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CHURCH COMMITTEE REPORTS

TUESDAY, DECEMBER 9, 1975
U.S. SENATE,
SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO INTELLIGENCE ACTIVITIES,
Washington, D.G.
The committee met, pursuant to notice, at 11 :05 a.m., in room 318,
Russell Senate Office Building, Senator Frank Church (chairman)
presiding.
Present: Senators Church and Schweiker.
Also present: William Miller, staff director; Frederick A. O.
Schwarz, Jr., chief counsel; and Curtis R. Smothers, counsel to the
minority.
The CHAIRMAN. The hearing this morning marks a transition in
the work of the committee. Heretofore we have been focusing on abuses,
unlawful conduct, wrongdoing, which together have constituted the
investigative phase of the committee's work.
Today and in future public hearings of the committee we shall be
concentrating on remedies.
'Ve have three witnesses this morning. Our first witness is William
Ruckelshaus, who under the Nixon administration served as Assistant
Attorney General for the Civil Division in the Justice Department,
and then as head of the Environmental Protection Administration.
Following the resignation of L. Patrick Gray in 1973, Mr. Ruckelshaus
was appointed Acting FBI Director for several months, until
the nomination of Director Kelley. He then was appointed Deputy
Attorney General under Elliot Richardson, and began a full-scale
study of the FBI. This was interrupted by his departure in October
of 1973 which is sometimes referred to as the Saturday Night Massacre.
He is currently in the private practice of law.
Our second witness is Mr. Henry Petersen. He was appointed head
of the Criminal Division's Organized Crime Section in the mid-1960's.
He served as Deputy Assistant Attorney General in 1969, and Assistant
Attorney General in 1972. Attorney General Saxbe directed
him in 1974 to head an interdepartmental committee to study FBI
COINTELPRO activities that have been heretofore disclosed by the
committee in its investigatory work. The .Tustice Department's Internal
Securitv Division was a bold issue and its function transferred to
the, Criminal Division undpr Assistant Attornev General Petersen. He
retired from the Department in parly 1975 and he, is currently in the
private nractice of law.
Our third witness is Mr. Norman Dorsen who will be here shortly.
He is currently a professor of law at New York University and Gene257)
258
eraI Counsel of the American Civil Liberties Union. and president of
the Society of American Law Teachers. He has written extensively on
Government secrecy, executive and legislati"e powers and their relationship
to individual rights under the Constitution.
Mr. Ruckelshaus, I know that you have an opening statement you
would like to make at this time. I wonder if you will proceed with your
statement and then we will go to questions.
TESTIMONY OF WILLIAM RUCKELSHAUS, FORMER ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION; FORMER ACTING DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION; FORMER DEPUTY
ATTORNEY GENERAL; HENRY PETERSEN, FORMER DEPUTY ASSISTANT
ATTORNEY GENERAL AND ASSISTANT ATTORNEY GEN·
ERAL; AND NORMAN DORSEN, PROFESSOR OF LAW, NEW YORK
UNIVERSITY, AND GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES
UNION
Mr. RUCKELSHAUS. Mr. Chairman, I have a short opening statement
that I would like to make in order to set the framework for an
approach to the problems that the committee is addressing. In the
first place, I do appreciate the opportunity to appear before this committee.
The approach I would like to take in testifying is not to contribute
to the litany of condemnation of past abuses by the FBI. I
think, given the committee's investigation to date, we are in a position
to stipulate abuse. The question really is what should be done about
the abuse now so as to avoid it in the future.
The nature of the problem facing the committee is. I believe, inherent
in any free society. It is an examination of tension that exists
between indIvidual rights and the common good and it calls for Government
to strike a balance between them. How that balance is struck
depends among other things on our Constitution, the will of Congress,
the individual making the decision, and the historical moment in which
the decision is made. These hearings have focused attention on how
the FBI has for decades failed to weigh properly individual rights in
seeking to protect their perception of the common good. To attempt to
place all of the blame for the abuse on the FBI or on .T. Edgar Hoover
is in my opinion to fail to face the fact that both the Congre!"s and the
executive branch ignored a fundamental concern of the Founding
Fathers of this country and permitted too much unchecked power to
accumulate in one man's hands.
I think the fact that Hoover greatly abused his power is true. But to
paraphrase the old adage, when we consider his opportunities we must
marvel at this moderation. For more than 40 years he reigned supreme.
virtually unchecked by either the execntive or legislative branches.
This much power must never be permitted aaain to be possessed by
one man in our society. And I am sure that this committee is attempting
to aet wisely to prevent its reoccurrence. I believe that whatever
power we gave to the FBI or any agencv to detect and prevent int~rnal
subnrf::ion must be carefully controlleo. monitored. and checked bv all
three branches of Government. There should be clear statuton: authority
for the FBI to investigate individuals or groups who' may
through violence present a threat to other individuals or groups in
the society.
259
The FBI's power, while necessarily general, should be spelled out
as carefully as possible in a statute. The statute should provide for the .rustice Department to issue guidelines as to how this power will be
implemented. These guidelines should be subject to cong-ressional and
public review and comment. The g-uidelines will deal, I think necessarily,
primarily with the processes by which individual freedom will
be protected as the FBI seeks to protect the common good. The FBI
should be under the control and snpervision of the Attorney General.
The Director should be appointed for a term of years. Eight or 9 years
I think is long enough. His appointment shoulel be subject to congres~
ional approval. He should communicate with the President only
throngh the Attorney General.
The Congress itself needs to establish a strong- responsible and responsive
oversight rommittee, preferably a joint committee, to review
an activity of the FBI. inrluding ahead of time, before the fact, investigative
techniques the FBI intends to use in a g-iven class of cases.
I am not talking about the specific application of one of these techniques
in a given case, but the technique should be reviewed aheael of
time as to their application to a general class of cases.
Assuming adrquate safeguards to individual riahts, and assuming
the protection of material thr publication of which could adversely
affect the internal security of the country. the committee shonld be
privy to all information the FBI has relating- to any specific invpstigation
for the numose of reviewing the general discharge by the FBI
of its responsibilities. This pxtmorelinary power of the committee
must be very cautiously and srleetively exercised for the above purpose
alone. And th(' committee must seek to avoid merely nitpicking
or seconel g'lH'ssing a given investigation. I think further the committee
shoulel a"oid injecting itself into an investigation while it is
ongoing if at all possible. The committee should operate as openly as
possible. given the strictnres abm'e mentioned.
It is my judgment that all wiretaps should be subiect to court order.
The standards for so-called foreign win'taps will be different from
the probable' cause standards that apply to criminal wiretaps. But
these standards can be developed.
Mr. Chairman. these process changes are not impossible nor overly
complicated. They will not insure tIlE' total elimination of abuse bv
the FBI or any agent gin'n the nature of the pmver. Granted. they
will only lessen the likelihood of abuse. 1Ve must remember that whenrver
we fl.re dealing with the grant of !>ower to institutions created
and run by human beings, we are subjrcting that power to potential
abuse. All a free society can do is attempt to create processes to minimize
that potential. or in the alternative. not locate the power
anywhere.
I brlieve WE' haY£' an obligation to the ('ommon good in this country
to protert the nnbli(' against violpnce. This necessitates the careful
placina of that protectiw. pOWH and subipeting its exercise to rigorous
control and review. That is this committ~e's charge. As a citizen I
certainly ,,,ish vou '''ell.
Mr. Chairman. one final word. As yon mentioned in vonI' opening
statpmrm. I spent RO days as an Acting Dirretor of the FBI. And I
left tl\f' FBI with two <}ominant imprpssions: onp. that the Dirpctor
possessed too mnch llllch('ckpd pOWf'!". YOllr committee is attempting260
to help the country and the executive branch in remedying this problem.
The second impression that I left the FBI with was the incrediblEj
dedication and devotion to duty that the individual agent of the
FBI has. It is in my experience unmatched in any other institution
in this country. And I think that properly channeled and controlled
this esprit de cO'1'pS that the FBI has is a priceless asset of our country,
and we ought not to fritter it away if we can avoid it. Thank you, Mr.
Chairman.
The CHAmMAN. Thank you very much, Mr. Ruckelshaus. We have
It vote. Mr. Petersen, do you have an opening statement of any kind?
Mr. PETERSEN. No, I do not, Senator.
The CHAIRMAN. All right, since we have a vote on at the moment
and we are waiting for Mr. Dorsen, why don't we take a brief recess
so that the committee can vote.
[Recess.]
The CHAIRMAN. The hearing will please come back to order. Another
vote is anticipated in a few minutes. So we will move along in between.
Mr. Norman Dorsen has arrived since the hearing began. I understand,
Mr. Dorsen, you have an opening statement you would like to
make.
Mr. DORSEN. I do. It will be very brief. I don't know if you
introduced me befol"('. I would like to say that I am general counsel
to the American Civil Liberties Fnion and president of the Society
of American Law Teachers, but I am speaking here as an individual
and expressing my own personal views.
This committee. of course. is wry familiar with the widespread
evidence of systema.tic interference with constitutional rights under
the first and fourth amendments that has occurred nursuant to the
program of domestic surveillance. 1'here are three broad questions.
First, should such domestic surYeillance be carried out at all? Second.
if so. to what extent, in what wav. pursnant to what fTuineline~? ) nCl.
third. what control can Con,gress provide, what oversight, and what
other forms of maintenance of public control urI' there o1'pr this important
and dangerous acti,-ity?
I will make iust two preliminary comments before gettinp.: to these
issues specifically. One is that the aspect of domestic surveillance that
disturbs me the most is that since the public anCl. the Congress are frequently
unaware of ,,,hat is being dOlW in thp ppopl("s name. there
is no opportunity for public discussion. there is no opportunity for
public dpbate. Cl'rtain activities are conductNl which I am sure many
members of Congress were anpalled at whl'n they bl'came nublic1y
known. What I infer from those facts are. (a) to the grpatest extent
possible there must bl' public discussion and oo('n fTowrnm('nt
on these issues: ana (h' in a sense I'wn more imoortant. the ultimate
power to control must h(' in the ('on(JT(,s~. lind Memhers of ('onfTr('ss
must not he timid or they must not ~hp reflrT1l1 or they must not be
apoloO'l'tic in exercisinfT this rpsnonsihilitv. SeC'ond. on a much more
df'tailf'd 1f'\"(,1. most of th(' J'\nblic df'batf' in this arf'a has (,f'ntered
around wiretaopin.O" an eawsdroppini! and other forms of ('l('ctronic
or mpchflnica1Rnrveillance.
Personally. 111m much more conc('rned ahout inTonners and in-formants
who are infiltrated into private groups. freqnent1y without
any cOl,ltrol, and certainly without any knowledge of these groups.
261
in a way that is bound to interfere with their rights of association.
I will refer to only one decision of the Supreme Court that is very
important in evaluating and appraising those activities, NAACP v.
Alabama,. where the court in ID58 unanimouslv held that the State of
Alabama did not have the constitutional right to acquire the private
membership lists of the KAACP. Kow, if one has informants, secret
informants in organizations all over this country, one of the obvious
purposes is to acquire those membership lists. This is a way,
very simply. of evading a clrar. unanimous decision of the U.S.
Supreme Court. written by :\11".•Justicr Harlan, and carefully considered
within the court itself. I don·t think it is telling tales out of
schooL because I was a law clerk to :Mr. Justice Harlan that year,
to say that this ,,'as regarded as one of the Court's most important
decisions in that veal'.
The vacuum cleaner of informants picking up all kinds of information
is not only inconsistent with the decision of the Supreme
Court but is inconsistent with the very power of the fourth amendment.
A major purpose of the fonrth amendment, with precedent
going all the way back to the British Lilburne case, is to deal with
what is known as general warrant. General warrants do not identify
specifically what the seeker after information ,vants. It permits the
seeker after information to roam at large. pick up any kind of information
that he or she can acquirr. and then do what he wants with
that information. An informant is the modern equivalent of the
general warrant. I believe it is vital that that particular form of infiltration
be given careful scrutin.v and controlled by the Congress.
Let us turn now to what I suppose mav be a key question before the
committee-should cm'ert domestic infiltration and surveillance be
conducted at all? The very easv answer to that question. and I am
sure it is an answer that many people will express is-well, this is a
verv had idea in generaL constitutional rirrhts are involved, but constitutional
rights are not ahsolute. and it is very important to the
s('curity of the country that certain types of information be obtained.
,Ve want to he very careful in the way we go about it; we therefo~e
must use the kind of balancing test that the Supreme Court has saId
is relevant to some other first amendment and fourth amendment
cases. 'n' thereforr must han> ~'11;delines and we must have some specific
form of rontrol. Rut-herr is tlw kev-we don't ,vant to abolish
covert activities and domestic suneillance of the kind that has been
conducted in the past.
If I may sav so, that sounds like a verv rea<:onable position. It is a
wry easy position to take. But I question whether it is the correct
position. At the very least it seems to me that a heavy burden of proof
should be, placp(l nnon thoS" 'rho ,rant to rondud anticonstitutional
surreillance in the future. The reasons for this are very simple, stemming
from the record as I understand the record to be. That record
shows one important thing-large scale violations of constitutional
rights. It does not show anoth<.>r thing. It does not show what the
valne of the infiltration has been. what crimes han been prevented,
tlll\ nature of the ~.:nccess that the Bureau and other law enforc~ment
offiC'ials have obt:lined. In otlier \Yords. onr sidr of the balance is completrlv
emptv as far as tlw public rr,'or(l is concerned and the other
side of the balance shows severe restrictions on constitutiomil rights.
262
'What does that mean? In answering this question, I recognize I am
not privy, as my colleagues in the panel have been, to some of the
secret information which might explain what has happened in the
past. But there are two inferences that I think can be drawn. One is
that there is a heavy burden of proof on anyone who wants to justify
any kind of surveillance of this character. This burden of proof is
the product of a constitutional mandate, not only the constitutional
mandate that I have already expressed, the fact that there has been
admitted violations of individual rights, but It constitutional mandate
as recently and frequently expressed by the U.S. Supreme Court
in some of the most conspicuous decisions of the past generation.
I will mention several right now. One is Young8town Sheet & Tool
in which the Supreme Court reiected President Truman's claim of
inherent power to seizp the steel mills during It time of hOf:tility in
the Korean war. President Truman ar~ed that his action was necessary
to protect national securitv. Here we had an opponent with
whIch we were at all but formal war. The Supreme Court rejected
that line of arg-ument, and rejected quite decisively the claims of
inherent authoritv. A second aspect of that case is this. Whatever one
may think about the validity of certain forms of covert action, whether
domestic or foreign, that opinion, I think, almost unanimously had
been read to mean that the Congress has the ultimate authority to
decide how much of it to permit and how much not to permit, and
that ultimate power is not in the exeputive bmnrh but in the Cong-ress.
The key opinion in that case, although not the formal opinion of the
Court, was by Mr.•rustice .rackson. He pointed out that con~sional
power is at its lowest ebb when COllQTesS has acted inconsistently with
what the executive wants to do. A very recent decision is tne Keith
case, It unanimous decision of the Supreme Court rejecting a claim
of implied power to wiretap dome'itic !!rouns thought to be a threat
to national security. Once again the Court has made it very clear
that not only is there a heavv burden, a compelling burden on the
executive, but in that case although the executive claimed that the
wiretapping was essential, the Court unanimously rejected the claim.
In United States v. Nixon, the Pe11trroon Papers case, and in other
decisions, the Court has refused to buy diehard executive claims. I participated
as amhm.~ cu·riae in both the Pentaqon Papers case and
United States v. Nixon. The executive said in briefs and oral arg-ument,
in both cases. that the power was essential for national seeurity.
The Court. as we all know. reiected thf> claims.
r have disrussed the first inference I draw from the proven record.
And that is the heavv burden of proof on the Government. The second
inference I draw is that whatever is allowed. whatever types of covert
domestic surveillance are ultimately approved, if any, they must be tied
as tightlv as possible to specific violations of law, and that broad manoates
to infiltrate particular Q'roups, whether they are the Weathermen
or the Minutemen, are no substitute for explicit relationships to particular
crimes that indivirluals are accused of performing. 'V"e cannot
allow the kind of limitless infiltration of groups that are in politieel
disfavor or labeled as extremists. I oon't have to repeat now what the
consequences"oisuch infiltration have been, and what injustices have
been done in the Government's name.
263
Another aspect of this point is that whatever infiltration, whatever
surveillance may ultimately be approved, it must be strictly limited in
time or place. It is not enough to say that if we have a tip that somebody
is going to assassinate the President and blow up the Statue of
Liberty, and that that person is a member of the ""Veathermen, we
should use that as a formula for infiltrating the organization on a permanent
and widespread scale. There must be tight time deadlines, they
must be reviewed within the Department of Justice, and there must be
a clear commitment to a refusal to go beyond what is absolutely necessary
to investigate a crime or the likelihood of a crime. Once again
there is a constitutional doctrine that is relevant. You are all familiar
with the rule that the Supreme Court has stated on many occasions,
that if the Government is trying to achieve a lawful objective by
impinging on constitutional rights in some way, the Constitution requires
that this be done with the least possible infringement on those
rights. Therefore, even those who support domestic infiltration of the
kind that has now come to light are bound by Supreme Court decisions.
such as Aptheka and Shelton, that that power must be limited
to the narrowest- possible means of achieving a governmental end. It is
very important also in this connection to realize that criminal laws are
not fungible. There are diffeJ:ences in criminal laws. Some criminal
laws prohibit acts of violence against property or persons.
Other criminal laws prohibit speech. The most conspicuous of these
of course is the Smith Act, which prohibits the advocacy of the overthrow
of the Government by force and violence. That law has not only
been applied in its own terms, but it has also been applied in tandem
with the conspiracy laws. In other words, people have been indicted,
convicted and sent to jail for conspiracies to advocate the overthrow
of the Government by force or violence-two steps prior to action.
Now, if informants and undercover agents and wiretaps and other
forms of domestic infiltration can be used against people who are accused
of "conspiring to advocate the overthrow of the Government,"
that would bring the constitutional intrusion three steps before any
possible acts to violate the la,,,. Parenthetically, I might say that some
of the troubles many of us are having with the pending S.l legislation
is that it does not give adequate countenance to these constitutional
fears, and to the constitutional rights of individuals who would
be subject to that law.
When we get to the question of o~rsightand control, one arg'Ument
that is made is that no system is any better than the individuals who
run it, that ultimately we must rely on the good faith. the intellig-ence
and the honor of the Attorney General, the Director of the Federal
BureMl of Investigation, and other law enforcement officers. The
danger with that argument is that, if it is carried to its lo~ical extremity,
those people would not be subject to controls at all. Therefore,
although I agree in part with the assertion. that while the honor
of these people, the ability of these people. and the sensitivity of these
people to constitutional concerns is vital, it is not all that this country
has a right to rely on. We have a right also to rely on explicit controls.
e~plicitly stated deadlines, making sure that particular actions
by ,the Attorney General and the Director of the FBI are subject to
reVl,ew.
66-077 0 - 76 - 18
264
What should those controls be? I understand that one of the other
members of the panel sugg-ested that proposed guidelines hy the Attorney
General should be sent to the Congress for comnwnt. T think that
is an excellent idea. I think consideration ought also to he given to
require the guidelines to he approved by the Congress, as in certain
other circumstances-specifically, regulations of the executiye branch
which must be approved.
I know there will be some questions. so I don't want to goo on too
much longer. I do want to make one other point that I think is very
important-well, two other points. I want to emphasize as explicitly
as I can that one cannot accept on faith or syllogistically the argument
that the information acquired by domestic surveillance is necessary,
important or even valuable. That is a proposition not to be
accepted on faith, but a proposition to be proven. I understand that
the GAO has filed a study which casts some doubt on the degree to
which this information helps our law ('nforcement officers. I Ilrge the
committee not to take anybody's word for it. I rempmber a meeting
with one of the former Directors of the FBI. Patrick Gray, in his
oillee 2 or 3 years ago. Several of us went down to discuss certain
problems with him. And he said. I can assure you. there is no such
thing as a central file or secret file in the Bureau. thpre is inst no such
thing. WelL it would have been ..ery hard at the time to call him either
a fool or a knave. But we now know the rpcord. And therefore I urge
the committee not to accept the word of anybody that this information
is useful and necessary ,for national security or any other purpose of
govPrnment.
Finally, I would like to close on this notp. I do not know. but I
assume that Mr. Kellpv. Mr. Led. and othpT'S "'ill be able to show
specific cases where covert surveillance has hel!)ed law enforcement.
I do not think that their ability to do this is the last word on this issue.
Even assuming there is a certain value that couM be proven for this
information, the ultimate qnestion is whether tIlE' value is enough to
counterbalance the cost in terms of individual rights. in terms of constitutional
values. What this means at the bottom. I think. is that the
country has to be a little conrageous. and the Congress has to be
courageous. willing to accept the fact that \ye are not !!"Oing to have
total security in this country. The best expression I know of that
philosophy. 'which I think should guide this committee. is a concurring
opinion by .Tustice Brandeis in the case called Whitney v.
Oaliforn£a, decided in 1927. This is what he said:
Those who won our independpnce belipvPd that the final end of the State
was to make men free to devPlop their facnltief(. and that in itf( Gnwrnment that
the liberative forces should prevail over the arhitrary. They valned liherty hoth
as an end and as a meanR They believed lihprty to he the secret of happiness
and happilles..; the secret of liberty. They recognized the risk to which all human
mstitutions are SUbject.
There is a risk i''1 anything less than total securitv. But those are
the very risks that the f::mnders OT this country-:md Mr. Brandeis was
n.ot the only one that took this position-accepted in terms of the
overriding value of liberty. I. therefore. urge the committee not to
permit e,:en confirmed examples of ('ases in which national secnrity of
some kind has been aided by covert means to be the end of the discussion:
It seems to me that that is the beginning of discussion. I hope
265
that this committee will do what it can to limit unconstitutional interferences
with the rights of individuals to the greatest extent possible.
Thank you, Mr. Chairman.
The ClIAIR~IAK.Thank you very much, Mr. Dorsen.
Beginning with you first on questions, you have indicated that the
committee ought not to overlook the importance of dealing with the
whole problem of informants, and not to develop any myopic tendencies
to consider only electronic devices, wiretaps, and bugs, so-called. I
think that is a very valid p~ition, since 85 percent of the cases involve
the use of informants, as compared to only 5 percent of the cases that
involve any kind of electronic device. But it isn't as clear to me just
what you mean when you say that at the very least a much heavier
burden of proof should be required before either informants or wiretaps,
I suppose, are used. 'What burden of proof would you suggest?
Do you make a distinction between so-called national security cases
and ordinary criminal cases? Is the standard that normally applies
in criminal cases: that is, probable cause to believe that crime may be
or is being committed, a different standard than that should apply to
national security cases? And in addition, I would like you to comment
on to whom such a heavier burden of proof needs to be presented. In
ordinary criminal cases it is necessary to secure the consent of the
court-in order to use wiretaps. at least a warrant has to be issued.
Now, would you handle nationaJ security cases in the same way? I
wonder if you could be a little more specific in connection with that
general argument?
Mr. DORsEK. When I used burden of proof, I used it in two senses:
first, burden of proof to conduct any kind. to justify any kind of
program of infiltration of any sort. the general burden of proof: and,
second. as you point out, Mr. Chairman, the burden of proof in a
particular case.
Now. first, what should be the standard? The standard shouldjbe
probable cause, to the greatest extent possible. That is the conventional
criminal standard, and it should apply in national security
cases as well as in all other cases. The court of appe:als in the ZlOieban
case said that no warrant is needed or no warrant may be needed if an
individual is an agent or collaborator of a foreign power. It seems
to suggest, although this was dictum, that the usual rules would not
apply in such cases. It seems to me that. at a minimum. there should
be probable cause before that rule is invoked, that a particular person
is an agent or a collaborator of a foreign power. One cannot accept that
as such. Second. the case itself may even be wrong in drawing that
distinction. I want to litigate that issue now. The Supreme Court
hasn't spoken on that issue. Third. to whom the showing must be made.
My strong preference is that it must be a court-the court is where
warrants are approved. The problem with that, of course, is logistic.
There may be tens of thousands of such cases, and it mav not be
possible to get more than a pro form.a approval which would have the
consequence of legitimating-in other words. if there were an ex
Jwrte. almost automatic. approval of a surveillance of the kind we
are talking about, that would have the effect of a later court decision
Jwrhaps legitimating the kind of surveillance that took place. Therefore
I am unclear in my own mind about. whether to invoke a court
at the early stag-es of an infiltration if an infiltration is to take place.
The Attorney General certainly must approve such an infiltration.
266
But to try to deal with all your questions at once, the national security
label should not itself be an exCllSP for an exception. There
must be some concrete-whether one calls it probable cause or notconcrete
eyidence that a crime has occurred. or that theJ'(~ is a substantiallikelihood
of a crime. .
The CHAlR::\L\X. rnder existing practices. as they han> been explained
to this committee, any wiretap or any electronic bugging devices
in the so-called national srcurity area needs the appro\'al of the
Attorney General. Xow, that doesn't apply so far as I know to informants
in the national securitv field or in any other field. Xeither
a court order nor the approval of thr Attorney GenrTal is rrquired in
connection with the use of informants. whether they are used in criminal
cases or in national security cases. I beliHe that is the present
state of the law and practicr. How would you alter the practice?
Mr. DORSEX. I certainly would require the Attorney Grneral's approval
of the informants in both national security and non-national
srcurity cases. I am inclinrd to think, subject to a comment I will
make in a momrnt, that I would also require a comt approval of informants,
and treat the informants just like what they are. They are
eavesdropping through human means. The only question Tha\'e about
that is that if the situation deteriorated to the point where the \'olume
was so great in terms of reqursts that the apprm'al would become
automatic by courts, it would thereby tend to legitimate the process
and diffuse the responsibility. But I think, in principle. there is no
doubt in mv mind that the use of informants in thrse situations is
equiyalent, 'as I said before, to a g:eneral warrant. And for general
warrants, you need court approyal.
The CHAIR::\IAN. I wonder if either )Ir. Ruckelshaus or )1r. Petersen
have any response to thr same question?
Mr, PETERSEN. I think, first of all, that the problem of being an informant
is indeed a difficult one. I think most people in law enforcement
recognize that. And the immediate question at thr outset is, can
the informant be corroborated to determine \yhether or not Government
act,ion should or should not be taken on the information. But I
think first of all you have to distinguish. Informant is a yery, yery
general category. It includes all of us. It includes every citizen of the
United States. It is a procrss that the citizenry should be encouraged
to participate in. Support your local police. Call us if you see a
suspi~ious act in your neighborhood. vVe have to be careful ""hat we
are about. So let's distinguish between the unpaid and the paid informant.
The CHAIR~L\X. That is what I was going to suggest, that I believe
our concern relates to the paid informant who is actually a target to
penetrate a glyen group.
Mr. PETERSEX. I share )1r. Dorscn's concerns in this area. And I
think most people in law enforcement do. As soon as you pay an informant
for information you 0pf'n up questions as to his credibility.
It is all the mOre important that he be corroborated anel documented.
It is an area of wielf'spread abuse. There are two eontrols there. First,
thrre arf' thf' budgf'tarv controls that ought to be imposed, and,
frankly, have not been imposf'd by tll(' Budgf't Bureau of the Federal
Bureau of Investigation. Second, tll('re is control by the criminal
267
process itself. The lawyers that I know in t~e Fp.deral syste~. ~re
professionally concerned lest those payments ImpaIr the creAhbIhty
of the witness and jeopardize the GovernnlE'nt's cases. And we, have
sepn ample instances of that in the recent past.
Now. those things1 I think1 are built-in restraints. not only the expenditure
of money, but the criminal process itself. Do I go so far as
to S11O"0"est that there should never be paid informants? No, I do not.
The ~~son is that in many instances there is a great risk involved. A~d
that risk is purchaspable. In many casps t}wre is no other way to obtam
the information. The risks are so high in an assassination attempt or
threat the risks are very high in terms of economic impact. I refer
you to'the recent truckers strike, the wildcat strike, where literally the
Congrpss was up in arms to do somethinQ" about it. infiltrate1 use informants.
And the Bureau was subjected to a great deal of pressure.
I think it is perfectly justifiable to use paid informants provided those
controls are intelligently exercised by the supervisory people in the
Bureau. in the Department of .Justice, and ultimately in the courtroom
when the case comes to trial.
The CHAIRMA~. Do you think it would be impractical to require
some kind of court approval before informants were used?
Mr. PETERSEX. Yes. I do.
The CHAIRMAX. Do you think that the restraint is going to have to
be exercised within the Bureau or mainly within the Department of
Justice?
Mr. PETERSEX. Yes. But I am not satisfied with the way that restraint
has been exercised in the past. And I think that this committee's insistence
that further oversight within the .Justice Department and
within the Congress is necessary.
The CHAIR:\IAX. Do you think that an oversight committee properly
empo,wred to supervise the operations of the FBI and the CIA and
other'intelligence agencies would be helpful?
Mr. PETERSEX. I recommend it now1 and I have recommended it in
the past. But I do think. Senator. that it ought to be a single oversight
committee. ~Tothing is more debilitating from a law enforcement
and efficiency standpoint than to have the agency responsible responding
to the same charges time and time again. It is inefficient. And Congress
has the responsibility to be efficient, too.
The CHAIRl\IAX. Yes. Mr. Ruckelshaus.
Mr. RrcKELSHA1JS. Let me try to comment on one aspect of informants
that I think could provide an added check. I think that we
should look ahead of time. both in the executive branch and in the
Congress1 at the nature of the individual or group against whom informants
might be used. and that the burden of proof should be directed
to those who would use informants to show the likelihood of
the individual or the group to commit violence of some kind. We could
greatl:y r~st.rict the use of informants simply by restricting the targeted
mdlvlduals or groups. What we have seen in the past over and
?ver again is that orQ"anizations and individuals wpre targeted with
mformants who really had nothing but peaceful aims and entirely
proper goals in mind. So that if ahead of time. either by statute. but
probably morp by the use of guidelines and congressional "awrsight, ,ve
could carefully restrict the kinds of organizations and the process
268
by which a dedsion was made that there was a likelihood that there
would be violence, we could greatly restrict the use of informants.
I think at that point you then look to the techniques. not only of
informants, but others that can be used that should be permitted. And
again. as I said in my statement. there is no reason that in given
classes of cases these techniques should not be discussed and agreed
upon with the Congress prior to their use bv the FBI. or any other
intelligence gathering agency of the Government. .
Then I think we need to look at the function that the mformant
himself plays. 'What kind of information are we really seeking. what
kind of restrictions should be placed on the information that the informant
gathers and brings back to the FBI ~ Then if the informant
brings back certain information to the FBI or any other agency of that
kind, what should the FBI do with it ~ Should it be disregarded,
should it be stored, or what kind of restriction should be placed on its
dissemination ~ All those kinds of questions can be answered, I think,
through the use of guidelines and very careful coordination with the
Congress.
I think then we should also look at the distinction between the preliminary
investigation between an individual and a group to determine
whether or not what they are saying and whether what others
have said about them turns out to be true in terms of their being violence
prone. and distinguish that from an ongoing investigation. If
the FBI decides that because of the evidence of the violent nature of
an individual or group that an ongoing investigation is necessary,
there must be buHt into the process a review. Because organizations
evolve, they change over time. And again we have seen this happen
where once an investigation is launched against a given group in the
society, there is no mechanism built in to stop that investigation. All of
those things I think can greatly increase the likelihood of better controls
being placed over informants. and greatly minimize the potential
for abuse, and at the same time adequately protect the society.
Mr. PETERSE~. Mr. Chairman, may I suggest that while I agree with
Mr. Ruckelshaus, and I applaud the Attorney General's attempt to
draw guidelines with respect to types of investigation-from what I
have seen I think it is really quite good, but that is an extraordinarily
difficult task, to draw guideline3 that are sufficiently broad to encompass
all that needs to be investigated and yet sllfficientlv narrow to exclude
that which should not be investigated. And while I would hope
that that process would continue. I think it is a step in the right direction.
The greatest restraint is going to come in the course of ongoing
review of the investigations being conducted by the Federal Bureau of
Investigation by an outside force, that is, lawyers in the .Justice Department.
You see, there is always the problem-perhaps you see it in
this committee, I certainly saw it with lawyers-when people get immersed
in an investigation they take on its coloration, however fine
they may be, and however bright. they begin to lose their perspective
a~d they see that which they want to see. Once you step aside and subImt
that product to someone who is not so immersed, all sorts of problems
evolve. ",Vhy ar~ you. doing this. why are vou naying that inform~
nt, why are you m th]s case at all. who said this is an organizerl
CrJrne caSe or an espionage case. aren't you wasting your time-all
269
those questions arise. And they are difficult questions and they are curative
questions. I think that that is the type of process that is going
to have to be employed rather than any total reliance on guidelines or
statutory guidelines.
The CHAIRMAN. Before I turn to Senator Schweiker, let me just ask
you this. Is there any review mechanism in the Department of Justice
today, or was there when you were there, any of you, that filled the role
of overseeing ongoing investigations by the FBI in the way that you
have described?
Mr. PETERSEN. Certainly in organized crime investigations there is
such a program. There certainly is in the run-of-the-mill criminal case
where the case is submitted for the approval of an Assistant United
States Attorney. But in the security area, no.
The CHAIRMAN. In the security area, no?
Mr. PETERSEN. In the security area, no. The internal security division
historically has been a reactive force. They were called upon literally
only when the Bureau wanted them. And that is, I think, a
difficult thing.
Mr. DORSEN. May I just make one very brief comment?
The CHAIRMAN. Yes sir.
Mr. DORSEN. I think that Mr. Petersen's penultimate comment about
taking on the coloration of an investigation is a very important and
valid one. But it also relates to a point on which I disagree with himthat
there should be only one committee. I think there should be two
committees. I think, sure, it would be more efficient to have one committee,
but I don't think efficiency is the highest goal here. We are
dealing here with the very collection process in which many wrongs
have been committed. And I think it is very important that the commith>
e, if there is one committee, not also take on the coloration of the
people that they are investigating. And I think it would be a very useful
thing in this field to have two different groups reporting to two
somewhat different constituencies looking into this matter.
The other thing relates to a comment of Mr. Ruckelshaus. And that
has tA> do with the guidelines, and as he pointed out, the difficulty of
setting down precise guidelines. This issue of investigating individuals
as distinguished from investigating groups is a very tricky business.
Groups do not act. Individuals act. Now, obviously if a lot of people
in one group are accused, or in fact are doing something unlawful or
improper, it is very easy to say that the group is doing it. But a group
does not act. And therefore it is very difficult, it seems to me, to try
to come to grips-and it is not an easy assignment, and I would hate
to have to do the drafting right here-with this problem and not allow
an easy movement away from what people are doing to what people
who are in a group, but may not be aware of or part of any particular
activity. And finally. very quickly. the guidelines that Mr. Levi is proposing-
I was just told about them in a very general way, I think it
may be deficient. and if I am wrong about this of course'I will stand
~orrec~ed by the ~ord-are not clear that crime..'5 which are being
lIlvestIgated are cmnes that are alleged to be imminent in some way,
that J:ou e:tn't or shouldn't be able to infiltrate. and the thought that
sometIme 1Il the fa.r future a particular individual or group is likely
to conduct an illegal activity-the essence of mediocracy, of the clear
270
and present danger ideal which the Supreme Court on many occasions,
most recently in Brandenburg v. Ohio. has relied on. is one that I
think should not be lost sight of.
The CHAIRMAX. I think that an illustration is that in the Socialist
Workers investigation there was no case of ,-iolence or tendency toward
violence, but there was a thought that maybe 5. 6 or 7 or 8 or 10 years
down the track the organization might grow violent.
Mr. DORSEX. That is exactly what I am talking about, Senator.
Mr. PETERSEN. Senator. may I suggest. in fairness to the Bureau,
I think it is fair to say that they were ambiguously charged with a
responsibility. Their charter. if you like. was. I would suppose, a historically
drafted memorandum for the President of the United States
in the late thirties.
The CHAIRl\L\X. That brings up of course the point that there is no
generic law where the FBI is concerned. Its authority rests on Presidential
directives. And it seems to me that at the very least we ought
to establish some basic statutory law for the FBI which will be much
more explicit in connection with powers and procedures.
Mr. PETERSEX. I don't really disagree with much of what Mr. Dorsen
said. But I do disagree with the implication, if it is there, that that
responsibility for nonfeasance, if you like. or inaction, in affairs whidl
touch upon the security of the United States should rest upon the
Federal Bureau of Investigation. That ought to rest with the Congress
of the United States. If it does not want an organization investigated
that says today, in the year 2000 we are goin,g- to ove,rthrow the Government,
then the Congress of the United States ought to say that
and not leave the responsibility to the Director of the FBI or Attorney
General, for that matter.
The CHAIRMAX. Yes. Which brings up another question that I would
like to pursue. But I have taken my time and I want to turn to Senator
Schweiker.
Senator SCHWEIKER. Thank you, Mr. Chairman. Mr. Petersen, when
you were head of the interdepartmental committee to study the FBI
COINTELPRO activities, were you given full access to the FBI tilf>S
in that capacity?
Mr. PETERSEN. That is not an easy question to answer yes or no. Let
me trace the development of that. Attorney General Saxbe called and
said, this is one of the things that Bill Ruckelshaus suggested be done.
It hasn't been done. 'Would you do it? And with a modesty that is
unbecoming, I said, why me? 'Why not Kelley? He is head of the FBI.
He is new there, he ought to undertake this responsibility. Well, Saxbe
said, he is busy, he doesn't know what is going on over there either,
and I would like you to do it for both of us. I said, fine. Since I couldn't
wiggle out, I agreed. But I sa.id. call Director Kelley and tell him
what you have told me and tell him that there is no way that I can
do this without access. And I am going' to need your help and assistance
to do it. He did indeed do that. I know. because thereafter Mr.
Kellev called me. And I reiterated' to him what I had said to the
Attorney General.
M~. Kelley assigned a numbPI' of peoplE'. And bE'cause J and nobody
else III the Department of .Tustice had any idea where the information
was and because I reasoned that if the Federal Bureau of Investigation
we,re part of it-when you give them a responsibility they dis271
charge it to the best of their ability-if they were part of the inquiry
it would tend to guarantee the integrity of the inquiry.
So, the summaries were prepared by Bureau personnel at my direction.
The summaries were spot checked by representatives of the Criminal
Division of the Department of .Justice for accuracy. 'We did not
examine all underlying docwnents. It was not part of the task to conduct
an investigation in the sense a criminal investigation is conducted.
The task was to advise the Attorney General of the nature of the problem
so that he, as Attorney General, could determine what action ought
to be taken. And it was for that reason that we gave two leg-al opinions,
not because we are trying to carry water on both shoulders, but because
the committee, while it as a committee, did not feel the agents
who did these things ought to be investigated, recognized that they
could possibly be charged criminally. Nonetheless, that was a decision
for the Attorney General, and we pointed out the law with respect to
it and the contrary point of view, in the event he decided to take
further action. That was the nature of the study.
When the Attorney General. Mr. Saxbe. got it. he detennined that
the best thing that he could do to curtail it would be to publicize it.
And as a consequence he made a decision to make it available to the
Congress. to the oversight committee. and ultimately to the. Congress
generally, and to the press. And that was the sum and substance of
the entire proceeding.
Senator SCHWEIKER. You were given summaries of the FBI files,
and the raw files were spot checked for accuracy as to the summaries
by whom again?
Mr. PETERSEN. By the attorneys on the group who were assigned to
the Criminal Division. It was not done by FBI personnel, that is
what I am saying. .
Senator SCHWEIKER. And what was the rationale for not giving you
people the raw files?
Mr. PETERSEN. I don't think there was any rationale. 'Ve are doing
a survey rather than conducting an investigation. One of the things
that was involved-I mentioned the responsibility for participationthe
other was available manpower.
Senator SCHWEIKER. Did your sun-ey uncover the kind of things
that this committee just uncovered in terms of COINTELPRO activities.
Were you aware of the things that had been going on that this
committee just recently disclosed?
Mr. PETERSEN. Senator, I am not sure that I can answer that. The
summaries were prepared 'without respect to the name of an individual.
So that I can't tell you at this moment whether X or Y was or
was not included. I am aware. from the newspapers since I have left
there, that subsequently the Bureau turned over additional information.
Senator'SCIIwEmER. One of the informants, for example, in CO
TNTELPRO said that part of his job was to sleep with the wives ofthe
Klan leaders. 'Was that the kind of thing that was deleted from the
summaries, or wer(' you aware of that kind of thing?
Mr. PETERSEN. I don't reca]] that. to be lwrfertlv honest with you.
Spnator SCIIwEmER. T resppct what yOll said. But T don't see how
:uyvone can T?I'OIWrlv oversee it or appron' it or l'prtify it in some way
,nthout gettmg the flavor of some of the things that come out here.
272
I guess it leads me to my next question--
Mr. PETERSEN. May I interject, Senator. I think the flavor was there.
I think the report pointed out that there were apparent violations of
first amendment rights, that there was conduct that the committee
found abhorrent. The recommendation was that it should be absolutely
prohibited, and standards and guidelines set up. There was not, if you
are suggesting such, any rationalization for the Bureau's c0!lducJt.
Senator SCHWEIKER. The other part. for example-whIch wasn't
brought out-was that there ,,,ere a number of cases where material
about possible violence came to the attention of someone further down
the ehain of command and no action was taken, and that informers
alerted the fact that action eould be taken to prevent it, but no action
was taken. Did you get into the summaries ?
Mr. PETERSEN. I am not sure. Senator. I can't answer that.
Senator SCHWElKER. It leads me to my next question about setting
up an inspector general for the FBI. I know you are on record, and
I even have a memo here indicating that you strongly favor an inspector
general procedure. Is that still your position?
Mr. PETERSEN. Yes, sir. I do, Senator. But may I add that I am not
sure, at least in my concept of an inspector general's responsibilities,
that this type of detail would be pieked up. I think that that type of
detail has to be picked up in a more routine fashion, if you like, by
day-to-day supervision. bring attorneys in the Department of .Tustice,
into ongoing investigation, so that actions which appear questionable
can either be curtailed or justified.
Senator SCHWEIKER. But if access to the raw files isn't given. and if
that isn't a standard situation, then they wouldn't have that opportunity?
.
Mr. PETERSEN. Senator. it is also my opinion that in the course of
their duties, contrary to the practice in the past. that attorneys of the
Department of Justice. in the discharge of their responsibilities, ought
to have access to the raw files. And there are instances when, frankly.
one of your staff, ,,,hill' employed in the Department of .Tustice, was
embarrassed by what the Bureau said 'vas an oversight. Now, that
oversight would not have occurred had the attorney had access to the
entire file.
Senator SCHWEIKER. I think you also went on to recommencl that the
Inspector General's office shouldn't be limited just to the FBI-I believe
you suggested that it should cOYer the whole range of activities.
Mr. PETERSEN. I think it ought to cover the whole range of the
activity of the Department of .Justice, for this reason. first of all. that
is an ongoing responsibility of the Attorney General and the Deputy
Attorney General at this time. And second, either the Attorney Generalor
the Deputy Attorney General really have the opportlmity to
give that task the time and attention that is needed. So they need some
sort of a staff.
On the other hand. the staff should not be so larrre that it becomes
a bureaucracy that has to feed upon itself. That staff I think ought to
. be r.elatively small. so that it can accept the responsibility with manpower
drawn from whatever im-estigative agency seems appropriate
at thp, time to conduct the llecessary investigations. I do not think that
that Inspector General's responsibility ought to elltail administrative
revie,:v of the manner in which responsible officials discharged their
'functIOns.
273
In other words, I don't think you ought to go in and say, well, Mr.
Director. we have bought too many pencils. That is a function of internal
management and perhaps a function of the Budget Committee.
But I don't think that that type of responsibility ought to be assigned
to the Inspector General.
Senator SCHWEIKER. :Mr. Ruckelshaus, what is your position on an
Inspector General. from your experience?
Mr. RucKELsHAus. Senator, I was in charge of that committee that
was investigating the setting up of the Inspector General when I left
the Government. My own feeling is that you have got to again be
careful about what functions you are giving the Inspector, what is it
that you want him to do. The idea of the establishment of the Inspector
General ,,-hen Elliot Richardson was the Attornev General was to
provide within the Department the capacity to look iilto outside allegations
of corruption within the Department itself, and set the Inspector
General's office apart from the Department. so as to insure that whatever
investigation took place had public credibility, that the public
would believe there was a complete and thorough investigation, and
particularly if the allegations proved to be false.
This was the result of many. many charges that had been brought
against the Denartment of .Justice during the preceding several
months before Mr. Richardson was appointed Attorney General. And
I think there is an example within the Department of .Tustice of a firstrate
inspection division that is as good as any I have ever seen at investigating
its own agencv, and that is the Inspection Division in the
FBI. When I was the Director of the FBI I gave them the charge to
find out what happened to the records involving the 17 wiretaps of
newsmen and public officials. They launched a complete, thorough and
highlv professional investigation. and found the records eventually in
the 'White House. I think that if that di,-ision is given a clear charge
by the Director. and given the kind of authority to discover derelictions
within the Bureau, without any restraints being put on it it discharges
its function well. Thrre are a number of restraints set up
within the Inspection Division to insure its objectivity, and to insure
that the functions assigned to it are properly carried out.
Senator SCHWEIKER. You have a lot more faith in it, you might say,
Mr. Ruckelshaus, than I as a member of this committee have. .Just fl
week or so ago we came across wording in the FBI manual to proceed
on an investigation unless it was embarrassing to the Bureau, and
then some other procedure was automatically set up. which the FBI
explained as something different than how r would have reau it, but
that was the fairness in this recommendation, that the criteria-proceed
unless it would embarrass the Bureau.
Second. I guess you are not familiar with the "black bag" memorandum
in which the Inspection Division ,,'as instructed during its annual
inspection procedure to go into a safe of a special agent in charge and
destroy any legal memos that the special agent might have filed about
"black bag" jobs.
So. I ha,-e a hard time comprehending how you can say that they
have done that kind of job or should br, utilized in this iob when the
e\'idence, we found is just the contrary. Maybe this wasn't available to
you in thr position you held. and if it wasn't, that is the fault of the
system.
274
Mr. RCCKELSHAUS. Senator, you misunderstood what I said. "That
I said was that we have an excellent example of an Inspection Division
in terms of the process by which it works. I also said that if it were
given clear instructions it would carry them out. And that includes
wrong instructions as well as proper instructions. That Division was
very responsive to the Director, and if the Director told them to do
something wrong, they w('re just as inclin('d to do that as ~ometh~ng
else. And the examples you cite were those of such instructIOns bemg
given. When I was there, in the example I gave you, they were instructed
to find out what those wiretap records were and find out
what had happened to them. And they did it thoroughly and professionally.
And I think that what we need is to distinguish between
bad processes and bad people not only running those processes, but
giving instructions to those who do.
Senator SCHWEIKER. But don't we have institutionalized safeg-uards
so that if we get a bad process or a bad situation or a poor administrator
in this regard, that we have some checks and balances? And to
l('ave it all to the FBI after what we have seen in 30 years I think
would be the wrong way to proceed. I understand FBi agents knew
about COINTELPRO. And y('t we used agents to do more than that.
Mr. RUCKELSHAUS. Senator, I did not suggest that we make the inspection
function internal to the FBI. I said we had an example of a
good process established in the FBI that could be used by the Department
as a whole. Even the Department as a whole might get some bad
instructions from the Attorney General, which is where the Congress
comes in in terms of its oversight responsibility. There is no process
that I can think of that we can set up that will avoid human nature,
that will avoid every bad person that comes along to be in charge of
it. And what I am suggesting is that the model, if properly used, in
the FBI is not a bad one.
Mr. DORsE~. May I comment just very brieflv on that?
There is another model-I spent 2 years in the Office of the Secretary
of the Army. and I thought that the Inspector General model in the
Army had at least one advantage over what I understand to be the
process that Mr. Ruckelshaus was describing. and that was. complete
independence from orders of the kind that led to the misfortunes that
he and you were just discussing. I think it is very important, whoever
is the Inspector General. that that person be given broad and independent
authority of the kind that Mr. Petersen was describing, and
not be subject to "bad orders." Now. obviously there has got to be one
person 'at the top, and that is the Attorney General. Rut I would hate
to see any Inspector General set up in the subiect of the direction of the
Director of the FBI. I think the person has to be independent and able
to get access to raw files and be able to do the job untrammeled by
"bad orders".
Senator SCHWEIKER. Thank you, Mr. Chairman.
The CHAIRMA~. Thank YOU' very much. Senator Schweiker. Mr.
Schwarz, do you have questions?' .
Mr. SCHWARZ. I would like to pick up on something Mr. Dorsen
said and ask both Mr. Ruckelshaus and Mr. Petersen about it. And this
goes to the issue of the value of domestic intelligence. And if YOU
would, leave out the consideration of catching Soviet spies ancI iust
concentrate on the domestic intelligence function of the Bureati. Can
275
you from your experience 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?
Mr. RL"CKELSHAUS. Henry, you may have more examples than I do. I
am not sure I understand your distinction. If there was an informant
system set up on an organization, say, the Weathermen or something
of that nature, and out of that informant system came information in
the possession of the FBI or the .Justice Department that certain
crimes were planned short of that kind of avenue of information, I
don't know where else the information would come from. It may well
come from some voluntary disclosure by an individual concerned about
the crime that was planned.
:\11'. SCHWARZ. I am nat thinking of technique. But the justification
put forward by the Bureau for general intelligence doesn't turn
on a predicate of a crime having been committed or planned. And, they
say. there is a necessity to have general intelligence about subjects
with broad labels like subversion and extremists. What I am driving
at is whether. from the experience of either of you, you know of any
instances where useful information relating, for example, to violence
was obtained from a domestic intelligence investigation that could not
have been obtained if the standard for such investigations was aotual
cause or probable cause that a crime had been committed or was being
attempted.
:\fr. PETERSEX. Fir",t of all. I have to say-and I think in this respect
I speak for Mr. Ruckelshaus, too-we 'in the .rustice Department,
and perhaps he in his brief tenure as Acting Director of the FBI, did
not have an opportunity to scrutinize the domestic intelligence investigations.
Only when they were devel'Oped to the point of probable cause
was the Department of .Justice prosecutorial force brought in. So we
speak not as experts. But I do suggest, Mr. Schwarz, that the 'Weathermen
is a classic example. If you speak about a reasonahle basis for
suspicion to initiate an investigation. or a more stringent standard,
which I happen to think is unreasonable as a predicate for initiating
an im'estigation of probable cause. you would have to wait until the
laboratorv at the Uniwrsity of Wisconsin was blown up. Now, it is
true enough that the Bureau's actions in im'estigating the Weathermen
could not prewnt that any more than they could prevent the bomb
being placed in the Capitol. But they did not start the investigation at
that point with the explosion, they started wi.th the self-proclaimed
intention of a group and the members of that group. and they further
determined what members of that group espoused acts of violence,
and they determined from their infiltration where members of the
group llappened to be at the time. So there was a process of elimination
as a process of focus. And I think the Weathermen is a classic
\'xample of an instance whl'rl' you cannot rely wholly upon the act
itself. Thrre has to be-ann it is indel'd being very shortsighted if
there is not-some responsibility to look forward, particularly when
von deal with crim{'s of violence.
. :\fr. SCHWARZ. It seems to me. thongh. that you hawn't answered.
thl' ClllPstion of wllPther vou ('an think of an example where some useful
result was in fad obtained. that you couldn't have obtained. by
using as a predicate the likelihood. of violence.
276
Mr. PETERSEN. I am suggesting the ·Weathermen indictment.
Mr. RUCKELSHAus. What do you mean by that?
Mr. SCHWARZ. Preventing something from happening. How about
you, Mr. Ruckelshaus, can you think of an example where something
was prevented as a result of a domestic intelligence investigation that
could not have been prevented by having as a predicate not only a
bomb going off, but some predicate that says, picking up Mr. Dorsen's
concept, present and clear likelihood that the group is going to engage
in such conduct, criminal conduct?
Mr. PETERSEN. I can cite you two instances which I have informed
about in the organized crime program where x was targeted for a
killing. And the Bureau's response was to go 1, to the individual,
and 2, to the local police, and suggest that preventive action might
be taken, stationing guards around the man's house, or forcing the
man to move, or something of that nature.
Mr. SCHWARZ. But what was the predicate for the investigation?
Was the predicate not in that case the likelihood of violent action?
Mr. PETERSEN. The predicate was the existence of a group who
earned for themselves the right to be called members of organized
crime who were engaged in all types of illegal activity. But the significant
thing is, it is not illegal to be a member of an organized crime
group, it is only illegal when they do something in violation of a specific
statute.
Mr. RUCKELSHAUS. I think your question is difficult to answer.
And that doesn't mean it isn't a good one. I think what you
are driving at is that there ought to be a very strong standard burden
of proof on the individual or the person in the Government who
would suggest that certain investigative techniques be used. And I am
questioning that the validity of the assumptions behind the use of
the given techniques is something that very much needs to be determined.
And that is one of the chief functions, I think. that an investigative
oversight committee of the Congress could perform, and that
is, where the FBI would say, we need x number of a-gents to engage
in surveillance of group A or group B of these individuals. There
should be systematic-if you assume a.t the outset that this investigation
is undertaken pursuant to investigative techniques approved
by the Congress-there ought to be a review of the results of that
investigation. Are you really getting something for that invasion of
individual liberty ? Because there is an invasion of time it ta-kes place.
And so I think that the difficulty in answering your Cfuestion is that
in our minds there are organizations like the Weathermen and so
many groups that existed in the late sixties and the earlv seventies
who used the rhetoric of violence and often didn't carry it out, and
how you distinguished between those who are simply talking about it
and those who intend to do something about it in some form of
surveillance.
Mr. SCHWARZ. Mr. Chairman. there are in the books nine examples
of real cases or hypothetical cases which are susceptible of reaction.
And rather than putting the nine cases to the witnesses, I would like
with your permis.<;ion to ask the witnesses to respond in writing to these
nine cases and give their reactions on whether the predicate in the
cases was sufficient to open an investigation.
277
The CHAIRMAN. Very well. Are you gentlemen willing to do that,
to respond in writing?
Mr. RUCKELSHAUS. Yes.
Mr. PETERSEN. Yes.
Mr. DORSEN. May I make one c(,mment on an aspect of the answer
Mr. Ruckelshaus gave which I thought was correct in connection with
tht> oversight? Once again I think it is very important to button these
things down. And it has been suggested that this committee ought to
recommencl to the Congress as a whole that it be a crime for a Government
official willfully to deceive Congress and the public about
activities which violate the kind of rules that are set up, because one
thing we have learned is that not everybody has told the truth, and
sometimes it has not been under oath. And there is another, which has
been one step further, and that is, it should be a crime for a public
official not to report violations of law that he or she may have seen
in the course of this area.
Mr. RUCKELSHAUS. Not to bl' an informant?
Mr. DORSEN. Yes; that is right. The problem, of course, is how do
you get into the process. And as Mr. Petersen and also Mr. Ruckelshaus
I suppose have both explained, even though they were senior
officials, it was hard for them even to get into it in detail and in depth.
And, therefore, there has got to be some pressure put on people not
to close one eye or both eyes to things that are being done, and not to
deceive Members of Congress and the public about some of these
matters.
The CHAIRMAN. Your suggestion might be, make a report to a court
of crime. To whom is the rl'uort to be made?
Mr. DORf;EN. Thnt could be part ofthe investigation.
The CHAIRMAN. To the New York Times?
Mr. DOHSEN. That would certainly do the iob.
The CHAIR~fAN.To vour immediate superior?
Mr. DORREN. Certainly that.. It is admittedlv a reml'dy that has
nrobll'ms with it.. But at the same time the difficulty of getting these
things out into the opl'n is clear.
The CHAIRMAN. What about if this Office of Insnector General
would be creatl'd. let's say, in the .Justice Department: would that be
the logicfll place to put--
Mr. DOR..<;EN. That is the idea, of course.
The ('H.HRMAK rcontinuingl. Unlawfnl activitil's bv the FBI and
other subsiaiaries in the Departml'nt? What do vou think about that?
Mr. RFCKELSHAlTS. Awn't we by law, Mr. Chairman, establishing a
system of informants in the Feaeral Government if we do that?
Thl\ CHAIRMAN. I am not endorsing it, I am just trying to figure
out what it is that is being recommended.
Mr. PETERSEN. May I suggest something-I don't mean to be unduly
ell'mentarv. but times have changea-and may I suggest that in whatever
proc(~dure this committel' decides to se-t im bv'statute they incorporate
a provision for ratification contemporaneons, a reasonably conte-
mporaneous ratification. With all deference to this committee. I
charge the cOTllmittee with no more than I. mvself. have indulged in as
a result of all these (>xposnres. I am sometimes fearful that there is
It touch or revisionism involved in all this. Perhaps not.. But the only
278
way that criticism could have been answered is if these matters in
wh'ich the Bureau took action, which now all think to be immoral, had
been submitted to a ratifying group at or about thE' time. And I suggest.
Senator, that in many instances their conduct might have been
approved by the Congress. And there are some who suggest that the
oversight committee did indeed approve it. But whether they did
or did not it would certainly prevent an agent who acts in good faith
from being charged 10 years hence with covering up an illegal activity.
Now, that is, I think. a terribly important point. And. of course,
from the viewpoint of the Federal Bureau of Investigation they feel,
I think, badly put upon, because they feel that they were doing what
they were charged to do, 'yhat nobody else was interested in doing, ,
The CHAIR~IAN. I take It what you really suggest. Mr, Petersen. IS
that had there been an adequate congressional surveillance at the time
it would have acted to protect those engaged in those activities if they
had been thought by such a committee at the time to be necessary and
proper.
Mr. PETERSEX. I don't want to point the finger at Congress. Senator.
No President ever supported any Attorney General up until 2 years
ago with respect to supervision of the Federal Bureau of Investigation.
The CHAIRMAN. I think that the remarkable thing is that this committee
has conducted the only serious investigation of either the FBI
or the CIA since their creation. one-half a century ago, and the other
one 30 years ago. And we ought not to be astonished that abuses have
crept into the system when no one has been looking at it. And I think
that it might even be said that in the Department of Justice itself there
was precious little oversight of the FBI.
Mr. PETERSEN. That is right.
The CHAIRMAN, So that everyone stands guilty, looking back over
the years, of a failure to do the proper supervisory work. But for the
free press we woulrl never have had this investigation, because it was
the direct result of the charges that were surfaced in the press, following
Watergate. that the Congress finally decided that the time had
come to investigate the FBI. the CIA. and these other highly prestigious
agencies. I suppose I am agreeing with you that there has been a
failure of proper oversight in the executive branch at the White House,
at the Justice Department. and in the Congress.
Mr. PETERSEN. Let me add one thing more. And it is an endorsement
of what Mr. Ruckelshalls said earlier. Even if this committee
enacts a statute in its wisdom which is capable of imposing the necessary
restraints, unless the political base, which in mv judgment stems
from the activities of the Federal Bureau of Investigation with the
White House, unless that is curtailed, it will build up again. It is awfully
awkward for an apparent superior to be unwilling to take on
his suborclinate because he knows he will not be supported bv the President
of the Fnited States, Ancl I am sure it is very unlikely that yOU
will have former Attornevs General coming up and saying, the FBI
was beyond mv control. But that was the fact. It seems to me to be
improper for the Congress to mandate by statute that type of administrative
control. But it certainly has to be imposed in some fashion.
The CHAIRMAN. I just have one further question for Mr. Dorsen.
He first brought up the importance of informants, and the danger of
279
abuses with respect to the overuse of informants. Has this question
ever been tested against the fourth amendment in the courts?
Mr. DORSEX. .Mr. Petersen says that the consentual cases are the only
ones. There are cases, for example-the Panther 21 case in Xew Yorkwhere
there were informants in the Black Panther organization, which
was a case where I think it was raised. That case involved an acquittal,
and, therefore, it never got to a judicial opinion.
The CHAIRl\fAX. In other words, you are telling me that as far as ju-dicial
review of the use of informants is concerned, as a possible violation
of the fourth amendment of the Constitution, the question has
hardly been raised, nor has it been tested adequately. There are cases
going back to the early thirties, involving entrapment, involving people
sometimes who werr closely associated with groups allegedly leadmg
individuals or groups to commit a crime, and there has been a very
sharp division in the U.S. Supreme Court about what the correct
standard is to determine whether people voluntarily committed a
crime or whetbe-r they were led to do it by someone they were relying
on who was secretly a Government informant. But the fact is that the
law is not at all developed in this area.
Perhaps one of the reasons is that the national court cases never
get into court.
Mr. DORSE~. Right.
Mr. PETERSEN. May I add that in the consentual cases the Court was
led to the conclusion that a listening device worn by one of the participants
in the conversation was not impermissible, it was predicated on
the fact that eavesdropping. unadorned eavesdropping, was not a
constitutional violation. So there is some authority in the Supreme
Court decisions for that proposition.
Mr. DORSEX. Incidentally, howe,oer-thi8, of course, is a very tough
question-Congress. of course, has not attempted to deal with this. If
Congress attempted to deal with it the court would then be responding
to a specific legislative act, and I would think to a large extent be
guided by that, because the words of the fourth amendment, unlike
the first amendment, talk about unreasonable searches and seizures,
and what Congress decides are unreasonable.
The CHAIRMAN. Congress has never really attempted to define that
by statute.
Mr. DORSEN. Exactly. That is correct.
The CHAIRl\IAN. ·Well, this has been very helpful to tIl(' committee,
gentlemen. And I appreciate your appearance this morning'. And also
we will look forward to the written answers you supply. This hearing
is adjourned.
[Whereupon, at 1 :05 p.m., the hearing was adjourned subject to call
of the Chair.] . .
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