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147
Mr. MiTCHELL. I do not believe that what was recommended in the
Huston plan went forward.
Senator )Io::\DALE. What part did not?
~Ir. MITCHELL. If you give me a couple of hours to study it and
analyze it and analyze the record, maybe I can answer it for you.
Senator MONDALE. I think you would need at least 2 hours.
Mr. MITCHELL. I would think so too, Senator.
Senator )IoxDALE. Any other questions?
Thank you, Mr. Mitchell.
Our next panel of witnesses are four persons from the FBI.
Would you stand and be sworn, please? Do you swear that the testimany
you are about to give will be the truth, the whole truth, so help
you God?
Mr. WA::\NALL. I do.
Mr. MOORE. I do.
Mr. BRANIGAN. I do.
Mr. MINTZ. I do.
Senator MONDALE. 'Vould you introduce yourself for the record,
please,and then the questioning will begin.
Mr. WANNALL. I'm W. Raymond Wannall, Assistant Director,
Intelligence Division of the FBI.
Mr. MINTZ. I'm John Mintz, the legal counsel to the Bureau.
Mr. BRAXIGAN. Mr. Chairman, I'm William A. Branigan, and I am
the Section Chief of Counterintelligence No. 1 in the FBI.
Mr. MOORE. Mr. Chairman, I'm Donald E. Moore. I retired from the
FBI as Inspector in June 1973.
Senator MONDALE. All right.
Would you begin the questioning, Mr. Schwarz?
Mr. SCHWARZ. Mr. Chairman, we have had an opportunity to talk
to these gentlemen in executive session previously.
Mr. Mintz is legal counsel and the dialog with him occurred last
Tuesday when we discussed various questions of warrants. He has
~lOthing by way of first hand knowledge on the subject of mail openmg.
Beginning with you, Mr. Wannall, could each of you state briefly
for the record ,,,hat your connection was with the mail opening subject,
and what your knowledge about this project is now and was at that
time.
TESTIMONY OF W. RAYMOND WANNALL, ASSISTANT DIRECTOR, INTELLIGENCE
DIVISION, FBI; WILLIAM ERANIGAN, SECTION
CHIEF OF COUNTERINTELLIGENCE, FBI; DONALD E. MOORE,
FORMER FBI INSPECTOR; AND JOHN A. MINTZ, ASSISTANT DIRECTOR,
LEGAL COUNSEL DIVISION, FBI
Mr. WANNALL. In two separate programs I had a direct connection
in that they were carried on or instituted at the time that I was the
Chief of the section which had responsibilities for those particular programs
or phases of programs.
Mr. SCHWARZ. Mr. Branigan?
Mr. BRANIGAN. Mr. Chairman, I was the Sedion Chief, within
which section I supervised-I had responsibility for five specific programs
involving the FBI.
148
Mr. MOORE. I was the Inspector in charge of the branch from midOctober
1956 until my retirement in June of 1973, the branch in which
these programs were carried on.
Mr. SCHWARZ. Mr. Chairman, I will attempt a summary of the key
facts about the FBI programs. I would appreciate it, gentlemen, if you
would correct me should I state things that appear to you to be inaccurate.
Now, the FBI mail-opening programs began during the Second
World War and, with a short interruption after the war, lasted until
1966. Is that right ~
Mr. WANNALL. That is correct.
Mr. BRANIGAN. I would like to correct that. It is my recollection that
they probably began immediately prior to World War II.
Mr. SCHWARZ. I think that is true. They began in 1940. Other
people were in the war; we were not yet.
And there were eight major programs. Is that correct ~
Mr. VVANNALL. Yos, sir.
Mr. SCHWARZ. And they involved approximately eight cities in the
United States.
Mr. WANNALL. I will accept your number, Mr. Schwarz.
Mr. SCHWARZ. All right. And in addition to the major programs,
there were some isolated instances where, in connection with particular
espionage matters, you had mail-opening programs directed at
particular individuals who may have been suspected of being involved
in espionage activities.
Mr. WANNALL. Yes, sir.
Mr. SCHWARZ. Thank you. Now, why were the FBI mail programs
suspended in 1966 ~
Mr. WANNALL. At that time, Mr. Hoover instructed that this technique
be suspended, along with others.
Mr. SCHWARZ. And was this at the same time he instructed that
surreptitious entry-that is, breaking into places-be suspended?
Mr. WANNALL. That is correct.
Mr. SCHWARZ. And trash covers and certain other things were also
to bf>, ~llspended ?
Mr. WANNALL. Yes, sir.
Mr. SCHWARZ. What is your understanding as to tho reasoning for
that series of actions taken in 1966?
Mr. WANNALL. I think I would have to interpret what was in Mr.
Hoover's mind, which would be difficult. But I do think that Mr.
Hoover regularly had a regard for the climate of times. I think the
programs which had been carried on before were in periods during
which the circumstances were entirely different than the period that
existed at the time he ordered the suspensions.
Mr. SCHWARZ. Is it accurate, however, that after Mr. Hoover ordered
the suspensions, the FBI continued to obtain material from the CIA in
connection with the CIA's New York project, and continued to add
certain names whose mail they would like to obtain from the CIA?
Mr. WANNALL. That is correct.
Mr. SCHWARZ. Now, throughout the period covered by the FBI's
own programs and its receipt of material from the CIA programs,
was the subject of legality of mail opening focused upon, to the best
of your knowledge, based upon either your recollection or your review
of the files?
149
Mr. VVANNALL. 'Would you glVe me the time frame agam, Mr.
Schwarz?
Mr. SCHWARZ. Starting from the beginning, 1940, a'1d running all
the way up through the FBI's own program and until 1973, which
was the time the CIA program was stopped.
Mr. 1VANNALL. From the review of material that I have recently
made, there was a consideration of this in about 1951, as I recall.
Mr. SCHWARZ. And thereafter, from the material we have befln able
to obtain and which you haw reviewed, there does not appear to have
been such a consideration, except for Director Hoover's references
in connection with the Huston plan. Is that right?
Mr. WANNALL. To the best of my knowledge, that is correct.
Mr. SCHWARZ. And ,,'e could not determine, could you, whether
there was actually an opinion in 1951 or whether the subject was
merely raised?
Mr. WAKKALL. I think the subject "as raised because as I recall,
a particular document was prepared by one of the supervisors who
was involved in the operations.
Mr. ScmvARZ. Thank you.
Now, Mr. Chairman, based upon the staff review of the FBI programs,
it appears to the staff that in most cases the FBI programs did
not involve the same kind of random or general opening of mails, but
rather it involved the opening of mail which the FBI had reason to
believe, in their opinion, was likely to lead to matters relating to illegal
agents within the country. I think there are some exceptions to
that, but, gentlemen, is that, in your judgment, a fair characterization
of the FBI programs?
Mr. 'WANNALL. That is a very fair characterization.
~fr. SCHWARZ. Ho,vever, ::\11'. 'Vannall' could I call your attention
to the document which is exhibit 16/ the document dated March 11,
1960.
Mr. VVANNALL. I have the document.
Mr. SCHWARZ. In support of the staff conclusions that I just mentioned,
did the FBI have a review procedure of its mail-opening programs
so that those programs which did not appear to yield results
with respect to espionage matters were reviewed? And what happened
when they were reviewed?
Mr. WANNALL. 'Ye had a procedure whereby starting, I think,
about 1958, programs which ,vere carried out within the division, not
only relating to mail projects, but others, were reviewed on a semiannual
basis. I think later that became an annual basis, and then a
review in conjunction ,vith an annual inspection of our division by
another division which conducts such inspections.
Mr. SCHWARZ. And were certain of the programs turned off, based
upon such reviews?
::\11'. BRANIGAN. That is correct, Mr. Counsel, certain of our programs
were turned off because of their unproductivity. That is correct.
Mr. SCHWARZ. Now, one further background question. None of these
programs was based upon the obtaining of warrants. That is true, is
it not?
1 See p. 228.
150
Mr. BRANIGAN. That is correct.
Mr. SCHWARZ. The document, ::\fr. ,Yannall, concerns a program involving
an Asian country of which you were personally aware, does
it not?
Mr. "VANNALL. That is correct.
Mr. SCHWARZ. I would like to read into the record from the document,
in the third paragraph, an example of what the pers~m writing
the document was claiming to be the advantages of a partIcular program.
And it reads as follows:
A true picture of life in that country today is also related by the information
\Vhich this source---
Now, ,vhen he says "this source," he means the mail-opening program,
does he not?
Mr. "VANNALL. "Ve're talking about the mail-opening program by
use of the word "source," yes.
Mr. SCHWARZ. [reading].
A true picture of life in that country today is also related by the information
which this source furnishes, showing life in general to be horrible due to
the complete lack of proper food, housing, clothes, equipment, and the complete
disregard of a human person's individual rights.
NOw, none of that had anything to do with espionage, did it?
Mr. "VANNALL. No; I would say that that was developed as positive
intelligence, a byproduct of the program.
Mr. SCHWARZ. And you agree that the FBI does not have the responsibility
for developing positive foreign intelligence?
Mr. "VANNALL. We have no charter to develop positive foreign intelligence.
As a member of the intelligence community, of course, we
can be called upon by others to develop it. And should we come into
possession of it, we do have a responsibility to see that it gets in the
proper hands.
Mr. SCHWARZ. All right. Now, based upon your review of the material
and your previous deposition, given the generality that the objective
was to look for espionage matters, you agree, do you not, that
the review of the files demonstrates that material was picked up concerning
antiwar groups, concerning pornography, concerning several
other matters which do not relate to the initial purpose; that is, to
search for information relating to espionage matters?
Mr. WANNALL. We did secure such information as a result of this or
other programs.
Mr. SCHWARZ. All right. Let us put aside the question of the legality
of the program in the first instance and the fact that there was no
warrant, and let us assume that thpre had been some statute or other
authority to permit the FBI to look for information with regard to
espionage matters. The fact is, of course, that other information did
come to the attention of the FBI, such as antiwar movement matters,
and that that other information was filed and used by the FBI in
the course of its intelligence operations. Do you agree ,,:ith that?
Mr. WANNALL. Yes sir.
Mr. SCHWARZ. All right. Now, as I say, passing the question of
propriety in the first instance, and assuming there was some proper
baSIS, do you not. agree that it is improper to pass beyond that initial
purpose, to retam and use materials such as material on antiwar
demonstrators that had no relationship to the initial espionage
purpose?
151
Mr. WANNALL. Well, at this time, just sitting here and analyzing it,
it certainly could be concluded in that sense, Mr. Schwarz. Howeve~,
I think it would be well to consider that as far as the product of tIns
program was concerned, it was considered as having come from a
source for which approval for its establishment had been granted on
a high level, within the FBI at least. And the men who were producing
the information did have a responsibility in their minds at that
time to see that intelligence information was put in the proper channels.
Mr. SCHWARZ. This is not a problem limited to mail, is it? When you
have a wiretap, assuming, it is a wiretap legally implemented for a
purpose of discovering a certain crime, you may a~so get infor~ation
that is unrelated to that, and your current practIce IS to retam the
unrelated information. And my last comment, Mr. Chairman, is that
this is an issue which we are going to have to deal with in the general
sense as to what the proper standard should be. And perhaps somebody
else is going to want to pursue that issue here and later when the Attorney
General testifies.
Senator HUDDLESTON [presiding]. Mr. Kirbow, do you have any
questions?
Mr. KIRBOW. Mr. Chairman, may I defer my questions until you have
finished?
Senator HUDDLESTON. On the very point that counsel was discussing,
how long do you retain this information and material?
Mr. VVANNALL. Under rules that have been prescribed by the Archivist
of the United States, we retain the material indefinitely if it has
some bearing on the historical development of the country or something
of that nature. I think there are rules with regard to destruction
of certain categories of material. I would defer to Mr. Mintz.
I think he may have a better concept of the legalities of the problem and
what we are permitted to retain or not, if you want to have that.
Senator HUDDLESTON. Yes, I would.
Mr. MINTZ. The information is retained indefinitely, as he indicated.
There are rules specified for our records destruction program that generally
require destruction only after about 20 years of retention if the
material is no longer of any value, but the broad scope of the information
is retained indefinitely in this ~rea.
Senator HUDDLESTON. How could information collected in this
fashion that might be totally unrelated to the mission, but might be derogatory
to some citizen, be of any value, or be necessary to retain for
20 years in your files? The revelation of this information might be very
da~aging to somebody, but very untruthful. Why would you keep it
laymg around for 20 years with the vulnerability it might carry?
Mr. MINTZ. r suppose the answer to that is historically it was a
practice in the Bureau to retain information for its potential value.
r suppose the greater point to your question is the possible abuse of that
infor~ation. ~ think that it is very difficult to justify any abuses of
such mformatIon. r am not sure we have any record of that having been
done. But the material collected was retained.
Se~ator HrDDu;~TO~~. On another matter, Mr. 'Yannall, or Mr.
Bramgan,.wh.o spe~lfical1y authorized the mail opening? We will start
at. the begmnmg WIth respect to the mail cover project in New York
CIty.
Mr. BRANIGAN. Senator, are you referring to the CIA project?
152
Senator HUDDLESTON. I am referring first to the projects of the
FBI.
Mr. BRAXIGAN. Our first project, which dates back prior to World
""Val' II-we have no record as to who authorized this. This was a very
closely confined survey. To describe it for you, I might use the term I
called a "traitor's trap." It was a program designed to detect personsand
there are such-within the United States who would be willing
to sell information to a foreign power.
Our second survey that we talked about which initiated in New York
City, since you referred to that, was intially approved at a level of
our Assistant Director. However, within a very short time after that
,,"'as approved, it was specifically approved by Mr. Hoover himself.
Senator HUDDLESTON. Who approved the extension of that program
from a simple mail cover to a mail opening?
Mr. BRANIGAN. You are referring to our second program?
Senator HUDDLESTON. Your second program.
Mr. BRANIGAN. This ,vas never what we could consider a strictly
mail cover project. This was a program designed to detect the illegal
agents operating in the United States, and I think we have explained
the difficulty of findings persons who come to this country who are
swept up in the mainstream of American life, and who are here for
the purpose of staying behind in the event of hostilities, who are here
for the purpose of carrying on espionage. It is a very difficult thing.
The program was founded on firm indicators as to the manner in
which these persons would prepare correspondence, and these included
not only indicators with respect to the envelopes, the covers for these
things, but the correspondence itself, so it was never a strictly mail
cover operation.
Senator HUDDLESTOX. You had mail intercept programs in other
cities in addition to New York, is that correct?
Mr. BRANIGAN. That is correct, Mr. Senator.
Senator HUDDLESTON. ""Vho approved the establishment of these
operations?
Mr. BRANIGAN. I think, for the most part, these-certain of them,
certainly wonld have been approved by Mr. Hoover.
Senator HUDDLESTON. Did they come through your office specifically?
Mr. BRANIGAN. That is correct. Any proposal to extend one of these
things would have initiated, perhaps, with our field office, writing in
and saying, "here, we think we could do ourselves and the country some
good if we got into this area," and then the supervisor who works for
me would prepare in the form of a memorandum or a communication,
and it would come in to me and I would prepare it, and from there I
would probably send it on up the line.
Senator HUDDLESTON. Yon probably would send it up the line, but
would it be put into operation with your approval at that point?
Would that go any further?
Mr. BRANIGAN. No, sir. I don't think that I signed off on any of
those particular programs.
Senator HUDDLESTON. How much authority did the agent in the field
have to initiate such a program on his own?
Mr. BRANIGAN. Under my understanding-and I have been in the
FBI for 34 years. I worked for a good many of those under Mr.
Hoover. I have to say, Senator, that the agent in the FBI really didn't
153
have that much authority. The fact of the matter is that I guess we
have human beings that work for the FBI and, if a man took it upon
himsel~, if he w,as particularly aggressive, if he thought there was
sometlung, he nllght haye assumed that authority, and we haye had
programs ,vhich we know were initiated in the field office without-but
there again, I mean the system isn't all that imperfect because once you
start one of these programs you have the duty to report. You want to
report the results, or else it is no good, and so in reporting the results
quite obviously the people back here at headquarters are going to say,
"oh, what is this? Here is something new." And they will raise a
question about it. .
Senator HUDDLESTON. Once a program was initiated, how strict
were the guidelines received from your level by the agents ,vho were
operating the program in the field?
Mr. BRANIGAN. 'Well, the actual guidelines, the indicators, as I say,
in our programs were not specifically laid out from the headquarters
level. Rather, they were conveyed to our agents in the field, probably
all of whom had direct experience in counterespionage, counterintelligence
matters, through their superiors in the field. Sure, we had the
guidelines back here, and they were outlined, and the field was well
aware of these.
Senator HUDDLESTON. Is this just another case where these instructions
may have gone down verbally, and where there might be a great
deal of room for misunderstanding?
Mr. BRANIGAN. I don't really think there could be any room for
misunderstanding, Senator. The guidelines for locating-and I am
referring to the specific programs here--for locating the indicators
were known to these people. There is no question about it, and I
don't really think there could be any. Now, the question that you
ultimately are coming to, Senator, is, were these guidelines expanded
so that we weren't really coming up with illegal agents? 'Ve weren't
really-we always focused on the illegal agent, believe me. I am convinced
of that, but if, as Mr. "rannall has indicated, there is a byproduct
that came there and some particular agent was aware that in
this particular field we had another investigative interest, I am not
saying that that didn't occur.
Senator HUDDLESTON. Thank you.
Senator Schweiker, do you have any questions?
Senator SCHWEIKER. Thank you, Mr. Chairman. Mr. Branigan, was
all of the mail which was opened going to and from a foreign country,
or did some of the mail which was opened include purely domestic
mail traveling from one point in this country to another?
Mr. BRANIGAN. In one of our programs it did include domestic mail,
mail within the country to another location in the country. It was
strictly domestic. Nmv, let me hasten to add to that, that particular
survey that we had was again based on firm indicators as to how an
illegal agent would prepare his mail, and we do know, and we had
experience, that illegal agents operating in the United States received
correspondence from their support officers, if you want to call them
that, their principals, who were themselves in the United States, and
this was why we were directing this particular thing, Senator.
Senator ScnwEIKER. Did the FBI ever ask the CIA to open letters
during the project that dealt with Government employees? In other
154
words, clid you have a request to the CIA to see the mail of Government
employees?
Mr. BRANIGAN. That is correct. In connection with the particular
project you are referring to, we furnished to the CIA categories of
correspondence that we would be particularly interested in, and I think
if you would read our particular category where we were talking about
the Government employees, the next sentence, the next part of that
sentence specified, "or other persons in sensitive industry." And, what
we were focusing on is not a Government employee who just wouldn't
have any-we were focusing on a Government employee who would
have access to highly restricted, highly classified information, who
would be in a position in correspondence with persons abroad who
might be, himself, the subject of some kind of pressure tactics by
another, a hostile service, based maybe on the hostage situation, I
don't know, but this is really what we were focusing on, not just the
,vords "Government employee" but one who was in a position to do
damage.
Senator SCHWEIKER. vVould that have included elected officials or
not?
Mr. BRANIGAN. If you, Senator, say that the FBI focuses on elected
officials; in my career, no. ",Ve don't focus on elected officials, but if an
elected official, who was in a position where he had access again to really
sensitive information, it might be desirable, from a counterintelligence
standpoint, really sensitive, that we would know, well, yes.
Senator HUDDLESTON. Such as members of this committee?
Mr. BRANIGAN. No, sir. No. sir.
Senator SCHWEIKER. Mr. ",Vannall, how were names added to the
list? In other wc-rds, once a procedure was set up, once you had an objective
that you cited, how were new names added and who made that
recommendation or decision?
Mr. WANNALL. In which project, Senator?
Senator SCHWEIKER. In any projects. vVhat procedures were followed,
say, for adding names once a project was set up to do a certain
thing? You obviously may have had new names come into the category.
Mr. WANNALL. vVell, of the eight FBI projects, I don't recall any
where we had a list of names, as such. There were three operations
wherein agents had access to some 16-1 think 13,000 pieces of correspondence
within 2 hours, and I am told that they maintained in
their head names because of their expertise in the particular area, but
they didn't take a list and didn't have time to check that list in a 2hour
period against so many thousands of pieces of communications.
Now, this is in our own operations that I am discussing.
Senator SCHWEIKER. Let me get more specific. I understood that in
a case in San Francisco, there were some names that were added
through the field office, which were not reviewed at a highel." level.
How did this happen?
Mr. ",VANNALL. I found a reference in material I have reviewed to
the fact that one of our offices would furnish to San Francisco a list of
names. Following that, we went to our San Francisco office and asked
them to go through all of their material to discuss with agents who
may have been working there during the time this particular survey
or the surveys were being conducted, and the response we got back was
that there was no list, as such, which was used to pull out pieces of
155
mail, that because of the hme element, 13,000 pieces of mail in 2 hours,
t.he agents couldn't retain in their minds individuals.
It is quite possible that names were furnished to the San Francisco
office so that the agents \YOldcl keep these in mind, but they found no
indication that a list was compiled, as such, and utilized in screening
the mail.
Senator SCHWEIKER. :Mr. :Yloore, you were knowledgeable about the
CIA's mail-opening project and, of course, the FBI received a "take"
from that project. Why didn't you inform the CIA of the FBI mailopening
programs, given the fact that perhaps they would have derived
some benefit from them?
Mr. MooRE. Back in 1958 when they first advised us, as I understand
it, of theirs, Senator, our programs were very tightly held, even
within the Bureau. I would not have advised any other, CIA or anyone
else, 'without approval. Subsequently-I believe it was 1961-1 did
advise CIA.
Senator SCHWEIKER. Did you have any discussion at all about mail
openings, Mr. Moore, with Post Office officials or with the Attorney
General?
Mr. MOORE. Senator, with regard to Post Office officials, you used
the words "mail openings." I discussed with Post Office officials on
some occasions our mail programs in which we received mail from the
Post Office delivered to our custody. I did not advise them that that
mail was subsequently opened.
I also personally had one discussion with an Attorney General at
one time with regard to our mail intercept program. To the best of
my knowledge, the words "mail openings" were not included in the
discussion.
Senator SCHWEIKER. Which Attorney General was that?
Mr. MOORE. That was Mr. Katzenbach.
Senator SCHWEIKER. To the best of your knowledge, you did not
discuss mail opening?
Mr. MOORE. To the best of my knowledge, Senator, a question came
up in which the furnishing of mail by the Post Office to the FBI was
raised. I discussed that, along with other people, with one other representative
of the FBI, \yith ~Ir. Katzenbach and another representative
of the Department of .Justice, but I cannot say that the words
"mail openings" were utilized.
Senator SCHWEIKER. MI'. Mintz, do the present procedures of the
Bureau require your review and approval for proposed programs
where the legality of an operation or procedure might be in doubt?
Mr. MINTZ. They do.
Senator SCHWEIKER. Do the present procedures of the Bureau provide
any machinery for you to be informed of programs that might
have boon started some time back and, therefore, wouldn't immediately
come to your attention? I am referring to programs that may be
ongoing, ,and because they were started prior to you or another official's
administrative beginning, they would not come before you for review.
Mr. MINTZ. I cannot say that they do.
Senator SCHWEIKER. Can you give any suggestion or consideration
as to how we might spot some of these situations that still might be
ongoing, but might be rooted out, just as mail opening was?
Mr. MrxTZ. I suppose the best way is to inquire of the investigative
divisions of the Bureau as to their activities.
156
Senator SCHWEIKER. Do you regularly receive reports of internal
~nspections? I mean by that the investigating division you were talkmg
about.
Mr. MINTZ. I do not.
Senator SCHWEIKER. Who sees that?
Mr. MINTZ. The Inspection Division prepares them and submits
them to the Director.
Senator SCHWEIKER. Would they relate to items of questionable legality
or not?
Mr. MINTZ. That is a very broad question, Senator. I cannot tell you.
I have not reviewed them myself. I do not know.
Senator SCHWEIKER. Mr. Wannall, why did the FBI, in your opinion,
neglect to get the Attorney General's approval for mail opening?
Can you shed any light or give any insight to this committee that
might be useful in preparing new legislation?
Mr. VVANNALL. Senator Schweiker, it would be difficult for me to try
to advise you now why back in the early stages of these programs there
was no consultation with the Attorney General. I was not privy to any
of the discussions at the time. I don't even know if the question came
up, so to answer that part of your two-part question, I would say it
would be difficult for me to offer an opinion to you as to why someone
at that time did not do or follow that procedure.
Senator SCHWEIKER. I just thought you might have heard some discussion
or had some insight. I would certainly think it must have
crossed a lot of the minds of those who were dealing with this
problem.
Mr. WANNALL. vVell, I am aware, as I indicated earlier in response
to a question of Mr. Schwarz, that in 1951 the question was addressed
in a memorandum. It was some 5 vears after that, to the best of my
knowledge, that there was another program introduced which concerned
the interception of mail. In the interim I have found no indications
of any further discussion of the problem, no record of any
such discussions, and neither have I heard in connection with my discussing
this particular matter recently with others, of any considerations
that were given to going to the Attorney General prior to the
institution of the procedures.
Senator SCHWEIKER. That is all, Mr. Chairman. Thank you.
Senator HUDDLESTON. Thank you, Senator. Senator Hart.
Senator HART of Colorado. Thank you. Gentlemen, I don't know to
whom this question should be directed, but it is my understanding that
during the 25 or so years that the FBI conducted its own mail-opening
projects and cooperated with the CIA in its project, that no Attorney
General was aware of either of these projects. Is that the case?
Mr. WANNALL. I would say that as projects. I have no knowledge
that any Attorney General was aware of it. I do have information
which I have secured as a result of a review of material available at
our headquarters at this time that in at least two oases the fact that
mail had been intercepted was made known to departmental officials.
I do not know if the Attorney General himself became aware of this
in those two instances.
Senator HART of Colorado. But to your knowledge, there was no
effort by Mr. Hoover or by any of you to make any Attorney General
aware of this?
157
Mr. WANNALL. I have no personal knowledge in that area. ~rtainly
not as far as I, myself, am concerned.
Senator HART of Colorado. Just so the record is clear, in case it is not
already, why was this done?
Mr. WANNALL. Well, I am in the same position as I was in trying
to advise you with respect to something to which I was not privy. I
do not know why it was not done, Senator.
Senator HART of Colorado. Do you think it should have been done?
Mr. WANNALL. In retrospect, I would say yes, and I would think
that the procedures which have been established by the present Attorney
General are such that it certainly would be done at the present
time.
Senator HART of Colorado. It is my understanding that the FBI
presently is not opening mail at all. Is that correct?
Mr. WANNALL. That is correct.
Senator HART of Colorado. What prohibition is there to prevent the
resumption of mail openings?
Mr. WANNALL. Instructions have been issued, Senator Hart. Mr.
Branigan addressed himself to the problem of accounting for the activities
of every single agent. I know the agent would realize that
should he engage in any such project or even a single undertaking, he
would be subject to very severe disciplinary action.
Also, as Mr. Branigan indicated, should he engage in such a project
or an individual action, he would have to account for it because he
would have information he could not utilize without reporting it to
headquarters. So, I would say that the necessary instructions are
out, and procedures for implementing those instructions are as tight
as they can be.
Senator HART of Colorado. Are the instructions to which you refer
in the memorandum [exhibit 17 1] to all special agents in charge, from
the Director, dated December 5,1973?
Mr. WANNALL. I would say that is a broad instruction,which covers
conduct of employees, and certainly, in my opinion, mail opening
would be within the framework of those instructions that were issued
at that time.
Senator HART of Colorado. The key phrase of your response is, "in
my opinion." Has that general prohibition which the Director issued
ever been made more specific as to actual areas of conduct, including
mail openings, or is it just a broad blanket prohibition?
Mr. WANNALL. With respect to mail openings, of course, Mr. Hoover
issued specific instructions in July 1966 there should be no more such
mail openings, and I have no knowledge that those instructions have
in any way been violated.
Senator HART of Colorado. So, in your judgment, and in the judgment
of those throughout the Bureau, that blanket absolute prohibItion
is still in operation?
Mr. WANNALL. Yes, sir.
Senator HART of Colorado. Mr. Mintz, I would like to pursue a line
of questioning that we got into in executive session that involves the
whole area of illegal procedures or mail openings. It is my understanding
of the law, according to the interpretation of the Constitution,
statutes. Supreme Court case law, and so forth, that it is illegal for
anyone 10 open the mail without a judicial warrant. Is that correct?
1 See p. 232.
64-663 0 - 76 - II
158
Mr. MINTZ. That is a general statement that I would subscribe to in
regard to criminal cases, Senator Hart.
Senator HART of Colorado. Yes. It is also my understandingcorrect
me if I am wrong-that the state of the law with regard to
wiretapping is that such wiretaps can be conducted with a judicial
warrant. Is that correct?
Mr. MINTZ. That is correct, but also I must add that in regard to
wiretapping, in regard to criminal cases, without a warrant it is, of
course, a violation, but in title III there is recognition of Presidential
authority, whatever it may be. I suggest, as they mention in criminal
oases, with regard to mail openings, there may be that same authority.
I do not claim that there is, but there may well be that same authority,
so that the opening of mail may well be authorized by the
constitutional power of the President in certain instances, and it would
not, therefore, be a violation of the law.
Senator HART of Colorado. I assume it is not the policy of the
Bureau to seek judicial warrants to open mail at the present time?
Mr. MINTZ. Oh, yes, we do in criminal cases.
Senator HART of Colorado. 1Vell, criminal includes espionage cases.
Mr. MINTZ. If the espionage case is one that would lend itself to
prosecution, and the discovery of the information that would be filed
in the affidavit-as it would be discovered through publicity-would
be appropriate, then we would get a warrant.
Senator HART of Colorado. And have you done this in the past?
Mr. MINTZ. I am sure that we have.
Senator HART of Colorado. 1Vould you explain the problems of publicity
surrounding warrants and why this is a difficult area?
Mr. MINTZ. Yes. In the intelligence business, some of the objectives
are not prosecutorial. Some of them are just simply to collect intelligence
data that would be useful to protect this country against international
attack or to aid in our foreign intelligence information
capacity, and so, the filing of an affidavit, which would require the
specification of the facts sufficient to show probable cause, as required
by the fourth amendment, would layout our side of the case and
would give more information than ,ve would get in a particular situation.
~o, it is relatively impossible now to use the warrant procedure in
secunty matter cases.
Senator HART of Colorado. In our executive session, counsel brought
out the fact that affidavits stating probable caUSe can be delivered to
the court under seal. Now, why doesn't that procedure work?
Mr. MINTZ. That is correct. They can be sealed. They can be sealed
fairly indefinitely. However, some of these caSes arc of continuing
interest and may well go on for many years. I am not sure the court
would accept at this time and under the present state of the law our
request to seal an affidavit permanently.
Senator HART of Colorado. Have you ever tried?
Mr. MINTZ. Not to my knowledge.
Senator HART of Colorado. That is all the questions I have.
Senator HUDDLESTON. Mr. "'\Vannall, I find it curious that the question
of the legality of this mail operation came up in 1951 and, yet,
after operating for over 20 years, it was apparently never resolved
at the highest level. The Attorney General was never really called
upon to give guidance to either the FBI or the CIA as to whether or
159
not they were within the legal requirements. Was this something that
was done on purpose ?
Mr. WANNALL. Senator, I cannot tell you without reservation that
somewhere there was no discussion with an Attorney General. I just
do not have that knowledge. I have no knowledge that there was a
discussion from the material I have seen. I have no knowledge there
was a discussion with any other official outside of the FBI.
As Mr. Branigan indicated, much of this from an operational standpoint
was highly compartmentalized, and there were things that were
not put down in writing, I think, because of the sensitive nature of the
operations and protectmg them on a need-to-know basis, so I don't
have any knowledge which I have been able to glean as a result of review
of material or discussions with people that there were discussions
with the Attorney General.
Senator HUDDLESTON. The record shows there were individuals
within the FBI, the CIA and the Postal Department that felt serious
reservations about the program, and at least suggested its legality
ought to be resolved, and yet they never really were up until this date,
I suppose. Do you know of any instance where the type of material
or evidence ~athered through this operation had any direct effect on
the prosecutIOn by the Justice Department in a case of espionage or
any other serious offense?
Mr. WANNALL. I know of no cases where any' of the evidence
gathered through this source or these sources was utIlized, and I rather
doubt that that situation could come about. We did have two
cases that were presented to the Department, and acknowledged that
there were intercepts, and '(>rosecution was declined on that basis. The
results that we would retam in our files would be there in the event
that prosecution should he considered, and prior to undertaking
prosecutive steps the Department of Justice certainly would have
access to everything in our files and the sources of that information.
So I don't know of any cases where there has been prosecution in
which material from this source has been utilized.
Senator HUDDLESTON. Mr. Kirbow, do you have any questions?
Mr. KIRBOW. Thank you, Mr. Chairman.
Mr. Chairman, in agreement between Mr. Schwarz and myself, I
think the record should show that he has exercised his judgment to
disqualify himself from the examination of these witnesses on the
question of authority, especially as they relate to former Attorney
General Katzenbach, because of a prevIOUS attorney-client relationship
between himself and Attorney General Katzenbach, and I therefore
will pursue that line of questioning.
I would like to inquire into exhibits 18 through 21, please. Directing
your attention to exhibit 18,' Mr. Moore, and the first document,
dated October 2, 1964, is that a memorandum you prepared and forwarded
to Mr. Sullivan?
Mr. MOORE. Yes, it is.
Mr. KIRBOW. It appears in that particular memorandum, so that the
record might be made, that a discussion was underway within the Department
concerning the prosecution of two persons from the Eastern
District Court of New York on some very serious charges. Is that a
true representation of what it basically says?
1 See p. 233.
160
Mr. MOORE. Yes, it is.
Mr. KIRBOW. And to the last sentence in the third paragraph, of the
first page, it states:
No information obtained from wiretaps or microphones is contemplated to
be used in this case and the only tainted source is a mail intercept which did
not take place anywhere near the residence.
Now, since the record shows that mail cover throughout all of this
period of time was a legally authorized matter, and that you could
photograph the outsides, you must have been talking about something
other than mail cover when you talked about the evidence that had
been obtained and which couldn~t be used; it had to be from some
other source. Is that correct?
Mr. MOORE. Yes. Mail cover and mail intercept, to me, are two different
things.
Mr. KIRBOW. All right. In this case here, you are clearly talking
about some information that had been obtained from opening the mail ?
Mr. MOORE. Yes. That is what I was talking about, and that is what
it means to me.
Mr. KIRBOW. Now, at that time, the Acting Attorney General was
Nicholas Katzenbach, as shown on the next page; is that corre0t?
Mr. MOORE. I actually was not aware of that, who was the Attorney
General.
Mr. KIRBOW. May I direct your attention to the second page, the
first full paragraph, where it states that Hall advised he had discussed
this case with Acting Attorney General Katzenbach and Katzenbach
was of the opinion that the Department must be candid with the judge.
Mr. MOORE. Yes.
Mr. KIRBOW. Apparently Mr. Katzenbach had had a full briefing of
this case and the tainted evidence from someone. Could you tell us who
that was?
Mr. MOORE. Sir, I discussed this matter with Mr. Yeagley. And I
do want to make it clear in my own mind--
Mr. KIRBOW. Who was Mr. Yeagley at that time?
Mr. MOORE. Mr. Yeagley was an Assistant Attorney General in
charge of the Internal Security Division, and I do want to make it
clear-I used the words "mail intercept." Once again, I was asked by
Senator Schweiker if I used the words "opening mail."
Mr. KIRBOW. Could there be any doubt in the man's mind if you
were talking about the product that you had received from some kind
of mail program, that you were talking about something that you had
opened and received, or at least a postcard which you had taken from
the mails and had as evidence in this case, because you would have
had to have the original document, wouldn't you?
Mr. MOORE. Sir, in my mind, I would have no question, but I cannot
say, and I do not want to say, what Mr. Yeagley had in his mind.
Mr. KIRBOW. How could it have been tainted evidence, really, Mr.
Moore, unless it was illegally obtained?
Mr. MOORE. Well, obviously there was a taint, because as it says,
this was a tainted source. As I recall, the information itself, the information
was not contained in the intercept, but there was something
developed thereafter.
Mr. KIRBOW. And this was a very important case to the Department
of Justice, because it involved two people who had committed some
very serious offenses under the law; is that correct?
161
Mr. MOORE. Yes; there was an espionage charge.
Mr. KIRBOW. And was the prosecution later dropped, because of this
tainted evidence and the inability to use it ?
Mr. MOORE. The decision was made to drop the case, and it is my
understanding it was based on this.
Mr. KIRBOW. vVere you trying to convey in your use of the word
"intercept" the true state of events of then-Assistant Attorney General
Yeagley, without using the words "opening mail" ~
Mr. MOORE. I was, yes. But I also-I have talked to various people
since, and apparently the term "mail intercept" does mean the same
thing to all people.
Mr. KIRBOW. You shouldn't feel bad, Mr. Moore. These are the
same types of things we have heard for the past 6 months on other
subjects. However, let me ask you who you were talking to about
other mail intercepts that would give you that kind of feeling, or is
this just a general feeling of yours from experience ~
Mr. MOORE. vVell, sir, one, I listened to testimony this morning
which talked about communication. But also, in talking to a member
of the staff of this committee, the question came up, what do I mean by
mail cover.
Mr. KIRBOW. Did you have any conversation directly with Mr.
Katzenbach about this particular case ~
Mr. MOORE. Not about the Baltch case, none that I recall.
Mr. KIRBOW. Did you at any time have any conversation with him
about your mail programs ~ .
Mr. MOORE. Yes. At one time, subsequently, I had a discussion with
him involving mail.
Mr. KIRBOW. From previous testimony in executive session, it is
obvious from the record that this was considered to be a very important
aspect of the CI program within the Bureau; is that correct?
Mr. MOORE. That is correct.
Mr. KIRBOW. And you certainly wanted to preserve it as a source at
practically any cost.
Mr. MOORE. Yes. We thought it was valuable.
Mr. KIRBOW. Under those circumstances, can you tell us why you
di.dn't mention the importance of this issue to the Attorney General
and that you were, in fact, opening mail, so that he could try to get
you some law, or something to carry this out legally?
Mr. MOORE. Sir, I cannot. I think the importance of the matter was
stressed with the Attorney General. I don't believe there was any
question about the importance.
Mr. KIRBOW. How could you do that, without talking about the
product that you received, which meant opening the mail ?
Mr. MOORE. Well, I think-as I recall, and from the memorandum
I have been shown, I believe that it was recognized that we felt that
the information was important.
Now, I cannot go over in my mind-and I certainly do not want to
say that Mr. Katzenbach was involved in this if I don't recall, and I
don't recall specific words. My impression was that there was no doubt
in his mind that he thought the operation was valuable and that efforts
should be made to see that nothing would happen which would
cause it to be discontinued.
Mr. KIRBOW. vVould you please direct your attention now to exhibit
19/ gentlemen, a memorandum elated February 27, 1965, from A. H.
1 See p. 235.
162
Belmont to Mr. Tolson concerning the Long committee, meaning the
committee in the Senate that at that time was chaired by the Senator
from Louisiana. Would you tell us who Mr. Belmont and Mr. Tolson
were, just to lay the groundwork?
Mr. MOORE. Yes. Mr. Belmont was the Assistant to the Director,
who was in charge of all investigative divisions. Mr. Tolson was his
immediate superior, who was Associate Director to Mr. Hoover.
Mr. KIRBOW. Were both of these gentlemen witting of the fact that
the Bureau was, or had been, engaged in mail opening programs?
Mr. MOORE. Yes.
Mr. KIRBOW. ·Were they aware that you were still engaged in such a
program, albeit piggyback, with the CIA?
Mr. MOORE. Yes. But, sir, the Bureau had programs apart, at this
time, 1965.
Mr. KIRBow. You still had your own programs?
Mr. MOORE. The Bureau had programs of its own.
Mr. KIRBOW. Yes. I understand that.
Look at page 2, if you will please, the first full paragraph, which
starts:
I told Mr. Katzenbach that I certainly agree that this matter should be controlled
at the committee level but that I felt that pressure would have to be
applied so that the personal interests of Senator Long became involved rather
than on any ideological basis. Mr. Katzenbach said that he had already talked to
Yice President Humphrey about Fensterwald.
Who is Fensterwald?
Mr. MOORE. As I recall, he was staff counsel, or at least a staff employee,
of the Long-I believe it was a subcommitwe, if I recall
correctly.
Mr. KIRBOW. And at that time, hadn't Mr. Fenswrwald informed
the Bureau that he was in touch with certain of their agents who were
going to wstify under oath, or asked to testify under oath, concerning
mail-opening programs?
Mr. MOORE. I didn't recall that, although I saw it this morning. I
don't know whether it was in this document or some of the documents
that I was shown this morning. I didn't recall that at the time.
Mr. KIRBOW. Yes. It is in this document, and for reasons which we
should not discuss here, it does not appear. It has been blanked out.
If Mr. Katzenbach was so deeply involved that he was dealing with
the Office of the Vice President, with the Vice President himself asking
him to intercede on your behalf, can you tell us that he did this
without being fully briefed on what he was going to talk about?
Mr. MOORE. Well, in fairness to Mr. Katzenbach, I don't know-I
don't know even other than these words here in the memorandum, I
really don't know what he talked to Vice President Humphrey about.
Mr. KIRBOW. You know what the problem was before the Long
Committee?
Mr. MOORE. I know what the problem was that concerned us; yes.
Mr. KIRBow. It concerned your mail-opening program, and the national
security aspects thereof.
Mr. MOORE. Very definitely.
Mr. KIRBOW. There was severe concern at all levels of the Bureau
about it being exposed publicly.
Mr. MOORE. Yes.
163
Mr. KIRBOW. In fact, there were comments in here about Senator
Long's zest for publicity on this matter at some time, wasn't there?
Wasn't that one of your concerns?
Mr. MOORE. Our concern was-and if you will allow me to say that
our concern originally arose with regard to some testimony--
Mr. KIRBOW. Yes, on the part of a person who had the very highest
reasons for doing what he had done with you, and occupied the Chief
Inspector's position in the Department, I believe.
Mr. MOORE. That is correct.
Mr. KIRBOW. He was an official in the Post Office Department, and
he had been forced to give bad testimony to protect this source, because
of his cooperation with you.
Mr. MOORE. He had made an answer which he thought was correct
under the circumstances, and he had wanted to bring, as I understand,
this matter to the attention of the Attorney General, to make certain
that the matter was handled correctly.
Mr. Knmow. That is the very point that I wanted to get to with
these other questions, Mr. Moore. The inspector who there testified
before the Long committee has here testified that he did not know, in
fact, that the mail was being opened, and he said that thinking it to
be the truth.
Mr. MOORE. That is not the ,,'ay, as I understand it, or the way I was
told of it. The question was, "Does the mail leave the custody of the
Post Office?"
Mr. Knmow. Which was in fact a violation of the law at that time,
as it is today.
Mr. MOORE. I accept your statement.
Mr. KIRBOW. I don't really want to make that judgment. It is a question.
It was an illegal act, was it not, to take the mail from a Post Office
to a separate place to do anything with it that was not authorized
by the postal laws, by anyone other than a postal inspector or an
employee? .
Mr. MOORE. I am not sure, but I believe that was probably so.
Mr. KIRBOW. Thank you.
Would you then direct your attention to exhibit 20,1 memorandum
dated March 2, 1965, for Messrs. Tolson, Belmont, Gale, Rosen, Sullivan,
and De Loach. In that first paragraph, we come back to the
subject you discussed a moment ago, where the sentence starts-
The Attorney General stated that Mr. Fensterwald was present for part of
the meeting.
This is a meeting between the Attorney General and Senator Long,
apparentlyand
Fensterwald had said that he had some possible witnesses who were
former FBI agents, and if they were asked if mail was opened, they would take
the fifth amendment.
Do you see that part of it?
Mr. MOORE. Yes.
Mr. Knrnow. Do you know who had briefed the Attorney General
before this particular meeting with Senator Long?
Mr. MOORE. 1VelI, this, as I am reflecting, the memorandum from
Mr. Belmont is dated February 27 [exhibit 19 2], and the memorandum
from Mr. Hoover is dated March 2 [exhibit 20], so I presume the
1 See p. 238.
2 See p. 235.
164
Attorney General is advising Mr. Hoover subsequent to the meeting
that Mr. Belmont and I attended with Mr. Katzenbach.
Mr. KIRBOW. Actually, the memorandum is signed, or appears to be
a memorandum from John Edgar Hoover, the Director.
Mr. MOORE. Yes.
Mr. KIRBOW. Thank you. Looking at the second full paragraph
which starts-
The Attorney General stated that the Postmaster General is going down there
this morning himself,
apparently talking about the Long committee or to see Senator Long,
which he, the Attorney General, thought would be helpfUl to Chief Inspector
~lontagueof the Post Office Department.
At that time Mr. Gronouski was the Postmaster General of the
United States. Do you recall anything about the Attorney General involving
Mr. Gronouski in this matter with the Long committee?
Mr. MOORE. I do not. I do not recall this memorandum although, as
I say, I am sure I saw it.
Mr. KIRBOW. I see. I will ask the other witnesses a collective question,
and any of you may answer if you choose.
Do any of you have any knowledge of your own as to any authority
ever havmg been granted for such a mail-opening program at any level
higher than that of the Director of the FBI or the Attorney General?
Mr. BRANIGAX. I have no knowledge.
Mr. WANNALL. I have none.
Mr. MrKTZ. I have none.
Mr. KIRBOW. Mr. Chairman, I think that finishes my questions.
SenatQr HUDDLESTON. Mr. Schwarz.
Mr. SCHWARZ. I would like to continue with some questions on a.
matter other than that from which I have disqualified myself. In the
same document, March 2,1965 [exhibit 20 1J, Mr. Hoover's memorandum,
I will read into the record some comments he makes about wiretapping
by other Government agencies, and then I will have you
gentlemen answer collectively as to whether you know anything about
those matters.
This is Mr. Hoover's memorandum to all of his major associates
about his conversation, so it is .Mr. Hoover who is talking in the memorandum.
Am I right in that ~
Mr. ""VANNALL. That is correct.
Mr. SCHWARZ. All right, reading from page 2, the second line-
I stated that it is a fact, insofar as I am concerned, that I am the only head of
an agency who does not have authority to tap telephones. I stated that I know
that subordinates down the line in some agencies will tap phones without the
knowledge of the chief of the agency and there is grave suspicion in 'Vashington
by some newspapermen that their phones have been tapped by agencies of the
government, trying to find out where they are getting their information.
Stopping there for the moment, do any of you gentlemen have
knowledge about any taps which Mr. Hoover indicates, or at least
which he suspects, which were placed upon newspapermen to determine
where they are getting their information. I'll start with you, Mr.
Wannall.
Mr. WANNALL. I have no knowledge of what he meant by that statement.
1 See p. 238.
165
Mr. SCHWARZ. Apart from what he meant, do you have knowledge
that that occurred at any time?
Mr. VVANXALL. I ha,:e no knowledge that that occurred with respect
to-any other agency. I know that in connection with investigations that
were conductBd by the FBI, there were newspapermen tapped, but I
don't think that is releyant to the statement which you have asked me.
Mr. Hooyer was talking about his knowledge that other departments
werethere
is grave suspicion in 'Washington by some newspapermen that their phone
have been tapped by agencies of the government trying to find out where they are
getting their information.
I have no knowledge that the FBI engaged in any such wiretaps, or
any other agency.
Mr. ScmvARZ. You did say that you knew that the FBI had tapped
phones of certain newspapermen. Did I understand you correctly?
Mr. WANNALL. No. I would say I have been aware of the information
that has come out publicly with respect to the 17 wiretaps.
Mr. SCHWARZ. Is that the only such information that you have from
your whole experiencB in the FBI?
Mr. WANNALL. That is all that I can recall. I cannot recall specifics
in any other area. I think there may haye been others, but I cannot call
them to mind. It may go back some years.
Mr. SCHWARZ. 'Yithout regard to specifics, then, is it your understanding
that there were other instances where there were warrantless
wiretaps of newspaper men, but you do not recall the details of who
was tapped and when?
Mr. WANNALL. Neither were they for the purpose of establishing the
sources of their information.
Mr. SCHWARZ. What was your understanding of the purpose of
wiretaps of newspaper persons?
Mr. WANNALL. In connedion with an investigation which had been
authorized, and wiretaps themselves would have been authorized.
Mr. SCHWARZ. But these were warrantless wiretaps authorized by
an Attorney General?
. Mr. WANNALL. I "..ould say, prior to 1972, the Keith decision, yes,
SIr.
Mr. SCHWARZ. Yes; they were authorized by some Attorney General.
Mr. WANNALL. That is correct.
Mr. SCHWARZ. In what time period do you have in mind?
Mr. WANNALL. I go back at headquarters for some 28 years. This
would be back in the late fifties, early sixties perhaps.
Mr. SCHWARZ. All right.
Mr. Branigan and Mr. Moore, with respect to the subject of tapping
of phones of news persons, do you have any knowledge to add to the
testimony which Mr. 'Yannall has given here, either with respect to
the FBI or with respect to other goyernmental agencies?
Mr. BRANIGAN. I have no knowledge of any other agency who would
be engaged in-tha,t Mr. Hoover was referring to in this memorandum;
and I have no knowledge of the FBI engaging in tapping the telephones
of newspapermen.
Mr. SCHWARZ. Mr. Moore?
Mr. MOORE. I recall none, unless I read it in the Rockefeller Commission
report. As far as other Government agencies are concerned,
166
I do know that there ,,-as phone tapping of newspapermen, but done
with the permission and the authority of the Attorney General.
Mr. SCHWARZ. What period of time are you talking about with
respect to the instance or instances that you have in mind?
Mr. XIOORE. 1Vould you like an exact year?
Mr. SCHWARZ. I 'would appreciate your best recollection as to the
period of time.
Mr. MOORE. I can, I think, give you an exact year. It would he in
the early sixties.
Mr. ~CHWARZ. Do you have specifies in mind, Mr. Moore?
Mr. MOORE. Yes, and I think I am correct. It is purely recollection.
Mr. SCHWARZ. All right. 'What is your recollection?
Mr. MOORE. I don't know whether or not you would want to-I will
defer to you, of course, but I wondered if you would like to explore
this in open testimony.
Mr. SCHWARZ. Since this came up for the first time here, we will
explore that first in executive session, and come back to it. ~fr. Chairman,
if you think that is appropriate.
Senator HUDDLESTON. I think that would be the correct way to
proceed.
Mr. SCHWARZ. All right.
In the document Mr. Hoover states that he proposed to the Attorney
General that a new procedure should be devised whereby an Attorney
General would control all wiretaps. And then he goes on to say, "I
stated many agencies are opposed, because they realize there would be
a marked restriction. I stated we"-the FBI-"only have 46 phone
taps, which is a low number for a country the size of ours and the area
we have to cover. The Attorney General stated no one has any idea
how many phone taps the whole Government has."
Now, my question is, which other agencies of the Government were
engaging in wiretaps?
Mr. \VANNALL. I have no knowledge in that regard.
Mr. SCHWARZ. Do any of the other gentlemen?
Mr. BRANIGAN. Nor do I.
Mr. MOORE. Mr. Counselor, I would like to clarify in connection with
the other--
Mr. SCHWARZ. You wanted to make a correction, Mr. Moore?
Mr. MOORE. No, no correction. This was during an official investigation
which had been requested of the FBI.
['Vhereupon, at 1 :10 p.m., the committee recessed, to reconvene at
~ :30 p.m. the same day.]
AFTERNOON SESSION
The CHAIR~IAN [presiding]. The hearing will please come back to
order.
In my absence during part of the hearing this morning, I am told by
counsel that there was testimony as to a wiretapping incident that
related to one or more newsmen. Senator Huddleston, who was then
presiding, agreed that this information, being new to the committee,
should first be heard in executive session according to the practice of
the committee. The FBI is prepared to submit to the committee all
relevant documents and information relating to the incident.
Am I correct in that understanding?
167
Mr. VVANNALL. That is correct, Mr. Chairman.
The CHAIRMAX. And the committee will be furnished the documentary
information as quickly as that can be arranged?
Mr. vVANNALL. Yes, sir.
The CHAIRMAN. And we will have your cooperation?
Mr. WANNALL. Fully.
The CHAIRMAN. Very well.
Mr. Schwarz has a few concluding questions he would like to ask at
this time.
Mr. SCHWARZ. All right. Over the lunch hour we were discussing the
date of the memorandum from )'fr. Hoover [exhibit 20 '] that we had
been looking at just prior to adjournment and it was dated March 1965.
Among the matters raised in the document was a recommendation to
the then-Attorney General that a change in procedure be instituted
whereby no wiretaps could be instituted without the approval of an
Attorney General. After that memorandum, was such a change made,
and if so, by whom?
Mr. ·WANNALL. It is my recollection, Mr. Schwarz, that the President
did issue an order to that effect. However, I do not know the precise
date of the order. It is my recollection that it probably followed that
within a matter of a few months.
Mr. SCHWARZ. And if that is so, there is a great likelihood there was
a causal connection between the suggestion made here in the order of
the President that followed.
Mr. VVANNALL. I feel this could certainly have had some bearing on
the order.
Mr. SCHWARZ. I have a few questions relating to the CIA program
and the FBI's understanding of it. Will you turn to exhibit 22,2 please.
Mr. Branigan, Mr. Wannall, Mr. Moore, I think you all might be able
to cast some light on this. This is a document dated March 10, 1961,
and it is from you, Mr. Moore, to Mr. Belmont, relating to the CIA
program and to the CIA's institution of a laboratory for the analysis
of mail in New York. Did you send that memo, Mr. Moore?
Mr. MOORE. Yes, I did.
Mr. SCHWARZ. All right. Mr. Hoover writes at the bottom of the
memo, in his handwriting, "another inroad!" What do you think that
meant?
Mr. MOORE. Obviously, this has to be an interpretation, but I think
it is correct. Mr. Hoover was quite jealous of the FBI's jurisdiction
and I believe he felt that perhaps there might be an inroad by the
CIA on the FBI's jurisdiction in this country. That is purely my interpretation.
I think it is accurate.
Mr. SCHWARZ. And you do not think it means-and I agree with you
it doesn't mean-an inroad into persons' liberties. It means an inroad
into the turf of the FBI.
Mr. MOORE. That is my interpretation of it and I believe it is
correct.
Mr. SCHWARZ. All right. Mr. Branigan, would you look at the
document which is exhibit 23 3 ? This is a document from someone
1 See p. 238.
2 See p. 244.
3 See p. 245.
168
else to you dated August 24, 1966, which purports to describe the kind
of material you were receiving from the CIA; is that right?
Mr. BRANIGAN. That is correct.
Mr. SCHWARZ. Now, included aJ:Ilon!! the material was, for example.
nata regarding current and former U.S. exchange students and their n.s. contacts before and after their return, including their romantiC'
involvement. AccordinQ' to this document, you also got information
about persons involved in the peace movements, anti-Vietnam demonRtrations,
women's organizations, teach-ins, racial matters, and so
forth.
Did YOU get a lot of information from the CIA program that really
had nothing to do with espionage or that kind of matter?
Mr. BRANIGAN. This is correct. We initially got into this program,
~fr. Schwarz, with the idea of identifying Soviet or identifying illegal
agents, identifying persons who would be active in behalf of the foreign
power. After we had been into it for approximately-oh, I would
say about 14 months-it became evident that a lot of the material we
were getting related more to the domestic scene than it would to the
foreign counterintelligence.
Mr. SCHWARZ. And a lot of it really was just plain junk, was it not?
Mr. BRANIGAN. We, at various times, went back to the Agency with
the idea of giving the categories of information that we were interested
in and to eliminate information that was of no pertinence to us.
Mr. SCHWARZ. You do not want to accept my word "junk," but information
having no pertinence and junk are the same thing; are they
not really?
Mr. BRANIGAN. Well, I will accept your word "junk."
Mr. SCHWARZ. OK. Over the course of the 15 years that you received
information from the CIA program, the record shows 'you received
some 50,000 copies of letters. Did it lead to the identification
of a single illegal agent?
Mr. BRANIGAN. To my knowledge, no.
Mr. SCHWARZ. I have nothing further, Mr. Chairman.
The CHAIRMAN. You have the documents before you, Mr. Wannall,
and I would ask you to turn to exhibit 24.1
Mr. WANNALL. Yes, sir. •
The CHAIRMAN. It is the fourth document here under date of
May 25. 1965. It is directed to the Director of the FBI from the San
Fnincisco office of the Bureau and it reads as follows: "As of May 26.
1965," which would be the following day. "contact with source' will
he, temporarilv suspended."
Now what does that mean? '\Vhat does "source" mean here?
. Mr. WANNAJ.L. That would he the source which was providing mail
mtercepts.
The CHAIRMAN. Would that be the CIA source or the FBI source?
Mr. WANNALL. It was the FBI source.
The CHAIRMAN. This would be your own San Francisco operation?
Mr. WANNALL. Yes, sir. '
The CHAIRMAN. Very well. So, the message reads "As of May 26.
1965. contact with source will be temporarily suspended in view of
discontinuance of Post Office examination of first-class mail, originat-
1 Spe p. 24!l.
169
ing as a result of the Supreme Court decision of May 24, 1965." And
then it reads: "The Bureau will be promptly advised when arrangements
have been perfecte,d to recontact this source."
Now, the Supreme Court decision of May 24, 1965, which I have
here before me, exhibit 25,1 was 1L decision in which the Court held
a statute that permitted the Post Office to detain and deliver
only upon the addrcssee's request. unsealed foreign mailings of Communist
political propaganda. And the Court held that the act, as construed
and applied, is unconstitutional since it imposes on the addressee
an affirmative obligation which amounts to an unconstitutionallimitation
of his rights under the first amendment.
A previous decision by Mr. Justice Holmes is quoted favorably in
which Mr. Justice Holmes wrote: "The United States may give up
the Post Office when it sees fit, but while it carries it on, the use of
the mails is almost as much a part of free speech as the right to use
our tongues."
And the Court further went on to say that the defense of the statute
on the grounds that Communist governments gave no such rights
to their own citizens was to be spurned, the Court holding that: "The
governments which originate this propaganda themselves have no
equivalent guarantee, only highlights the cherished values of our
constitutional framework. It can never justify emulating the practice
of restrictive regimes in the name of expediency."
So the Court had struck down this statute, and in this message to
the Director, as I read it, the FBI program was temporarily terminated,
and the message went on to say, "The Bureau will be promptly
advised when arrangements have been perfected to recontact the
source."
Now, on the next page is a document [exhibit 26 2
] which shows,
as I read it, that the program was reinstituted shortly thereafter. Is
that correct1
Mr. WANNALL. I would certainly interpret the documents that way,
Senator Church.
The CHAIRMAN. What was the justification for reinstituting the
program after it was terminated in light of the Supreme Court
decision ~
Mr. WANNAI,L. I think the Supreme Court decision-I cannot
justify this, Senator Church, and I might say that at the time I was
not involved in the program, but I would like to make the point that
as I recall the Supreme Court decision and as you have refreshed my
recollection of it~ and which, by the way. I was not aware of at the
time because of my removal from this area, related to a procedure
which was instituted perhaps in the early 1950's of interceptinginterception
by the Customs Service of large quantities of propaganda
coming into the country. And I think that was really the basis under
which we started this particular program in 1954.
At that time, as now, we had. and still have, responsibility under
the Foreign Agents Registra,tion Act which provides for the registration
with propaganda agents of foreign principals with the Attorney
General. This Supreme Court decision addressed itself to that procedure,
as I recall. And I don't think the decision made any difference
1 I';ee p. 250.
2 I';ee p. 2;)6.
170
with regard to the legality of the operation which we were conducting
or the illegality of the operation which was beyond the interception
of the propaganda starting in 1956.
So, I would say the interruption was probably due to considerations
by cooperating officials in the San Francisco area.
The CHAIRMAN. But as you have already testified, you cannot now
and do not attempt to justify what happened?
Mr. WANNALL. I cannot justify what happened; no, sir.
The CHAIRMAN. Thank you very much.
Do you have any questions. Senator Mathias?
Senator MATHIAS. Yes. The previous document [exhibit 22 1
] that
Mr. Schwarz referred to and in which Director Hoover wrote the
annotation, "another inroad !" raises, I think, a very interesting question.
It raises the question of the areas of jurisdiction of the FBI and
the CIA, and I believe Mr. Hoover had very strong ideas on this,
didn't he?
Mr. MOORE. Definitely.
Senator MATHIAS. Probablv his position and his ideas had a lot to
do with the limitations which were placed in the National Security
Act of 1947 which created the CIA and which, in effect, drew its
boundaries at the waterline; would that be true?
Mr. MOORE. I believe so, sir.
Senator MATHIAS. Now, one other question that this committee is
ultimately going to have to wrestle with is whether that is still a valid
boundary for the CIA and whether or not, as we have seen, it is such
an artificial boundary that the temptation to violate it is irresistible.
And I am wondering how you feel your relationships with the CIA
have been under the present jurisdictional arrangements?
Mr. WANNALL. We have furnished, I think, to the committee, Senator
Mathias, a copy of a document; it was a memorandum of understandin!!:
between the FBI and CIA, executed in about February of
1966. 'Within the past several months, there have been efforts to cover
any areas that might not have been covered there.
We have consulted with the CIA and have come to mutually agreeable
conditions, and the matter as of a month or so ago-I have not
had a reading on it lately-was in the hands of the Attorney General
for consideration.
We have had no real difficulties in defining our respective areas.
Starting in the middle sixties-well, I shouldn't say starting in the
middle sixties-when we have had matters of mutual'interest, we have
consulted. Starting in the middle sixties, I think this consultation has
been more pronounced than it was prior to that time. And Mr. Branigan,
who would have the greatest interest in this area, I think will
possibly support my statement that we have been able to work out any
problems that have arisen.
Mr. BRANIGAN. I certainly will support the idea.
1Ve have an excellent liaison, an excellent working relationship with
the Agency. This has been-I think in the past this has really been
a bum rap, be,cRuse our relationship with them has been good. It is a
workable one.
Senator MATHIAS. "\¥hen you refer to a bum rap, you mean the concept
that there may be some conflict between the Agency and the FBH
I Ree p. 244.
171
Mr. Bn.\NIGAN. This is correct. This is correct, Senator. There has
been quite a bit of publicity to the idea that there was a-well, we
were at loggerheads; we did not get together. And this is not true.
Senator MATHIAS. Of course, one of the interests that we have here,
as this whole hearing obviously illustrates, is the rights and privacy
of citizens. But we are also vitally interested in the efficient operation
of both the Bureau and the Agency. And we want to feel sure that
both the Bureau and the Agency are operating in a climate which
gives the Government the kind of information that it needs. Do you
feel that there is an interlock today which is adequate for that
purpose ~
Mr. WANNALL. I fe~l there is an interlock. I think there is certainly
an area to which this committee could address itself.
Earlier today I made the comment that the FBI does not have a
charter for the production within the United States of positive foreign
intelligence. And I think the CIA's charter is for the production of
foreign intelligence, but I don't think it is defined as being within the
United States. So there is an area here which I think could be very
well addressed by legislation, placing the responsibilities where the
Congress feels they should be placed.
Senator MATHIAS. When the CIA develops a line of interest-let
us say somewhere outside the United States-and a trail leads back to
the United States, is that the point at which the interlock begins to
work and that you have communication as to the pursuit of that
particular line of inquiry ~
Mr. WANNALL. That is precisely covered in the February 1966 understanding;
yes, sir.
Senator MATHIAS. It is my understanding that Mr. Hoover at one
time prohibited personal communications between the Bureau and the
Agency.
Mr. WANNALL. Mr. Hoover at one time discontinued the practice of
having one man dedicated as a liaison officer with CIA, but he did not
prohibit any contacts with CIA.
As a matter of fact. I think--
Senator MATHIAS. Even in that period of time?
Mr. ",VANNALL. Even in that period of time.
Senator MATHIAS. If there was something that required liaison, you
could pick up the telephone and call your opposite number in the
Agency and do what was necessary to do the public's business~
Mr. WANNALL. Yes; it had a very salutary effect in that regard, because
I became cognizant of individuals who were my counterpart over
in the Agency through whom I would deal previously by way of a liai·
son agent. So I think it possibly benefited this mutual arrangement,
the mutual agreements. the mutual spirit of cooperation which I feel
has developed. I don't recall any instructions Mr. Hoover ever gave
which would preclude 0111' dealing with CIA.
Senator MATHIAS. Of course. it somewhat confirms what you are
saying, that there was, in fact, a relationship with respect to mail
openings which went on O\'er a period of time.
Mr. WANNALL. That is correct, sir.
Senator MATHIAS. A relationship in which the CIA responded to
refluests from the Bureau.
I might ask Mr. Mintz this question. Does the Bureau's legal counsel
office review the legality of investigative techniques? Do you have an
172
opportnnity to look at an operation and pass some legal judgment on
that particular operation?
Mr. ~h~TZ. Absolutely.
Senator MATHIAS. You are not compartmented out of the process?
Mr. MINTZ. No; we are not at all. We are a part of the executive's
conference where policy decisions are discussed. And when matters
arise outside the executive's conference, I am contacted directly by
other assistant directors who are my peers, and we discuss these matteI'S.
And I am frequently requested to give lerral opinions.
Senator MATHIAS. Do you see reports, for example, from the Inspection
Division?
Mr. MI~TZ. Occasionally, but not as a regular matter. Inspection
Division would inquire into-usually would inquire into operating
procedures and efficiency and occasionally into matters of some concern
concerning violations of our regulations. And once in a while, in
those instances, I would be consulted.
Senator MATHIAS. But would there be any occasion when you might
be denied information that would be contained in a report ~
Mr. MI~TZ. I have never been denied when I have asked for information
in l'egard to matters I was inquiring into. I have never had an
occasion ,vhen it was denied to me, Senator.
Senator MATHIAS. Looking to the future and to the kind of recommendation
that this committee must make to the Senate on the specific
question of mail problems, I am wondering if it would be appropriate
that a warrant be required before implementation of mail openings?
Mr. MINTZ. Of course, that raises the matter that I mentioned this
morning about there being the possibility of the existence of Presidential
power independent of the legislative authority. That being the
case, and that not being resolved, I can't really answer your question,
Senator.
Senator MATHIAS. This morning Mr. Mitchell addressed himself to
that question, and I couldn't help rioting that his views hadn't changed
over all the years since he first came to Washington. His views expressed
this morning were essentially the same as those he gave to the
.Tudiciary Committee in 1969.
Mr. MINTZ. I am sure that the Attorney General. Attorney General
Levi, is concerned with this very question you raised, Senator. And I
am confident that if there is an answer to be given, that the Attorney
General will address that matt~rwith the committee.
Senator MATHIAS. I think that we will have to determine the standards
on which warrants would be issued, whether it be probable cause
or some other standard.
Mr. MINTZ. If vou assume a hvnothetical, Senator. that a warrant
would be required, the stam-lard would nece~saril.v have to he less than
the probable caUSe stnnrlard now renuired in criminal cases. because at
present. nrobable cflnse in criminn1 ('ases renuires It great deal of particularitv.
We must be able to st'ecifv pre('iselv the nropertv or evidence
that would be seized. We must be able to indicate the probability that a
crime has been or is about to he ('ommitted.
Tn intelligence matters, we are unahle to he nuite that, specific. Ilnd
T refer vou. Senator, to the ('onrt's GPcision in the Keith cllse in which
thev Iloticerl the diffpren('e hetwepn re!!ulflr criminfll investirrative mlltte.
rs and intelJig-ence matters. And the prohlpm of nroof would he quite
173
different, and that would be a problem for us, should a warrant be
required.
Senator MATHIAS. All right. I think intelligence value would be n
standard that could be established separately.
Mr. MIKTZ. That is correct.
Senator MATHIAS. I think it would have to be refined and defined.
Mr. MINTZ. I feel a standard like that could meet the fourth amendment
test of reasonableness, and it would be in compliance with the
Constitution.
Senator MATIIIAS. I understand that as a representative of the Justice
Department, you are limited in what you can say until some departmental
policy is developcll. But it would appear that this necessary
governmental operation could function under some plan of that
sort.
Mr. MINTZ. I suspect that it could; yes, sir.
Senator MATHIAS. Thank you, MI'. Chairman.
The CHAIRMAK. I believe that concludes the hearing this afternoon.
I want to thank all of you gentlemen for your testimony and for coming
back again this afternoon.
These hearings are adjouI1led until next wpek, subject to the call
ofthe Chair.
[Whereupon, at 3 :07 p.m., the committee recessed, subject to the
call of the Chair.]
64-663 a - 76 - 12

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