tion for Electronic Eavesdropping: An Elusive Exception,” 14 Wayne Law Review 749 (19 6 8 ), pp. 759-760. 7. Senate Select Committee, Report, Book III, p. 280. 8. Ibid., p. 287. 9. Ibid., p. 288. 10. Ibid., p. 294. 1 1 . Goldman v. U.S., 3 16 U.S. 129 (19 4 2 ) . 12 . Barton J. Bernstein, "T h e Road to Watergate and Beyond,” pp. 6 9 70. 13 . Senate Select Committee, Report, Book III, pp. 296-297. 14. Ibid., p. 297. 15 . Ibid. 16. 389 U.S. 347 ( 19 6 7 ) . 17 . 18 U.S.C. 2 5 10 -2 0 . 18. 389 U.S. 347, 360-362. 19. For an excellent discussion of the significance of the notion of an "intelligence exception” to the Fourth Amendment, see John Elliff, "A n Analysis and Evaluation of the Application of the Federal Civil Rights Statutes to FB I Internal Security Intelligence Operations,” preliminary draft, August 9, 1976, prepared under the auspices of the Police Foundation (forthcom ing). 20. U.S. v. U.S. District Court, 407 U.S. 297 ( 19 7 2 ) . 2 1. Ibid., 3 2 1-3 2 2 . 22. Ibid., 320. 23. James Q. Wilson, Managing F B I and Narcotics Agents (N ew Y ork: Basic Books, 19 7 8 ), p. 6 1. 24. Senate Select Committee, Report, Book III, p. 228. 25. Interview with Deputy Chief James Meehan, New York, N .Y ., N o ­ vember 20, 1976. The G A O statistics are included in Comptroller General’s Report, pp. 10 9 - 110 . 26. Senate Select Committee, Report, Book III, p. 229. 27. For a suggestive exploration o f the social dynamics of informing, see Gary T. Marx, "Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” 80 American Journal of Sociology 402 ( 19 7 5 ). 28. But not limited to the extent recommended by Alan M. Dershowitz, Harvey A. Silverglate, and Jeanne Baker, "T h e JD L Murder Case: 'The Informer Was Our Own Client,’ ” C ivil Liberties Review , vol. 3, no. i (A pril/M ay 19 76 ) pp. 4 1-6 0 . The authors suggest that while the use of informers may be justified in enabling peace officers to take preventive action, evidence obtained by informers should be considered inadmissible. 29 .L ew is v. U.S., 385 U.S. 206 ( 19 6 6 ) ; and Hoff a v. U.S., 385 U.S. 293 (19 6 6 ). 30. See Osborn v. U.S., 385 U.S. 323 (19 6 6 ).

NOTES TO PAGES 9 4 -IO O

l8 l

3 1 . Some special problem may exist as to wired undercover informants— ' those set up to record statements made in their presence. U.S. v. W hite, 401 U.S., 745 ( 1 9 7 1 ) . 32. N ew York Times, January 6, 19 77; see also "U se of Informants in Domestic Security, Organized Crime, and Other Criminal Investiga­ tions,” Memo from Edward H. Levi to Clarence M. Kelley, D e­ cember 15 , 1976, p. 3. 33. Senate Select Committee, Report, Book III, p. 328. 34. Anthony M. Burton, Urban Terrorism (N ew Y ork: Free Press, I 9 7 5 )>P; 1 5 7 ; 35. Dershowitz, Silverglate, and Baker, "The JD L Murder Case,” p. 59. 36. Walter S. Bowen and Harry Edward Neal, The United States Secret Service (N ew Y ork: Chilton, i9 6 0 ), pp. 24-25. 37. Senate Select Committee, Report, Book III, pp. 636-637. 38. Ibid., pp. 565-566. 39. Ibid., pp. 626-627. 40. Ibid., p. 6 3 1. See also p. 632 for the totals on items opened and items transmitted to the FBI. 4 1. Ibid., p. 576. 42. E x Parte Jackson, 96 U.S. 727 ( 18 7 8 ). 43. U.S. v. Van Leeuuen, 397 U.S. 249, 25 1 ( 19 7 0 ). 44. 18 U.S.C. 17 0 1- 17 0 3 . 45. Senate Select Committee, Report, Book II, p. 355. 46. Ibid. 47. 376 F. Supp. 29 ( 19 7 4 ). 48. 407 U.S. 297, 309 ( 19 7 2 ) . 49. For a somewhat lurid presentation of the problems involved in gov­ ernmental information storage, see Aryeh Neier, Dossier: The Secret Files They Keep on You (New York: Stein and Day, 19 7 5 ) . 50. 5 U.S.C. 552. 5 1. 5 U.S.C. 552a. 52. See Compilation of State Privacy Laws (Washington, D .C .: Robert Ellis Smith, 19 7 6 ). 53. The most important writing on the intrusion into privacy involved in "data surveillance” (recordkeeping) has been done by Alan F. Westin. He first developed his ideas on the subject in a two-part article in successive issues of the Columbia Law Review: "Science, Privacy, and Freedom: Issues and Proposals for the 19 7 0 ’s,” 66 Columbia Law Review 1003, 1204 (19 6 6 ). Other works, of less theoretical significance but containing discussions of the dangers of various sorts of surveillance, include: Edith J. Lapidus, Eavesdrop­ ping on Trial (Rochelle Park, N .J.: Hayden, 19 7 4 ); Arthur R. Miller, The Assault on Privacy (Ann Arbor: University of Michigan Press, 1 9 7 1 ) ; and James B. Rule, Private Lives and Public Surveil­ lance (N ew Y ork: Schocken Books, 19 7 4 ). Also of interest are several of the essays collected in Alan F. Westin, ed., Information

1 82

NOTES TO PAGES IO O -IO 9

Technology in a Democracy (Cambridge: Harvard University Press, i 9 7i ) . 54. Christopher H. Pyle, "Terrorism, Crime Control, and Civil Liber­ ties” (Paper delivered at the annual meeting of the American Po­ litical Science Association, Chicago, Illinois, September 4, 19 7 6 ), p. 16. 6 . IS DOMESTIC INTELLIGENCE UNCONSTITUTIONAL ?

1. Richard E. Morgan, "On Law Enforcement in America,” in Potholm and Morgan, eds., Focus on Police, pp. 1 3 - 1 4 . 2. See "Letter to the Senate Intelligence Committee on F B I Charter Recommendations,” submitted by American Civil Liberties Union, Americans for Democratic Action, Center for National Security Studies, Committee for Public Justice, Common Cause, and United Automobile Workers, March n , 1976, p. 2; and Morton H. Halperin et al., The Lawless State, p. 270. 3. On the fusion of British ideas on which framers drew, see David Gwilym James, The L ife of Reason (London: Longmans, Green, 19 4 9 ). And see especially Frank M. Coleman, Hobbes and America: Exploring the Constitutional Foundations (Toronto; University of Toronto Press, 19 7 7 ) , pp. 1 0 - 1 2 , 54-74. 4. Alexander Hamilton, The Federalist, ed. Edward Mead Earle (N ew Y ork: Modern Library, n.d.), p. 47. 5. Ibid., p. 568. 6. Cecelia M. Kenyon, The Antifederalists (Indianapolis: BobbsMerrill, 19 6 6 ). 7. n o U.S. 6 51 (18 8 4 ). 8. 1 K ent’s Commentaries 201. 9. 13 5 U.S. 1 (18 8 9 ). 10. Ibid., 60. 1 1 . An example is a chatty sort of nonbook— a published set of conver­ sations between Congressman Bob Eckhard (D ., T ex.) and Pro­ fessor Charles L. Black, Jr., of the Y ale Law School— The Tides of Power (N ew Haven: Y ale University Press, 19 7 6 ). Earlier, Black had delivered himself of the startling opinion that America "could have had a complete working Constitution if the Constitution had ended with Article I ” ; see 32 Washington and Lee Law Review 841 ( I 975) • 12 . 13 5 U.S. 1, 1 5 - 1 6 (emphasis added). W hile not precisely on point (it rested on the commander-in-chief power rather than the takecare clause), another interesting indication of the view of presi­ dential power taken by the postbellum Court is Totten v. U.S., 92 U.S. 105 ( 18 7 5 ) .

13. Ibid., 64. 14. Edwin S. Corwin, The Constitution of the United States: Analysis

NOTES TO PAGES I O 9 - I I 3

1 83

and Interpretation (Washington, D .C .: U.S. Government Printing Office, 19 6 4 ). 15. Ibid., p. 12 . 16. 1 Cr. 13 7 , 165 ( 18 0 3 ) . 17 . Corwin, The Constitution of the United States, p. 14. 18. U.S. v. Tingey, 5 Pet. 1 1 5 , 12 2 ( 1 8 3 1 ) . 19. 158 U.S. 564 ( 18 9 5 ) . Corwin, The Constitution of the United States, p. 15 . 20. Theodore Roosevelt, Autobiography (N ew York: Scribners, 1 9 1 3 ) , pp. 388-389. The similarity of T .R .’s conception of presidential power to Hamilton’s is striking. See Henry Cabot Lodge, ed., The Works of Alexander Hamilton, 12 vols. (N ew Y ork: G. P. Put­ nam’s Sons, 19 0 4 ), 7 :7 6 - 117 . 2 1. A recent representative of this school of interpretation is Raoul Berger, Impeachment: The Constitutional Problems (Cambridge: Harvard University Press, 19 7 3 ) , and Executive Privilege, A Con­ stitutional Myth (Cambridge: Harvard University Press, 19 7 4 ). For a comment on the shortcomings of Berger’s approach to constitu­ tional interpretation, see Richard E. Morgan, "A Polemical Scholar,” N ew Leader, October 28, 1974. For a journalistic representative, see Tom Wicker, "Inherent Poser Again,” N ew York Times, February 14, 1978. A much more sophisticated but somewhat extreme analysis is Philip B. Kurland, Watergate and the Constitution (Chicago: University of Chicago Press, 19 7 8 ). A useful counterargument to the post-Watergate antiexecutive mentality is James W illard Hurst’s treatment of Hamilton’s ideas on the necessity of a strong executive in "Alexander Hamilton, Law Maker,” 78 Columbia Law Review 485, 500-505 ( 19 7 8 ) . And see especially Richard M. Pious, The American Presidency (N ew Y ork: Basic Books, 19 7 9 ). 22. 343 U.S. 579 ( 19 5 2 ) . 23. 343 U.S. 579, 639. 24. Ibid., 6 1 0 - 6 1 1 . 25. Typical of the recent misuse of the Youngstown case is the assertion in a memo prepared by an attorney on the staff of the Senate Judici­ ary Subcommittee on separation of powers, dated November 14, 19 7 5 : "So, for example, the Supreme Court found Truman’s execu­ tive order to take over the steel companies to be unauthorized in a case where the Congress had not even prohibited such an act, but had merely not spoken at all.” 26. 407 U.S. 297 ( 19 7 2 ) . 27. Ibid., 3 13 . 28. Ibid., 320. 29. Philip A. Lacovara, "Presidential Power to Gather Intelligence: The Tension Between Article II and Amendment IV ,” privately circu­ lated. 30. See 10 U.S.C. 3 3 1 - 3 3 4 *

18 4

NOTES TO PAGES I I 3 - 1 2 I

3 1. 407 U.S. 297, 323. 32. For a more extended development of this point, see the May 27, 1976, testimony of Christopher H. Pyle before the Subcommittee on Civil and Constitutional Rights of the House Judiciary Committee, Hearings on F B I Oversight. 33. For an example of an attempt at such a demonstration, see Frank Askin, "Surveillance: The Social Science Perspective, 4 Columbia Human Rights Law Review 59 ( 19 7 2 ) . 34. 344 U.S. 18 3 ( 19 5 2 ) . 35. 388 U.S. 307, 344-345 ( 1 9^7) • 36. During the late 1960s, those urging an expansive use of the idea of chilling effect were much heartened by the Supreme Court’s decision in Dombroivski v. Pfister, 380 U.S. 479 ( 19 6 5 ). The idea of chill­ ing effect was advanced here to justify a departure from the Court’s settled policy of not enjoining state criminal proceedings except where the clearest indications of hard facts were present. The Dombrowski case was substantially qualified, however, by Younger v. Harris, 401 U.S. 37 ( 1 9 7 1 ) . And even in the Dombrowski case, it is important to remember that the state was doing something to the plaintiff— that is, getting ready to prosecute him. Typical of preYounger, pre-Laird enthusiasm for the idea of chilling effect is Frank Askin, "Police Dossiers and Emerging Principles o f First Amendment Adjudication.” 22 Stanford Law Review 196 ( 19 7 0 ). 37. See Note, "The Chilling Effect in Constitutional Law,” 69 Columbia Law Review 808 (19 6 9 ). 38. 381 U.S. 30 1, 307 ( 19 6 5 ). 39. 4 12 F. 2d 110 3 , 1 1 1 4 (D .C. Cir., 19 6 9 ). See also Davis v. Ichord, 422 F. 2d. 120 7 (C A D C 19 7 0 ). 40. 56 N .J. 210 , 226 ( 19 7 0 ). 4 1. 408 U.S. 1 ( 1 9 7 1 ) • 42. Tatum v. Laird, 444 F. 2d 947 ( 1 9 7 1 ) . 4 3 . Ibid., 953-95444. Ib id , 955-956. 45. 408 U.S. 1, 28. 46. 533 P. 2d 222 ( 19 7 5 ) . 47. Ibid., 227. 48. See Handschu v. Special Services D ivision, 349 F. Sup. 766 ( 19 7 2 ) ; and Fifth Avenue Peace Parade Committee v. Gray, 480 F. 2d 326

C1 ?73)49. Philadelphia Society of Friends v. Tate, 519 F. 2d 13 3 5 ( 1 9 7 5 ) ; and Berlin Democratic Club v. Rumsfeld, 4 10 F. Sup. 144 ( 19 7 6 ) . 50. 407 U.S. 297, 322. 51. Younger v. Harris, 401 U.S. 37, 51 ( 1 9 7 1 ) . 52. 389 U.S. 347 (19 6 7 ) .

53. See Olmstead v. U.S., 277 U.S. 438 (1928).

NOTES TO PAGES

I2I-I29

185

54. This key phrase actually comes from Justice Harlan’s concurring opinion: 389 U.S. 347, 360. 55. See Anthony G. Amsterdam, "Perspectives on the Fourth Amend­ ment,” 58 Minnesota Law Review 349 ( 19 7 4 ) , pp. 406-408. 56. 389 U.S. 347, 363-364. 57. See 18 U.S.C. 2 5 1 1 ( 3 ) . 58. 407 U.S. 297 ( 1 9 7 1 ) . 59. 5 16 F. 2d 594 ( 19 7 5 ) . 60. See Osborn v. U.S., 385 U.S. 323 ( 19 6 6 ) ; Lewis v. U.S., 385 U.S. 206 (19 6 6 ) ; and Hoffa v. U.S. 385 U.S. 293 (19 6 6 ). 6 1. Amsterdam, "Perspectives on the Fourth Amendment,” pp. 406408. 7. THE DANGERS AND THE NEEDS: WEIGHTS IN THE BALANCE

1. Harry Kalven, Jr., The Center Magazine, M ay/June 19 73, pp. 36 -

37‘

2. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1 9^7 )j PP- 370- 372. 3. See, for instance, Tony Bunyan, The History and Practice of the Political Police in Britain (London: Friedman, 19 7 6 ). 4. On the development of Soviet political police policy, see Richard Deacon, A History of the Russian Secret Service (London: Frederick Muller, 19 7 2 ). 5. Memoirs of Joseph Fouche (N ew Y ork: Merrill and Baker, 19 0 0 ), p. 56. 6. An example of such demonology is Noam Chomsky’s introduction to Cathy Perkus, ed., C O IN T E LPR O : The F B I's Secret War on Political Freedom (New York: Monad Press, 19 7 5 ). 7. Joseph Kraft, "J. Edgar Hoover— The Compleat Bureaucrat,” Com­ mentary, February 1965, pp. 59-62. See also Sanford J. Ungar, "The FBI File,” Atlantic, April 19 75, pp. 37-52. Sir Basil Thompson’s contribution to the development of the CID, special branch, and the secret intelligence services is detailed in Richard Deacon, A History of the British Secret Service (London: Frederick Muller, 19 6 9 ), pp. 17 4 -18 9 . 8. 384 U.S. 436 (19 6 6 ). Here the Court established an important new protection of the Fifth Amendment’s privilege against self-incrimi­ nation by requiring that suspects be unambiguously advised of their rights before interrogation. 9. The extent and fate of Hoover’s personal office files became a matter of dispute before the Church Committee, and is still unresolved. See Ungar, F B I, pp. 269-270; and N ew York Times, September 9, 1976.

1 86

NOTES TO PAGES 1 3 0 - 1 36

10. Anthony Cave Brown, Bodyguard of Lies (New Y ork: Harper and Row, 19 7 5 ), pp. 26-27. 1 1 . Senate Select Committee, Report, Book II, p. 14 1. 12. Discussion of this "dynamic” can be found in standard works on governmental bureaucracy in America running from Paul H. Apple­ by, B ig Democracy (N ew York: Knopf, 19 4 5 ) through Peter M. Blau, Bureaucracy in Modern Society (New Y ork: Random House, 19 56 ) to Anthony Downs, Inside Bureaucracy (Boston: Little, Brown, 19 6 7 ). See also Herbert A. Simon, Administrative Behavior, 2nd ed. (N ew Y ork: Macmillan, 19 5 7 ) and James Q. Wilson, Po­ litical Organizations (N ew York: Basic Books, 19 7 3 ) , pp. 30-55. 13 . See, for instance, Bouza, Police Intelligence, pp. 50-95. 14. The story of the tortuous development of legal restraints on over­ hearing by microphone has been best told in dozens of law review articles. For several of the more useful recent efforts, see Alan Meisel, "Political Surveillance and the Fourth Amendment,” 35 Uni­ versity of Pittsburgh Law Review 53 ( 1 9 7 3 ) ; and Note, "PostAuthorization Problems in the Use of Wiretaps,” 6 1 Cornell Law Review 92 ( 19 7 5 ) . 15. Senate Select Committee, Report, Book V II, pp. 17 -2 0 . 16. Samuel P. Huntington, The Soldier and the State (Cambridge, Mass.: Harvard University Press, 19 5 9 ). 17. See, for example, Wise, The American Police State. The Church Committee report, to the credit of its multiple authors, did not fall into this pattern. However, the analysis of reasons for domestic ac­ tivity was far less elaborate and systematic than the catalog of abuses and the laundry list of remedies. 18. "Statement of Reasons for the draft of Convention on Terrorism and Kidnapping,” Document CP/doc 54/70, Organization of the American States, 5 Oct. 1970, rev. of 4 Nov. 1970. For an excellent guide to the literature, see Edward F. Mikolus, Annotated Bibliog­ raphy on Transnational and International Terrorism (Washington, D.C.: Central Intelligence Agency, 19 7 6 ). A sign of the times is that Mikolus scrupulously avoids any reference to domestic Ameri­ can terrorism. 19. Carl Leiden and Karl M. Schmitt, The Politics of Violence: Revolu­ tion in the Modern W orld (Englewood Cliffs, N .J.: Prentice-Hall, 19 6 8 ), pp. 3 0 -3 1. 20. Pyle, "Terrorism, Crime Control, and Civil Liberties,” pp. 4-5. 2 1. Burton, Urban Terrorism, pp. 5-6. 22. D. V. Segre and J. H. Adler, "The Ecology of Terrorism,” En­ counter, February 19 73, pp. 17 -2 4 . 23. Brian M. Jenkins, "International Terrorism: A New Mode of Con­ flict,” in International Terrorism and W orld Security ed. David Carlton and Carlo Schaerf (N ew York: Wiley/Halsted, 19 7 5 ) , p. 33-

NOTES TO PAGES 1 3 7 - 1 5 0

187

24. 25. 26. 27.

Segre and Adler, "The Ecology of Terrorism,” p. 21. Ibid. Ibid. J. Bowyer Bell, A Time of Terror (N ew York: Basic Books, 19 7 8 ), p. 3. 28. Laqueur, Terrorism, p. 226. 29. Figures compiled by the National Bomb Data Center and culled from FBI Annual Reports, 19 73, 1974, 1975* 30. National Advisory Committee on Criminal Justice Standards and Goals, Disorders and Terrorism (Washington, D .C .: U.S. Govern­ ment Printing Office, 19 7 7 ), p. 8. 3 1. Robert H. Kupperman, Facing Tomorrow’s Terrorist Incident To­ day (Washington, D .C.: Law Enforcement Assistance Administra­ tion, 19 7 7 ). 32. Ibid., p. 3. 33. Perhaps the most perceptive description of the cultural divisions in contemporary America is Daniel Bell, The Cultural Contradictions of Capitalism (N ew Y ork: Basic Books, 19 7 5 ) . And for a concise statement of the case, see Daniel Bell, "The Cultural Contradictions of Capitalism,” The Public Interest, Fall 1970, p. 23. See also Aaron Wildavsky, The Revolt Against the Masses (N ew York: Basic Books, 1 9 7 1 ) , p. 3 1 ; and Peter L. Berger, "The Greening of American Foreign Policy,” Commentary, March 1976, p. 24. 34. For an excellent collection of essays on this subject, see H. Jon Rosenbaum and Peter C. Sederberg, eds., Vigilante Politics (Phila­ delphia: University of Pennsylvania Press, 1976. Particularly in­ structive on the potential for antiterrorist violence in America is Christian P. Potholm, "Comparative Vigilantism: The United States and South A frica.” 35. William A. Gamson and James McEvoy, "Police Violence and Its Public Support,” 391 Annals of the American Academy of Political and Social Science 98 (September 19 7 0 ). 36. Lord Chalfont, "Barbed Wire, Not Roses, Under the Branch,” N ew York Times, September 2 1, 1977. 37. "Italians Have Lost all Faith in Democracy,” N ew York Times, April 2 1, 1978. 8 . FURTHER REFORM ?

1. Senate Select Committee, Report, Book II, p. 320. 2. 392 U.S. 1, 30 (19 6 8 ). 3. Statement for the Record of the A CLU , before the Senate Judiciary Committee, April 25, 1978, p. 16. 4. See Halperin et. al., The Lawless State, pp. 2 7 0 -2 7 1. 5. These guidelines appear as an appendix to the hearings held later that spring on S. 2525. U.S., Congress, Senate, Select Committee on

1 88

NOTES TO PAGES 1 5 0 - 1 6 6

Intelligence, Hearings on the National Intelligence Reorganization and Reform Act of 1978, 95th Cong., ist sess., pp. 774-790. 6. John Elliff, The Reform of F B I Intelligence Operations (Princeton, N .J.: Princeton University Press, 19 7 9 ), p. 162. 7. See Second Comptroller General’s Report, p. n . 8. 5 U.S.C. 553 ( j) ( 2 ) . 9 .5 U .S .C .5 5 2 (b) ( F ) . 10. N ew York Times, March 1, 1979. 1 1 . N ew York Times, December 13 , 1978. 12. At this writing, we are still waiting for an FBI investigative charter to be introduced. After hearings in the spring of 1978, and a com­ plicated process of adjustment between competing drafts which took most of 1979, a bill has been prepared for introduction by the staff of the Senate Judiciary Committee. 13. Grodzins, The American System, pp. 8 4 -124 . 14. Patrick V. Murphy, Commissioner: A View from the Top (New York: Simon and Schuster, 19 7 7 ), p. 77. 15. For an illustration of this, see Anthony Morro, "F B I Agents Fight Censure Moves,” N ew York Times, May 3, 1978. 16. S.2 1 17 , 95th Cong., ist session, 1977. 17. See N ew York Times, May 22, 19 77; July n , 1977. 18. Hearings on F B I Oversight, Part 3, p. 326. 19. Paul Wilkinson, Terrorism and the Liberal State (N ew Y ork: Wi-

ley, 1977), p- ! 3420. Tom Bowden, The Breakdown of Public Security: The Case of Ireland 1 9 1 6 - 1 9 2 1 and Palestine 1936-1939 (London and Beverly H ills: Sage Publications, 19 7 7 ) , p. 302. 2 1. Irving Louis Horowitz, "Can Democracy Cope with Terrorism?” Civil Liberties R eview , M ay/June 19 77, pp. 16 -3 7 . By the same token, it is not necessary to swing to the extreme of Joseph W . Bishop of the Y ale Law School, who was recently moved to examine the question of whether the battery of antiterrorist techniques em­ ployed by the British in Ulster could be constitutionally resorted to in the United States. See "Can Democracy Defend Itself Against Terrorism?” Commentary, May 1978, pp. 55-62.

Index

ACLU . See American Civil Liber­ ties Union Adams, John, 17, 18, 19 Alien and Sedition Acts, 18, 19 Allen, Lew, 75 American Civil Liberties Union (A C L U ), 1 1 , 63, 116 , 14 6 -

J 47> 165 American Police State, The (W ise), 1 1 American Revolution, 15 - 1 6 , 26 Anderson, George W ., 28 Anderson v. Sills, 1 1 6 Angelton, James, 68, 98 Antiwar movement. See Protest movements Appropriation Act, 3 1, 33 Baker, Lafayette C., 20, 2 1-2 2 Bayh, Birch, 59 Bell, Griffin, 8, 12 2 , 162 Berrien, John M., n o Biddle, Francis, 90 Bielaski, A. Bruce, 25, 26 Black, Hugo Lafayette, 1 2 1 BN D D , 74, 75 Bodyguard of Lies (Brow n), 130 Bonaparte, Charles J., 24-25 BOSSI (Bureau of Special Ser­ vices). See Police Department, New York City Bouza, Anthony, 84-85 Brennan, William Joseph, Jr., 115 , 116

Brinkley, David, 51 Brownell, Herbert, 90, 91 Bugging. See Surveillance, Micro­ phone; Wiretapping Bureau of Narcotics and Danger­ ous Drugs (B N D D ), 74, 75 Bureau of Special Services. See Police Department, New York City Burns, William J., 29 Carter, James E. (Jim m y). See Executive Order 12036 Central Intelligence Agency (C IA ), 3, 7, 49, 66 -73, 74, 75 , 79, 97, 15 6 - 15 7 CHAOS, 68, 69, 70, 72, 76 Church Committee, 3, 7, 8, 34, 38, 43, 50, 54-56, 59, 62-63, 68, 7 4 -7 5 ,7 9 -8 0 , 8 7 ,9 1,9 3 , 95> 97, 98, 99? I 3 I - I 3 2> x46>

i 49, 1 52

CIA. See Central Intelligence Agency Civil rights, 13 , 14, 57. See also Dissent; Free speech; Privacy (Civil Rights) Enforcement Act ( 1 8 7 0 ) ,1 0 7 Civil rights movement: and Com­ munism, 46-47, 4 9 -5 1. See also Protest movements Civil War, 19 -2 2 Clark, Ramsey, 90 C O IN TELPRO , 4, 5, 6 -7, 8, 4 5 -

19 0

INDEX

48, 79, 88, 102, 10 3, 1 1 4 - n s ,

124,

133

Colby, William, 66, 7 0 -7 1 C O M IN FIL, 52 Commentaries on the Constitution (K en t), 107 Communism and the civil rights movement, 46-47, 4 9 -5 1 Communism and the FBI, 27-30 ,

40, 42-46, 49-50, 56-57

Confederate sympathizers, 19 - 2 1 Constitution, 64, 1 1 3 , 12 5. See also Executive power; First Amendment; Fourth Amend­ ment CONUS, 6 1-6 2 , 15 5 . See also Laird v. Tatum Coolidge, Calvin, 29 Copperheads, 2 0 -2 1 Corruption in government, 24, 29. See also Federal Bureau of In­ vestigation, Abuses Corwin, Edward S., 1 0 9 - 110 , i n Crime, Political. See Protest move­ ments; Terrorism Dean, John, 5 Defense Department, 62, 63, 67. See also Military intelligence Defense Intelligence Agency, 49,

63

Delimitations agreements, 33, 6 1,

65 Dissent, 14, 16, 124, 12 6 - 12 7 , 1 3 1 , 14 3. See also Internal se­ curity; Protest movements; Ter­ rorism Domestic Security Guidelines. See Guidelines, Federal Douglas, W illiam O., 94, i n , 118 Dyer Act ( 1 9 1 9 ) , 30 Elliff, John, 50, 59 Ellsberg, Daniel, 5 Ervin, Sam, 62

Espionage Act ( 1 9 1 7 ) . See Sedi­ tion, laws against, during W orld W ar I Executive Order 10450 ( 19 5 3 ) , 4 1- 4 2 Executive Order 116 0 5 ( I 9 7 I ) ) 4 1 ,4 2 Executive Order 119 0 5 ( 19 7 6 ) , 67 Executive Order 12 0 36 ( 19 7 8 ) , 7 1 - 7 3 , 77, 99, 15 7 Executive power, 1 0 9 - 114 , 124,

157

ex parte M ulligan, 2 1- 2 2 ex parte Yarbrough, 107 Facing Tomorrow’s Terrorist In ­ cident Today (Kupperm an), 13 9 - 14 0 FBI. See Federal Bureau of Inves­ tigation F B I (U ngar), 49, 54, 88 Federal Bureau of Investigation (F B I), 3, n , 35-38 , 65-66, 156 , 15 8 ; abuses, 4, 27 -30 , 46 48, 53-56 ( see also Commu­ nism and the F B I; Protest movements; Surveillance); au­ thority for actions, 3 1- 3 5 , 3 8 44, 15 8 - 15 9 (see also Execu­ tive orders; Guidelines, fed eral); creation, 24 -27 ; D o­ mestic Intelligence Division, 8, 9, 47, 49, 56, 99; effectiveness of investigations, 55 -5 6 ; M an­ ual of Rules and Regulations, 89, 93; reorganization, 56 -5 7 ; Security Division, 33 Federal Communications Act ( 1 9 34), 89 Federal Communications Commission, 62 Federal Employee Loyalty-Security Program, 4 1-4 4 , 53, 1 4 2 Federal guidelines. See Guide­ lines, federal

INDEX Federalist, The, 10 6 -10 7 , 108 Felt, W. Mark, 100, 162 First Amendment, 13 , 1 1 4 - 1 2 1 , 12 5, 12 7, 142, 16 1 FO IA. See Freedom of Informa­ tion Act Ford, Gerald. See Executive Order

11905

Foreign Agents Registration Act ( 19 3 8 ). See Sedition, laws against, during World W ar II Foreign Intelligence Surveillance Act (19 7 8 ) , 8, 78, 92 Fouche, Joseph, Due d’Otranto, 12 8 -12 9 Fourth Amendment, 13 , 74, 9 1, 9 2.9 4, 98, 99-100, 1 1 3 , 114 , 1 1 5 , 1 2 1 - 1 2 3 , 12 5 , 127, 15 7 Frankfurter, Felix, 37, 1 1 2 Freedom of Information Act, 1966 (F O IA ), 6, 10, 100, 150,

1 54—1 5 5 Free speech, 15 , 18, 134. See also First Amendment Fry, James P., 20 GID , 27-30, 56 Gray, L. Patrick, 5, 6, 100, 162 Guerrilla warfare, 13 5 Guidelines, federal, 8, 10, 57-58, 8 7 .9 1.9 4 , 14 5 - 14 7 , I 49“ 1 ? 1 » *54 Harding administration, 29 Helms, Richard, 66 Holt, Joseph, 20 Hoover, J. Edgar, 4 -5, 27, 28-29, 30, 3 1,4 9 , 12 7 - 12 8 , 12 9 - 13 0 . See also Federal Bureau of In­ vestigation; Justice Department, General Intelligence Division House Judiciary Committee, 9 -10 ,

31 , 152- 153,165

House Permanent Select Commit­ tee on Intelligence, 59 H.R. 60 51, 148

19 1

H T L IN G U A L , 97-98 Hunt, E. Howard, 5 H U N TER , 98 Huston, Tom Charles (Huston p l a n ) ,

3 , 5- 6, 4 9 . 9 7

Ideological Organizations Project, 79-80 Immigration Act ( 1 9 1 8 ) . See Sedition, laws against, during World War I Immigration to the United States, impact of, 23 -2 4 Informants, 93-96, 1 0 1 - 1 0 3 , 12 2 -12 3 IN LET , 5 1- 5 2 in re Neagle, 10 7 -10 9 Intelligence committees. See Church Committee; House Per­ manent Select Committee on Intelligence; Pike Committee; Senate Select Committee on In­ telligence Internal Revenue Service (IR S ), 7, 7 8 -8 1. See also Tax Reform Act Internal security, 16 4; during American Revolution, 1 5 - 1 6 , 26; during Civil War, 19 -2 2 ; during W orld W ar I, 2 5 -2 7 ; post-World W ar I, 2 7 -34 ; ^uring World War II, 34-36, 3 8 39; post-World W ar II (See Central Intelligence Agency; Federal Bureau of Investiga­ tion; Justice Department; N a­ tional Security Agency; Secret Service). See also Sedition, laws against Investigative files. See Surveil­ lance, files IRS, 7, 7 8 -8 1 IRU, 58, 15 2 Jackson, Robert, 89, 90, i n JD L , 96

19 2

INDEX

Jenkins, Brian, 13 6 Jewish Defense League ( JD L ) ,

96 Johnson, Harold K ., 63 Johnson, Lyndon B., 5 1; admini­ stration of, 63-64, 90 Judiciary committees. See House Judiciary Committee; Senate Judiciary Committee Justice Department, 8, n , 22, 8 1, 89; Criminal Division, 7, 43; General Intelligence D ivi­ sion ( G ID ) , 27-30, 56; In­ ternal Security Division, 4 2 43, 48, 79; Investigative Review Unit (IR U ), 58, 15 2 ; Office of Professional Responsibility (O P R ), 58, 1 5 1 - 1 5 2 . See also Federal Bureau of Investigation Katzenbach, Nicholas, 90, 91 K atzv. U S ., 9 1-9 2 , 1 2 1 Kearney, John J., 162 Keith case. See U S . v. U S . D is­ trict Court Kelley, Clarence, 6, 8, 56, 59, 75 Kennedy, Edward M., 8, 15 3 Kennedy, John F., 80 Kennedy, Robert F., 90 King, Martin Luther, 47, 13 0 Laird v. Tatum, 116 , 1 1 8 - 1 1 9 , 120 Lamont v. Postmaster General, 116 Law enforcement: Congressional actions in, 1 1 3 - 1 1 4 , 124, 12 5, 1 3 2 - 1 3 3 ; federal authority for, 1 0 6 - 1 1 0 (see also Executive power) ; states’ authority for, 10 5 -10 6 Lawless State, The (Halperin et al.), 1 1 Levi, Edward H., 7, 8, 10, 48, 57, 58, 75, 94, 12 2, 14 9 -15 0 , 152 Lincoln, Abraham, 15 , 20

Loyalty oaths, 16. See also Federal Employee Loyalty-Security Pro­ gram McAdoo, W illiam Gibbs, 25 Madison, James, n o Man Called Intrepid, A (Stephen­ son), 144 Mann Act, 25 Mar bury v. Madison, n o Mardian, Robert C., 48-49 Marshall, John, n o Means, Gaston B., 29, 30 Menzies, Sir Stuart, 13 0 M ERRIM A C , 69, 72 Military intelligence, 3, 2 1, 6066, 1 5 5 - 15 6 Miller, Edward S., 100, 162 Miller, Samuel F., 10 7 - 10 8 Miller, William, 10 8 -10 9 M IN A R E T , 74, 75 Mitchell, John N ., 48 Mitchell, W illiam P., 89 Murphy, Patrick V ., 160 National Security Agency ( N S A ) ,

7,

49, 73-78, 1 3 2, *57

National Security Council, 65, 67,

68 National Students Association v. Hers hey, 1 1 6 Neiv York Times, The, 66, 83 Nixon, Richard M., 6, 49, 50, 5 1 52; administration of, 68. See also Executive Order 116 0 5 N SA . See National Security Ageny Ober, Richard, 68 Omnibus Crime Control and Safe Streets Act ( 19 6 8 ), 92, 12 2 , 16 1 OPR, 58, 1 5 1 - 1 5 2 Palmer, A. Mitchell (Palmer raids), 27-30

INDEX Pentagon papers, 5 Permanent Select Committee on Intelligence, 59 Petersen, Henry, 54-55 Pickering, Timothy, 17 , 19 Pike Committee, 7, 8, 59 Pinkerton, Allan, 2 0 -2 1 Pinkerton Agency, 22 -23, 26-27 Police Administration (W ilson), 85-86 Police departments: Chicago, 7, 83-84, 86, 15 8 ; Los Angeles, 7, 86; New York City, 84-85, 93, 138, 15 8 ; Philadelphia, 83; Washington, D.C., 86-87 Political policing, 128. See also Surveillance Politics of Violence: Revolution in the Modern World, The (Leiden and Schmitt), 13 4 Powell, Lewis Franklin, Jr., 92, Ir3 Praetorians, 13 0 - 1 3 2 , 13 3 , 14 2 -

143,163 Privacy, 13 , 14, 54, 97, 10 1, 12 3, 124, 143. See also Fourth Amendment; Surveillance; Watch lists Privacy Act ( 19 7 4 ) , 100, 15 4 -

155 Protest movements, 2 1, 23, 4 7 49, 5 0 -5 1, 54, 6 1-6 2 , 68-70. See also Surveillance Pyle, Christopher, 62, 103, 13 2 , 1 34—1 35 Radicalism. See Dissent; Guerrilla warfare; Protest movements; Terrorism Red squads. See Police departments RESISTA N C E, 68-69, 72 Richardson, Elliot, 6, 8, 75 Rockefeller Commission, 66-67 Roosevelt, Franklin D., 3 1- 3 2 , 33, 34, 35, 38 , 39, 5°, 89 Roosevelt, Theodore, 24, i n

19 3

Ruckelshaus, William, 6, 8, 54 S. 16 12 , 8 S. 2525, 15 2 Saxbe, William B., 6 -7 Searches, illegal, 9 9 -10 0 , 162 Schlesinger, James, 66, 76 Schorr, Daniel, 51 Schwartz, Frederick A. O., Jr., 54 Secret Service, 7, 24, 25, 26, 74, 7 5 ,8 1 - 8 3 ,9 6 ,1 5 8 Sedition, laws against: during Revolutionary War, 18 - 19 ; during World W ar I, 24, 25, 29; during World W ar II, 34, 145, 160 Select Committee on Intelligence, 59, * 5 2, 1 5 3 Senate Judiciary Committee, 5, 8, 28-29, 62, 1 5 2 - 1 5 3 Senate Select Committee on Intel­ ligence, 59, 15 2 , 15 3 Seward, William H., 19 -2 0 Shaheen, Michael, 58 SH A M RO CK , 7 5-76 Sherrill, Robert, 4 Smith, James Morton, 19 Smith Act (19 4 0 ). See Sedition, laws against, during World W ar II Soldier and the State, The (Hunt­ ington), 13 3 Spying on Americans (Theoharis),

56 Squad 47, 162 Standing to sue, 1 1 8 Stanton, Edwin H., 20 State police, New York, 7 States’ rights, 10 5 - 10 6 Stern, Carl, 6 Stone, Harlan Fiske, 1 1 , 29-30, Student radicalism. See Protest movements Subversive activities. See Dissent; Guerrilla warfare; Internal se-

19 4

in d e x

curity; Protest movements; Ter­ rorism Subversive Activities Control Board, 42 Sullivan, William, 47, 49-50, 53 Summers, Hatton, 89 Supreme Court of California, 7; decision of, 1 1 9 - 1 2 0 Supreme Court of New Jersey, decision of, 1 1 6 Supreme Court of the United States, decisions of, 1 3 - 1 4 , 89, 9 1, 98, n o , i n , 1 1 5 , 125, 16 1-16 2 Surveillance: dangers of, 16, 26, 1 2 6 - 1 3 3 ; electronic, 49, 72, 73-74 , 75, 88-93, I2 2 , I 2 4, 15 7, 1 6 1 ; Files, 35, 100, 15 3 — 15 5 ; Mail, 35, 49, 70, 72, 9 6 99, 10 1, 1 6 1 ; microphone, 9 092; physical, 35, 10 1, 12 4 (see also Informants; Searches, il­ legal) ; telegram, 75-76. See also Watch lists; Wiretapping Tax Reform Act ( 19 7 0 ), 8 0 -8 1/ *57 Terrorism, n - 1 2 , 22-24, 27, 1 33—1 34 (see also Guerrilla w arfare); definition of, 1 3 4 1 35; government reports on, 13 7 - 14 0 ; in Italy, 14 2 ; new technology and, 1 3 6 - 1 3 7 ; in the United States, 13 8 - 14 3 , 146, 16 5 -16 6 Terrorism (Laqueur), 23, 126, 13 7 -13 8 Terrorism: From Robespierre to Arafat (Parry), 12 Terry v. Ohio, 14 6 - 14 7

Theory of Conflict, A (Crozier), n -12 Time of Terror, A (B e ll), 13 7 Tobriner, Matthew, 1 1 9 - 1 2 0 Tocqueville, Alexis de, 1 8 - 1 9 Truman, Harry S., 39-40, 4 1, 50, 73; administration of, 90. See also Executive Order 10450 U.S. Intelligence Board, 49 U.S. v. Erlichman, 99 U.S. v. U.S. District Court, 92, 98, 99, 1 1 2 - 1 1 3 , 1 2 0 - 1 2 1 , 12 2 Voorhis Act ( 1 9 4 1 ) . See Sedi­ tion, laws against, during World W ar II Warrantless searches. See Searches, illegal Watch lists, 3 3-3 4 , 74-75, 76, 77, 78 Watergate, 5, 6, 49, 1 1 3 Webster, William, 8, 59, 15 3 , 15 5 , 166 Welsh, Neil, 56 White, Byron, 9 1, 92, 1 2 1 - 1 2 2 White v. Davis, 1 1 9 - 1 2 0 Wilkey, Malcolm, 1 1 7 - 1 1 8 Wilson administration, 25 Wiretapping, 35, 88-90, 122 Wood, William P , 96 Yarborough, W illiam P., 74 Young, Andrew, 4 Youngstown Sheet and Tube Company v. Sawyer, m - 1 1 2 Zweibon v. M itchell, 122