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CHURCH COMMITTEE REPORTS

THURSDAY, DECEMBER 11, 1975
U.S. SEXATE,
SELECT CO~DIITTEE To STlCDY GOVER:'DIEXTAL OPEIUTIOXS
'VITII RESPECT TO IXTELLIGEXCE ACTIVITIES,
lVrMhington, D.O.
The committee met, pursnant to notice, at 10:10 a.m., in Room 318,
Hussell Senate Office Bnilding, Senator Frank Church (Chairman),
presiding.
Present: Senators Church, Hart of Michigan, Mondale, Morgan,
Hart of Colorado, Baker, Mathias, and Schweiker.
Also present: 'William Miller, staff director; Frederick A. O.
Schwarz, Jr., chief counsel; Curtis Smothers, counsel to the minority.
The CHAIRl\IAX. Our witness this morning is the Honorable Edward
H. Levi, Attorney General of the United States. Mr. Levi has appeared
before this committee on previous occasions and this committee is
most happy to welcome him back again this morning.
He has been asked to testify today about the future of the Federal
Bureau of Investigation, and especially its domestic intelligence
operations.
This morning's hearing marks both an end and a beginning for the
select committee. It is the end of a series of hearings on domestic intelligence
which began in September with an examination of the so-called
Huston plan. Those original hearings explored the relationship of the
White House to the FBI and other intelligence agencies in the development
ofa specific plan for using illegal techniques against domestic
groups.
At that time the committee learned the details of FBI "black bag"
jobs against domestic targets which continued at least until 1968. We
learned of a "do not file" procedure in the FBI for destroying the
records of these operations and the committee was told that the FBI
expanded its intelligence investigations along the lines of the Huston
plan, even after the President withdrew his approval.
Our next hearings in this area dealt with improper activities that
overlapped foreign and domestic intelligence operations. The Director
of the National Security Agency testified that the sophisticated
surveillance operations of that Agency had been targeted against the
international comlllUnications of American citizens for domestic intelligence
purposes. This was done in direct cooperation with the FBI,
which supplied names of citizens for the NSA watchlist. Present and
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66-077 0 - 76 - 21
312
fOl'llH'r FBI officials also testified that until 1966 the Bnrean undertook
programs for illegally opening the mail of innocent citizens in the
search for espionagp agents awl foreign intelligence. The FBI used
the CIA's mail olwning program after 1966 for domestic intelligence
purposes, again selllling oYer lists of names of American citizens who
were to be watched.
The committee's recent hearings 0)) the FBI itself have raised some
of the most fundamental (ll'estions that any democracy must face. 1Ve
hayc placedJn the rpcord depply distlll bing information about the
FBI's COIXTELPRO activit ips oYer a pE'riod of 1;") YE'ars, the attempts
to discredit Dr. )lartin Luther King.•J1'., the broad snrveillance
of law-abiding citizens and l:ndul activities. the practices of
infiltration and disruption by informants, and the political use of FBI
resources by Presidents of both patties.
The cOIllmittee's work in this area has been aided substantially by
the coopE'ration of the .Justice Department. I would like to take this
opportunity, )11'. Attorney General, to express the appreciation of
the entire committee and the staff fOI' your assistance in making available
the materials needed for this investigation. Our experience has
demonstrated that the constitutional principle of separation of powers
has enough flexibility to allow close cooperation betwE'l'n the Congress
and the Executive in a matter of the greatest public concern.
1Vhile our investigation is coming to an end, the task of making
constructive recommendations is beginning. \Ye ha'"e heard this week
from fonner officials and from Director Kelley. \Ve are exploring a
wide range of proposals, including those being developed by the .Justice
Department. And we look forward to working closely with you
on these issues,
One of the best statements of the problems we confront was made
last summer by Philip Kurland, professor of constitutional law at
the University of Chicago. Professor Kudand spoke of the threats
to an open, democratic society from what he called the perversion of
our intelligence agencies into political police forces. He rejected the
proposition that we should be satisfied that these a,g-encies will exercise
self-restraint. Professor Kurland did not deny the importance of the
individual qualities of the officeholder. But he stressed the greater
importance of confinin,g- our intelligence and counterintelligence agencies
to the limited functions they were created to deal with.
The crucial responsibility lies with the Congress. "If oversight by
Congress is not to be the answer," Professor Kurland declared, "it is
hard to concei'"e of an answer." The essential requirement for congressional
oversight is information about intelligence operations, and
the greatest barrier is executive secrecy. Consequently, Professor Kurland
and othert:: have ur,g-ed that we establish pmcedures which require
the Executive to provide this information to the Congress. This
may be the only way to insure the responsibility of the executive
branch to the people through the Congress.
Therefore, we especially hope that you, Mr. Attorney General, can
help this cOllunittee and the Congress develop not only standards for
the FBI. but also procedurE'S for effective congressional m"ersight to
assun' regular accountability.
313
TESTIMONY OF HON. EDWARD H. LEVI, ATTORNEY GENERAL OF
THE UNITED STATES
Attorney General LEn. Thank you, MI'. Chairman.
Before I begin, let mp say that I don't suppose that your statement
is meant to indicate that I am COllllllitted to agme with my friend,
Profpssor 1\urlal)(1. \"ho may not be wrong as often as many people
are, but occasionally is not correct.
The CII.\IIDL\X. X0, it was onlv meant that I agn'e with him,
~\Jtornpv Gpneral LEn. Then-I hope the matter can be explored in
more depth. -
Senator )L\TIIL\S. )11'. Chairman, I think that's one of the most
gmcC'ful deelamtions of independence I have ever heard.
Attorney General LEVI. )11'. Chairman, the committee has asked
me to talk with you tOllay about the future of the FBI. I thought it
might be helpful if I outline quite briefly some of the points I would
like to make, some of the problems I think ought to be considered,
and some of the steps "'e ha \'c taken.
The first point IS that the statutory base for the operations of the
Bureau cannot be said to be fully satisfactory. The basic statutory
prm'ision is 28 U.S.C. 3a;) which prm'ides that the Attorney General
may appoint officials:
(1) to detect and prosecute crilllPs against the United States; (2) to assist
in til(' protection of the l'residl'nt ; and (3) to conduct such investigations regarding
official matters under the control of the Department of .Justice and the
])epartml'nt of State as may be directed by the Attorney General.
There are other statutes, such as the Congressional Assassination,
Kidnapping. and Assault Act, which Yest in the Bureau special responsibilities
to im'estigate criminal violat ions. In addition, there are
Executi,'e orders and Presidential statemE'nts or directives which place
investigatory rE'sponsibilities upon the Bureau,
A number of questions are often asked about this statutory base, It
has the virtue of simplicity, but the Executive orders which deal with
Gm'el'llment employee im'estigations are complicated and confusing,
and Presidential memomnda, or, perhaps, oral instructions from a
President may be difficult to collate. I think it is important, in any
case, to separate out the kinds of questions ,vhich are asked about the
Bureau's author-ity base. Some questions are constitutional in nature,
relating to the inherent power of the President; others go to the interprE'tation
of the statutE'S and the relationship between the statues and
Presidential direeti\'Ps; others go to thE' faihlre of the statutes to define
sufficiently the areas of the Bureau's jurisdiction or to spell out sufficiently-
and this is partly constitutional-the means and methods
which the Bureau is -pen;littC'd to use in carrying out its assigned
tasks.
The second point, related to tIw first. is a continuing discussion of
the role of the BllJ'eau in intel1igence im'estigations or domestic security
im'E'stigations. Tlw argument is sometimE'S made that tIlE' Bureau's
propel' role, at least in purely domestic matters. should be limited to
innstigations of committed crimE'S. The basic statute for the BllJ'eau
is broader than this, as hayC' been Executiye orders allll PrE'sidential
314
mandates to the Bureau. The basic statute is broader sinee it refel's to
investigations rrgarding official matters undrr the control of the Departml'nt
of .J ust ice and the Drpartment of State as lIIay be directed
by the .\.ttol'lley General. A disparity is sometimes seen alllong the
different roles of the Bureau in crime detection, in ongoing domestic
security matters, and in foreign intelligence or foreign counterintelligence
matters.
In recent days a statement by then Attol'llcy General Harlan Fiske
Stone, who reorganized the Bureau and chose .J. Edgar Hoover as its
Director, has heen lluoted as a relevant ,,"al'ning. Stone warned:
There is always the possibility that a secret police ml1Y become a menacp to
free government and free institutions, becau,'p it carries with it the pos.-ibilit~"
of abuses of power which are not always quickly apprehended or understood. It
is important that its activitif's bf' strictlj" limitf'd to the performance of those
functions for which it was creatf'd and that its agents thf'IllSf'lvesbe not above
the law or bf'yond its rf'ach. The Burf'au of Invf'stigation is not conCf>rnf'd with
political or othf'r opinions of individuals. It is concerned only with thf'ir conduct
and then onlj" with such conduct as is forbidden by thf' laws of til{' rnited States.
Whf'n a policf' system pas>;es beyond these limits, it is dangerous to the pro{J{'r
administration of justice and to human lib(>rty, which it should be our first
conCf'l"ll to cherish,
I should like to suggest that Stone's ,val'lling always must be considered
relevant to the proper conduct of the Bureau's duties, but it
does not necessarily follow that domestic security investigations are,
thereforc, outside the Bureau's proper functions. The detection of
crime in sollie areas requires preparation and at least some knowledge
of what is likely to be going on. 'What is at issue, I think, is the propel'
scope, the means and methods used, the attention paid to conduct and
not views, and the closeness of the relationship of the conduct and
that which is forbidden by the laws of the United States.
Third, I realize that some proposals, since I was asked about this
when I last appeared before this committce, might separate out in
some fashion domestic and foreign intelligence functions from the
FBI or from one another within the FBI. This is, of course, an issue
to be looked at. I assume it is recognized that there may be some
relationshi p hetween that intelligence which is involved in foreign
counterintelligence work. One may lead to the other. And there may
be a relationship between foreign counterintelligence and foreign intelligence.
If the ,vork wcre separated out into differ('nt agencies, I do
not know if the decision about when an imoestigation should pass from
one agency to another always could be made ('asily. Moreover, even so,
information presumably would pass from one agency to the other. I
know that aile consideration has been that it might he decidel! that
information collected by some permitted means in intelligence investigations
llIH!er some circumstances shoull! 1I0t be US('l! in crimina!
prosecutions. But if there is an exchange of information, this must
always be a consideration, whether there are separatc agencies or not,
and the basic question then is one of use and 1I0t organization. The
more active concern, I believc, is that there is a risk that conduct
proper for one area may be improper for another, and that the combination
can work a contamination. :l\Iy vie'" on this is that in any case
we must decide what conduct is appropriate and is inappropriate for
each of the areas, and we must take steps to make sure that proper
conduct is lived up to. My hope is that the fact that the FBI has
315
criminal ill\'cstigative rcsponsibilitic's, "'hich must be conclueted within
t.he confinrs of constitutional pl'Otel'tions strictly enforced by the
COIll-tS. giyes thr organization an a \yarrnrss of t lic interrsts of inclividual
lilwl-tirs that might br missing in an ag-rncy dC\"oted solely to
intelligence \york. I know tIl(' argument can 'be l:lm t.he other "-ay.
I brlien' the dangrrs an' gl'f>ater if therr is separation,
Fourth. there is a question as to the propel' role of the FBI in crime
prcvention and whether or not it should be considered aut.horizrd to
take steps undrr some circumstancrs to reduce the likelihood that
crimes 'Yill be committed or that serious injury to persons or proprrty
will occur. Prrventi,'e action has raiSC'd serious questions and these
must be dealt with. I suppose an initial question is whether it should
be allowed at all. Yet, I believe under special circumstances and with
proper controls, most would believe this to be a proper function.
Fifth, the problem of proper controls, supervision and accountability
is all-embracing. By statute the FBI is in the Department of
.Justice, and also by st.atute the Attorney General is the head of the
Department of ,Justice. The history is mixed, of course, and we all
have a tendency to oversimplify, but it is a fair statement that there
haw been times in the past when the supervision by Attol'lleys General,
g'rant('d that the Bureau must have considerable autonomy, has
been sporadic, praC'tically nonexistent, 01' ineffective.
I hope that is not the case now. The responsibility is a heavy one.
But in any event the problem of propel' controls, supervision and
accountability goes beyond the Director of the Bureau and the Attorney
Genera1. I have already mentioned that in my view the statutory
base for the operations of the Bureau cannot be said to be fully satisfactory.
I think that better controls and performance can be achieved
through statutory means, Executive orders, guidelines, and reporting
to appropriate congressional committees,
Sixth, before I come to a resume of some of the steps which have
b('en taken. let me say I know ,yP all r('alize that in the past there havc
been grave abuses. I am uncomfortable with a kind of writing of history,
however, which se('s it only in terms of the abuses and not in
terms of past and present strength. It is very difficult to be fair to the
past in which many institutions of government carried a share of
responsibility. But more than unfairness is involved, if we are not
careful, we will turn to solutions of the moment which a better reading
of history might indicate are not the best solutions.
I know we must seize the moment, if I may use such a phrase in
this setting. I know also that this committee realizes that a very
important agency with dedicated, highly professional, greatly disciplincd
Government servants is involved. The impOliance is to the
security and domestic tranquility of the United States. Stone's warning
was gi \'en in an act of creatIon. He was proud of his creation. In
spite of the abuses, there is a proper place for pride. I take it our
mutual work should be to nurture that pride and the conditions which
justify it.
I turn now to a review of some of the steps which have been taken
or are in progress. ",Ve have tried most diligently, under safeguards to
protect the privacy of individuals and with an a,yareness of the unfairness
of instant history, to give a great deal of information to congressional
committees.
316
Attorney General Saxbe made public and Deputy Attorney General
Silberman and Director Kelley testified about the so-called
COINTELPRO. vVhen the FBI <liscoYered evidence of several more
COINTELPRO projects after I became Attorney General, these were
revealed. One of my first acts as Attorney General, my third week in
office, was to testify before a· congressional committee about possible
incidents of political misuse of the FBI by the White House in the
past and about the nature of FBI filekeeping systems, particularly the
files kept by Director Hoover in his office suite.
Director Kelley has spoken publicly and before congressional committees
about incidents in the past in which FBI agents engaged in
break-ins to gather or photograph physical evidence in intelligence
investigations. On a number of occasions, most recently in testimony
before this committee, I have described the history of the use of electronic
surveillance by the FBI. \Ve have welcomed such opportunities.
On February 26, 1975, I instructed Director Kelley to report to me
any requests made of the Bureau or practices within the Bureau which
he deems improper or which present the appearance of impropriety.
On February 28, 1975, Director Kelley ordered FBI personnel to
report such requests or practices to him. In July 1975, I reaffirmed
my February directive and also asked for a report of all sensitive
investigative practices.
The Director promptly complied. Director Kelley has regularly
provided information on conduct by Bureau agents and programs
underway within the Bureau that could raise questions. These matters
have been reviewed and discussed with the Department so that a consistent
and appropriate policy can be achieved.
This is a continuing process. I do not assert that we an' aware of
everything about the Bun·au. Nor do I suggest that we ought to know
everything. Appropriate communication, consultation and supervision
at this level has to be selective. I make this point, which I think may
sound disconcerting, not in any way to minimize the responsibility of
the Bureau to keep the Department informed nor to minimize the
Departmenfs duty to find out. Rathpr I want to be realistie about a
learning and organization problem which requirps realism if it is to
be understood and perfected.
·With respect to possible legislation, the Department has in preparation
various dmfts of possible bills which may be of assistance in the
area of what is now warrantless electronic sunoeillance. Although obtaining
a judieial warrant does not automatically eradicate the possibility
of abuse, it is perceived to be an important saf('~"uard of individual
privacy interests, and we are exploring, as we said we would
do, various possibilities and alternati Yes.
Finally, a committee within the Department of .Justice, chaired by
~Iary Lawton, Deputy Assistant Attorney General in the Office of
Legal Counsel, and composed of represrntatires of my office, the
CrIminal and Ci\Oil Hights Di\'isions, the Office of Policy and Planning,
and the FBI, has been working for S months reriewing FBI
procedures in many areas and drafting guid<'lines to gOI'ern those
procedures in the future. TIl(' committee has produced draft ~"uidelines
corering 'Vhite House inquiri<,s, congressional and judicial staff
appointment ilwestigations, unsolicited mail, and domestic secnrit}
317
inn>stig-ations. It is C'llI'rently at work on g-uidelill('s co\'ering: counterespionage
in\'estig-ations and will later consider tIl(' use of informants,
the employPe loyalty program, organiz('d crime intelligencp im'estigations,
criminal im'estigations, and otlwr aspects of FBI practice.
The committep's work has bpen extensi vp and timp-consullling. It has
im'ol ved not only qllPstions of proper safeguards but also of efficiency
in the proper functioning of the Burpau. It has been all ptl'ort to translate
into words the complicated and important mechanisms for controlling
the FBI. I hope the cOlllmittpc's efforts at articulation will be
of use to this committee and others as it considers drafting legislation.
You haw recei \'ed copies of the latest drafts of the guidelines that
have been substantially completed by the committee. These guidelines
do not yet represent lJepal:tment policy. There. is disagreement within
the Department on some aspects of these guidelines. I have disagreed
with the committee recommendations from time to time, and the FBI
has raised substantial questions about other recommendations, particularly
with respect to the treatment of unsolicited mail. Some of the
proposals in: the guidelines could be promulgated as departmental
rl'gulations. Congress may fed some ought to be enacted into statutory
law. Other provisions would require implementation by executive
order.
I would be glad to discuss these draft guidelines with you in detail
in rpsponse to your questions, but a brief discussion of the guidelines
on domestic security may be useful at the outset.
The guidelines begin by attempting to impose some order and
definiteness to the domestic security field. To begin with, these guidelines
do not deal with FBI efforts to counteract the work of foreign
intelligence senices operating within the United States. Standards
for determining when there is foreign involvement sufficient to place
a subject in the category of forei:.,'ll counterintelligence investigation
are now being debated within the guidelines committee. The domestic
security byuidelines also are not meant to co\'er security or background
investigations of Federal appointees or investigations of ordinary
crimes. Fnder the draft guidelineAs, domestic security investigations
are only to be authorized when there is a likelihood that the activities
of individuals or groups invoh'e or will im'oh'e the use of force aI'
violence in \'iolation of Federal law. Domestic security investigations
are to be limited to activities of individuals or groups intended to
accomplish one of fi\'e purposes: overthrowing the Government of the
United States or of a State; interfering with the acti\'ities within the
United States of foreign gO\'ernments or their representatives; influencing
Government policies by interfering by force or violence with
Government functions or interstate commerce; depriving individuals
of their civil rights; and creating domestic violence or rioting when
such violence or rioting would necessitate as a countermeasure the use
of Federal armed forces. There is also a provision for limited investigation
when there is a clear and immediate threat of domestic violence
wh.ich is likely to result in a request by a State for Federal armed
aSSIstance.
Currently there is no procedure requiring the review outside the
FBI of all domestic intelligence inycstigations conducted by the FBI,
though the FBI has a long-standing policy of reporting its investiga318
tiye findings to the Criminal Diyision. l ~nder the c1ra ft guidelines
there "'ould be a comprphensin' program of reporting to tIlt' Attorney
General or his designee of all preliminary and full domestic intel1ig"
nce inyestigations. The Attornpy General 'nmld be required under
the draft guidelines to put a stop to any full investigation whose
justification did not meet an established standard. The standard would
be that there must be specific and articulable facts giving reason to
believe that the indiyidual or group under im'estigation is engaged in
the actiyities I haye just listed.
Another feature of th" draft guidelines is to place strict controls
upon the use of any tedmique h." the FBI which goes beyond the
gathering of information. COINTELPRO was the name giyen the use
of some such techniques. As I have said before, some of the activities
in COINTELPRO were outrageous lllld the otlwrs :were foolish. Nonetheless,
there may be circumstances inyolving an immediate risk to
human life or to extraordinarily important Government functions
that could only be countered by some sort of pre\'entive action. The
guidelines require that any such preventiye action proposal be submitted
to the Attorney General. He could authorize the preventiyc
action only when there is probable cause to belieYe that the violence
is imminent and ,yhen such measures are necpssary to minimize the
danger to life or property. The pre\'entiye action ,vould in all cases
ha\'e to be nonviolent. The Attorney General would be reQuired to
report to Congress periodically and ilO less often than once ayear on
the use of preyentiye action by the FBI.
I make no claim that during this rather difficult hut interesting and,
I must trust, promising period, we han achiend all that might have
been possible. In many ,vays the work has been disappointingly slow.
But I do think we ha"e made adyances in nurturing and helping to
improve a structure which will be supporti\'e of the best efforts of the
men and women in the Department of .Justic~ and in the FBI. Ko procedures
are fail-safe against abuse. The best protection remains the
quality and professionalism of the members of the Bureau and of
the Department.
The CTIAIR)IA~. Thank you yery much, )fr. Attorney General. It's
a very helpful statement, and does summarize the efforts that you are
making to give greater, put greatel' order into the work of the FBI.
One thing that leaves me somewhat batHed is the difference between
domestic security action, for which you ha\'e set forth the proposed
~"uidelines, which seem to me to be good ones, and what you call pre\'
entiye action. You state, "Xonetheless, there mav be circumstances
invoh'ing an immediate· risk to human life or 'to extraordinarily
important ~'O\'eI'llment functions that could only be countered by some
sort of prewntive action." In that case, "'hy can't the preventive action
take the form of an arrest if there are circumstances involving illlmedil~
te risk to human life or to extraordinarily important government
functIOns?
Attorney General LEVI. If it can, then that would ha\'e to be done
because the guidelines specifically require that the IH'eYenti\'e action
is necessary and it can't ot herwise be handled.
Kow, one can think of incidents--
The CHAIR)L\~.Can you give us some incidents!
319
Attorney General LEVI. If there is the likelihood of a violent confrontation
between two marching groups on a State capitol, it is conceivable
that blocking off some streets, or directing signs to some other
direction in an emergency situation of that kind might be usefuL and
I take it that is a pren>ntin' action, and I would not think unusual,
by the way, for people who are properly trained in work of that kind.
The CHAIRl\fAN. That is a good kind of preventive action.
Suppose that there were t,vo caravans instead of two marching
groups, and that you had reason to believe that they were headed toward
one llnother and there would be a violent confrontation once
they met. Would permissible preventi ve action in those circumstances
permit putting sand in the gas tanks of the automobiles so that neither
caravan could move? I have to ask that kind of a question after what
we found out what the FBI was up to in the COINTELPRO.
Attorney General LEVI. The answer is "No." Certainly there's no intention
to permit that. Although the guidelines do not spell it out,
and we have had discussions about what kind of precise preventive action
might be possible or might not be possible under special circumstances.
The CHAIRMAN. This is all very vague, and suppose you had reason
to believe that a prominent figure of some kind in a movement was
about to or of a mind to incite his followers to violence. Then in that
case could you undertake to give him a drug that would prevent him
from speaking for 3 weeks?
Attorney General LEVI. No, of course not, but I have to add that
what the guidelines do say is that the Attorney General has to give
permission, not only does he have to give permission, but he will have
to report to the Congress, and since quite naturally this committee believes
that reports to the Congress are the most important thing that
any agency can do, then it seems to me you must also agree that that is
some safeguard.
The CHAIRMAN. "Vell, that depends upon your "iew as to the kind of
committee that can do the job of surveillance.
Attorney General LEVI. Well, I don't think-this really was my
suggestion before. It takes a combination of control, and what we have
attempted to do here is to have a guideline which strictly limits--maybe
it should limit more-preventive action, but admits that there is an
area for it. Now, maybe we should not admit.
The CHAIRMAN. Why couldn't you do it this way, Mr. Attorney General?
'Vhy couldn't you say that when preventive action is necessary,
it must be an open and public kind of action.
Attorney General LEVI. I don't think that telling people--
The CHAIRMAN. Now, understand what I mean. You gave an open,
public way of prennting two groups froJl1meeting and clashing. 'VeIl,
when that is the case, the means used are likely to be reasonable ones.
But when there are secret methods of preventive action undertaken,
that's when you get into potential problems, real troubles that we have
seen.
Attorney General LEVI. 'Yell, we have to talk that through. It may
very well be that no secret ones at least beyond the immediate moment
of doing would be requirerl. It may be that one can put it that way,
but I think one of the virtues of guidelines should be that they are
320
sufficiently realistic so that they don't have to be violated under emergency
circumstances.
There is a question, then, of how detailed one can make them, but
it may be that the line about se~recy beyond a certain point would be
good..
I should also say that the Privacy Act would itself prohibit dissemination
of lies and deception, I think, to a considerable extent, if one
goes 'back to the old C01NTELPRO. So I think ,ve are in somewhat
of a different statutory situation for the moment anyway. But we have
. tried, in the guidelines, in any event, to very much limit the field. Now,
whether we have limited it enough, Pm not sure.
The CHAIRUAN. Did you say that with respect to the domestic security
acti"ities of the FBI, that before such a project is undertaken, the
Attorney General must give his consent, or that he might be informed
of prospective ongoing projects in order that he can call a gi"en project
that he doesn't find fully justified to a halt '?
I didn't quite understand your question.
Attorney General LEVI. Well, he has to give, he has to be informed
of, I think, of all the investigations. He can terminate them all. The
problem is whether he-he doesn't have to authorize the full investigation,
but he has to be informed about it and he can terminate it.
The CHAIRMAN. Now, well, you have to authorize wiretaps and electronic
devices in such cases. "Why shouldn't-why wouldn't it be well
for the Attorney General to authorize the initiation of programs in
this particular field, new investigatory programs?
Attorney General LEVI. 'VeIl, I'm trying to protect, if not myself, at
least my successors. I'm not sure that it makes much difference. It
makes some difference. If the Attorney General has to authorize all
full investigations, he will have quite a lot of work to do. If he has to
authorize all of the preliminary inve..<;tigations, his desk is going to be
covered with a great Illany things which he doesn't know a great deal
about.
The CHAIRUAN. Don't you think there should be sOllle outside check
in this area, particularly where we are not dealing with criminal law
enforcement as such, but we are dealing with potential violence which
you referred to as surveillance of citizens and groups of citizens for
purposes of domestic security. That's a pretty fuzzy field, and we have
seen how great the abuses were for a long period of time, and don't
you think there shonld be some ontside check. perhaps not with every
case the Attornev General himself. but some outside check on the
agency in this g;neral field to be sure that they are following these
guidelines ?
Attorney General LEVI. But 1\'e already said that I think that there
ought to be reports to Congress. I don't want to word the scope of the
domestic security investigations, however, quite the way you have
worded them, because these guidelines which could be in part put into
statute, strictly limit them. For preliminary investigations they limit
them to where thcre is a likelihood that thc indi"idua]s and g-roups
involved would use force and violence in violation of laws in particular
areas.
They are to be authorized for DO days. and then perhaps another DO
days, and the kind of investigation ,vhich can be done in a preliminary
investigation is also restricted. 'Yhen you go beyond that to the full
investigation, then we really ha"e the stop-and-frisk standard, so
321
that we really have come, I think, as close as is feasible. And maybe it
is too restrictive; in any event. as close as is feasible to the violation of
law kind of penumbra, so that it would seem to me that that was some
safeguard.
Kow, whether that is sufficient, I don't snppose anything is fully sufficient,
but I would assume that in addition, there can be reports to
Congress, and there ,,-ill ha,-e to be reports to the Attorney GeneraL
and I would think that that ancl the lessons of history would pro,-ide
quite a lot of safeguards. If the suggestion is that one should go to a
commission or to a court, I must say that I have grave doubts as to
whether that is the proper solution, but if that \vere the case, it would
be a statutory matter, and I would hope that my participation in making
that decision "'ouldnot be vie,wd as having as heavy responsibilities
as those who would han to vote for it.
The Cn.\IRUAx. Don't you think, gi\'en the past history you have
referred to, that it might be a very good idea to take these guidelines,
which represent to me a good faith effort on your part to bring order
into this general chaos and write them into the law?
Attorney General LEVI. I think that undoubtedly parts of the
guidelines should be made statutory. I think that the problem is, and
I am sorry for this, that it has taken so long to draft these guidelines,
although I think it has been an extraordinary effort. And the way
the guidelines are written one has to-at least it is better to see them
all at once because they do relate to each other. But there may not be
time for that.
As I said, I know we have to seize tlw moment, but I do not know how
long the moment is. In any event, I agree that part of the guidelines,
at least, ought to be in statutory form.
The CHAIIDL\X. 'VeIl, at the moment, this committee has until February
29, 1976. And \ve would solicit from you as much cooperation as
I know you will give, based upon your willingness in the past, to see
what kind of recommendations the committee can make, because
clearly the FBI does need a generic statute which it has lacked
through the years and that would be the appropriate place for guidelines
at this time.
Senator Hart, do you have questions?
Senator H.\RT of ;\1ichigan. "\II'. Attol'lll'V GeneraL good morning.
First, fora number of years in the Judiciary Committee, we have
been huffing and puffing with a whole line of Attorneys General in
an eft'ort to catch them, and it is against that long period of effort that
I want this morning to first of all thank you for developing to the
(legree that you now have, exaetly tIl(' kind of thing we have been talking'
about. And even as we on the committee in those days were urging
guidelines and while we might not have sounded it, we understood
how ineredibly difficult it is to put down in black and white,
chaptel' and nrse. how you respond to a whole variety of problems.
And fOl' the first time, the Attol'lley General has come in with a very
solid pieee of work that all of us appre.ciate.
Xow, in your statement. you indicate that you are working on ,guidelines
as they relate specifically to informants. and you relate that to
the Dppartment's general guidelines on intelligence that permit the
usp. of this. Xow vesterday, as vou know, we discussed with the FBI
Dirl'ctor, t 11(' possibility of getting judicial approval for informants
by you.
322
I think all of us unden;tand the importance in an investigation of
infol·mants. But we have heard some stories, some hair-raising stories,
about the way that technique can be abuscd..\nd 1. and I am sure
others, suggested informants are an extrenwly intrusive form of
eavesdropping in terms of what can be reported. I know that the Suprl'me
Court has nat said that infOl'mants are unconstitutional per se
unlIer the fourth and first amendments. unless you get a court warrant.
but that does not prevent Congress from requiring that kind of
procedure, in order to fully safeguard the rights of privacy and expression.
Nmv, what are your thoughts on such a requirement, the requirement
of a neutral, detached third paIiy, rather than the investigating
branch of the Government deciding when to use targeted
informants?
Atto!'lll'y General LEVI. ",VeIl, I am sorry to say, Senator Hart, that
I do not think that the suggestion. on balance, is a good one. And that
does not mean that I have a better suggestion. There is no doubt that
informants or paid informants can be misused, because there is an
area where, if that is done, the courts can s1A>p in; and one can have
guidelines or statutory restrictions on that if you think of, again, reporting.
But the notion that a court would have "to authorize the use
of each informant and how the informant was to be used, to continue
to pass on that, I think would make for maladministration. It would
impose an enormous burden on the court, and while I think we always
keep looking these days for a third impartial objective person, I do
not really believe that it can be the '::ourt.
Now, one could think of a board or a committee. After all, the Congress
set up, I think, a Subversive Activities Board, did you not ~ So
I suppose you might set up an Informers Permission Board. But my
impression is that you would not get very good people to be on that
board. and that it would not really provide the kind of knowledgeable
revie,v that you would want.
So I recognize the problem, and I recognize why one might turn to
that suggested solution. I do not want to take away from your time,
but it is sort of interesting that special devices and protections were
de\"eloped for electronic surveillance because they were said to be different
from the use of informants. And now we are running the argument
in the other direction and saying, well, they are even more
dangerous than electronic surveillance because you have the human ear
right there.
So it is just an interesting point.
Senator HART of Michigan. "Well, maybe in defense of our earlier
attitude, we did not know about the abuse with respect to the human
technique, the number of occasions on which it has been used.
Attorney General LEVI. I rather think that the fourth amendment
knew more about that than it did about electronic surveillance.
Senator HART of Michigan. The fourth amendment drafters did.
But people around now--
Attorney General LEVI. I feel for the objective, but I do not thinkI
just think it would not work.
Senator HART of Michigan. We are agreed that it is a difficult bal:
l1lce. The national securitv concern here and the individual's civil
liberties there-and to balance these claims is tough. You say you think
the court is inappropriate.
323
Attorm'v General LEVI. I think that ,vould be a mistake. I think it
would also he a mistake to have the court pass on the activities of the
agents, of the Bureau's own agents, who have ears and listen and so on.
I think ,ve have to trust someone.
Senator HART of )Iichigan. But is the Director of the FBI the fellow
to trust!
Attorney General LEVI. He is certainly one of the persons that has to
be trusted very mueh, and he has to be put in a position where it is
known that he is being trusted and what his obligations are.
And I think if the congressional mandate and the guidelines and
whateyer else are clear enough, I have enough faith in human nature
to think that that would be abided by. I do not think the history of the
abuses shows that that kind of a thing really was abused. There was
not that kind of spelling out. There was not that kind of direction.
There were directions in the other way really; so that I do not think
the problem-while I do not mean to minimize the prior abuses which
were terrible-but I do not think the problem requires the solution
of the interposition 'at every stage.
Senator HART of ~Iichigan. If we leave the discretion with the Director
of the Bureau, you would agree that there should be-we always
use the word effective even though we cannot define how you make it
effective-an effective system under which somebody other than the
Bureau's Director would be reviewing the decisions he is making, as
he affects this balance.
Attorney General LEVI. I think there have to be frequent reviews
and I think one has to have a situation in the Department of Justice
where the Attorney General, or his designee, can be in a position to
make that review. I think one also would hope and require that there
be adequate presentation to congressional committees. You do not want
to impose so many duties on the Attorney General so that he is-so
that he loses some sense of distance and objectivity on the Bureau.
That is one reason I said one has to realize that there is not full
knowledge and they are different offices. But I do think the Attorney
General, I hope, is some protection and the Department is, and congressional
committees would be too.
Senator HART of Michigan. The earlier hearings, which reviewed
some of the excesses, found some citing in the FBI handbook regulations
which directs field offices and their informants to find out and report
all contacts and cooperation between a group under investigation
and other groups, even if the other groups are not suspected of
being either extremists or subversives.
Now, suppose we have a standard for investigating a group using
informants. and suppose a particular group meets the test and the FBI
does penetrate. Now that targeted group begins to participate in confeJ°
ences that we have heard on amnesty, ABM, women's rights. and
other things. How would you suggest controlling the traditional
,"acnum cleaner approach of the informant reporting on the activities
of the other groups of participants. and the plans of the coalition, the
conference or the association of groups seeking to prevent the ARM?
How do you safeguard against them being drawn in?
Attorney General LEVI. \Vell. assuming that one has met the recluirements
of the guidelines. either do a preliminary investigationone
would have to go beyond that to really go to the full investiga324
tion-so that one does have facts which give you a reason to think
that there are violations involving force and violence. That is when
the informants are going to be there, or the infiltrators, as you call
them.
If the activities, if the sole activities, are those that you describe,
I do not think he belongs there and I do not think the investigation
is appropriate. I have worried about the more difficult aspect of the
problem, namely, that if you have an organization which is really
properly investigated 'because of its intention and ability to use force
and violence in violation of the law, and one has reason to think that
they are deliberately using their influence to co-opt other groups, I
would think that part of the investigation would be to put that down.
And that is really what you are talking about. And I do not know that
one should want to limit that.
Senator HART of Michigan. Well, maybe there is not any happy
solution to this, but what we would be doing would be reporting on
first amendment activities of the other groups that would not be eligible
to be targe~d.
Attorney General LEVI. I think the report should not be on that. It
should be rather on the effort of the group properly being investigated
to gain control. And we do have a problem as to what one does with
the dissemination or keeping of information, and the guidelines
attempt to address that question, whether they have done so sufficiently
or not.
One reason the guidelines are not all finished is that when one gets
to the counter- or foreign-intelligence guidelines and has to deal with
organizations which are under active collaboration with foreign governments,
and the question is whether they have ex,tended their influence
in such a way as to impose a real threat of force and violence,
I do not know how effectively one can impose restrictions. We try to
do it. The proposed guidelines have not been worked out. One has to
remember that if one g()('s back to the period when I was first in the
Department of Justice, there was considerable concern as to the ability
of the .Japanese and the Nazis to gain control, beyond those agencies
which were clearly collaborating \vith them, of other agencies. And
I just do not know that I want to say to the L"nited States Government
that that is the kind of information that you may not get.
The CHAIRMAN. Senator Mathias?
Senator MATHIAS. If Senator Hart has any question which follows
right along at this point, I would be glad to yield.
Senator HART of Michigan. No.
Senator MATHIAS. Thank you, Mr. Chairman. I want to join with
S~nator Hart in thanking the Attorney General for all the help he
grves to this committee. "Whether we call on him for philosophical
treatises or for practical advice, he is always available. I think that
is a very real contribution. And the way in which he helps us leads me
almost to regret that I did not go to the lTniversity of Chicago law
school.
Attorney General LEVI. Senator, you are going to go far.
Senator MATIIlAS. You have talked. a little about the Smith Act, and
a?<?l~t the seditious conspiracy clause in connection with the responsiblhtIes
of the FBI. And I wonder if you think there is sort of a elated
aspect to these.
325
Attorney General LEY!. 011. of course there is, and 1 want to say
that when' one talks about th~ looseness of the guidelines, one ought
to read the statutes which callie out of Congress. That is why 1 say
that it is sort of amusing as we go al'oUIlll flattering each other, we all
bear-I mean all of the institutions bear-responsibility.
Senator )IATIlIAS. I could not agree with you more, and 1 think 1
have said repeatedly that I think a lot of the problems that are dumped
in the cOUlis awl a lot of the burdens that the courts bear have begun
right here on Capitol Hill because we have not carefully sculpted the
laws to make it clear what the legislative intent was. And in fact, perhaps
they have been carefully sculpted to obscure the legislative intent
in some cases. And the cOUlis then are left with the burden of
finally administering the law rather than either the legislature prescribing
it, or the executive enforcing it.
Attorney General LEVI. Kot only that, you dmft statutes that quite
clearly say one thing and the Attorney General is then asked for his
opinion which he is required to gi\'e as to what it means to a Government
department. He gives it. Another Honse of this Congress then
proceeds to make llIotions to hold the man in contempt for following
the opinion of the Attorney General. And Professor Kurland, my good
friend, says do not listen to the Attorney General, he is only a lawyer.
There is a responsibility in Congress for having statutes clear and
for abiding by what they say, and if they do not like them, change
them. 1 agree with you.
Senator'MATIII.\S. '1 would hope that with all the admonitions that
we are giving ·to other people these days that we take that one ourselves,
that the laws need to be more carefully written.
Attorney General LEVI. YeS,it is easier to see abuses by others, 1
know.
Senator MATHIAS. Let me say that 1 think we need some help in
this endeavor. that there are mailV cases in which the actions taken by
Congress are criticized later wheli the errors might have been avoided
by some cooperati\'(~ action in the process.
Attorney General LEn. I meant that to be clear when 1 was referring
to all'parts of the GOYernment.
Senator l\L\TIIL\S. Bnt. specifically in relation to the seditious conspiracy
laws in the Smith Act, tlw courts have talked about the advocacy
provisions of the law so strictly as to reqnire incitement of imminent
lawless action as a test and 1 think that does really date these
acts.
Attorney General LEVI. 1 think so. And while J want to say that in
the guidelines we tried to emphasize that there is a question of how
mnch one ought to spell out the nature of the evidence, in part, because
I think that even spelling it out might have a chilling effect.
Senator MATHIAS. Now you have led me right to my next question,
which is whether \w should pnt any limitations on the type of information
that is to be gathered in a purely domestic intelligence
investigation.
Attorney General LEVI. 1Vell it may be that one has to try one's
hand at drafting them. 1 have.
Senator l\fATIIIAS. It is a tough one, 1 think. but we have seen as a
result of this, investigation of family matters. Is that proped Can
326
you prescribe it in a general way that sexnal activities, purely legal
activities, but perhaps not within the mainstream of what most Americans
arc thinking of doing, personal relationships, all of this kind of
thing----- -
Attorney General Lf;n. 'Yell, one can try. "!}wt we die] was, as I
say, to provide a wry tongh and mayIx> too tough standard, because
it is spec.ific. And al'ticnlable facts, giving reason to believe that an
individual is engagN] in activities described in the paragraph which is
force and violence to do the following things.
Now, that may be too restrietin>. Now, if one starts to say what kind
of things can one look at which might suggest and lead you to see
these things. I do not know. Am] I snppose we all have to admit that
public attitudes about aetivities and therefore, maybe the activities
themseh'es mean different things at different tilllPs. And maybe one has
to have a different set of mles created fl'Om time to time and one of the
notions of the guideline \,"onld Ix>, I think. to do that.
I am not in favor of Congress every year deciding whether it is
against homosexuality or particular oHH'r aberrant sexual conduct.
And therefore this can be included or not included as the winds blow.
I think that would Ix> probably not legislatin>ly very desirable.
Senator MATHUS. Let ns snppose, howe\"er. just for the sake of diseussion.
that tlH'se activities are the proper scope of a domestic intelli- ('
gence investigation and that that innstigation is condncted and its
object is obtailH'd and the im'estigation is closed. then what should
happen to this material, given the infinite capacity of the Government
today to store and retrien' information ~
Attorne)" General LEVI. 'VeIl. the ~ruidelines attempt to go in the
direction that, after a period of time. material should Ix> done away
with.
Senator, you han~ often posed questions for me to th,ink about and
this is another one that I think we ought to think about together: that
is the destruction of information. It is also the destmction of evidence
which might be used to show abuses by the Burellu.
Senator MATHIAS. If I knew HlP ans\v!'r I would not ask the qu!'stion.
Attomey General LEn. If I knew the answer I would give it.
But, I am saying, because Tthink it is a \"eryimportant question-Senator
l\L"-THL\S. I think what you suggest is a wry pertinent, very
eurrent consideration. that if von destrov all the files, you can do more
than all the perfumes of Araby in wasliing out the blood.
At<torney General LEn. The guidelines do move in that direction.
There is an argument abont the time for the destmetion of
information.
Senator )!ATlIIAS. There is a concurJ~nt question: If files are retained
for any period of time. are thev open for the purpose of name
ehecks during that period, which is a related but really a separate
questi.on, for background checks, for employment checks, that kind
of thmg.
Attorney General LEn. 'VeIl you could haw selective sealing of files
and I suppose seleetive destruction of items. But it is a very difficult
thing.
Se~ator l\L\TlIU8: I would ~ike to explore briefly your thoughts on
a subJect \ve ha,\"e dIscussed '.nth other witness('s at som(' length. And
327
that is "'hrther 'yOU hl'lil'w that a wal'l'ant requirement for beginning a
donwstic intel1igencp inH'stigation ,,-ould meet the standards in the
fourth amendment if it l"('quired h'ss than probable cause for the issuancl'
of a 'Val'l'ant, probable causl' to bpliew that a crime has been or
was about to occur.
Attol"lll'y Grneral Lnl. I think tlw qupstion rpally would be what
the warrant wou1<1pnable tIll' obtainpr to do.
l-wler the guidl'lines. just opening a preliminary im'estigation,
what can be done is not ,'rrv much. It is so much less than a full inwstigation.
So, I think I ,,:ould tUl'll thr question around.
I think the comt would really wonder whv vou want the warrant.
And it c~rtainly,vouM clog tIll' courts. • • .
Senator ~L\'rIIL\s. Tlw intrusion of an informant. for example, mto
a political discussion. or any otlwr acti "itirs is a much grrater intrusion
than a bug or a wirrtap in that same cOll\'ersation.
Now, would this be, ,vould the placrment of an informant he that
kind of activity?
Attol'lley Gpneral LEn. ",VeIl. you SPP. the prpliminary im'estigation
does not really allow new informants, so, as I say, it is quite
limited.
And I did respond that I understand then' is a problem about the
human par, till' human rye, which we discussed last timp. But, I doubt
that going for a warrant in each of those cases is feasible.
And I think we have to bl' grown up enough not to fpel that we always
han' to go to the comts. Now, that may makP us feel that there
is a lack of protection. But I think a gTl'uter protection is to curtail the
scope of the inn'stigations to make sure that they are Ill'ld to a high
standard and to control dissemination of the information.
Senator ~1ATIIL\S. "'Veil. I think that is the proper test: whether
you can embark upon what arp ob,-iously immature reactions to events.
I do not think tIll' f01lrth amendllwnt itself is subied to a test of maturity
or immaturity, but-- .
Attorney Genl'ral LEVI. No, I do not think the fourth amendment
requires a warrant.
But I understand the argument that it is better, it is sometimes
better to put a man on tilt' Moon, because hl' will know more than a
machinl'. So you are saying tilt' same thing in terms of infOl,ners.
Senator ~L\THIAS. Finally. Il't me just retul'll to the Smith Act for
a minutp. which, as I understand it, requires incitement to imminent
action to on'rthrow the GOH'rnnwnt by violl'nce. If a domestic intplligenee
inwstigation can brgin with far iess. only a theoretical advocacy
of some change--
Attomey Gl'neral LEn. I do not think it should bl'gin with It theoretical
advocacy .of change. Now. if you asked me whether it ever
does, my answer IS I do not know. But I do not think it should begiu
with that. .
Senator ~L\THIAS. ",VeIl, I think that bPtween those two positions,
there is a danger of first amendment violations. And I like your position.
I am not arguing with you-- .
Attol'lley Genl'ral LEn. ",VeIl. we rpWl'ote this domestic security
investigation guideline because I was disturbed bv the prior draft as
not being tough enough and I think that I may -now have come out
66-077 () - 'if; -
328
with something that is too I'estricti\'e. I am not sure. ~\nd this i~ a
proper process of discussion back and forth, not only here but wIth
the Bureau and I hope that one can get something from it that is
useful.
Senator )IATIIL\S. Thank you \'f'I'V much.
Tho CIL\lR::\L\~. Senator jIondale.
Senator l'10XDALE. Thank you, )Ir. Chairman.
)11'. Levi, I think the most fateful question that this committee, our
ConO"ress and our Government must face is whether we are going to
step"'beyond the Stone line, and permit in\'('stig~tin' agenc,~~s to go
beyon(l matters of la,,' enforcement. matters of so-called lIlternal
security."
If we decide that we must, then I am persuaded we should only do
so based upon unarguable evidence that an exception is needed and
then to O'rant such an exception only under the severest and most
closely d~fined standards, and, if possible, under court supervision.
If we fail to do that, I am convinced that this committee has failed
and that in another 50 years, there will be hearings just like this in
which the excesses that we have uncovered will have been repeated,
I say that because I think anything we do has to stand the test
of what we have learned. And what we have learned is that the power
to use the police for politics is a seductive and irresistible one. No President,
no Attorney General can resist it. Few have.
But we have now found that it is not a partisan issue. The Presidents
of both political parties amI a Director who served under Presidents
of both political parties were absolutely unable to resist the right
to snoop into the private affairs of Americans, not to enforce the law,
but in order to gain some political advantage. If you look at hUlllan
history, this has haprened everywhere, which is why we adopted the
Bill of Rights. The FBI was set up precisely because it happened in
'Yorld 'Val' I and we had the scandal of the Palmer Raids and all the
rest.
'Vhen I look at these vaguely defined guidelines, I have to ask,
would they stand up under the direct orders to the contrary from a
President of the United States? vVould they stand up in the face of a
willful Director who is angry or hostile or suspicious about wille of
~he~ political ideas, or about the next Martin Luther King? My feelmg
IS that based upon what we have learned, without any doubt, they
woul.d be swept away, as quickly as a sand castle being overrun by a
hurncane, they would mean nothing.
'yhat we decide to do cannot be tested by the words, hut by our
notIOns of how human nature works when empowered in this way to
play God with the American people. That is the test and it has got to
be t~sted by what happens when the Nation is in frenzy and in fear,
nnd It has !!ot to be tested by what people do when they do not think
they are gOI,ng to be caught. And, for that reason, I see the step beyond
the Stone hne, namely beyond the enforcement of the criminal law,
as not a step forward, but a step off a cliff, right back into the morass
that we find ourselves in today.
.If you look at this record, it is a horrible one. The way Martin Luther
K~ng was hounded and harassed is a disgrace to every American. That
tIllS country once took all the .Japanese and put them in internment
ca~ps we n.ow know is one of the blackest pages in American history.
It IS that kmd of record that whatever we do has to be tested against.
329
For that reason I think \ye Illl\'e to (lI'aw a line, the line that .Tudg-e
Stone suggested. If we do grant exceptions, they have to be specifically
and rigidly and unquestionably drawn, because there is no point in
talking about oversight if the standards are not understandable. And
these laws have to be so clear that the Attorney General and the Director
of the FBI would have to say when the President calls, "I am
sorry, Mr. President, but we cannot do it, it is against the law." If they
are not able to say that, I am convinced we will be right b~ck here,
someone will, those who follow us, 50 years from now, holdmg hearings
similar to these.
Would you respond to that? . , ' ,
Attorney General LEn. 'Velk I tlllnk, hke the Stone statement. It IS
a good admonition. As I tried to say in my statement, I do not think
the Stone standards indicate that there should not be domestic security
investigations because the Stone standard talks about items within
the proper juriSdiction of the Bureau and violations of law and if you
are going to have an investigating agency which is going to be at all
responsible in those areas, they have to know some things which are
related, closely related to violations of particular kinds of law. And
I do not believe that the standards that have been drawn up are as
vague as your statement, perhaps, suggests, because, when one uses the
standard of the stop and frisk case, that is the standard, very close and
perhaps too close.
So, I think in terms of the Stone standard, it probably meets it. I
am not sure that there is this big gap, because this says specifically,
"specific and articulate facts giving reason to believe that an individIlal
or individuals acting in concert are engaged in activities" described
in that paragraph. Those are activities of force and violence in violation
of the criminal statutes.
So-and I should remind you, as I know I do not have to, that, as
we said before, Congress has passed some rather broad criminal
statutes.
Senator MOXDALE. Oh, yes.
Attorney General LEVI. And the Stone standard is not very mean,
ingful if you do that.
Senator MOXDALE. The question now is once we know what has happened,
and we know the abuse that arises when people have this un~
imited, ill-defined power, what do we do, if possible, to try to prevent
Its recurrence? That is the issue that faces you. That is the issue that
faces me, and I am convinced that guidelines written by the executive
can be rewritten by the executive, and if not by you, by those who folJow.
An~ they will mean absolutely nothing against the will of a willmg
PresIdent, a willing Attorney General, or a willinO" Directorabsolutely
nothing, because they do not have the force of law.
Attorney General LEVI. There's no disagreement. I don't think I
should apologize for having ventured into the drafting, into having
the guidelines drafted. It seems to me that that had to be done. I certainly
do not take the position that parts of them should not be put in
statutory form. and I certainly do not take the position that some of
them should n~t be put in Ex~cutive order form. I think we ought to
lise all the deVIces. those deVIces where more permanence is wanted
a.ud those devices where there might have to be changes from time to
tIme.
330
Senator l\foXDALE. Now, Mr. Levi, are you persuaded t,hat you have
personally reviewed the specific instances of abuses by enforcement
agencies, particularly the FBI? Are you personally confident that your
guidelines fit and meet and prevent a recurrence of those abuses?
Attorney General LEVI. The guidelines are not completed.
Senator MoxDALE. Have you personally looked through those materials
'?
Attorney General LEVI. At all the abuses? Certainly not.
Senator MO~DALE. Well, certainly not, you say. Mr. Schlesinger,
confronted with a similar problem, sent a ,,-ire to all of his CIA facilities
and said, "Gi,-e us all the examples that you know of in which <:mr
laws and our authority ha\'e been abused." Have you done anythmg
like that?
Attorney General LEVI. I have done several things.
Senator MO~DALE. Have you done anything like that?
Attorney General LEVI. I am trying to answer.
Senator MONDALE. All right, proceed.
Attorney General LEVI. We have an investigation going on of the
COINTELPRO and COINTELPRO-like activities. We have several
communications from me to the Director, directing that he report to
me what he thinks are sensitive or irregular requests or practices. So
that I think that we have done both things that were done by Mr.
Schle-qinger.
I assume that Mr. Schlesinger's behavior has purified the CIA. I
really do not know.
Senator MONDALE. Well, let us take the most celebrated case of abuse,
Dr. King. Has someone in your Department read the FBI's whole file
on this?
Attorney General LEVI. I cannot answer that question. Three people
now are going through the entire file.
Senator MONDALE. FBI file?
Attorney General LEVI. Yes.
Senator MONDALE. The entire FBI file?
Attorney General L~VI. So far as I know; yes.
Senator MONDALE. Are you sure of that?
Attorney General LEVI. So far as I know, Yl'S. If the question suggests
that they cannot gpt at the file, that is really not the problem.
The problem might be that there are so many files which may be in a
variety of other files and rpferences that it may be difficult, but there
is not a problem about their getting ac('ess to the files, and they tell
me they are doing it. I ha,-e not myself done it.
I have some feeling myself that I do not want to read the Martin
Luther King file. I wanted to regard it, in fact, out vi the sense of
propriet~es and privacy as sealed because it seems to me that it was
ap~)I'op~rate for the sake of the privacy of Dr. King to have that matenal
(hsposed of, and I saw no point in my personally reading it.
Senator )IO~DALE. In other words. you al'e of the understanding
that all of the FBI and other im-estigative Justice Department files
of Dr. King have been reviewl'd?
Attorney General LEn. No. I am saying that I WI\S sufficiently
disturbf'd about it so that I am ha,-ing them all re,-iewed.
Senator :MO~DALE. Yon said yon asked the Director of the FBI,
Mr. Kelley, for improprieties. Haye yon gotten a report on that?
331
Attorney General LEVI. 'Ye have had some reports on where he
thinks there are sensiti\'e matters.
Senator )10XDALE. Do you have a complete report on improprieties?
Attorney General LEVI. I do not know that I would put it that way
because there is a problem of what is an impropriety; where there
are sensitive issues which he thinks may raise a question, my belief
is that he now brings them to me.
Senator )10XDALE. 'Vhat was your request to him?
Attorney General LEVI. \Vell, I do not have the precise statement.
Senator ~IOXI)ALE. I mean, what were you trying to get from
him? Evidence of FBI improprieties? A record of what had
happened ?
Attorney General LEVI. \Vell, there are problems of misbehavior,
of what I would regard as misbehavior, or might regard as misbehavior,
and when one deals with matters of this kind, it is a learning
process because the words do not always carry the same meaning.
I was told when I came to the Department that the COINTELPRO
project had been completely reviewed and exposed. After I was in
the Department, I discovered-and I think partly as a result of miscommunication
to the Director-that they had found other items in
the COINTELPRO project, and those were reported to this committee
and to other committees, but the point is that you might have
projects which go beyond the confines of COINTELPRO, which
might still involve similar behavior.
Senator )IoxDALE. \Yas it your testimony, if I heard you correctly
just now, that this committee has received the reports given you by
Director Kelley in response to your request?
Attorney General LEVI. No; I did not say that. I said that this
committee received, I believe, a letter from me describing the additional
COINTELPRO projects.
Senator MOXDALE. Not just COINTELPRO. As I understand your
statement, "I instructe<l Director Kelley to report to me any requests
made of the Bureau or practices within the Bureau which
he deems improper 01' which present the appearance of impropriety,"
and then, "on FebI'Uary 28, Director Kelley ordered FBI personnel
to report such requests or practices to him:' and I think you indicated
that you have recei\'ed some in response to that inquiry.
Attorney General LEVI. I say here, the Director promptly replied
he has regularly provided information on programs underway within
the Bureau which could raise questions.
Senator ~IoxDALE. Did you get a report to him in response to that
request?
Attorney General LEVI. I have gotten reports from him. That is
what this sentence says. He has prO\'ided information on conduct
that could raise qtlPstions.
Spnator ~IOXDALE. Ordered FBI personnel to rpport such requests
or practices to him. Xow, has that been done?
Attorney Gelleral LEVI. Yes; he did report them.
Senator MOXDALE. He ordprpd it? Did he get the report?
Attorney General LEVI. 'VeIl, I believe he did because I think
that was one of the reasons that the additional COINTELPRO items
surfaced.
332
Senator ~IOXDALE. ",Yas this just limited to COINTELPRO ~
Attorney General LEn. Xo.
SenatOl:~IoXDALE. Can \ve ha \'e those reports?
Attorney General LEY!. I do not think there arl:' very many of
thl:'m, but I assume you can have them. The only thing is that it is
hard to, it is a continuing process, and there are-I would probably
not think they \Hlllid raise questions of misconduct but more be a
matter of sensitive questions.
Senator ~IOXDALE. "'Yell, I would like to have the reports that came
to Director Kelley in response.
Attorney General LEYI. "'Yell, that I do not know about.
Senator )IoxDALE. I am asking you, as the head of the Justice
Department, if we could get those reports ~
Attorney General LEVI. "Tell, I do not know if you can or not,
but we will certainly consider it.
Senator )fOXDALE. ",Yhy not ~
Attorney General LEn. Because I think that it is one thing to give
reports of that kind in confidence to a committee of this kind and
another thing to make them public.
Senator )!OXDALE. The CIA ga ve theirs to us. "Thy can't you?
Attorney General LEY!. "'Yell, I am not in the CIA. I do not care
to be. I do not wish to be.
Senator MOXDAL'E. Do you consider that a good answer?
Attorney General LEY!. I-yes; I consider the answer as good as
the question.
Senator )!OXDALE. "'Yell, I think that kind of arrogance is why we
have trouble between the executive and the legislative branch. Thank
you, ]\fr. Chairman.
The CUAIRMAX. I understood Senator Mondale's question to be
whether you would furnish certain documents to the committee, not
if you wished them to be made public or not that he was asking that
the committee make them public. I do not know that we had any
problem in the past with the Department in getting information of
this kind.
Attorney General LEVI. I apologize to Senator Mondale if I appeared
arrogant. I thought that somebody else was appearing arrogant,
but I apologize.
The point is that if you ask agents to report on what they may think
is misconduct, if they think that that is going to be made public,
that would, I believe, be very chilling. 1, personally, have no reason
to not want to give it to a committee if it is to be kept in confidence.
I do not know what the Bnreau's position on that would be, and my
relationship with the Bnreau is that I like to discuss these matters
with tlH'm before giving a definitive answer because I am not that
arrogant.
The CUAIR:\IAN. "'Yell, leaving all personal references aside, I think
that vou know that v;hen this committee has asked and received information
in confidencr, it has kept the confidence.
Attorney General LEVI. And we have tried very hard to give
you information.
The CIL\IR:\L\X. So that ought not to be any problem, and I would
appreciate your following up Senator ~!ondalr's rpcpwst because I
regard it as an important one and not a fri\'olous onp, and in that
333
connection let me say, just before we move on to further questions,
that some time ago, in early August, you sent a letter to me in which
you request('d from tlw committee-this seems appropriate now because
it is a request in re\'erse-you requested of the committee infonnation
that was contained in our files, transcripts, and testimony
which might bear upon investigations currently being conducted by
this Departnwnt. You did not get 11 \\Titten I'l'ply to that letter, but,
as I think you will recall, we met shortly later-and I think Judge
Tyler was present, and I was present at the time-and this subject
was touched upon. and I said that the committee wanted to cooperate
in making available whatever information we could that would be
helpful to the Department and that there would be a followup in
which )11'. Schwarz and )11'. Smothers would collaborate with representatives
of your Department to find out the best way for proceeding
to implement the .Justice Department's request.
Since then you have sent sen'ral more letters. Just recently we have
I'l'reived more letters relating to more tar,2'eted matters, including
the Ik Martin Luther King matter and the Chilean matter.
I simply want to assure you, as a matter of public record, that the
committee, having considered this earlier request, is fully willing to
cooperate in any way. and we will see to it that procedures are now
worked out so that there will be no further delay. Our preoccupation
with the assassination investigation and the issuance of the committee's
report has preempted our time, but we think that these requests are
important, and we stand ready to work with the Justice Department
in making all relevant information available.
Attorney General LEVI. I am delighted to have that assurance.
The CUAIRMAX. Now, Senator Schweiker.
Senator SCHWEIKER. Thank you very much, Mr. Chairman.
Attorney General Levi, I am pleased to see that you have announced
this week the establishment of the Office of Professional Responsibility
to aid in the oversight of the ilwestigations or allegations of misconduct
by different employees within the Department of Justice. I have
been interested in something along this line for some time, and I commend
you for taking the lead in this area. I would just like to really
ask you a few questions about the kind of concept that this is.
Originally, Attorney General Saxbe had something that, at one
point, was labeled the Office of Special Review. I just wonder briefly
how it differs and what the difference might be in terms of structure or
organization?
Attorney General Lt:VI. "'VeIl, the differe~lcesmay not be as great as
I thought they were when I drafted out tIllS new order, but there are,
I think. these differences. In the first place the Counsel would be in the
Office of Special Responsibility and. unlike the person who would be
in the Office of Special Review, he would be in a position to directly
receive complaints and then to directly refer them or to make a recomnwndation
to me about them.
As I read the Office of Special Review, the holder of that office would
not have been in 11 position to receive complaints unless the complaint
was given to him by the Attorney General or the Deputy Attorney
General.
Now, I thought that additional channel, while I hope it will not be
the major channel, was an important thing to keep open, and, there334
fore, I wanted to make that clear. I also wanted to embody in this new
order the experience that we have had. \Ve have called in special
groups to do investigating as we did with the DE..\. when we organized
a special team, and I wanted to reflect in this order that there would
be occasions ,vhen the ordinary investigative practices would not be
sufficient. I wanted to have the Counsel put in the position where he
could recommend that a special kind of review would be necessary
through a different kind of a group, perhaps through a group assembled
by him, perhaps going outside of the Department.
I think this spells it out better, although my belief now is that one
could have found that probably in the prior order. It was not as clear
to me.
Finally, I wanted to be sure that there was a memory in the Department
and a continuation and a continual review of practices and
procedures and ability to get the material from any parl of the Department.
I wanted to spell that out and frequent reporting, and I also
wanted to have an advisory committee from the whole Department
to this Counsel.
Now, as I say, as I have thought about it since, I wonder, is it that
different '? I think it is different. In some respects it is stronger, and
I felt we should make it stronger.
Senator SCHWEIKER. Will this office have the ati.thority to go into a
program review like the GAO program audit, or will it be primarily
focused on allegations of misconduct or both?
Attorney General LEVI. 'VeIl, I think it will be focused on allegations
of misconduct and it ,,,ill also focus on the procedures and effectiveness
of review, but it is set up so that it can recommend beyond
that, and if it wishes to recommend for the Department such other
kinds of review then it is within the Counsel's prerogative to do that.
Senator SCHWEIKER. And what kind of staffin~ is anticipated?
Attorney General LEVI. I anticipate a small staff because I do not
want to build up another bureaucracy with a large investigative staff.
I think that, by and large, if the Counsel makes such suggestions we
will then have to find out where to go and how to deal with it. I do
not want to set up another large investigating staff, which will have
to be investigated.
Senator SCHWEIKER. One of the things that came out this week-and
I am not sure that this would be subject to this new committee or office
procedure or not-but there has been a lot of discussion about the
personal files of Mr. Hoover that Helen Gandy had, and I would just
like to read one paragraph from the latest issue of Time magazine that
seems to show a little bit of a twist, if I understood it, because up until
now there were mainly personal files that Miss Gandy went through.
This latest edition says:
Before secretary Gandy could look at Mr. Hoover's office, the files, the most
sensitive papers were calTied off in an Ii'BI truck to West Virginia's Blue Ridge
Mountain Club, a Shenandoah Mountain hideaway used by innennost FBI
officials for regular poker games with the CIA and other cronies. The papers
were burned in the club's large fireplace. Precisely who ordered this destruction
and carried it out has not been disclosed. The three-story club worth $300,000,
was hurned down in a fire of unknown cause Decemher 23. No e,·idence of arson
has been discovered.
This indicates to me, if it is true, and I do not know if it is true at
all, some FBI participation in terms of separating: out files so that
even ~Iiss Gandy could not see some of these files and obviously, if the
335
StOl',\~ is a~'('urate, tl~ey were destroY,ed. Can you shed an,Y light on that,
and IS tIns somethlllg that the Office of Professional Conduct would
be looking into? •
Attol'lley General LEVI. I have asked the Criminal Division to investigate
any and all of the items relating to the Department of .Justice
which have come before this committee. And, of course, they are rather
anxious to get this material. and this certainly will be part of it.
Senator SCIlwEmER. Can you give us any indication whether this
account is accurate at this point?
Attorney General LEVI. 'VeIl, I really cannot because I have to say
that it does not-it does not conform to my memory of the documents
that I have seen. But I cmillot really answer that question.
Senator SCHWEIKER. On the matter of the Office of Professional
Conduct, will it have the right to go in anywhere it feels it should go,
in terms of pursuing its job, as I understood what you said? 'Vould
there be any restraints?
Attorney General LEVI. I think it will not be subject to restraints.
I think it may have to be subject to negotiation.
Senator SCIlWEIKER. And it ,vould have access to all of the material
in its original form, if need be?
Attorney General LIo;n. I think the negotiation might be whether,
if need be. I can understand that there might be some sensitive information
which there would be resistance to giving and so on. But I
think that anything it needed it ,vould get.
Senator SCIIWEIKER. 'Vauld you l'nvision that a new joint committee
of Congress charged with overseeing intelligence acti"ities might have
access to information such as their reports?
Attorney General LEVI. 'VeIl, I think that is going to be dependentthat
is a touchy subject because if it is going to be public, then the way
the material is obtained and the way it is written about will be in a
certain way. If it is going to be kept confidential, and ".e know it is
going to be confidential, then there are less problems. I am not sure.
Senator SCHWEIKER. So as far as you are concerned, that is open to
negotiation at this point in terms of working something out that would
meet the guidelines you have in mind?
Attorney General LEn. 'VeIl, I think so. There is no joint committee
at present, and of course, that is one of the problems. Certainly
one would hope that a reasonable exposure to what was being done
would be available. But I do not really believe-I do not really think
that it is appropriate for a joint committee to be on top of exploring
the files of the Bureau.
K ow I know there is a great difference of opinion between some membel'S
of the committee at least on that. I think that is close to the line
of managing the Bureau and I think its management really is not a
legislative function. But certainly to be advised, to have that kind
of appropriate oversight to be helpful on that, I think would be fine.
The CIL\!R}L\X. 'Vould the Senator yipld?
Of course it is not an appropriate fimction of the Congress to man(
late tlU' FBI or to second guess their investigation of ongoing cases.
But assuredly, it is part of the responsibility of the Congress to investigate
wrongdoing and if we have reason to believe that there is
"Tongdoing. within the Burpau. it may be necessary to get to the raw
files in order to ascertain that. If that does not go to the heart of the
oversight function, I do not know what does.
336
Attorney General LEVI. 'Yell it is like lIIany of the questions that ,ve
have discussed earlier. One has to be very sensitive to the limitations
because if yOIl have an 0lwn investigation and there is the possibility
of any political influence, either to act or not act, then I get very upset
at the notion of those going to a congressional committee.
And I think everyone can understand that kind of problem. So it
has to be balanced.
Senator SCHWEIKER. Well, Mr. Attorney General, I can understand
protecting informants and protecting raw files. I think that is legitimate.
That is something that we would have a responsibility in the
Congress to do. But I do have trouble, assuming that can be worked
out, and I think that is a very important point, particularly from the
administration of the Department of Justice and the FBI. But assuming
that can be ,yorked out. I do not see hmy yOIl can p03sibly be
protected; that what we just saw happen in the last 30 years will not
happen again, and that your inspection force will work, or that any
oversight committee will work unless we do have that kind of
prerogative.
On the basis that I outlined, it just seems to me ,ye are sort of
deluding ourselves in view of what has happened, not to have that
access, first for you, but secondarily for some responsible element of
the Congress that would be guided by certain restrictions protecting
that.
Attorney General LEYI, My only suggestion is that it may be that
the Attorney General should be able to see things which the congressional
committee ought not to see. And I just think we have to think
that through. There are stages. They are all problems of privacy. They
are all problems of exposing individuals to obloquy. I think we have
to take all that into consideration.
Senator SCHWEIKER. That is all I have.
The CHAIRMAN. If we had not had access to the raw files, we would
never have disrovered the FBI's plan to discredit Dr. King and pick
his successor. And you recognize the responsibility of this committee
and we have worked out procedures which have enabled us to reach
this basic evidence in ways that did not reveal informants or did not
reveal agents. And I think that guidelines of this kind could be ,yorked
out between a permanent oversight committee and Attorneys General
so that the committee could get its job done. So I really do not believe
that the problem is insuperable, and the fact that we hitve been able to
get to the raw files when we needed to demonstrate that it can be done.
Senator Hart ~
Senator HART of Colorado. Mr. Attorney General, I would like to
pursue this last question 1 minute further, and that has to do with
raw files. It is my understanding that in the recent GAO inquiry into
Bureau activities, they worked almost exclusively, if not totally exe1usvely,
from Bureau or Departmental summaries. Is that correct, in
their investigation ~
Attorney General LEVI. Well, that is what I understand.
Senator HAIrr of Colorado. And what yOIl are saying here today is
that in the future, if there is established an oversight, a permanent
oversight congressional committee, that your recommendation would
be that raw files, reporting under some restrictions, would be available:
337
that it would be the same guidelines and the same kinds of investigation
that the GAO does.
Attorney General LEVI. I did not mean to assert that it would have to
be based on summaries. No, I did not. I just think we have a problem
as to the proprieties of what the joint committee-if there is a joint
committee-would want, and what we should appropriately give.
I have to say that there might be a temptation on the part of our
Department of .Justice to give more than it wanted to, and in later
years that might be a problem. So one has to balance that.
Your committee, this committee did not ask for all of the King
files. And I rather suspect that this committee had the same, to some
extent at least, the same feelings of sensitivity and propriety which I
had when I said I did not want to look at them because there are materials
there which I really think should be regarded as secret. And
that is the kind of problem one has to get into.
Senator HART of Colorado. But as a basic proposition, you are willing
to go beyond that to some degree?
Attorney General LEVI. Yes; I am. Of course the Bureau might not
like the idea.
Senator HART of Colorado. Oh, I am sure they will not.
Yesterday I asked Director Kelley about the letter we received from
one of your assistants, Mr. Pottinger, in connection with investigation
of the King case internally. And he asked us for FBI records and
rlocuments, "all materials" was the phrase I think he used. The Director
seemed somewhat puzzled by that, but I guess my question is:
Why is the Justice Department contacting this committee for FBI
records?
Attorney General LEVI. Well, I cannot imagine why, unless you were
given the only copies.
Senator HART of Colorado. I would be surprised if that happened.
Attorney General LEVI. But if the suggestion is that he can only get
them that way, and not directly from the Bureau, I think that is
really incorrect because it just happens that I have specifically asked
Mr. Pottinger whether he had access to all the materials and he said
yes. But it may be that our form of record keeping is such that you
have things where we do not know where the copies are, and you have a
great deal of material.
Senator HART of Colorado. But you have no doubt that you will get
everything the FBI has on this matter?
Attorney General LEVI. I have no doubt that people investigating
it for me will get everything the FBI knows that it has. As you know,
it is possible that there are materials in other files somewhere.
Senator HART of Colorado. 'Well, I am talking about conscious
withholding.
Attorney General LEVI. I do not believe there will be conscious
withholding.
Senator HART of Colorado. If or when you depart from the Department
of Justice, will you so do with any degree of fear of an overly
indepenrlent FBI in the future? Leaving aside the question of the relationship
that exists now, but is it a matter of concern to you about
your succe::-sors; that the Bureau is too independent of the Attorney
General?
338
Attorney General LEVI. ",VeIL I have already said that I think that
there is a certain amount of distance and indeI)eIHlence. It is probably
desirable. But, of course I am concerned, of course I am concerned. I
am concerned not only about the future but of today.
Senator HART of Colorado. And therefore you would suggest that
Congress ought to also be concerned about that?
Attorney General LEVI. I have said so. I agree.
Senator HART of Colorado. In connection with these guidelines that
we are talking about, one of the very puzzling areas that this committee
is engaged is the Huston plan, Operation CHAOS and so on. back
in the 1960's and early 1970's; the tendency on the part of both the
Department and the Bureau and many in the White House to fear
that domestic protest groups. particularly in connootion with matters
of race or the Vietnam war, had some outside or foreign domination or
guidance or direction or support.
What do you think these guidelines should say for the future about
separating genuine domestic, domestically oriented and controlle<l
protest that is legitimate and constitutional, from the kind of official
governmental harrassment that did in fact go on with very, very little
substantial support for the proposition thlllt it was foreign dominated?
What can be done about that in the future?
Attorney General LEVI. It is terribly difficult for the very reason
of your last phrase, in which you correctly emphasized that we do
not have the guidelines on the foreign dominated organizations. The
question is how close one can come to barring evidence of that domination
when the purpose of the investigation in some sense has to be
to obtain that very data. So I suppose what one would try to do is to
use some kind of a likely standard or something of that sort as one
approaches it and then a reason to believe or some such thing which
we have come to temporarily on the domestic security ones, the stop
and frisk standard which is a pretty stringent standard for investigation.
But I think there is a problem.
Senator HART of Colorado. But not with judicial approval; I think
that is your strong recommendation?
Attorney General LEVI. I do not know whether it is strong or not.
Senator HART of Colorado. It is consistent.
Attorney General LEVI. I just do not think that is the most desirable
path. I think it puts an enormous burden on the court. I do not
know how the court will exercise it. I doubt if it is the best way. But
it may be one way.
Senator HART of Colorado. In a hypothetical situation, where you
are the ultimate decision-maker as to whether a wiretap should be
implanted. and the rights of the indi,"idual would be jeopardized,
the constitutional rights of that individual or that group would be
clearly jeopardized by the proposed surveillance, wiretapping or
whatever, what would be your own personal judgment on that, where
there was an absolutely even question; there was no question constitutional
rights would be infringed upon, anrl yet the balancing consideration
was that there might be some evidence of criminall1ctivity
or subversion or whatever?
",Vould you come down on the individual or group's side. or the
other way?
339
Attorney Gelwral LEn. ,Yell. I must believe that there is a misuudHstal1('
ling between us because I do not authorize anything where
I think there is a violation of constitutional rights. So I think I must
be misunderstanding.
Senator HART of Colorado. 'Yell, I am trying to get inside the
mind of an indi\'idual who is going to have this authority; that you
do not want an officer of the court to have, about what outweighs
what, where you do not know what information you are looking for,
and the Bureau agent is recommending a wiretap or a mail search and
he is just saying I think there may be some evidence here that we
might need, and so on and so forth.
So I ha ve to put it in a hypothetical-Attorney
General LEVI. You see--
Senator HART of Colorado. Do you resolve differences in favor of
the individual (
Attorney General LEVI. I do want to say something about the hypothetical.
In this first place, under title III, the wiretaps require judicial
appro\'al and the legislation that we are drafting concerns
electronic surveillance which is not a title III matter. 'Ve are suggesting
because of reasons which I think I stated before to the committee,
our dew that judicial approval might be desirable.
As to mail openings, it seems to me that, at the present time at least,
that would require a warrant so that--
Senator H.\RT of Colorado. Well, I am talking about a national
security area where there is no judicial--
Attorney General LEVI. I do not know of any national security authorization.
I do not want to get into that area. But I do not know of
a present authorization which would permit me to, without a warrant,
authorize the opening of mail. So I think one has to weigh the individual
rights very seriously and obviously give them emphasis. But I
do not like to be suggesting by my answer that in those particular
hypotheticals that the decision would be made without-or could
be made or would be made without judicial review because I think in
those particular examples there would be a warrant-there would
have to be a warrant.
Senator HART of Colorado. Well, I am talking about the area
where thl'I'e are no warrants. But I cannot frame the hypothetical
dearly enough.
Attorney General LEVI. 'VeIl. it has been framed in terms of the
use of informants; and where I do not think there should be a warrant,
and th('re is not a warrant, as far as I know, and there does not
have to be, in terms of constitutional requirements, at least at the
present time. I think one does ha\'e to be very sensitive. I think Stone
was correct and if you are going to have an agency of this kind, and
it is going to sUl'Yive with the proper discipline and so on, it has to
be extremely sensitive to individual rights.
The CUA1R:\IAN. Senator Hart, do you have further questions?
Senator HART of Michigan. Yes, Mr. Chairman, on specifics really.
On this business of congressional oversight, we have been going
back and forth with you and with others earlier on the standards and
guidelines of investigations. This morning you indicated that some
of the guidelinl's might well be in statute and others in regulation,
and you suggested executive orders, and that gets to the point that
340
even in the area where statutory definition of guidelines is appropriate.
no matter how skilled the drafter. it will leave unanswered certain
things. So it also will ha\"e to be implemented by departmental
ordprs and guidelines, making eH'1l more explicit the do's and dont's
and safeguards.
Should not those regulations, which you, or you and the Bureau,
or the Bureau issue to implement or elaborate on whatever we do by
statute. be subjed to debate an(l approval. at least by the Oversight
Committee, which everybody assumes we will have, if not by the Congress?
Is not that rrally the starting point for a useful oversight?
~\ttorney General LEn. "'Veil, I think a useful oversight can involve
debate and, hopefully, it will involve approval. but if you mean
by that. formal approval by a committee as a new form of additional
legislation, I think it raises constitutional questions, and I really do
not know why one would want to raise those questions because it does
not seem to me essential.
Senator HART of Michigan. "'VeIl, it may be unconstitutional to
require the elections commission to come in and tell us what they propose
to do to implement the rules of criminal procedure.
Attorney General LEVI. "'Veil, Senator Hart, I had been asked how
constitutional I am in various ways, and I think the Constitution
applies and should be followed, and I think there is a constitutional
question. It may be that we should change the Constitution and have a
form of subsequent legislation through congressional committees.
I think there is a problem. There is an abuse. I happen to think that
the affirmative action legislation, if you trace affirmative action legislation
by the Congress to Executive orders and then to the Labor
Department, you have a horror story. It happens to be a horror story
that some people like, but I regard it as a horror story because the
deviations are quite goreat. So, it is possible that here, if you have very
general legislatIOn and then you have Executive orders and then you
have other orders, the deviation may be very great. I understand the
problem, and I would hope that an oversight committee could look
at it, but to have the oversight committee then have a veto power or
a new subsequent enactment power seems to me to be a strange
creation of a subhouse of, I do not know what, the Congress, and I
regard it as probably not legislation, but rather an Executive
function.
If it is going to be legislation, I think it should be legislation.
Senator HART of Michigan. I am not wise, but I am wise enough
not to pursue a constitutional issue with you. I am almost tempted to
have you ask the Department and the Bureau who does those things
to give us a memo on why it might be unconstitutional with respect to
the point I am suggesting, reviewing and approving guidelines, interpreting
statutory direction with respect to the Bureau, but not unconstitutional
for us to claim, as we do and have, the right to veto
rules of criminal procedure, but the Director has been burdened
enough.
Attorney General LEVI. 'Ve could put it back and require enactment.
You could have a procedure in which after the statute, the regulations
would be put before the Congress and require enactment in order 10 be
effective. ~
341
Senator HART of ~Iichigan. That would certainly be onrsight. This
follows up an earlier point of discussion. \Vhen we do pass a statute, we
can see how the courts and the agencies are applying thrm because of
the agenC'i~,,' actions and the courts' dc~isions are public. It would not
really affect safpguanls in this area, require that the oversight committee
be able to see the kind of documentation that had been given to
you, or if it is a case of going to a court, seeking a warrant. that underlying
matm'ial really would be the best basis for an oversight commiUpe
making the judgment as to whether the Attorney General appropriately
was supplying what was intended.
Do you agree that oversight, how the statute or your guidelines or
others' guidelines requires that kind of access? I know this looks way
down the road.
Attorney General LEVI. Yes, I think it does. \Vell, the facts of life
are that you cannot look much because you will not have the time, and
the facts of life are tihatat least I do not think it is goodadminiStration
to have congressional investigators plowing through an agency.
So I think one has to think about those questions. I do believe lthat
with proper safeguards of confidentiality a committee could get such
mruterial.
Senator HART of Michigan. As my question implied, it would seem
to me that unless we knew the kind of argument and evidence that
an At.torney General is finding adequate to meet that standard, we
would not know whether our standards were--
Attol'l1ey General LEn. That is right. There might be some problems.
Every once in awhile ithere is something of such sensitivity that it
might be in a special category, I am sure.
Senator HART of Michigan. On the matter of electronic surveillance
you said some weeks ago the standards to be used with a citizen, with
an American citizen, would be, would depend on whether he is here or
overseas. Perhaps that does not fairly summarize what you said.
A1::torney General LEVI. K0, it does not.
Senator HART of Michigan. All right. I will be a little bit more fair.
You said the different standards would apply when the oitizen was an
agent of a foreign power, which is what you said. Is it your view that
the same standard which really is to say does the fourlth 'amendment
apply equally to an American citizen, whether he is operating at home
or abroad, in terms of the electronic surveillance that can be used by
our Government, or at the request of our Government?
A1Jtorney General LEVI. I do not think it is absolutely clear, but my
answer would be yes, but I do not think it, is clear in the decisions.
Senator HART of ~fichigan. ·What are the present policies regarding
dissemination of the product of eleotronic surveillance when it is
targeted on an embassy or a foreign diplomat, but the device picks up
noncriminal communicaltionsas to Ampricans? Specifically, suppose an
AmeJ"ican is talking on the phone to an embassy of a Middle Eastern
country, and he is discu'3sing plans for political activities to lobby
Congress for support of action which he and other Amerioans plan.
They might even be discussing legislative plans of Senators who disagree
with the administration.
If you han a national security tap on an embassy and pick up that
conrersation, is that fair game for sending to the 'White House simply
because the tap was legal?
342
Attornev General LEVI. The answer is no.
Senator'HART of MiC'higan. On the matter of future deterrence of
unauthorized activity, we have been !talking about what should be
authorized and how to set up procedures. No matter how brilliantly
we draft our statutes and guidelines. the problem of human frailty will
be there. The best system will not eliminate 'temptation or occassional
succumbing to -temptation or transgression. Should there be specific
C'riminal penalties for Government officers who take or approve unauthorized
action in this area?
Attorney General LEVI. In the areas of what?
Senator HART of Michigan. A Government official who ignores,
averts, or violates a guideline.
Attorney General LEVI. Well, there are all kinds of penalties now,
and all kinds of threats of damage suits, and whatnot. I think it is a
question of how serious the viol3Jtion is, how willful it is. I think I
would have to know more about it.
Senator HART of :Michigan. 'Would a good stiff penalty on the books
serve as a deterrent for possible abuse?
Attorney General LEVI. It depends upon the kind of a;buse one is
talking about. and. as I indicated before, the privacy statute in itself
imposes penalties now. If we are talking about the grosser acts of some
Presidents, let. us say, or others making illegal, unauthorized operations
or uses, well, I do not know what the penalty would be on the
President, and somehow or other I have a feeling that I am not sure
that is where a great penalty would make a difference.
Senator HART of Michigan. Let us look at it from the point. of view
.of the fellow whose privacy has been invaded, and violations notwithstanding,
statutory or guideline rule, should he be given standing to
sue for damages ?
Attorney General LEVI. Well, as to whether he has standing and
should be able to sue, where rt:he conduct is illicit, there is no doubt that
there will be suits. There are suits.
Senator HART of Michigan. But my notes say that the court has
held that unless you can show specific damages, which is a tough thing
under the first amendment, that you are barred from challenging inveStigation.
Attorney General LEVI. But I think that were there is not,really is
not, any real damage, I am not sure that damages should be given. I
really do not think that is the way one can--
Senator HART of Michigan. How about standing to seek an injunction?
Even though there is not reason for da:mages?
Attorney General LEVI. An injunction so that the court would be
operating that segment? I would think that would be another problem
as to ,the separation of powers, really; an injunction related to that
particular person maybe. I do not think a class action telling the Department
of .Tustice 'that they could never use this, that or the other
device toward this group-
Senator HART of Michigan. Well, there is nothing novel a'bout seeking
injunctions aga:inst the Attorney General or other departments
from doing something, so I am curious about what we do about someone
who is being tailed.
Attorney General LEVI. 'VeIl. I thought tlmt you were not thinking
about the problem of damages so much, as to the problem of controls
343
on the operation of the Department, and I was looking at it from that
standpoint. I think there is a problem about damages. There is a
problem about the rights of people who may have been injured and
whether they should be notified, and I, frankly, do not know the answer
to thalt question.
Senator HART of Michigan. And you do not know the answer yet on
that one?
Attorney General LEVI. I think it is a very mixed question, and it
may be that they should be notified. I do ndt know how they would
be notified, what the basis would be. It is not something about which
I care to express myself.
Senator HART of ~Iichigan. Well, the mechanics of notifying somebody
whose mail has been opened, that is not complicated.
Attorney General LEVI. I am not talking about mwil openings. I am
talking about such things as in the COINTELPRO, possibly.
SenMor HART of Michigan. Let me read you the full question to
make sure we have covered this. I really thought that you had under
study methods which might respond to the ll'buses in terms of, -at least
alerting American citizens whose privacy had beBn invaded upon.
Attorney General LEVI. We do, but I am just saying that I do not
know whalt the answer is.
Senator HART of Michigan. You are studying and seeking the right
answer?
Attorney General LEVI. Yes.
Senator"HART of Michigan. Well, why is there a problem? Why is
the search for the right answer so complicated in terms of those who
have the subject of COINTELPRO files? Now, maybe they lWill read
about it through these hearings, but there are a whole slew of them.
Attorney General LEVI. There has been a lot of reading about it.
There are Freedom of Information Act requests which, obviously, reflect
a knowledge on the part of some people, but all I am really saying
is that that is one of those matteI'S which I think on.e has to explore.
The first reaction, and certainly my reaction, is that in some way they
should be notified. Then I come to the question of how do we know
,,,ho they are. Suppose nothing actually occurred. Is then the person
to be notified? Or suppose it is the kind of case where if the person
is notified, there might be embarrassment to the person, which is conceivable,
and so on? Is it appropriate for the Department, itself, to
make a tentative judgment as to whether there was any injury or not,
or is that inappropriate?
There are lots of questions in there, and my own inclination is that
they should be notified in some way, but I think it is worth some
thought.
Senator HART of Michigan. And that thought is being given?
Attorney General LEVI. Oh, yes.
Senator HART of Michigan. So that Martin Luther King, who
would have known about a lot of things that were going on, and a
lot of people whose names will never surface in connection with this
committee, who have had similar-well. not similar, but experiences
which might very well give rise to a claim-how soon do you have
to be able to figure out what, if anything, the Department's obligation
is toward them?
66-077 0 - 76 - 23
344
. ,
Attorney General LEVI. Senator, I really do not know. I have called
together a group on that, in fact, two groups. I think whatever answer
is given by the Department may well have to be the same answer that
is given by other parts of the Government. That seems to me to require
some further discussion. And one has to try to think through, as I
say, the consequences. To notify a person that he or she was the
subject of COINTELPRO at this time many years later may actually
cause, perhaps, it is strange to think this, but it might actually cause
embarrassment to that person now who would rather not know it, and
if they had no consequence, if it had no consequence, is that a good
thing to do?
Let me tell you, I was told when I came down to the DepartmentI
do not know if you believe this or not-but I was the recipient of a
COINTELPRO letter, 'but more recently, since I have ordered a
review of all the COINTELPRO files, r have had this letter confirmed
tome.
When I was president of the University of Chicago, apparently an
anonymous letter was written, I gather, claiming that some professor
was a Communist, and r do not know what was supposed to follow
from that, but, in any event, there was, and I do not know whether
the letter was anonymous, but it probably was. If I got the letter, I
would have thrown it away. It would have had no consequence, and
r have no recollection of it. Now, if there is such a letter and persons
exist, then notification of that person, is that desirable? I just do not
know.
Senator HART of Michigan. r would suggest that the Department
ought not to make the judgment as to whether, to use your expression
it had no consequence to the subject. I think that that would be a decision
that more correctly should be made by the subject in his mind, and
not the Department of Justice, as you go through that file. r would hope there could be a resolution of which you would say
to be the right answer.
Attorney General LEVI. r have thought of suggesting the Congress
establish some kind of a claims division. But, in any event, it is something
we are thinking' about.
Senator HART of Michigan. Well, I hope we can come out of this
with some teeth in what we do because you suggested perhaps criminal
penalties would not be very effective, and you describe the difficulties
that attach to civil remedies, and you suggest that no matter how carefully
drafted--
Attorney General LEVI. Well, there are civil penalties now, but I
hate to think that, if guidelines are drafted and if there is a violation
of one of the guidelines, that the consequence is a criminal penalty.
Somehow or other that seems to me an inappropriate way.
Senator HART of Michigan. It would not be a criminal penalty unless
the person knowingly took action in violation of the guidelines.
And if you are paid by the taxpayer, why should you not be subject
to sanctions of that kind?
Attorney General LEVI. I do not really see why payment by the
taxpayel'-------
Senator HART of Michig'an. Well, why should you not be subject
to &'lnctions if you knowingly break the rule?
Attorney General LEVI. I think my problem is that I think you have
problems of discipline in any org'anization, and r think one ought to
be careful not to cO\'er the field of administrative discipline in a gov345
ernment with criminal penalties which I think is self-defeating. So,
that is the only reason.
The CHAIRMAN. Just hyo subjects, Mr. Attorney General, and then
I am finished, and I will conclude the hearing.
Yesterday I asked Director Kelley about the amount of time and
money and general imposition on the overall resources of the FBI that
was represented in the many investigations they routinely make that
deal with appointees or nominees, and people being considered for
Federal employment. And he said he would supply those figures and
give us some idea of how much of the workload this represented.
It is my understanding that the FBI does these investigations only
for sensitive civilian jobs, and wherever a name check digs up information
from FBI files indicating a possible security risk. In other words,
the FBI name check is there if there is an allegation in the FBI files
that a person might have once been associated with a subversive or extremist
organization or something like that, or if the position to which
the nominee is to be appointed is regarded as sensitive. Then the FBI
does the investigation of the nominee. Otherwise, it is done by the
Civil Service Commission.
I am wondering if when it comes to guidelines, that not ought to be
a good place to look pretty carefully to see how much of this is really
necessary. My impression in the past has been that there are many
FBI checks being done for positions that could not possibly be regarded
as sensitive as far as national security is concerned, and maybe we just
have overdone this back in the period when we were terribly frightened,
in the McCarthy years, and it has never been looked at sufficiently
since to see if it still is all that necessary.
Attorney General LEVI. Well, I agree, and a good place to begin is
with executive order that has been modified many times on suitability
for employment.
The CHAIRMAN. I do not know whether it is feasible to try to legislate
here, or whether there could be a way that legislation might be
helpful as a part of the basic or generic FBI law that we hope to draw
up concerning this phase of the FBrs activities. But I wish you would
give some thought to that, would you please?
Attorney General LEVI. Surely.
The CHAIRMAN. The other matter that I want to deal with is that
time and time again in our investigation of the intelligence agencies,
including the intelligence aspect of the FBI's work and the counterintelligence
aspects, we are up against the problem of accountability.
And with the FBI, of course, we have had the additional question of
the President putting the agency to his personal or political use; and u
difficulty which I think Senator'Mondale rightly referred to-the difficulty,
no matter what the regulations may be, and even perhaps contrary
to positions of the law, of refusing to do the President's bidding.
You know, the order of the President or the desire of the President
can be easily rationalized or some kind of plausible excuse can be given
for it that sounds like it might fall within the purview of the law. And
neither an Attorney General or a Director of the FBI is in very much
of a position to argue with the President. And then there is a feeling
of who is going to find out about it anyway.
I asked ,Director ,Kelley yesterday if he thought that orders should
be transmItted to hun from the President throngh the Attorney General;
and second, if orders are transmitted to him to undertake an
346
investigation in which the President has expressed sOllie interest, they
ought to come in writing and a permanent file be kept so that the
accountability is there for review of a congressional committee or for
whatever.
He said that he thought that such directives should be in writing
and that a file, a permanent file of them should be kept. I would like
to ask you how you would respond to those questions. And I put the
questions in this order: First, do you think that if the President \nUlts
the FBI to go out and make an investigation for him and report back
to him, that that order should be transmitted through the Attorney
General? And second, whether you think orders of that character
coming from the President should take the form of a written order and
permanently maintained in the files of the Bureau?
Attorney General LEVI. ",VeIl, I think tIle orders probably should be
written. Now as to the first part of your question, the hypothetical case
might be that the President has decided that he wishes to appoint a
certain person to the Cabinet and he wishes a full field investigation.
Under the guidelines, the President, the counsel to the President or
associate counsel could ask the Bureau to do that. I would think, unless
there is some particular reason, that the Attorney General should be
notified as to what is going on. I think any suggestion of any other
kind of inYestigation of an organization 01' something of that sort,
which I thought you were suggesting, should not come from the President
to the Director, in any case, and if it did come, it certainly should
come in writing and the Attorney General should be notified.
I certainly do not \vant to say that the President cannot speak tQ
anybody he wants to speak to a!l'"l-there is no reason why he should
not be talking to members of the Department/of Justice. I do think it
is a desirable thing when that OCCUI'S, unless it is discussing the
criminal activity of the Attorney General, that the Attorney General
be notified.
Now I think in fact, at the present time, and maybe I would be the
last one to know, but I think the communications are through the
Attorney General, except for the kind of investigations for appointments
which might or might not come to me.
The CIIAIR~L\N. But it is possible that that too might be the subject
of that kind of procedure, the very kind you have outlined can be
the subject of a statute. And if it were, do you think the President
would be hound by it?
Att.orney Gener'al LJ<;n. Oh, he might not be, but in fact he would, I
would think, wish to adhere to it and it would make it easier for
others to suggest that there was kind of a propriety about it.
The CHAIRMAN. Before you leave, and I want to express the gratitude
of the committee for your testimony today and for your continued
cooperation in this joint endeavor, 'but I also want to say that
Michael E. Shaheen, .Jr., who has been the liaison with the committee
staff, has done an excellent piece of work and the staff wishes for me
to express its appreciation to him.
Attorney General LEVI. I would thank the committee and thank
you, and I hope that-you can tell Senator Mondale that I am not
half as aTrogant as he thinks I am.
The CHAIRMAN. Thank you, Mr. Levi.
["\Yhereupon, at 1 p.m., the committee adjourned, subject to the
call of the Chair.]

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