CHURCH COMMITTEE REPORTS

A.  CONCLUSIONS
The finrlings \yhich haye emerged from our investigation conyince
us that the Gowrnnwnt's domestic intelligence policies and practices
require fUlHlamental reform. lYe ha \Oe attempted to set out the basic
facts; now it is tinlP for Congre&'i to turn its attention to legislating
restraints upon intelligence aetiyities \yhich may endanger the constitutional
rights of Americans.
The Committee's fundamentaJ conclusion is that intelligence activities
have un<lermined the constitutional rights of citizens and that they
have done so primarily because checks and balances designed by the
framers of the Constitution to assure accountabiJity have not been
applied.
Before examining that conclusion, we make the following observations.
- 'VhiJe nrarly all of our findings focus on excesses and things
that went Wl'ong, \Ye do not question the need for lawful domestic
intelligener. lYe recognize thai certain intelligence activities serve
perfectJy proper and cJearly necessary ('nds of government. Surely,
catching spi('s and stopping crime, incJuding acts of terrorism, is
essential to insure "domestic tranquility" and to "provide for the
common defense." Therefore, the power of government to conduct
proper domestic inteJJigence activities under effective restraints and
controls must be preserved.
-lYe are aware that the few earlier efforts to limit domestic intelligcnc('
activities han> pron>n ineffectual. This pattern r('inforces the
need for statutory r('straints coupJed with much more effective oversight
from aJJ branches of the Government.
-The crescendo of improprr inteJJigence activity in the latter part
of the 1960s and the early 1970s sho\ys what we must watch out for:
In timc of crisis. the Go'yernment will cx('rcise its power to conduct
domestic int('JJigcnce activitips to the fuJJest extent. The distinction
between legaJ dissent and criminaJ conduct is easiJy forgotten. Our job
is tn r('comnwndmeans to help ensUl'(, that the distinction will always
be observed.
-In an ('ra \yher(' th(' technoJogical capability of Government
reJentl('ssJy inCT('ases. \n> must he wary about the drift toward "big
brother goon>rnment." The potential 101' abuse is awesome and requires
special attention to fashioning restraints which not only cure
past probJems but anticipate and prev('nt the future misuse of
technology.
-IV(' cannot dismiss what we have found as isoJated acts which
were limited in time and confined to a few willful men. The failures
to obey the law and. in the words of the oath of office, to "preserve, protret.
and defrnd" the Constitution. huw occurred repeatedly throughout
administrations of both political parties going back four decades.
(289)
68-786 0 - 20
290
-,Ye must admowlrdge that the assignment which the Gowrnment
has gin'n to the intelligpncr community has. in many ,yays. l"lf'en
impossiblr to fulfill. It has been expected to predict 01' jm'veilt PWI'.\'
crisis. respon(l immrdiatrly with information on any qurstion, act to
mrct all thrcats. and anticipate the f'pecial needs of Presidcnts. And
thrn it is chastisr(l for its zeal. Certainly, a fair assrSS!l1rnt !l1ust placr
a major part of the blame upon the failures of senior executiw officials
all(] Congrrss.
In the final analysis. hmyever. the purposc of this Committre's work
is not to allocate blamr among individuals. Indeed. to focus on personal
culpability may divert attention from thr undrrlying institutional
causrs and thus may become' an excusr for inaction.
Bdorr this invpstigahon. domrstic intrlligence had· neyer been
systpmatically survew(l. For the first time. the Government's domestic
siuTeillancc i)l'ogl"aill s. as thry haye deyeloped over tlw past fOlty
}"pars. can be mraslllw] against the yalues ,,-hich our Constitution
seeks to presrlTe and protr('t. Based upon our full record, and the
findings which ,yp haw set forth in Part III abon'. the Committee
concludes that:
Dom€stic Intelligence Actirity HaB Threatened and [Til del'mined
The Con~titutional Rights of AmfTical1B to Free
Speech. Association and PI'i,·ary. It flaB Done So Primmoily
BeemM(' The C01IBtituti01wl System for Checking AbuBe of
POlDer Has Not Been Applied.
Our findings and the detailed reports which supplenwnt this volume
set forth it massive record of intelligence abuses over the years.
Through a Yast nebyork of informants, anc] through the uncontrolled
or illegal use of intrusive trchniques-ranging from simple theft to
sophisticated electronic slll'willance-the Government has collected,
and then used improperly. huge amOllllts of information about the
private lives, political beliefs and associations of mlllJerous Americans.
Affect Upon Constit/ltional Rig1lfs.-That these abuses han adversely
affected the constitutional rights of partiC'ular Americans is
beyond question. But "-P belieye the harm extends far beyond the citizens
directly affected.
Personal priyacy is protected because it is essential to liberty and thc
pursuit of happiness. Our Constitution checks the power of GOYernment
for the purpose of protecting the rights of indiyidnals, in order
that all our citizens may liye in a free and dec(>nt society. Fnlike
totalitarian states. ,,-e do Ilot belien' that any goyernment has a monopoly
on truth.
',Yhen Gm-ernment infringes those rights instead of nurturing and
protecting them. the injury spreads far beyond the particular citizens
targeted to untold mlmlwrs of other Americans ,yho may be
intimidated.
Free gOYernment depends upon the ability of all its citizens to speak
their minds without fear of official sanction. The ability of ordinary
people to br heard by their learlers means that they milst be free tOo
join in groups in order more effectiYely t'l express their grieyances.
Constitutional Snff'gllal'cIs nl'f' nN'ded to protret the timid as \yell as
the courageous, the \wak as well as the strong. ,Yhilr lllany Americans
hayc been \yilling to assert their beliefs in the face of possible govern291
mental reprisals. no citizen shoulr] lu\\'e to weigh his or her desire to
express an opinion, or join a group. against the risk of haying lawful
speech or association used against him. "
Persons most intimidater] may ,wllnot be those at the extremrs of
thr political spectrum. but rath~r those ]1('\1l'er thr mi(ldle. Yet yoices
of moderation are yital to balance public debate and ayoid polarization
of our society.
The federal gowrnment has recently been looked to for ans'Yers to
nearly rn~ry problem. The result has been a Yast centralization of
po,wr. f'uch power can ])(' turned against the rights of the people.
Many of thc rcstraints imposed b~' the Constitution wcre designed to
,[,'11ard ag'ainst such usc of pmYl'r by the gowrnnwnt.
Since the end of 'YOI'M ,Yar n. gowrnnwntal power has been increasingly
excrciscd through a proliferation of federal intelligence
programs. Thc wry sizc of this intclligcncc system. multiplies the
opportunities for misuse.
Exposure of the excesses of this hugc structure has becn necessary.
Americans are nlnY aware of the capability and proyen "willingness of
their Goyernment to collect intelligence about their lawful activities
and associations. ,Yhat sOllie suspected and others feared has turned
out to be largely tJ'Uc-yigorous expression of unpopular "iews. association
with disspnting groups. participation in peaceful protcst actiyities.
han' proyokC'r] both gowrnment surYeillance and retaliation.
OYer twenty years ago. Supreme Court .Tustice Robert .Tackson.
pre,'iously an Attornry Genrral. ,yarnpd against growth of a centralizP(]
power of im'pstigation. ,Yithout clear limits. a fpderal investigatiyr
agency 'nmld "haw pnough on cnough peoplr" so that "ewn if
it dOl'S not plret to pl'Osrcute t1]('111" the GOH'rnl11pnt would. he wrote.
still "find no opposition to its policies" .•Jackson added. "Eyen those
,,,ho are suppose(] to suppryisp fintelligence agencirsl are likely to fear
[thrm]." His arhice speaks dirpctly to our responsibilities today:
I belieH' that tl1(' safeguarrl of our librrty lies in limiting any
national police or inYestigatiH> organization. first of all
to a small number of strictlY federal offenses. and secondly
to nonpolitical ones. TIl(' fa~t that we may han confiden~e
in the arlministration of a fedrral innstigatin agency under
its rxisting hrar] does not mran that it may not rewrt again
to the days ,,,hrn the Departmrnt of .Tustice ,yas headed by
mpn to 'Yholll the inyestigatiw pmwr was a ,wapon to be userl
for thrir own purposes.1
F'rd111J'(, to .17)111.1/ r'hedt8 (://(1 Bl7lq)/(,(,8.-Thc natnral tenrleney of
GOH>rnment is tmvarrl abuse of power. ~Ien entrusterl ,Yith power,
r\'en those a'Yare of its dangers. tend. particularly ,vhen pressured.
to slight librrty.
Our constitutional sYstem guards arrainst this tenrlrncy. It establishes
many different checks upon' pmver. 'It is those wis'" rpstraints which
keep I11rn frer. In thp firl<] of intplligpnce those rpstraints han too
often been ignored.
1 Rohert H . .Jackson, T/lr 811prr1l1e rnurt in t/lr A.1I1rrirnn 8y.~tcm nf Gnverllment
(XI'W York: Harper Torchbook. 1955. 196~). pp. 70--71.
292
The thrre main (lepal'tnrrs in ilir intelli,\Trncr firM from the ronstitntiona1
plan for controlling almse of pmwr han hrrn:
(II) F,r(,(,88il'(' Fa'('nd ir(' POII'('I'.-In a srnsr t1](' growth of domrstir
intrlligrncr acti\-itirs mirror('(l thr grmyth of p'rrsi(lpntial powrr
grnerallY. Rut morr than any othrr actiyitv. more rHn than exercisr
of thr \)'ar pO\wr. intrlligrncr adivitirs haw 1)('rn lrft to thr contTol
of t1U' Executin.
For drcadrs Conrrrrss am1 the conrts as \)'rll as thr press and tlU'
pnblir have accented tllP notion that the control of intelli,\Trncr activities
was tl 1r rxr1nsiw prrro!!ativr of tlw Chirf Ewcutiyr am1 his surrogates.
TllP rxrrcisr of this' powrr \vas not CIllPstione(l or rwn inlluirrd
into bv ontsidrrs. Inde('(1. at timrs thr pow\>r was s('rn as flowing not
from the la\)'. lmt as inherent in the Prrsidencv. ,Ybatrver thr thron-.
tlw fact was that intrlli,\Trl1Cr activitirs \wre rssrntialh- rwmptrd from
thr normal system ofd1rrks an(l balanrrs.
Rnch ExrcutinCl po\wr, not fonndrd in law or chrrkrd hv Congrrss
or tl1P courts, contained the seeds of abuse and its growth \yas to be
rxprcted. '
(0) F;r('('88i1'(, S('('}'(,(,1I.-A1msr thrives on srcrrcy. Oln-iouslY, puh1ic
disclosnrr of mattrl's snch as the names of intellig.ence agrnts or the
technolo,\Ti.ca1 details of co11rction methO(ls is inappropriate. Rut in
the firld of intrllirrrncr. secrrcv has bern extrnded to inhibit rrvie\v of
thr hasic nrof!rams am1 practices t1wmse1vps.
Thosr \)'ithin thr Execntin' hranch and thr Congress who \,-ou1d
rxrrcisr thril' rrsnonsibilities \viselv must 1)(' fnl1y informrd. The
Amrrican puhlic. as wrll. shonl(l kno-iy enough ahout intelli,!!rncl" activiti('
s to h(1 ahlr to apply its good srnsr to thr undl"rl~'ingissups of polic~'
am1 morality.
Know1rdil" is the key to control. RrcJ'PCv should no lon!!rr be a110\\'
r(1 to shirld thl" existE"ncl" of constitntiOllal. ll"gal aml m~ra1 probl(>
ms from thl" sCl'ntinv of all thrrl" hranchrs of govrrnmrnt or from
the Anwrican neoplr thl"msl"lvl"s.
((') A1'oidllJl('(, of tn(' R1I7(' of J:rl1l'.-La\ylrssnrss hv Gonrnmrnt
hrrrds corrosi\'r c\'nicism among thr proplr and rrodrs the tnrst upon
which govrrnnwnt deprnds.
Herr. thrre is no sovprpign \\'ho stands abovr thr law. Each of us.
from prcsidents to thr most disad\'antaged citizen. must obey the law.
As intrlligence o]wrations drvelone(1. however. rationa lizntions \\'rre
fashioned to immnnize them from the rpstraints of the Rill of Rights
am1 thr snrcific prohibitions of thr criminal codr. The experience of
onr im'esti!"ation leads us to conc1udr that such rationalizations are a
dangrrous dr1usion.
R. Prind7?7(,8 A71P7i('d in Fmmin,q R('('omm('ndrrtion8 ('11r1 The. ,'-.'copc
of th(' R('('mnm('ndrrtion8.
Although Olll' rrcommrndations arr nnmerOllS and dehlilrd. thry flow
naturally from oIII, hasic conclusion. Ewrssiw intrlli!!rncr activity
which u'ndermilU's in(lividnal ri!!hts must rnd. The s\:strm for cOJitrolling
intelligrncr must lw hronght hack \\'ithin th~ constitutional
schrmr.
Romr of Olll' proposals arC' stark and simple. Rf'causr crrtain domrstic
intplli!!rncr acti\'itirs \\'rrE" c1rarlY "Tong. thr ob,-ious solution is to
prohihit thrm altogdhrr. Tlms. \n' \)'ould han tactics such as thosr usr<1
293
in the FBI's COIXTELPRO. But otllPr acti\'ities prpsent morp complex
problems. ",Ye spe a clear need to safeguard the constitutional
rights of s]werh. asspmbly, and pri\'acy. At the same time, we do not
wa~lt.to prohibit or unduly restrict nerpssary and proper intelligence
actlVItv.
In s~eking to accommodate thosesonwtimps conflicting interests we
hllYC bepn guided by tIl(' earlipr dforts of those who originally shaped
our nation as a rl'public under law.
Thl' Constitutional amendments protecting spel'ch and assembly and
individual priyacv sel'k to prl'sl'ne values at the core of our hpritagc
amI yital to our fntnrp. The Bill of Rights. and the Supreme Court's
decisions inteqweting it suggest thrpp principll's which we haw follmwd:
(1) GOn'rnml'ntal action which directlv infrin!!es the rights of
free speech and association must be prohibited. The First Amendment
rpcognizps that p\'en if useful to a proper pnd. certain governml'ntaI
actions arl' simpl:v' too dangerous to permit at all. It commands
that "Congress shall make no law" abridging freedom of speech or
assembly.
(2) TIl(' Suprpmp Court, in intl'rprpting that command, has required
that anv goyernnwntal action which has a collateral (rathl'r than
(lirect) impact upon the rights of speech and assembl:v is permissible
only if it meets two tests. First. the action must be undertaken only
to fulfill a compelling gOYernmental nl'ed. and spcond, the govl'nllnen't
must use the least restrictiYe means to meet that need. The effect upon
protrcted intprests must bp minimized.2
(:3) Procedural safeguards--"auxiliary prpcautions" as tlwy were
chamcterized in the Fedl'ralist Papers 3_must be adopted along with
substantiye restraints. For pxample, while the Fourth Amendment
prohibits only "unreasonablp" searches and seizures. it requires a procedural
check for rl'asonableness-the obtaining of a judicial warrant
upon probable cause from a neutral magistrate. Our proposl'd procedural
ch('rks rangp from iudirial review of intl'lligence ,activity
befOl'e or after the fart. to formal and high level Executive branch
approval. to greater disclosure and more effective Congressional
onrsight.
The Committee belipves that its recommendations should be embodied
in a comprphenfliyc legislatin charter defining and controlling
the domestie sl'curity arti\'ities of the Federal Govemment. Accorrlingly,
P'art i of the recommendations proyides that intelligence
agencies l11ust be made subject to the rule of law. In addition. Part i
makes clear that no theory. of "inherent constitutional authority"
or otherwise. can justify thl' violation of any statute.
Starting from the conclusion. based upon our record. that the Constitution
and our fundamental vahlPs require a substantial curtailment
2 De Greqory Y. New Hamp8hirr. 3&~ U.S. 825,829 (1966) ; NAACP Y. Alabama,
377 F.S. 2M (1964) : Gib8(yn Y. FTor;af1 Leq;81ativc Tnvc8tiqafion Cornmi8.~ion, 372
F.S. fi39. fi46 (1962) : ShrTfr)1j v. Turkcr, 364 U.S. 479, 488 (1960).
'Manison, Feneralist No. fi1. Martison mane the point with grace:
"If men were an/<els. no /<overnment wouln he necessary. If angels were to
govern men. neither external nor internal controls on /<overnment woulrt he necessar~
·. In framing a government. whh'h is to he artministered hy men over men, the
great nifficult:v lies in this: :vou must first enahle tIll' /<oyernment to control the
goyernen: ann in the next place ohli/<e it. to control itself. A nependence on the
people is, nfl nouht, the primary cont.rol on t.he government; hut experience has
taught mankind the necessity of auxiliary precaution!!."
294
of the scope of domestic surveil1ance, we deal after Part i with five
basic questions:
1. "'hich al!pncies should conduct domestic securityinwstil!ations?
The FBI should be primarily responsible for such investigations.
Under the minimization principle, and to facilitate the control of
domestic intelligence operations, only one agency should be im'olved
in investigative activities which, even when limited as we propose,
could gin:' rise to abuse. Accordingly, Part ii of thrse rrcommendations
rrflerts the Committee's position that foreign intelligence agenries
(the CIA, NSA, and thr military agencies) should be precluded
from domestic security activity in the United States. Moreover, they
should only become involwd in matters involving the rights of Americans
abroad "'here it is impractical to use the FBI, or "'here in the
course of their lawful foreign intelligence operations 4 they inadvertently
collect information relenmt to domrstic security investigations.
In Part iii tllP Committer ]'('commends that non-intelligence agencies
such as the Internal Rennue Service and the Post Office be required,
in the course of any incidental involYement in domestic security
investigations, to protect the privacy which citizens expect of
first class mail and tax records entrusted to those agencies.
2. W'hen should an American be the subjed of an investigation at
all; and when can particularly intrusive covert techniques, such as
electronic surveillance or informants, be used?
In Pmi iv. \vhich deals with the FBI. the Committee's recommendations
seek to prennt the excessively broad, il1-defined and open
ended investigations shown to have been conducted over the past four
decades. 1Ve attempt to change the focus of investigations from constitutionally
protected advocacy and association to dangerous conduct.
Part iv also sets fmih specific substanti\-e standards for, and
procedural controls on, particular intrusive techniques.
'1. 1Vho should be accountable within the Executive branch for ensuring
that intelligence agencies comply with the law and for the
inwstigation of aJJeged abuses by employees of those agencies?
In Parts v and vi, the Committee recommends that these responsibilities
fall initially upon the agency heads, their general counsel
and inspectors general, but ultimately upon the Attorney General.
The information necessary for control must be made available to those
responsible for control. oversight and review; and their responsibilities
must be made clear, formal. and fixed.
4. 1~That is the appropriate role ofthe courts?
In Pali, vii. the Committee recommends the enaetment of a comprehensiVE'.
civil remedy providing the courts with jurisdiction to
entertain legitimate complaints by citizrns injured by unconstitutional
or il1egal activities of intelligence agencies. Pali viii suggests that
criminal penalties should attach in cases of gross ahuse. In addition,
Part iv l)J'ovides for judicial warrants befOl;e celiain intrusin' techniques
can be used.
5. 'What is the appropriate role of Congress:
In Pali xii the Committee reiterates its position that the Senate
create a permanent intel1igf'I1C€ oversight committee.
The recommend.ations deal \"ith nnll1l'rons otlwr issnes snch as the
proposed repeal or amendment of the Smith Act, the proposed. mod-
• Directed primarily at foreigners abroad.
295
ernization of thr Espionage Act to COWl' modern forms of espionage
srriouslv drtrimcntal to thr national interest. the use of the GAO to
assist ('ongrrssionaI oW1'sight of thr intelligrnc(\ community, and rrmr<
1iall1lras11rrs for past victims of impropel' intrlligrncr aeti\'ity.
ScojJc of Rrcommcndatio1J8.-The scope of our rrcommendations
coincides \vith tIw scopr of om inYestigation. IVr examinrd the FBI,
\vhich has bern rrsponsible for most domestic security invrstigations,
as well as foreign and military intrlligrncr agencies, the IRS, and
thp Post Office, to thr extrnt tlwv became im'olnd incidentally in
domestic intelligencr functions. IVhilr there arr undoubtedly activities
of othrr agencies which might legitimately be addressed in these
recommendations, the Committre simply did not haw the time or reSOl11'
CrS to conduct a broader inn·stigation. Furthermore, the mandate
of Senate Resolution 21 required that the Committee exclude from
the cowrage of its recommendations those activities of the federal
gon'rnment which are directed at organized crime and narcotics.
The Committee belieYes that American citizens should not lose
thrir constitutional rights to be free from improper intrusion by their
GO\'ernment when they tran>l overseas. Accordingly, the Committee
proposes recommendations which apply to protect the rights of Americans
abroad as well as at home.
1. Arti1'itie8 ('o/'cTcd
The Domestic Intelligence Recommendations pertain to: the domestic
security activities of the federal government; 5 and any activities
of military or foreign intelligence agencies which affect the rights of
Americans G and any intelligence activities of any non-intelligence
agency working in concert with intelligence agencies, which affect
those rights.
B. Actil'itic8 Not ('oured
The recommendations are not designed to control federal investigative
activities directed at organized crime, narcotics, or other law enforcement
investigations unrelated to domestic security activities.
3. Agrncies ('ol'cred
The agencies whose activities are specifically co\'errd by the recommendations
are:
(i) the Federal Bureau of Investigation; (ii) the Central
Intelligence Agency; (iii) the Kational Security Agency
and other intelligence agencies of the Department of De-
6 "Domestic security activities" means federal governmental activities, directl'{
l against Americans or conducted within the United States or its territories,
inclnding enforcement of the criminal law, intended to (a) protect the United
States from hostile foreign intelligence actiYity, including espionage; (b) pro,
tect the federal, state, and local governments from domestic violence or rioting;
and (e) protect Americans and their gO\'ernment from terrorist activity. See
Part xiii of the recommendations and conclusions for all the definitions used in
the recommendations.
• "Americans" means U.S. citizens, resident aliens and unincorporated associations,
composed primarily of U.S. citizens or resident aliens; and eorporations,
incorporated or having their principal place of business in the United
States or ha\'ing majority ownership hy U.S. citizens, or resident aliens, including
foreign suhsidiaries of such corporations, provided, however, Americans does
not include corporations directed by foreign governments or organizations.
296
fense; (iv) thelnternalRevenueSenice: and (,') thernited
States Postal Service.
,Yhile it might be appropri'ate to provide similar detailed treatment
to the acti\'ities of other agencies, snch as the Secret Sen·ice. Customs
Sen'ice, and Alcohol, Tobacco, and Fin'arms Division (Tre'asury
Department) l the Committee did not study these agencies intensinly.
A pprmanent oversight committee should investigate and study the
intelligence functions of those agencies and the effect of their acti\'ities
on the rights of Americans.
4. Tndily:ct PI'ohibiti()-n.~
Expept as specifically prO\'ided herein, these Rccomnwndations are
intended to prohibit any agency from doing indirectly that which it
would be prohibited from doing directly. Specifi("ally, no agency covered
by these Recommendations shon1cl request or imlnce any other
agency. or 'any pprson. whether the agency or person is American or
foreign, to engage in any activity which the requesting or inducing
agency is prohibited from doing itself.
5. lrIdi?'idnals and Gl'Ou]Js Not Cocaed
Except as specifically provided herein. these Recommendations do
not apply to investigation of foreigners 7 who are officers 01' employees
of a foreign pO\\'el', or forei~'11ers who, pursuant to the direction of
a foreign power, are engaged ill or about to engage in "hostile foreign
intelligence activity" or "terroristactivity".8
6. Geographic Scope
Theso Recommendations apply to intelligence acti,'ities ,yhich affect
the rights of Americans whether 'at home 01' abroad. including
all domestic securitv activities ,,·ithin the Fnited States.
7. LegislatiL'e Enactment of Recommcndations
~fost of these Recommendations are designed to be implemented in
the form of legislation and others in the form of regulations pursuant
to statnte. (Rpcommenclations 8;") and 90 are not proposed to be implemented
by statute.
O. Recommendations
Pmsnant to the requirement of Senate Resolution 21. thesr recommendations
set forth the new congressional legislation [the Commit·
tee] deems necessary to "safeguard the rights of American citizens." 9
IVe belien~ these rrcommendations are the appropriate condusion to
a traumatic year of disclosures of abuses. IVe hope they \yill preyent
such abuses in the future.
i. Intelligence Agencies Are Subject to the Rule of Law
Est1ablishing a legal framc"'ork foragencie8 engaged in domestic
security inyestigation is the most fundament'al reform needed to end
the long history of yiolating anil ignoring the law set fOl'th in Finding
A. The legal framework can be created by a two-stage process of
enabling legislation and mlministratiye regulations promulgated to
implement the legislation.
7 "Foreigners" means persons and organizations who are not Americans as defined
above.
, TllPse terms. which cover ·the two arl"as in which the Commilttee recollllllends
authorizing preyentive intelligence investigations, are defined on pp. 340-341.
• S. Res. 21, Sec. 5; '2 (12).
297
Howewr, the Committee proposes that the Congress, in developing
this mix of legislative and administrative charters, make clear to the
Executi\'e bmnch that it will not condone, and does not accept, any
theory of inherent or implied authority to violate the Const.itution,
the proposed new charters, or any other stMutes. ",Ve do not beheve the
Execntive has, or should have, the inherent constitutional authority
to violate the law or infringe the legal rights of Americans, whether
it be a warrantless break-in into the home or office of an American,
warrantless electronic surveillance, or 'a President's authorization to
the FBI to create a massive domestic security program based upon
SPcTet oral dirpctives. Certainly, there would be no such authority aftN
Congress has, as we propose it should, cowred the field by enactment
of a comprehensive legisl'ative charter.'o Therefore statutes enacted
pursuant to these recommendations should provide the exclusive legal
authority for domestic security activities.
Recommendation 1.-Thel'(~is no inherent constitutional authority
for the President or any intelligence agency to violate the law.
Recomm.endation 2.-It is the intent of the Committee that st'atutes
implementing these recommendations provide the exclusive legal
authority for fedeml domestic security activities.
(a) No int€lligence agency may engage in such <activities unless
authorized by statute, nor may it permit its employees. informants, or
other covert human sources 11 to engage in such activities on its behalf.
(b) No executive directive or order may be issued which would
conflict with such statutes.
Recommendation 3.-In authorizing intelligence agencies to engage
in certain activities, it is not in:tA>nded that such authority empower
agencies, their informants, or covert human sources to violate any prohibition
ena.cted pursuant to these Recomendations or contained in the
Constitution or in 'any other }aw.
ii. United States Foreign al1d jJf1?itm''!! Agencies Should Be
Precluded from Domestic Security Activities
Part iv of these Recommendations centralizes domestic security investigations
within the FBI. Past abuses also make it necessary that
the Central Intelligence Agency. the National Security Agency, the
Defense Intelligence Agency, and the military departments be preeluded
expressly, except as specifkally provided herein, from investigatin\
activity which is conducted within the United States. Their
activitips abroad should also be controlled as provided herein to minimize
their impact on the rights of Americans.
a. Oentral Intelligence Agency
The CIA is ra<;ponsible for foreign intelligence and counterintelligence.
These recommendations minimize the impact of CIA operations
on Americans. They do not afft'd CIA investigations of foreigners
outside of the United States. The main thrust is to prohibit past
ac'tions revealed as excessive, and to transfer to the FBI other activities
which might involve the CIA in internal security or law enforce-
10 Sel', c.g., Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579
(1952 ).
11 "COVl'rt human sources" means undercovl'r agl'nts or informants who arf~
paid or otherwise controlled by an agency.
298
ment matters. Those limited actidties ,yhich the CIA retains are
placpd uIHler tighter controls.
The Committee's recommendations on CIA domestic 'actiyities are
similar to Executiye Order 1190;'). They {rO lwyond the Execllti,-e
Order. hmwnr. in that they recommend that the main safe{rllards be
made la",. And. in addition, the Committee proposes tighter standards
to preclude repetition of some past abuses.
General P1'ovisions
The first t",o Recommendations pel'1aining to t11(' CIA proyidr the
context for more specific proposals. In Recommendation 4. the Committee
endorses the prohibitions of the 1947 Act upon exercise by the
CIA of subpoemL police or la", enforcement pmwrs or intemal security
functions. The Committee intends that Congress supplement,
rather than supplant or derogate from the more general restrictions
of the 1947 Act.
Recommendation 5 clarifies the role of the Director of Central Intelli{
rence in the proteotion of intelligence sources and methods. He
should be charged ",ith "coordinating" the protection of sources and
methods-that is, the deyelopment of procedures for the protection of
sources and methods.12 (Primary responsibility for investigations of
security leaks shollldreside in the FBI.) Recommendation 5 also makes
clear that thc Director's responsibility for protecting sources and
methods does not permit violations of law. The effect of the new Execnti,'
e Order is substantially the same as Recommendation 5.
Recommendation 4-To supplement the prohibitions in the 194-7 National
Security Act against the CIA exercising "police, subpoena, law
enforcement pmyers or internal security functions," the CIA shonld be
proh'ibited from conducting domestic secnrity activities within
the rnited States, except as specifically permitted by these
recommendations.
Recomm<>l1datio71 5-The Director of Central Intelligence should be
made responsible for "coordinatin{r" the protection of sources and
methods of the intelligence community. As hear] of the CIA, the Director
should also be responsible in the first instance for the security
of CIA facilities, personnel operations. and information. Xeither function,
hmyeyer, authorizes the Director of Central Intelligence to violate
any federal or state la,y, or to take any action which is otherwise inconsistent
'Yith statutes implementing these recommendations.
OIA Activities Within the United States
1. Wiretapping, illail Opening and Unantnorized Entl'y.-The Committee's
recommendations on CIA domestic activities apply primarily
to actions directed at Americans. HO\Ye,-er. in Recommendation 6 the
Committee recommends that the most intI'usiyc and dangerous investi-
12 As noted in the Report on CHAOS, former Directors haye had differing- interpretations
of the mandate of the 194i Act to the Director of Central Tntellig-elH'p
to lJrotect intpl!ig-ence sources and methods. The Committee ag-rel's with former
Direetor "'illiam Colb~- that thl' w·n Act only anthorizes the Director to perform
a "coordinating" and not an "operational" roll'.
299
~atiYe techniques (electronic surveillance; 13 mail opening; or unauthorized
entry 14) should be used in the l-nited States only by the FBI
and only pursuant to Ithe judicial warrant procedures described in
Recommendations 53, 54 and 55.
This approach is similar to the Exccutiye order except that the
Order permits the CIA to open mail in the 'Cniteel States pursuant to
applicable statutes and re~ulations (i.e., with a warrant). The Committer's
rerommendations (sre Parts iii and iY), places all three
techniques-mail opening, electronic surveillance and unauthorized
entry-under judicial warrant procedures anel centralizes their. use
within the FBI under Attorney Geneml supenision. The CommIttee
sces no justification for distinguishing among these techniques, all of
which represent an exercise of domestic police powers 10 which is inappropriate
for a U.S. foreign intelligence agrncy within the United
States and which inherently involve special dangers to civil liberties
and personal privacy.
2. Other Covert TechniqU€8.-The use of other covert techniques 16
by the CIA within the United States is sharply restricted by Recommendation
7 to specific situations.
The Committee would permit the CIA to condnc't. physical surveillance
of persons on the premises of its own installations and facilities.
Outside of its premises, the Committee would permit the CIA to conduct
limited physical surveillance and confidential inquiries of its own
employees 17 as part of a preliminary security investigation.
'" Tht' actiYity complt'tely prohibitPd to CIA includt's only the interception of
communications restrictPd undt'r the 1968 Safe Stre..ts Act, and would not limit
the use of hody recorders, or telephone taps or other electronic suryeillance where
one party to the communiC8Jtion has giyen his consent. For example, electronic
coyerage of a case officer's me..ting with his agent would not be Jncluded. The
prohihition also is not intended to co,'er the testing of equipment in the United
States, when done with the written approyal of the Attornt'y General and under
procedures he has approyed to minimizp interception of priYate communication!!
and to lIrerent improper dissemination or use of the communications which are
umnoidahly intercepted in the testing process. Xor does the prohibition prl'Clude
the use of countermeasurlC'S to dlC'tpct ellC'ctronic suryeillance mountPd against. the
CIA, ,,'hen eonducted under general procedures and safeguards apprm'ed in
writing by the CIA GlC'neral Counsel.
14 'Tnauthorized entry" means entry unauthorized by the target.
"As part of the CIA's responsibility for its own security, hO\w>,'er, appropriate
personnel should be permitted to carry firearms within the United
States not only for courier protection of documents, but also to protect the
Director and Deputy Director and defectors and to guard CIA installations.
16 "CoYert techniques" means the collection of information including collection
from records sources not readily ayailable to a private person (except
state or local law enforcement files) in such a manner as not to be detected
by the subject. Covert techniques do not include a check of CIA or other
fedt'ral agen('y or state and local police records, or a check of credit bureaus
for the limited purpose of obtaining non-financial biographical data, i.e.. date
and plact' of birth, t.o facilitate such name cheCkS, and the subject's place of
employment. Xor do "covert techniques" include intery!ews with persons knowledgeable
about. the subject. conducted on a confidential basi" to ayoid disdosure
of the inquiry to others or to the subject, if he is not. yet aware of CIA interest
in a prospective relationship, proyided the inten'iew does not. involve
thp proyision of information from medical, financial, educational, phone or
othlc'r confidential records.
17 For purposlC'S of 'this section employet'S includ('s those employees or eon·
tra('tors who work regularly at CIA facilities and ha"e comparable access or
freedom of movement at CIA facilities as employees of CIA.
300
Although the Committee gPIH'l'ally centralizes such, innstigations
within the FBI it ,youM 1w too 11l1rdrnsome to reqmrc the Bureau
to inHstiO"atr r~-el'Y al1e<ration that an employrr has lwrsonal <liilic\
lHies. which couici mak~ him a spcurity risk, or allpgations of S\lSI)
icious behayior sll'l"lrpstin<r the dise10surp of information. Before
inYoh-ing the FBI. "t"lw CI"A coul<1 conduct a pre1"1I111nary .lIlq,mry.
,,-hich usually consists of nothing more than interYie,,-s ,,-ith the subject's
oilicr <~olJt>agues, or his flulI.ily. n~'ighbors 01' associ?tps,. and
perhaps confrontation of tIl(' sub]Pct hllllself. In some sItuatIons.
howewL liillitrd physical sllryeil1ance might enable tlw, CIA to ~'esolyr
the al1egation or to determine that there ,,'as a senous secunty
breach im-olwd.
rnlike the Executive Order, howeYer, the Committee recommendations
limit this authority to presrnt CIA employees ,,-ho are subject
to summary dismissal. The only remedy a,-ailable to the Gon'rnm~nt
for security problems with past employees is criminal prosecutIOn
or other legal action. All security leak inwstigations for proposed
eriminal prosecution should be centralized in the FBI. Authorizing
the use of any cO\-ert technique against contrartors and their employees.
let alone former employees of CIA contractors. as thr Executive
Order does. ,,-ou1<l authorize CTA suneillance of too large a
num]wr of AlllPricans. The CIA can ,,-ithdraw security clearances
nntil satisfird by thr contractor that a security risk has bern remrdird
amI, in serious' cases. any ilwestigations could be handled by the
FBI.
Thr rrcommrndation on the nsr of coyert techniques within the
rnited States also precludes the use of cO\-ert human sources such
as undercoyer agents and informants.18 ,,-ith one exception expressl~'
stated to be limited to "exceptional" cases. The Committee would
anthorizp tlIP CTA to place an agpnt in a domestic group. bnt only for
thr p\lrposr of rstablishing crp(lible co\-er to br usrd in n fon'ign intelligrncp
mission abroad nnd only when the Director of Cpntral IntelligPlIce
fimls it to br "essential" t'o collection of information "vital" to the
rnitP(1 Statps and the Attornpy Gplwral finds that tIlE' operation will be
comlllrtrd llmlrr procedures designed to prryent misuse.19
Apart from this limited exception. the CTA could not infiltrate
groups within the l~]]ited States for any purpose. including. as was
donr in the past. tIl(' purporterl protection of intelligrnce sources nnd
methorls 01' thr genpral security of the CTA's facilities amI persolllwl.
(The Execlltiye Order prohibits infiltration of groups within the
rnitec1 States "fol' pllJ'j)oses of I'pporting on or influeneing its nctivities
01' nwmhprs," but does not explicitly prohibit infiltration to protect
intrlligence sources amI nIPthods 01' the physical security of the
agency.)
18 Rpcommpndation 7 (c) doeR permit background and otber RPcurit~ inYeRtigfitionR
condurted 'Yith gowrnment credpntialR which do not rp,'pnl CTA in,'
olyement and. in extremel~ ~enRitiYe cnReR COl1lll1prcial or other priya te identificntion
to U\'oid diRclosurp of an~ goyprnment ronnertion.
It would alRo pprl1lit CIA im-pstigatorR to dlf'ck the pffprtiypneRR of COYl'r
opPfntionR. without reyealing tllt'ir nffiliation. hy ll1ennR of inquirieR at the
ririnity of parripularly RPnRitiw CIA projPpts. If in tilt' coursp of Ruch inquiries.
unidentified CIA employees or contractors' emplo~pes arp ohserYPd to
be endangering the project's cover, they may be the subject of limited physical
301
3. Oo17ectio11 of lnform.ation.-In addition to limiting thr usr of
palticnlar coyer( terJiniqlles. the Committee limits. in Recommrndation
R. thr sitnations in which thr CIA may intentionally co]]Pct. by
any means. information within the Fnited Stat~s conccrning Americans.
The recommendation permits the CIA to colled information
within the Fnited States about Americans only with respect to persons
\yorking for tIl(' CIA 01' ha ying sOllie other significant affiliation or
contact \yith CIA. 'I'll(' CIA should not be in thl' busincss of ill\'e~tigatin,!!
Alllpricans as intelligence 01' counterintelligence hlrgcts within the
l~nitpd Statps-a responsibility which should be centralized in the
FBI and perfornlPd only under the circumstances proposed as lawful
in Part iv.
The Exccutiye Order only restricts CIA collection of information
about Americans if the information concerns "the dom.e8tic acfivitie8
of L~nited States citizens." Fnlike the Committee, the Order does not
restrict CIA collection of information about foreign travel or "'holly
hndnl international contacts and communication of Americans. As
the Committee has learned from its study of the CIA's CHAOS opePation.
in the process of gathcring information llbout the international
trayel aml contacts of Americans. the CIA acquired within the United
States a grpat deal of additional information 'about the domestic activitips
of Americans.
The Executive Order also permits colleetion within the United
States of information about the domestic activities of Americans in
several other instances not permitted under the Committee recommendations:
«(l) Collection of "foreign intelligence or counterintelligence" about
the domestic activity of commercial organizations. (The Committee's
restrictions on the collection of information apply to investigations of
organizations as well as inc1iyiduals.) ;
(b) Collection of information concerning the identity of persons
in contact with CIA employees or with foreigners who are subjects of
a cOllnterintelJigclwe inquiry. ("Within the United States, the CommitsUrYpillancl'
at that time for the sole purpose of ascertaining their identity so
that thl'~' may bl' suhsl'quently contactl'd.
,. Such action POSI'S serious danger of misuse. The prl'paration may involve
the agl'nt reporting on his associates so that the CIA can assess his credentials
and his obsprvation and rpporting ability. This could bl'come an opportunity
to collect doml'stic intelligence on the infiltrated group even when an
im'estigation of that group could not othl'rwise be commencerl under the
applicable stanrlards. Ob\'iously, without restrictions the intelligence ICOm·
munity could use this technique to conduct domestic spying, arguing that the
agents were not being "targeted" against the group but were merely preparing
for an overSl'as operation.
This was rlone, for examplp, in the use hy Operation CHAOS of agpnts being
proYirll'd with radical credf'ntials for USI' in "Project 2," a foreign intelligf'nce
operation abroad. (See the CHAOS Rf'port and the Rockl'feller Commission
Report.)
One alternative would be to let the FBI handle the agent while he is preparing
for overseas assignment. On balance, howevl'r, that Sf'ems less desir·
ahll'. TIIP tl'mptation to use the agent to collect domestic intf'lligence might be
stronger for thp agpncy with domestic security responsibilitif's than it would
for the arf'a division of the CIA concerned with foreign intelligence. Also, improppr
use of the agent to collect such information would he more readily
identifiable in the context of the foreign intelligence operation run by the CIA
t):lan it would in the context of an agent operation run by the Intelligence Division
of the FBI.
302
tee would require any investigations to collect such information to be
conducted by the FBI, and only if authorized under Part iY, and subject
to its J)l'~ceduralcontrols.) ;
(c) Collection of "foreign int('lligence~' from a cooperating source
within the rnited States about the domestic actiyities of Americans.
"Foreign intelligence." is an exceedingl~' broad amI yague standard.
The nse of such a standard raises the prospect of another Project
CHAOS. (The Committee "ould prohibit such collection by the CIA
"ithin the United States, pxcept "iih rpsppct to pprsons prespntly or
prospecti\'ph' affiJiate(1 ,,,ith CIA.);
(rl) Collection of information about Americans "reasonably believed"
to be acting on behalf of a foreign power or engaging in international
terrorist or narcotic acti\'ities. (The Committre "ould refluire
investigations to collect snch information ,,'ithin the United
Statrs. to be' conductrd bv the FBI. and only if authorized under
Part iy.) : . .
(r) Collection of information concerning persons considered by the
CIA to pose a clear threat to intelligence agency facilities or personnrl,
prm'ided such infonnation is retained only by the "threatened"
agency and that proper coordination is established with the FBI.
(This ,,-as the basis for the Office of Secnrity's RESISTAXCE program
inyestigating dissent throughout the country.) (The Committee
would require any such "threaF collection outside the CIA be conducted
by the FBI, and only if authorized by Part iv, or by local law
enforcement. )
Rer01nmendat7on 6.-The CIA shou](1 not condu"t electronic surveillance,
unauthorized entry, or mail oprning within the United
States for any purpose.
Recommendation 7.-The CIA should not emplov physical surveillance,
infiltration of groups or any other coyert techniques against
Americans within the United States except:
(a) Physical sUl"willance of persons on the grounds of CIA installations:
(b) Physical surveillance during a preliminary inyestigation of
allegations an rmployee is a securitv risk for a limited period outside
of CIA installations. Such surveillance should be conducted only
upon written authorization of the Director of Central Intelligence and
shoul(l be limited to thr subiect of the investiQ"ation and, only to the
rxtent necessary to idrntify them, to persons ,,,ith whom the subject has
contact;
(c) Confidential inquiries, during a prelimina rv inwstigation of
allegations an emplo~'ee is a secnrity risk. of outside sources concerning
lllPdical or financial information about the subject which is relevant
to those allegations; 19'
(d) The use of i(lentification \"hich does not reyeal CIA or government
affiliation, in background and other security inwstigations permittrd
the CIA by these recommrmlations, and the conduct of checks,
which do not reyral CIA or gowrnment affiliation for the purpose of
judging the dfectiveness of COWl' operations, upon the "THten authorization
of tIl(' Director of Central Intelligence;
", An, further in\'e~tigntion~ conrlllC'terl in ronnedion with (b) or (C') Rhonld
be condnC'ted h, the FBI. and onl, if allthorizf'o h, Part i\'.
303
(e) In E'xceptional casE'S, the placen1E'nt or recrnitmE'nt of agE'llts
\yithin an llll\yitting <1oll1rstic group sokly for the purposr of preparing
thrm for assignments abroad amI only for as long as is necessary to
accomplish that purpose. This shoulcl take place only if the Director of
Central IntelJigrnce makes a written finding that it is rssential for
foreign intelJigence colJrction of yital importance to the Fnited States,
and tIl(' ..c\.ttorney General makes a \\Tittell finding that the operation
will be conducted under procedures drsigned to prennt misuse of the
undisclosed participation or of any information obtained therefrom.20
In the case of any such action, no information received by CIA from
the agent as a result of his position in the group should be disseminated
outside the CIA unless it indicates felonious criminal conduct or
threat of death or serious bodily harm, in \\'hich case dissemination
should be permitted to an appropriate official agency if approYed by
the Attorney Genrral.
R('('omme'ndation 8.-The CIA should not co11ed 21 information
\yithin the ~Cnited States concerning Americans except:
(a) Information concerning CIA employees," CIA contractors and
their employees, or applicants for such employment or contracting;
(b) Information concerning individuals or organizations providing,
or offering to provide," assistance to the CIA;
(c) Information concerning individuals or organizations being considered
by the CIA as potential sources of information or assistance ;"
(d) Visitors to CIA facilities;25
(e) Persons otherwise in the immediate vicinity of sensitive CIA
sites;" or
(I) Persons who give their informed written consent to such collection.
In (a), (b) and (c) above, information should be collected only if
necessary for the purpose of determining the person's fitness for employment,
contracting or assistance. If, in the course of such collection,
information is obtained which indicates criminal activity, it
should be transmitted to the FBI or other appropriate agency. 'When
an American's relationship with the CIA is prospective, information
should only be co11ected if there is a bona fide expectation the person
might be used by the CIA.
'" In addition, the FBI should be notified of such insertions.
21 "Collect" means to gather or initiate the acquisition of information. or to
requpst it from another agency. It does not include dissemination of information
to CIA by another agency acting on its own initiative.
22 "Employpes." as used in this recommpndation. would include mpmbers of
the employee's immediate family or prospecti,-e spousP.
23 In the case of persons unknown to the CIA who volunteer to provide information
or othprwise request contact with CIA personnel, the agency may conduct a
namp chpck before arranging a meeting.
2-l The CIA may only conduct a name chpck and confidpntial interviews of persons
who know the suhject, if the suhject is unaware of CIA interest in him.
25 The CIA may only collect information hy means of a name check.
'" Tlw CIA may make a name check and determine the place of emiPloyment
of persons rpsiding or working in thp immediate vicinity of spnsitive sitps, such as
pereons rpsiding adjacent to premises used for safe housps or defector rpsettlement.
or such as proprietors of businesses in premises adjacent to CIA offices in
commercial areas.
304
CIA Actil,ities Outside of the United States
The Committee would permit a wider range of CIA activities
against Amrrieans abl'oad than it \,oul(l prrmit thr CIA to undrrtake
within the Fnited States, but it \,ould not permit the CIA to inn~stigate
abroad the lawful activities of Americans to any greater degree
than the FBI could investigate such actiyities at home.
Abroad, the FBI is not in a position to protect the CIA from serious
threats to its facilities or personnel. or to inYrstigate all serious security
\-iolations. To the extent it is impractical to rely on localla\, enforcpIllent
authorities. tll(' CIA should be frep to prpsen-e its srcurity by
spreified appropriate inYrstigations \,11ich may involw AmE'I'icans.
inrlmling slllTeillaner of persons othrr than its own employees.
The Committee giYrs to the FBI the sole responsibility \,ithin the
Fnited States for authorized domestic security inYrstigatioDfi of Amrricans.
However. when such an inYestigation has overseas aspects. the
FBI looks to the CIA as the oYerseas operational arm of the intelligence
community. The recommendations \,ould authorize the CIA to
target Americans abroad as part of an authorized investigation initiatrd
bv the FBI.
The Committre does not recommend permitting the CIA itself to
initiate such inYestigations of Americans overseas." Present communications
permit rapid consultation with the Department of .Tustice.
Moreover. the lesson of CHAOS is that an American's activities abroad
may be ambiguous. such as contact with persons \,ho may be acting on
behalf of hostilr foreign pmwrs at an intrrnation:l I confrrE'nce on disarmament.
The question is who shall detrrminc tllPrc is sufficirnt information
to justify making an American citizrn a target of his gm-ernmpnt's
intelligpnce apparatus?
The limitations contained in Recommendation 9 only pertain to the
CIA initiating investigations or otherw·ise intentionally collecting information
on Americans abroad. The CIA \,ould not be prohibited
from accepting and passing on information on thr illrgal aetivities of
Americans which the CIA acquires incidentally in the course of its
other activities abroad.
The, Committee believes that judgments should be centralized within
the .Tustice Dppartment to promotr consistent. carpfully controllpd
application of the appropriate standards and protrction of Constitutional
rights. This is the same position taken by Director Colby in
setting current CIA policy for mounting operations against Americans
abroad. In ~rarch lHi-:1:, Dirpctor Colby formally tpl'lninated the
CHAOS program and promulgated new guidelines for future activity
abroad invoh-ing Americans. \,hich, in effect, transferred such responsibilities
to the Department of .Justice.'"
Z1 The countE'rintE'11igE'ncE' compOlwnt of the CIA would bE' abIp to call to thE'
attE'ntion of thE' FBI any patterns of significancE' which the CIA thought warrantE'd
opE'ning an iJn-estigation of an AmE'rican.
2' TIlE' gllidE'linE's statE':
A. "Vi'heJlE'YE'r information is nm'oyerE'd as a hyprmlnct fE'SUlt of CIA forE'ign
targE'tNl intE'llig-E'ncE' Of cOllntE'rintE'lligE'ncE' oppration;, ahroad which makE'S
AmE'riPans SUSPE'ct for sE'purity or countE'rintE'l1igE'ncE' rE'asons ... such information
will 1lE' rE']lortE'd to tIlE' FBI ... spppifip CIA opE'rations will not lw mountNl
against snch imliyiduals; CIA rE'sponsihilitiE's thE'fE'after will lw rE'strictNl to
305
The Committee is some"'hat more restrictive than the Executive
Order ,,,ith resprct to co]]ertion of information on Americans. As mentioned
ear]irr. tIl(' Order onh rrstriets CIA collection of information
allout thr "(lollwstic activitirs" of Amrricans and docs not prohibit
the collrction of information n>garding the la,dul travel or international
contacts of American citizens. This creates a particularly
significant problem ,,,ith respect to CIA activities directed against
Anwricans ahroad.
The Order permits the CIA wider latitude ahroad than do the
Committee's Recommendations in two otlwr important respects. The
Order permits collection of information if the American is reasonahlY
heliend to he acting on behalf of a foreign pmYer. That exemption
on its face ,,,auld inc1mle .Americans ,,,orking for a foreign country
on business or legal matters or otherwise rngaged in wholly lawful
activities in compliance ,,,ith applicable registration or other regulatory
statutes. ~fore importantly. the Order permits the CIA to collect"
"foreign intelligence" or "counterintelligence" information abroad
about the domestic activities of Americans. The Order then broadly
drfines "foreign intelligrncr" as information about the intentions ~l'
activities of a foreign country or perS0n. or information about areas
outside the l-nitrd States. This would authorize the CIA to collect.
abroad, for example. information about the domestic activities of
American businessmen ,,,hich prm'ided intelligence about business
transactions of foreign persons.
The CIA docs not at prrsent specifically collret intelligence on the
economic activities of Americans overseas. The Committee suggests
that appropriate onrsight committees examine the question of the
overseas collection of economic intelligence.
Use of Oovert Techniques Agai1lst Amer£cans Abroad
Recommendation 11 requires the use of all covert techniques be
governed by the same standards. procedures. and approvals required
for thrir use by the .Justice Drpaltment against Americans within the
United States. Thus. in the case of electronic surnillance, unauthorized
entr~" or mail opening. a judicial warrant would be required. As
a matter of sound Constitutional principle, the Fourth Amendment
protections enjoyed by Americans at home should also apply to protect
them against their Government abroad. It would be just as offenSiVE'
to have a CIA agent burglarize an American's apartnlE'nt in Rome
as it would be for the FBI to do so in Xew York.
Requirements that a warrant he obtained in the United States would
not present an excessive burden. Electronic surveillance and unauthorized
l:'ntries are not prl:'sentl,v conducted against Americans abroad
without prior consultation and approval from CIA HeadquaIters in
rpporting; any furtlwr intplIigencp or countprintl'lIigpncp aspl'cts to thl' 8pecific
case which comps to CIA's attpntion as a byproduct of its continuing foreign
targl'ted operational acth'ity. If thp FBI, on the hasis of the receipt of the CIA
information. howeYer, spl'cificall~' rl'quests further information on terrorist
or counterintelligence matters relating to the priYate Aml'rican citizens ...
CIA ma~' respond to written requests hy the FBI for clandestine collection ahroad
hy CIA of information on forl'ign terrorist or counterintelligence matters
inYo~yingAml'rican citizens."
68-786 0 - 21
306
Langley, Virginia. ;\loreover, the present Deputy Director of CIA
for Operations has testified that bona fide cQuntC'rintelligence investigations
are lenf.->1:hy and time consuming and prior review within the
United States. including consultation with the .Justice Department.
would not be a serious prohlem.29 Imleed electronic surveillance of
Americans abroad under present administration policy also rertuires
approval by the Attorney General.
The Committee reinforces the general restrictions upon overseas
targeting of Americans by recommending that thr CIA be prohibited
from requesting a friendly forrign intelligence service or otl1rr person
from undrrtaking activities against Americans which the CIA itself
may not do. This would not require that a foreign government's use
of covert technirtues be conducted under the same procedures. e.g.,
warrants, relluirrd by those Recommendations for the CL," and the
FBI. It would mean that the CIA cannot ask a foreign intelligence
service to bug the apartment of an American unless the circumstances
would permit the United States Government to obtain a judicial warrant
from a Federal Court in this country to conduct such surveillance
of the American abroad. .
The Committee places greater restrictions upon the CIA's use of
covert techniques against Americans abroad than does the Executive
Order. For example, the Order permits the CIA to conduct electronic
surveillance and unauthorized entries under "procedures approved by
the Attorney General consistent with the law." No judicial warrant
procedure is required. In addition, the Order's restriction on CIA's
opening mail of Americans is limited to mail "in the rnited States
postal channels." In other words, under the Order the CIA is not prevented
from intercepting abroad and opening a letter mailed by an
American to his family, or sent to him from the l'nited States.
The Order also contains no restrictions on the CIA infiltrating a
group abroad, even if it ,,-ere one composed entirely of Americans
engaged in wholly lawful activitie.s such as a political club of American
students in Paris. Furthermore, the Order permits the CIA to
('ondud physical surveillance abroad of any American "reasonably
believed to be" engaged in "activities threatening to the national
security." On its face this language appears overly permissive and
might be read to authorize a repetition of the CHAOS prOgTam in
which Americans were targeted for surveillance because of their participation
in international conferences critical of the U.S. role in
Vietnam.
Recommendation 9.-The CIA should not collect information abroad
concerning Americans f'xcept :
(a) Information concf'rning ..Anwricans which it is permitted to
collect within the "United States; 30
(b) At the request of tIl(' .Tustice Department as part of criminal
investigations or an innstigation of an American for suspected ter-
29 William Nelson testimony, 1/28/76. pp. 33-34. Mr. Nelson was not addressing
procf'dnres to obtain a .indlcial warrant; bnt thf' time reqnired for an ell' parte
application on an expedited hasis to a Federal Court in ·Washington. D.C.. would
not he excessive for the investigative timp framps which Nf'lson dpscrihf'd.
Furthf>rmore. the prf>sent wiretap statute autharizes electronic surveillance
(for 48 hours) on an pmergeucy hasis prior to jndicial authorization.
30 Recommendation 8. p. 303.
307
rorist30
' or hostile foreign intelligence 30
b actiYities or security leak or
secnrity risk inYestigatiollf; ,,-hich the FBI has opened pursuant to
Part iy of those recommendations and which is conducted consistently
with recommendations contained in Part i".31
RNOllllllcndation lO.-TllP CIA should he ahle to transmit to the
FBI or other appropriate agencies information concerning Americans
acquirpd as thp incidental hyproduct of othenyise permissible forpign
intC'lligence and countprintp]] igencl' opl'rations,32 "'hpnl'wr such information
iIHlicates any acti"ity in Yiolation of Amprican la,,'.
Hecom7lu:ndaIion' n.-The CIA may employ conrt techniques
abroac] against ~\Jllpricans:
(a) l~IH]pr circumstancps in ,yhich thl' CIA could usp such conrt
techniques against Americans "'ithin the United States; 33 or
(b) "'llPn co]]ecting information as part of .Tustice Department inyestigation,
in "'hich case the CIA may use a particular coyert techniques
under the standards and procedures and appl'O\'als applicable
to its use against Americans ,yithin the l~nited States by the FBI (See
Part i")'; or
(c) To thl' pxtpnt necl'ssary to identify persons known or suslwcted
to ])(' .\ml'ricans "'ho come in contact with forpignprs the CIA is inwstigating.
CIA Human Experiments and Drug Use
Recommendation 12 tracks similar restrictions in the Executive
Ordpr but proposes an additional safeguard-giving the National
Commission on Biomedical Ethics and Human Standards jurisdiction
to reYie,Y any testing on Americans.
00. "Terrorist activities" mean.~ acts, or conspiracies, which: (a) are violent
or dangerous to hnmanlife; and (b) yiolate federal or state criminal statutes concerning
assassination, murder, arson, bombing, hij'apking, or kidnaping; and
(c) appear intended to, or are likely to have the effect of:
(l) Substantially disrupting federal, state or local government; or
(2) Substantially disrupting interstate or foreign commerce between the Cnited
States and another country; or
(3) Directly interfering with the exercise by Americans, of Constitutional
rights protected by the Civil Rights Act of 1968, or by foreigners, of their rights
under the laws or treaties of the Cnited States.
30b "Hostile foreign intelligpnce activities" means acts, or conspiracies, by
Americans or forpigIlPrs, who are officprs, pmployees, or conscious agents of a
forpigIl power, or ,vho, pursuant to tllP direction of a foreign power, engagp in
clandestine intelligencp activity, or engage in pspionagp, sabotagp or similar
conduct in violation of federal criminal statutes. (The term "clandestine intelligencp
activity" is inc!udpd in this definition at the suggpstion of officials of the
DepartnlPnt of .Justice. Certain activities pngagpd in by conscious agl'nts of forpign
powprs, such as some forms of industrial, technological, or economic espionage,
arp not now prohibitpd by federal statutes. It would be preferable to amend
the espionage laws to cover such activity and eliminate this term, As a matter
of principle, intelligence agpncies should not investigate activities of Americans
,,-hich are not violations of federal criminal statutes. Therefore, the Committee
recommends (in Recommendation 94) that Congress immediately consider enacting
such statutes and then eliminating this term.)
31 If the CIA belieYes that an investigation of an American should be opened
but the FBI declinps to do so, the CIA should be able to apppal to the Attorney
General or to the appropriate committee of the Kational Security Council.
'" Such information would include matl'rial voluntepred by a foreign intelligence
sen-ice independent of any request by the CIA.
33 See Recommendation 7, p. 302.
308
Recommendation 12-The CIA should not use in experimentation
on human subjects1 any drug1 device or procedure which is designed
or intended to harm, or is reasonably likely to harm, the physical or
mental health of the human subject1 except with the informed written
consent. witnessed by a disinterested third party, of each human subject.
and in accordance with the guidelines issued by the National Commission
for the Protection of Human Subjects for Biomedical and Behayioral
Research The juriSdiction of the Commission should be
amended to include the Central Intelligence Agency and other intelligence
agencies of the Fnited States Gonrnment.
Revie~!) and Certification
Recommendation 13 ensures careful monitoring of those CIA activities
authorized in the recommendations which are directed at Americans.
Recommendation 13-Any CIA activity engaged in pursuant to
Recommendations 71 8, 9, 10, or 11 should be subject to periodic review
and certification of compliance with the Constitution, applicable
statutes, agency regulations and executive orders by:
(a.) The Inspector General of the CIA;
(b) The General Counsel of the CIA in coordination with the
Director of Central Intelligence;
(c) The Attorney General; and
(d) Thl' onrsight committee re('ommended in Part xii.
All such certifications should be available for review by congressional
oversight committees.
b. National8ecurity Agency
. The recommendations contained in this section suggest controls on
the electronic suneillance activities of the National Security Agency
insofar as they involve, or could involve, Americans. There is no statute
which either authorizes or specifically restricts such activities. NSA
"'as created by executive order in 1952, and its functions are described
in directiYes of the National Security Council.
While, in practice, NSNs collection activities are complex and
sophisticated, the process by which it produces foreign intelligence
can be reduced to a few easily understood principles. NSA intercepts
messages passing over international lines of communication, some of
which have one terminal within the United States. Traveling over
these lines of communication, especially those with one terminal in the
United States. are the messages of Americans, most of which are irrelevant
to NSA's foreign intelligence mission. NSA often has no
means of excluding such messages1 however, from others it intercepts
,,,hich might be of foreign intelligence value. It does have, however,
the capability to select particular messages from those it intercepts
which are of foreign intelligence value. ~Iost international communications
of Americans are not selected. since they do not meet foreign
intelligence criteria. Having selected messages of possible intelligence
value, NSA monitors (reads) them. and uses the information it obtains
.as the basis for reports "'hich it furnishes the intelligence
agenCIes.
Having this process in mind. one will more readily l1nderst.and the
recommendations of the Committee insofar as NSA1s handling of the
messages of Americans is concerned. The Committee recommends first
that NSA monitor only foreign communications. It should not monitor
309
domestic communications, eYen for foreign intelligence purposes. Second.
the Committee recommends that NSA should not select messages
for monitoring. from those foreign communications it has intercepted,
because the message is to or from or refers to a particular American,
unless the Department of ,Justice has first obtained a search warrant,
or the particular American has consented. Third, the Committee recommends
that XSA be required to make every practicable effort to
eliminate or minimize the extent to which the communications of
Americans are intercepted, selected, or monitored. Fourth, for those
communications of Americans which are nevertheless incidental1y
selected and monitored, the Committee recommends that NSA be prohibited
from disseminating such communication, or information derivrd
therefrom. which identifies an American. unless the communication
indicates evidence of hostile foreign intelligence or terrorist
actirity. or felonious criminal conduct, or contains a threat of death
or serious 'bodily harm. In these cases, the Committee recommends that
the Attorney General approve any such dissemination as being consistent
with these policies.
In summary, the Committee's recommendations reflect its belief that
NSA should have no greater latitude to monitor the communications
of Americans than any other intel1igence agency. To the extent that
other agencies are required to obtain a warrant before monitoring the
communications of Americans, NSA should be required to obtain a
warrant.34
Recommendation 14.-NSA should not engage in domestic security
activities. Its functions should be limited in a precisely drawn legislative
charter to the collection of foreign intelligence from foreign
communications.35
Recommendation 15.-NSA should take all practicable measures
consistent with its foreign intelligence mission to eliminate or minimize
the interception, selection, and monitoring of communications of
Americans from the foreign communications.36
Recomme11dation 16.-NSA should not be permitted to select for
monitoring any communication to, from. or about an American without
his consent. except for the purpose of obtaining information about
hostile foreign intelligence or terrorist activities, and then only if a
w"arrant approring such monitoring is obtained in accordance with
procedures similar 37 to those contained in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968.
M None of th(' Commit,t('("s recomm('ndations pt'rtaining to NSA should h(' conI'tru('
d as inhihiting or prerenting 1\SA from protecting U.S. communications
against int('rc('ption or monitoring by for('ign int('llig('nce s('rric('s.
'" "Foreign communications," as used in this section, r('f('rs to a communication
b('hr('('n or among two or mor(' parti('s in which at l('ast one party is outsid('
the l:nit('d Rtat('s, or a communication transmitted b('tween points within the
rnit('d Stat('s only if transmitt('d orer a facility which is under the control of.
or ('xclllsir('ly ul'('d by, a for('ign gorernment.
116 In ord('r to ensure that this r('comm('ndation is impl('m('nt('d. both the Attorn('
y G('n('ral and the appropriat(' or('rsight committ('es of th(' Congress should
1)(' continuously appris('d of, and p('riodically reri('w, til(' m('asur('s takpn by
XRA pursuaut to this r('comm('ndation.
WI Thf' Committ('(' l)('li('Yf>s that in th(' cas(' of interceptions authoriz('d -to oblain
information about hostil(' for('ign int('llig('nc('. tll('r(' should 1)(' a pr('sumption
that notic(' to tIl(' subj('ct of I'uch intprc('pts. which would ordinarily b(' requir('d
und('r Title III (11' r.R.c. 2511'(8) (d)), is not r('quir('d, unl('ss th('re is ('ridpnce
of gross abus('.
310
(This recommendation ,vould eliminate the possibility that NSA
would re-establish its "watch lists" of the late 1960s and early 1970s.
In that case, the names of Americans ,vere submitted to NSA by other
federal agencies and ,v(>re ns(>d as a basis for selecting amI" monitoring,
without a warrant, the international communications of those
Americans. )
Reeornmenr1ation P7.-Any personally identifiable information
about an American which NSA incidentally acquires, other than pursuant
to a warrant, should not be disseminated without the consent of
the American, but shonld be destroyed as promptly as possibl(>, nnless
it indicates:
(a) Hostile foreign intelligence or terrorist activities; or
(b) Felonious criminal conduct for which a "-arrant might be obtained
pursuant to Title III of the Omnibus Crime Control and Safe
Streets Act of 1968; or
(c) A threat of death or serions bodily harm.
If dissemination is permitted, by (a), (b) and (c) above, it must
only be made to an appropriate official and after approval by the Attorney
General.
(This recommendation is consistent "ith NSA's policy prior to the
Executive Order.38 NSA's practice prior to the Executive Order was
not to disseminate material containing personally identifiable information
about Americans.)
Recommendation 18.-'SSA should not reqnest from any commercial
carrier any communication which it could not otherwise obtain
pursnant to these recommendations.
(This recommendation is to ensure that NSA will not resume an operation
snch as SHA~fROCK, disclosed during the Committee's hearings,
whereby NSA received for almost 30 years copies of most international
telegrams transmitted by certain international telegraph
companies in the rnited States.)
Rerommendation 1.9.-The Office of Security at NSA should be permitted
to collect background information on present or prospective
employees or contractors of NSA, solely for the pnrpose of determining
tlwir fitness for employment. V\'"ith respect to security risks or the
security of its installations, NSA should be permitted to conduct
physical snrveillances, consistent with such surveillances as the CIA
is permitted to conduct. in similar circumstances, by these recommenclations.
.
e. Jlilitar,1j 8erl'iee and Defense Department In?'l'stigatil'e Agencie8
This section of the Committee's recommendations pertains to the
controls upon the intelligence activities of the military services and
Departmf'nt of Defense insofar as they involve Americans who are not
members of or affiliated with the armed forces.
In ,!reneraL the rf'strictions seek to limit military investigations to
activities in the civilian community which are necessary and pertinent
to the military mission, and which cannot feasibly be accomplished by
civilian agencies. In overseas locations whf're civilian agencif's do not
38 The EXf>cuth'f' Ordf>r placf's no such restriction on tllf' dissf'mination of information
hy i\'SA. Pnder the EXf'cutiyf' Order. NSA is not requirf'<l to <If'lf'te nameR
or destroy mf'ssagf'S which are personally idf>ntitiahlf' to Anlf'ricans. As long as
thesf' mf'ssages fall v.ithin the categorif's f'stahlished hy thf' Order. the namf'S of
Amf'rieans c01l7d he transmittf'd to other intf'lligf'nee agf'ncies of thf' GO'l"f'rnment.
311
perform inn>stigatin actiYities to assist the military mission, military
intelligence is ginn more latitudr. Specifically. thr Committee recommrnds
that militrrry intrllig-ence br limited within the Fnited States to
conducting inwstigations of Yiolations of thr rnifonn Codr of Military
.fustice: inwstig'ations for srcurity clearances of Department of
Drfense employees and contractors: and innstigations immediately
before and dming' the drployment of armed forcrs in connection with
ciYil disturbances. Xone of these inwstigations should inyolve the use
of any cOYert terhniquC' C'mploy('(l against Anwrican civilians. In overseas
locations. the Committee r('('onll1wnds that military intelligence
haye additional al1thority to conduct inYestigations of terrorist activity
and hostile foreign intelligence actiYity. In these cases. covert techniques
din'cted rrt Americans may be employed if consistent with the
Committee's restrictions upon the use of such techniques in the United
States in Part iy.
RpP07l1mprld(ftioll Bn.-Except as specifically provided herein, the
Departmrnt of Defense shoulc] not engage in domestic security activitiC's.
Its functions. as they relate to the activities of the foreign intelligence
comm11l1ity. should be limited in a precisely drawn legislative
charter to the conduct of foreign intelligence and foreign counterintelligence
activities and tactical military intelligence activities
abroad, and production, analysis, and dissemination of departmental
intelligence.
Rcromrnendation 21.-In addition to its foreign intelligence responsibility,
the Department of Defense has a responsibility to investigate
its prrsonnel in order to protrct the security of its installations
and property. to ensure ordPr and discipline within its ranks, and to
eomluct other limited inwsti!!ations once dispatched by the President
to suppress a civil disorder. A lrgislativr charter should define preciselv-
in a manner \"hich is not inconsistent with these recommendations-
the authorized scope and purpose of any inYestigations undertaken
by the Department of Defense to satisfy these responsibilities.
RpcommPlldotion 2B.-Xo agency of the Department of Defense
should comluct inwstigations of "iolations of criminal law or other\"
ise Iwrform any la,,, enforcement or domestic security functions
within the rnited States. except on military bases or concerning military
personneL to enforce the l~niform Code of Military Justice.
00ntl'07 of Oi?'i7 Disturbance Intelligence
The Department of the Army lUIS exrl'utin~ responsibility for rendering
asc:istancr in connC'ction \"ith ci\'il c1isturbancrs. In the late 1960s,
it institutecl a natiom"ide collection program in which Army investigators
,\'('rC' c1ispatchC'd to collrct information on the political activitirs
of Americans. This ,,,as donr on the theory that such information
,,,as necessary to preparE' thE' "\rmy in the E'Vent that its troops 'WTe
sent to tl1(' scene of ciyil disturbancC's. The Committee brlieyes that the
Army's potential role in ciyil disturbances dors not justify such an
intE'lligrncr effort clirectC'd against American ciyilians.
Rprollllllendiftion 23.-Tl1(' Dr]lal'tment of DdC'nse should not be
prrmittC'd to concluet inYC'stigatiolls of Americans on the theory that
the information clC']'iYPcl tl1C'l'dl'oll1 mig'ht br usdul in potential civil
clis()]'(krs. TIlP AJ'll1~' should he IWl'mitted to gal her informal ion about
geogl'aph~·. logisticulmatters. or the iclentity of local officials which is
312
necessary to the positioning, support, and use of troops in an area
'where troops are likely to be deployed by the President in connection
with a civil disturbance. The Army should be permitted to investigate
Americans involved in such disturbances after troops have been deployed
to the site of a civil disorder, (i) to the extent necessary to fulfill
the military mission, and (ii) to tIlt' extent the information cannot
be obtained from the FBI. (The FBI's responsibility in connection
with civil disorders and its assistance to the Army is described in
Palt iv.)
Recommendation 24.-Appropriate agencies of the Department of
Defense should be permitted to collect background information on
their present or prospective employees or contractors. ,Vith respect
to secmity risks or the security of its installations, the Department of
Defense should be permitted to conduct physical surreillance consistent
with such surveillances as the CIA is permitted to conduct, in simihr
circumstmlces, by these recommendat~ons.
Prohibitions and Limitations of Oovert Techniques
During the Army's civil disturbance collection program of the lat~
1960s, Army intelligence agents employed a variety of covert techniques
to gather information about civilian political activities. These
included covert penetrations of prirate meetings and organizations,
use of informants, monitoring amateur radio broadcasts, and posing
as newsmen. This provision is designed to prevent the use of such
covert techniques against American civilians. The Committee believes
that none of the legitimate investigative tasks of the military
within the "United States justified the use of such techniques against
unaffiliated Americans.
Recommendation 25.-Except as provided in 27 below, the Depart!
I1rnt of Defrnse should not direct any CO\'rl'1 techniflue (e.g., electronic
sUlTeiIJance, informants, etc.) at American civilians.
Limited Investi,qatiol1s Abroad
The military sen-ices currently conduct preventive intelligence investigations
within the rnited States where members of their respective
services are agents of, or are collaborating with, a hostile foreign
intelligrnce service. These investigations are coordinated with,
and under the ultimatr control of, the FBI. The Committee's recommendations
are not intended to prennt the military services from
continuing to assist the FBI with such investigations involving members
of the armrd forces. They are intended, howenr, to place responsibilitv
for these invpsti;rations, insofar as they take place within the
rnited States, in the FBI. and not in thr military services thp111se1ves.
The military srrYices, on the othrr hand., are 'given additional responsibilitv
to c011(1nct inwstigations of Amrricans who are suspected
of p!1gagin;r in tplTorist activity or hostile forpign intelligence activity
in oyersras locations. '
RC('f)?I11l1('))r!ntiriJ) :26.-TJw Denartnwnt of Defrnsr shollld be nermittpd
to conr1uct ahroac1 nrHPntiw intelligence inwstigations of unrjfili"
tNl Amerinll1s. ns descriherl in P-art ;" helmy, nrm'irled sneh inwstiO'fltions
arr first annrond by thr FBI. ~nch ilweiOti crations hv
tJ](' Drpartnwnt of Dpfpnsp, inclnding the nsp of cowrt tpchnifJ!les,
313
should ordinarily be conducted in a manner consistent with the recom1ll(']
1(Iations pertaining to the FBI. contained in Part iy; hmHwer, in
oyerseas locations, "'here r.s. military forces constitute the goyerning
power, or "'here r.s. military forces are engaged in hostilities, cirClllllsblllces
lllay require I!l'l>ater latitude to conduct such
inyestigations.
iii. Non-Intelligence Agl'ncies Shou7d BI' Bap/wZ From Domestic
,'-,'cCUI'ity Actil'ity
a. Intel'na7 Re?'elw·e SCI'l'iee
The Committee's reYiew of intelligencp collpetion and investigative
activity by IRS' Intplligpnce Division and of the practice of furnishing
information in IRS files to the intelligence agencies demonstrates
that reforms are necessary and appropriate. The primary objective
of reform is to prevent IRS from becoming an instrumentality of the
intelligence agencies. beyond the scope of what IRS, as the Federal
tax collector, should be doing. Recommendations 27 through 29 are
designed to achiew this objl'etin' by provicling that IRS collection of
intelligence -and its conduct of inyestigations are to be confined strictly
to tax matters. ~Ioreorer. programs of tax investigation, in which
targets are selected partly because of indications of tax violations and
partly 'because of reasons relating to domestic security, are prohibiUld
,,-here they would erode constitutional rights. ,Vhere otherwise appropriate,
sncll programs must be conducted undl'r special safeguards to
prerent any adverse effect on thl' l'xercise of those rights.
These recommendations should preyent a recurrence of the excesses
associated with the Special Services Staff and the Intelligence Gathering
and Retrieval System.
Targeting of Persons 01' Groups for Inl'e8tigations or
Intelligence-Gathering by IRS 39
Recommendation 27.-The IRS should not, on 'behalf of any intelligence
agency or for its own nse, coIled an}: information ab01:it the
activities of Americans except for the purposes of enforcing the tax
la,vs.
Recommendation 28.-IRS should not select any person or group
for tax investigation on the basis of political activity or for any other
reason not relevant to enforcement of the tax laws.
Recommendation 2,9.-Any program of intelligence investigation
relating to domestic security in which targets are selected by both tax
and non-tax criteria shoulcl onlY be initiated:
(a) Unon the \uitten reqllrst of thr Attornev General or the Secretary
of the Treasury, specifying the nature o{thr requested program
and the need tlwrefore; and
(b) After the written rertification bv the Commissioner of the IRS
that procrdures haye been deYCloped ',,-hich are sufficient to prevent
the infringement of the ronstitutional rights of Americans; and
(r) ,Vith rongressional oYersin-ht rommitters bping kept continually
advised of the nature and extent of such programs.' ,
"" Raf<po npon itf< f<tnoy of thp TR~. tlw f'ommittpp hplipypf< thpf<p rN'omml'noationf<
might propprly hp applil'd heyono the general OOmPf<tic sl'cnrity scope of
the recommendations.
314
Di:3cZosure Procedures
The, Committee,'s reyiew of disclosure of tax information by IRS
to the FBI and the CIA showed three principal abuses by those intelligence
agencies: (1) the by-passing of rlisdm'llrf' procf'(]ures mandated
by la\y, resulting in the agencies obtaining access to tax returns
and tax-related information throngh improper channels, and. sometimes,
without a proper basis; (2) thr failure to state the reasons
justifying the need for the information and the uses contemplated
so that IRS could determinr if the request met thr applicable criteria
for disclosure; and (3) the impropf'r use of tax rrturns and information,
particularly by the FBI h COIXTELPRO. Recommendati?ns
30 ~hrough 35 'are designed to preyent these abuses from occurrmg
agam.
'Vhile general problems of disclosure are bf'ing studied by several
different congressional committees with jurisdiction over IRS, these
recommendations reflect this Committee's focus on disclosure problems
seen in the interaction behwen IRS and the intelligence agencies.
Recommendation SQ.-No intelligence agency should request 40 from
the Internal Reyenue Service tax returns or tax-related information
except under the statutes and regulations controlling such disclosures.
In addition, the existing procedures under which tax returns and taxrelated
information are released by the IRS should be strengthened,
as suggested in the following five recommendations.
Recommendation Sl.-All requests from an intelligence agency to
the IRS for tax returns and tax-related information should be in
writing, and signed by the head of the intelligence agency making
the request, or his designee. Copies of such requests should be filed
with the Attorney General. Each request should include a clear statement
of:
(a) The, purpose for which disclosure is sought;
(b) Facts sufficient to establish that the recjllE'sted information is
needed by the requesting agency for the, perfonwmce of an authorized
and lawful function;
(0) The uses which the requesting agency intends to make of the
information; . .
(d) The extent of the disclosures sought;
(e) Agreement by the requesting agency not to USe the documents
or information for any purpose other than that stated in the request;
and
(f) Agreement by the reqnesting agency that the information will
not be disclosed to any other agency or person except in accordance
with the law.
Recommendation S~.-IRS should not release tax returns or taxrelated
information to any intelligence agency unless it has received
a request satisfying the requirements of Recommendation 31, and the
Commissioner of Internal Revenue has approved the request in
writing.
Recommendation SS.-IRS should maintain a record of all such requests
and responses thereto for a period of twenty years.
'" "Request" as used in the recommendations concerning the Internal Revenue
Sf'rvice Should not include circumstances in which the agency is acting with the
informed written consent of the taxpayer.
315
Recomme1ulation 34.-1\0 intelligence agency should use the information
supplied to it by the IRS pursuant to a request of the agency
except as stated in a proper request for disclosure.
Recommendation 5'.5.-A11 requests for information sought by the
FBI should be filed by the Department of .rustice. Such requests
should be signed by the Attorney General or his designee, following
a determination by the Department that the request is proper under
the applicable statutes and regulations.
b. Post Office (U.S. Postal Sen'ice)
These recommendations are designed to tighten the existing restrictions
regarding requests by intelligence agencies for both inspec··
tion of the exteriors of mail ("mail cover") and inspection of the
contents of first class mail ("mail opening"). As to mail cover, the
Committee's recommendation is to centralize the review and approval
of all requests by requiring that only the Attorne~! General may authorizemail
cover, and to eliminate unjustified mail covers by requiring
that the mail cover be found "necessary" to a domestic security
investigation. 1Vith respect to mail opening, the recommendations provide
that it can only be done pursuant to court warrant.
Recommendation 36.-The Post Office should not permit the FEI or
any intelligence agency to inspect markings or addresses on first class
maiL nor should the Post Office itself inspect markings or addresses
on behalf of the FE.I or any intelligence agency, on first class maiJ,
except upon the wntten approval of the Attorney General or hIS
designee. 1Vhere one of the correspondents is an American, the Attorney
General or his designee should only approve such inspection for
domestic security purposes upon a written finding that it is necessary
to a criminal investigllition or a preventive intelligence investigation
of terrorist activity or hostile foreign intelligence activity.
Upon such a request, the Post Office may temporarily remove from
circulation such correspondence for the purpose of such inspection of
its exterior as is related to the investigation.
Recommendation 37.-The Post Office should not transfer the custody
of any first class mail to any agency except the Department of
Justice. Such mail should not be transferred or opened except upon a
judicial search warrant.
(a) In the case of mail where one of the correspondents is an American,
the judge must find that there is probable cause to believe that
the mail contains evidence of a crimeY
(b) In the case of mail where both parties are foreigners:
(1) Tlw judge must find that there is probable canse to believe
that both parties to such correspondence are foreigners. 'and one of the
correspondents is an officer, employee or conscious agent of a foreign
pOlwer; and
(2) The Attorney Gem'I'al mnst certify that the mail opening is
likely to rewa] information necessary either (i) to the protection of
the nation against actual or potential attack or other hostile acts of
force of a foreign power; (ii) to obtain foreign intelligence information
deemed essential to the security of the United States; or (iii) to
41 RN' recommpndation 94 for tllP Committpe'R rpcommpndation that CongTPRR
conRidpr ampnding the Espionagp Act RO aR to coypr modprIl forms of pspionage
not now criminal.
316
protect national security information against hostile foreign intelligence
activity.
iv. Fedeml Domestic Security Actil'itirs Should Be Limited
and Controlled to Preunt Abuses lVitlu:mt Hampering
Crim'inal Investigations oj' Investigations of Foreign
Espionage
The recommendations contained in this part are designed to accomplish
two principal objectives: (1) prohibit improper intelligence activities
and (2) define the limited domestic security investigations
which should be permitted. As suggested earlier, the ultimate goal
is a statutory mandate for the federal government's domestic security
function that will ensure that the FBI; as the primary domestic security
inn'stigatin agency. concentrates upon criminal conduct as opposed
'to political rhetoric or association. Our recommendations would
vastly curtail the scope of domestic security investigations as they
have been conducted, by prohibiting inquiries initiated because the
Bureau regards a group as falling within a vaguely defined category
such as "subversive," "Xew Left." "Black Nationalist Hate
Groups," or "\Vhite Hate Groups." The recommendations also ban
investigations based merely upon the fact that a person or group is
associating with others who are being investigated (e.g., the Bureau's
investigation of the Southern Christian Leadership Conference because
of alleged "Communist infiltration").
The simplest way to eliminate investigations of peaceful speech
and association would be to limit the FBI to traditional investigations
of crimes which have been committed (including the crimes of attempt
and conspiracy). The Committee found, however, that there are
circumstances where the FBI should have authority to conduct limited
"intelligence investigations" of threatened conduct (terrorism and
foreign espionage) which is generally covered by the criminal law,
where the conduct has not yet reached the stage of a prosecutea'hle act.
The Committee. howenr. found that abuses were frequently associated
even with such intelligence investigations. This led us also to
recommend: precise limitations upon the use of cm'ert techniques
(Recommendations 51 to (0) ; restrictions upon maintenance and dissemination
of information gathered in such investigations (Recommendations
64 to (8) ; and a statutory requirement that the Attorney
General monitor these investigations and terminate them as soon as
practical (Recommendation (9).
a. Centralize Supen'ision, hl1'estigatit'e Responsibility, and the Use
of Covert Trchniqurs
Investigations should be centralized within the Department of
.Justice. It is the Committre's iudgnwnt that if former Attorneys General
had been held accountable by tIl(' Congress for ensuring compliance
by the FBI and the inteJJigence agencies "'ith laws designed to
protect the rights of Americans. the Department of .Justice would
have been more likeJy to discovpr and pnjoin improper activities.
Furthermore, cpntralizing domestic srcurity inwstigations within the
FBI will faciJitatr the Attorney Grneral's sUJwrvision of them.
Hp('ommrnrlation 38.-AlJ domestic securitv inwstigative activity.
including- the usr of cO\'rrt techniques. should i)e crntraJizcd within tl~e
Federal Bureau of Inwstigation, except those investigations by the
317
Rp(Trt Srnicr drsignrd to protrct the lifp of the Prrsidrnt or other
Secret Senice proteetees. Such inn'stigations and the usr of conrt
techniqurs in those investigations should be centralized "ithin the
Sp('rrt Spnice.
Reeomlllendation 39.-..\.11 donH'stic srcuritv aetiviti('s of tll(' frdpral
gOH'rJlment and all othrr intrlligrncp agpncy' activities cOYered by the
Domestic Intrlligpnce Recomllwndations should be subjpet to Justice
Departllwnt oversight to assnI'(' compliance ,,-ith the Constitution and
laws of thp lTnite(l Statrs.
b. Prohibitio'f18
The Committer recommrnds a sPi of prohibitions. in addition to its
latrr recommrn(lations limiting the scope of and procedural controls
fol' domestic security invpstigatioJls.
The follmving prohibitions cover almses ranging from tlw political
usp of thr spnsitin information maintainrd bv thr Bureau to thr rxcesses
of COI~TELPRO. They are intended to cover activities engag('(
l in, by. or on behalf of. (he FBI. For examplP, in prohibiting
Bureau interference in lawful sprrch. publication. assembly, organization,
or association of Americans, the Committee intends to prohibit
a Bureau agent from mailing fake letters to factionalize a group as
well as to prohibit an informant from manipulating or influencing
the peaceful activities of a group on behalf of the FBI.
SllbseqllPnt recommendations limit the kiwIs of investigations ,vhich
can br oppned and provide controls for those inYestigations. Specificallv.
the Committee limits FBI authoritv to collect information on
Ame"ricans to enllllleratrd CirCllIllstancrs; lImits authority to maintain
information on political beliefs. political assocations. or private lives
of Amrricans; requires judicial "'arrants for the most intrusin~ covert
collection techniqurs (electronic surveillance. mail oprning. and surreptitious
entry) ; and proposes new rrstrictions upon the use of other
cm'ert trchniques. particularly informants.
Recommendation 40.-The FBI shouk! he prohihitrd from rngaging
on its own or through informants or othrrs. in any of the following
activities directed at Americans:
(a) Disseminating any information to the "White House, any other
federal official, the news media, or any other person for a political or
other improper purposr, such as discrrr!iting an opponent of the administration
or a critic of an intelligence or investigative agency.
(b) Interfering with lawful sp('ech. publication, assembly, organizational
activity, or association of Amrricans.
(c) Harassing individuals through unnecessary ov('rt investigative
techniques 4" such as interviews or obvious physical surveillance for the
purpose of intimidation.
Recommrndation J,.J.-The Bureau should be prohibited from maintaining
information on the political beliefs. political associations, or
private lives of Americans exc('pt that which is clearly necessary for
domestic security investigations as described in Part C. 43
.. "On'rt inYe~tigatiYe techniques" mean~ the collection of information readily
a ,'ailahlp from puhlic sourcps or to a priYate person (including intprYiews of the
suhject or hi~ friends or as~ociatps).
43 Thus, the Bureau would hayp an ohligation to reyipw any such information
hefore it is placpd in fill'S llnll to reyiew thp file~. thereafter, to remoYe it if no
longer needed. This ohligation does not extend to files sealed Ilndpr Recom,
mendation 65.
318
c. Authorized Scope of Domestic Security Im'estigatiorl8
The Committee sought three objectives in defining the appropriate
jurisdiction of the FBI. First, "'e sought to carefully limit any investigations
other than traditional criminal investigations to five defined
areas: prewnti"e intellig(,Hcr invrstigations (in two areas closrly related
to serious criminal activity-terrorist and hostile foreign intelligence
activities), civil disorders assistance, background investigations,
security risk investigations, and security leak inwstigations.
S('cond, ,ve sought substantially to narrow, and to impose special
restrictions on the conduct of, those inycstigations "'hich involved the
most flagrant abuses in the past: prev('ntive intelligence investigations
and civil disorders assistance. Third, we sought to provide a clear statutory
foundation for those investigations which the Committee
b('lien's are appropriate to fill the vacuum in FBI legal authority.
Achieving the first and second objectives will have the most significant
impact upon the FBI's domestic intelligence program and indeed,
could eliminate almost half its workload. Recommendations 44
through 46 impose bvo types of restrictions upon the conduct of intelligence
investigations and civil disorders assistance. First, the scope
of intelligence in vestigatiolls is limited to terrorist activities or espionage
and the scope of civil disorders assistance is limited to civil
disorders which may require federal troops. Second, the Committee
suggests that the threshold for initiation of a full intelligence iJwestigation
be "reasonable suspicion." 44 Preliminary intelligence investigations-
limited in scope. duration, and investigative technique-could
be opened upon a "specific allegation or specific or substantiated information."
A written finding by the Attorney General of a likely need
for federal troops is required for civil disorders assistance.
The Committee's approach to FBI domestic security investigations
is basically the same as that adopted by the Attorney General's guidelines
for domestic security investigations. Both are cautious about
any departures from former Attorney General Stone's maxim that
the FBI should only conduct criminal investigations. For example,
neither the Committee nor the Attorney General would condone investigations
which are totally unrelated to criminal statutes (e.g., the
FBI's 1970 investigation of all black student unions).
However, the Committee views its recommendations as a some,vhat
more limited departure from former Attorney General Stone's line
than the present Attorney General's guidelines. First, the Committee
would only permit intelligence investigations with respect to hostile
foreign intelligence activity and terrorism. The Attorney GeneraFs
guidelines have been read by FBI officials as authorizing intelligence
investigations of "subn'rsives" (individuals who may attempt to
overthrow the government in the indefinite future). Wbile the Justice
Department, und('r its Clll'rent leadership, might not adopt such an
interpretation, ·a different Attorney General might. Second, the guidelines
on their face appear to permit investigating essentially local
civil disobedience (e.g.. "use of force" to interfere with state or local
gm'ernment which could be construed too broadly) .
.. "Reasonable suspicion" is based upon the Supreme Court's decision in the
case of Terry Y. Ohio. 392 U.S. 1 (1961\), and means specific and articulahle facts
which takpn to~ethcr with rational infprences from those facts. ~iYe rise to a
reasonable suspicion that specified activity has occurred, is occurring, or is about
to occur.
319
There are two reasons "'hy the Committee "'ould prohibit intelligencr
investigations of "subversives~' or local civil disobedience.
First, tilos\.' inYestigations inherrntly risk abusr because they inevitably
require sllrveillance of lawful speech and association rather
than criminal conduct. The Committee's examination of forty years
of investigations into "subversion~'has found the term to be so vague
as to constitute a licpnse to investigatp almost any activity of practically
any group that acti\'e!y oppoSPS the policies of tIl(' administration
in power.
A second reason for prohibiting intelligence investigations of "subnrsion"
and local civil disolwdipnce is that both can be adequately
handled by lpss intrusin methods \vithout unnecessarily straining
limited Bureau l'l'sourcps. Any real threats to our form of gOH>rmnent
ean be best identified through intE'lligence inYestigations focused on
lwrsons who may soon commit illegal violent acts. Local civil disobedience
can be best handlE'd by local policp. IndeNl. recent studies
by the General Accounting Office suggest that FBI ill\'estigations
in these areas result in Yery few proseeutions and little information
of help to ~uthoritiesin preYenting violenee.
The FBI now rxpends more money in its domestic security program
than it does in its organized crime program~ and, indeed, twice
the amount on "internal sE'curity:' informant operations as on organized
crime informant coverage. "Subvprsive investigations" and
"civil disorders assistance" reprpsent almost half the caseload of the
FBI domestic security program. Thp national interest would be better
sernd if Bureau resources \ycre dirpcteel at terrorism, hostile fore,igIl
intelligence activity, or organized crimp. a]] morE' sprious and pressing
threats to the nation than "subn>rsins" Or local civil clisobE'uience.
For similar reasons, the Committep~ like the Attorney GeneraFs
guidelines, requires "reasonable suspicion'~ for preventi\'e inteI1igence
inYestigations \vhich extend beyond a preliminary stage, Investigations
of terrorism and hostile foreign intl'lligence activity which are
not limited in time and SCOpE' couM lead to the same abuses found in
intelligence investigations of subversion or local civil disobedience.
However. an equa]]y important reason for this standard is that it
should increase the efficiency of Bureau inwstigations. The General
Acconnting Office f01llld that when the FBI initiated its investigations
on "soft eyidence"--evidence which probably would not meet
this "reasonable snspicion" standard-it usually wasted its time on
an innocent targel. ",Yhen it initiatE'd its inyestigation on harder evidence.
its ability to detect imminent yiolrnce improyed significantly.
The Committee's recommendations limit prewntiye intelligence investigations
to sitnations \yhere information indicates that the prohibited
actiyity will "soon:: OCClll.. whereas the gui(lelinrs do not require
that the actiyity be imminent. This limit is essential to prevent a
retnrn to sweeping, rndless inyestigations of remote anel speculative
"threats." Thr ('olllmittrr's intent is that. to oprn 01' continue a full
investig<ttion, tllPre shonld be a substantial indication of terrorism
or hostile foreign intelligrnci acti\'ity in the near rntnre.
The Committep's rrstrictions are intl'nded to eliminate nnnecessary
il1\'estigations and to proyidp additional protections for constitutional
rights. Shifting the focns of Bureau manpower in domestic secnrity
inn"tigatiolls frolll la\yfnl s}JP\.>ch and ass06ation to criminal conduct
320
by terrorists and foreign spies proyides further protection for constitutional
rights of Americans as 'Yell as serying the nation's interest
in security.
1. Investigations of CowrniUed 01' Imminent Offenses
Recommendation 42.-The FBI should be permitted to inyestigate
a committed act which may violate a federal criminal statute pertaining
to the domestic security to determine the identity of the perpetrator
or to determine whether the act yiolates such a statute.
Recommendation -is.-The FBI should be permitted to investigate
an American or foreigner to obtaih evidence of criminal activity
where there is "reasonable suspicion" that the American or foreigner
has committed, is committing, or is about to commit a specific act
which violates a federal statute pertaining to the domestic security.43
92. Pret'entive Intelligence I m'estigatio'fls
Recommendation 44.-The FBI should be permitted to conduct a
preliminary preventive intelligence investigation of an American or
foreigner where it has a specific allegation or specific or substantiated
information that the American or foreigner will soon engage in terrorist
activity or hostile foreign intelligence activity. Such a preliminary
investigation should not continue longer than thirty days from
receipt of the information unless the Attorney General or his designee
finds that the information and anv corroboration which has been obtained
warrants investigation for an additional period which may not
exceed sixty days. If, it the outset or at any time during the course
of a preliminary inYestigation the Bureau establishes "reasonable
suspicion" that an American or foreigner ,,-ill soon engage in terrorist
activity or hostile foreign intelligence activity. it may conduct a full
preventive intelligence investigation. Such full investigation should
not continue longer than one yrar except upon a finding of compelling
circumstances by the Attorney General or his designee.
Tn no ewnt should the FBI open a preliminary or full preventive
intelligence inycstiR:ation based upon information that an American
is adyocating political ideas or engaging in lawful political activities
or is associating with others for the nurposr of petitioning the gonrnment
for redress of grievances or other such constitutionally protected
purpose.
The second paraa-raph of Recommendation 44 ,,-ill serve as an important
safr I':uareI if ruactrd into fmy statute authorizing preYentiye
intellif'"encp inwstigations. It ,,-ould supplenwnt the protpction that
would he nffordNl by limitiJ1:'(' the FBI's intelligence inyestigations to
terrorist and hostilr foreia-n intpllif'"ence acth-ities. It re-emphasizes the
Committee's intent that the im-estii!ations of peaceful protest groups
and other lawful asso<,iations should not rpcur. It serves as a further
remindpr that advocacy of political ideas is not to be the basis for governmpnt,
al surYeillance. At the same time Recommendation 44 permits
the initiation of investigations whrre the Bureau possessps information
consisting of a "specific allegation or specific or substantiated informa-
.. This includE'S conspiracy to ,iolate a fedE'ral statutE' pE'rtaining to the domestic
Recurity. The Committee, howe,er. recommends repeal or amE'ndment of the
Smith Act to make clear that "con~piracy" to engage in political advocacy cannot
be investigated. (See Recommendation 93.)
321
tion that [an] American or foreigner will soon engage in terrorist
activity or hostile foreign intelligence activity."
This recommendation has been among the most difficult of the
o.omestic intrlligence recommrndations to draft. It w,as difficult because
it represents the Committre's effort to draw the fine line between
legitimate investigations of conduct and illegitimate investigations of
advocacy and association. Originally the Committee was of the view
that a threshold of "reasonable suspicion" should apply to initiating
even limited preliminary intelligence investigations of terrorist or
hostile foreign intelligence activities. However, the Committee was
persuaded by the Department of .fustice that. having narrowly defined
terrorist and hostile foreign intelligence activities, a "reasonable suspicion"
threshold might be unworkable at the preliminary stage. Such
a threshold might prohibit the FBI from investigating an allegation
of extremely dangerous activity made by an anonymous source or a
source of unknown reliability. The "reasonable suspicion" standard requires
that the investigator have confidence in the reliability of the
individual providing the information and some corroboration of the
information.
However, the Committee is cautious in proposing a standard of
"specific allegation or specific or substantiated information" because it
permits initiation of a preliminary investigation which includes the
use of physical surveillance and a sUlTey of, but not targeting of, existing
confidential human sources. The Committee encourages the
Attorney General to work ,,,itb the Congress to improve upon the
language we recommend in Recommendation 44 before including it in
any legislative charter. If ao.opteo., both the Attorney General and the
appropriate oversight committees should periodically conduct a careful
review of the application of the standard bv the FBI.
The ultimate goal which Congress should seek in enacting such
legislation is the development of a standard for the initiation of intelligence
investigations ,vhich permits investigations of credible allegations
of conduct ,vhich if uninterrupted will soon result in terrorist
activities or hostile foreign intelligence activities as we define them.
It must not permit investigations of consitutionally protected activities
as the Committee described them in the last paragraph of Recommendation
44. The following are examples of the Committee's intent.
Recommendation 44 would prohibit the initiation of an investigation
based upon "mere advocacy:"
-An investigation could not be initiated, for example, when the
Bureau receives an alleg-ation that a member of a dissident group has
made statements at the group's meeting that "America needs a Marxist-
Leninist govern!l1Pnt and needs to get rid of the fat cat capitalist
pig-s." --
The Committee has found serious abuses in past FBI investigations
of groups. In the conduct of these investigations, the FBI often failed
to distinguish between members who were engaged in criminal activity
and those who were exercising their constitutional rights of association.
The Committee's recommendations woulo. only permit investigation
of a group in two situations: first, where the FBI receives information
that the avowed purpose of the group is "soon to engage in terrorist
activity or hostile foreign inteJlig-ence activitv"; or second, where
the FBI has information that unidentified members of a group are
68-786 0 - 22
322
"soon to engage in terrorist activity or hostile foreign intelligence
activity". In both cases the FBI may focus on the group to determine
the identity of those members ,vho plan soon to engage in such activity.
Ho,vever, in 'both cases the FBI should minimize the collection of information
about law-abiding members of the group or any lawful
activities of the group.
-Where the FBI has information that certain chapters of a political
organization had "action squads," the purpose of which was to commit
terrrorist acts, the FBI could investigate. all members of a particular
"action squad" ,,-here it had an allegation that this "action squad"
planned to assassinate, for example, .Me.mbers of Congress.
-An investigation could be initiated based upon specific information
obtained by the FBI that unidentified members of a Washington,
D.C., group are planning to assassinate Me.mbers of Congress.
The Committee's recommendations would not permit investigation of
mere association:
-The FBI could not investigate an allegation that a member of
the Klan has lunch regularly with the mayor of a southern community.
-The FBI could not investigate the allegation that a U.S. Senator
attended a cocktail party at a foreign embassy where a foreign intellige.
nce agent was present.
However, when additional facts are added indicating conduct which
might constitute terrorist activity or hostile foreign intelligence
actiYity, investigation might be authorized:
-The FBI could initiate an investigation of a dynamite dealer
who met with a member of the "action squad" described above.
-Likewise, the FBI could initiate an investigation of a member
of the National Security Council staff who met clandestinely with a
known foreign intelligence agent in an obscure Paris restaurant.
Investigations of contacts can become quite troublesome when the
contact takes place within the context of political activities or association
for the purpose of petitioning the government. Law-abiding
American protest groups may share common goals with groups in
other countries. The obvious example was the widespread opposition
in the late 1960's, at home and abroad, to America's role in Vietnam.
Furthermore, Americans should be free to communicate about such
issues with persons in other countries, to attend international conferences
and to exchange views or information about planned protest
activities with like-minded foreign groups. Such activity, in itself,
would not be the basis for a preliminary investigation under these
recommendations:
-The FBI could not open an investigation of an anti-war group
because "known communists" ,vere also in attendance at a group meeting
ewn if it had reason to belien that the communists' instructions
were to influence the group or that the group shared the goals of the
Soviet Union on ending the war in Vietnam.
-The FBI could not open an investigation of an anti-war activist
who attends an international peace conference in Oslo ,,-here foreign
intelligence agents would be in attendance even if the·FBI had reason
to belicn that they might attempt to recruit the activist. Of course, the
CL\. ,,-ould not be preventrd from surveillance of the foreign agent's
activities.
Howe.ver, if the. Bureau had additional information suggesting that
the acti \-ities of the Americans in the above hypothetical cases were.
323
more than mere association to petition for redress of grievances, an
investigation 'would be legitimate.
-Where the FBI had received information that the anti-war activist
traveling to Oslo intended to meet with a person he knew to be a
foreign intelligence agent to l'c('eive instructions to conduct cspionage
on behalf of a hostile foreign country, the FBI could open a preliminary
investigation of the activist.
The Committee cautions the Department of Justice and FBI that
in opening investigations of conduct occurring in the context of political
activities, it should endeavor to ensure that the allegation prompting
the investigation is from a reliable source.
Certainly, however, where the FBI has received a specific allegation
or specific or substantiated information that an American or
foreigner will soon engage in hostile foreign intelligence activity
or terrorist activity, it may conduct an investigation. For example, it
could do so:
-Where the FBI receives information that an American has been
rocruited by a hostile intelligence service;
-Where the FBI receives information that an atomic scientist has
had a number of clandestine meetings with a hostile foreign intelligence
agent.
Recommendation 45.-The FBI should be permitted to collect information
to assist federal, state, and local officials in connection with
a civil disorder either-
(i) After the Attorney General finds in writing that there is a clear
and immediate threat of domestic violence or rioting which is likely
to require implementation of 10 U.S.C. 332 or 333 (the use of federal
troops for the enforcement of federal law or federal court orders), or
likely to result in a request by the governor or legislature of a state
pursuant to 10 U.S.C. 331 for the use of federal militia or other federal
armed forces as a countermeasure; 45a or
(ii) After such troops have been introduced.
Recommendation 4v.-FB1 assistance to federal, state, and local
officials in connection with a civil disorder should be limited to collecting
information necessary for
(1) the President in making decisions concerning the introduction
of federal troops;
(2) military officials in positioning and supporting such troops; and
(3) state and local officials in coordinating their activities with such
military officials.
4. Background Investigations
Recommendation 47.-The FBI should be permitted to participate
in the federal government's program of background investigations of
federal employees or employees of federal contractors. The authority
to conduct such investigations should not, however, be used as the basis
for conducting investigations of other persons. In addition, Congress
should examine the standards of Executive Order 10450, which serves
as the current authority for FBI background investigations, to determine
whether additional legislation is nccessary to :
(a) modify criteria based on political beliefs and associations unrelated
to suitability for employment; such modification should make
.... This recommendation does not prevent the FBI from conducting criminal
investigations or preventive intelligence investigations of terrorist acts in
connection with a civil disorder.
324
those criteria consistent 'Yith judicial decisions regarding privacy of
political association; 4G and
(b) restrict the dissemination of information from name checks 47
of information related to suitability for employment.
5. Security Risk Investigations
Recommendation 48.-Under regulations to be formulated by the
Attorney General, the FBI should be permitted to investigate a specific
allegation that an indiYidual ,,,ithin the Executive branch with access
to classified information is a security risk as described in Executive
Order 10450. Such inYestigation should not continue longer than
thirty days except upon written approval of the Attorney General or
his designee.
6. Security Leak Investigations
Recommendation 49.-Under regulations to be formulated by the
Attorney General, the FBI should be permitted to investigate a specific
allegation of the improper disclosure of classified information by
employees or contractors of the Executive branch.48 Such investigation
should not continue longer than thirty days except upon written approval
of the Attorney General or his designee.
d. Authorized Investigative Techniques
The following recommendations contain the Committee's proposed
controls on the use of investigative techniques in domestic security
investigations which ,Yould be authorized herein. There are three
types of inYestigative techniques: (1) overt techniques (e.g., interviews),
(2) name checks (review of existing government files), and
(3) coyert techniques (which range, for example, from electronic surveillance
and informants to the reyiew of credit records) .
The objective of these recommendations, like the Attorney General's
domestic security guidelines, is to ensure that the more intrusive the
technique, the more stringent the procedural checks that will be applied
to it. Therefore, the recommendation would permit overt techniques
and name checks in any of the inYestigative areas described
above.
'With respect to covert technique, the Committee decided uJX>n procedures
to apply to the use of a particular coyert technique based upon
three considerations: (1) its potential for abuse, (2) the practicability
of applying the procedure to the technique, and (3) the facts and circumstances
gi,-ing rise to the request for use of the technique (whether
the facts warrant a full investigation or only a pr.eliminary investigation).
The most intrusiYe cOl-ert techniques (electronic surveillance,
mail opening, and surreptitious entry) would be permissible only if
a judicial ,varrant ,ypre obtained as required in Recommendations 51
through 54. FBI requests to target paid or controlled informants, to
review tax returns, to use mail covers, or to use any other covert techniques
in domestic security inyestigations would be subject to review
.. For example, NAAep v. A.labama, 357 U.S. 449 (1958) ; Bates v. Little Rock,
361 L.S.516 (1960).
47 See definition of "name checks" at p. 340.
48 If Congress enacts a security leak criminal statute, this additional investigath-
e authority would be unnecessary. Security leaks would be handled as traditional
criminal investigations as described in Recommendations 42 and 43
above.
325
and in some cases to prior approval by t.he Attorney General's office,
as described in Recommendations 55 through 62.49
The judicial warrant requirement the Committee recommends for
electronic surveillance is similar in many respects to the Administration's
bill, which is a welcome departure from past practice. The Committee,
like the Administration, believes that there should be no electronic
surveillance within the united States which is not subject to a
judicial warrant procedure. Both would also authorize warrants for
electronic surveillance of foreigners who are officers, agents, or employees
of foreign pOlwers, even though the government could not
point to probable cause of criminal activity.
However, while the constitutional issue has not been resolved, the
Committoo does not believe that the President has inherent power to
authorize the targeting of an American for electronic surveillance
without a warrant, as suggested by the Administration bill. Certainly,
if Congress requires a warrant for the targeting of an American for
traditional electronic surveillance or for the most sophisticated NSA
techniques, at home or aJbroad, then the dangerous doctrine of inherent
Executive power to target an American for electronic surveillance can
be put to rest at last.49a The Committee also would require that no
American be targeted for electronic surveillance except upon a judicial
finding of probable criminal activity. The Administration bill
would permit electronic surveillance in the absence of probable crime
if the American is engaged in (or aiding or abetting a person engaged
in) "clandestine intelligence activity" (an undefined term) under the
direction of a foreign power. Targeting an American for electronic
surveillance in the aJbsence of probable cause to believe he might commit
a crime is unwise and unnecessary.
In Part X, the Committee recommends that Congress consider
amending the Espionage Act to cover modern forms of industrial,
technological, or economic espionage not now prohibited. At the same
time, electronic surveillance targeted at an American should be authorized
where there is probable cause to believe he is engaged in such
activity. Thus, the Committee agrees with the Attorney General that
such activity may subject an American to electronic surveillance. But,
as a matter of principle, the Committee believes that an American
ought not to be targeted for surveillance unless there is probable cause
to believe he may violate the law. The Committee's record suggests that
use of undefined terms, not tied to matters sufficiently serious to be
the subject of criminal statutes, is a dangerous basis for intrusive
investigations.
The paid and directed informant was a principal source of excesses
revealed in our record. However, we do not propose the application
of a judicial warrant procedure to informants. Instead, we propose
a requirement of approval by the Attorney General based upon a
probable cause standard. Because of the potential for abuse, however,
we believe the warrant issue should be thoroughly reviewed after two
years' experience.
.. Review of tax returns and mail covers would also be subject to the Post
Office and IRS procedures described in earlier recommendations.
••• "When the President takes measures incompatible with the expressed or
implied will of Congress, his power is at its lowest ebb...." (Youngstown Sheet
d Tube Go. v. Sawyer, 343 U.S. 579, 637 (1952), Justice Jackson concurring.)
326
There are some differences between the Attorney General and the
Committee on the use of informants.5o The Attorney General would
permit the FBI to make unrestricted use .of existing informants in a
preliminary intelUgence investigation. The Committee recognizes the
legitimacy of using existing informants for certain purposes-for
example, to identify a new subject who has come to the attention of
the Bureau. Rowewr, the Committee believes there should be certain
restrictions for existing informants. Indeed, almost all of the informant
abuses-overly broad reporting, the ghetto informant program,
agents provocateur. etc.-involved existing informants.
The real issue is not the development of new informants, but the
sustained direction of informants, new or old, at a new target. Therefore.
the restrictions suggested in Recommmdations 55 through 57
are designed to impose standards for the sustained targeting of informants
against Americans.
The Committee requires that before an informant can be targeted
in an intelligence investigation the Attorney General or his designee
must make a finding that he has considered and rejected less intrusive
techniques and that targeting the informant is necessary to the investigation.
Furthermore, the Committee would require that the informant
cannot be targeted for more than ninety days 51 in the intelligence
investigation unless the Attornev General finds that there is
"probable cause" that the American will soon engage in terrorist or
hostile foreign intelligence activity, except that if the Attornev General
finds compelling circumstances he may permit an additional
flixty days.
Other than the restrictions upon the use of informants, the Committee
would permit basically the same techniques in preliminary and
full investigations as the Attorney General's guidelines, although the
Committee would require somewhat closer supervision by the Attorney
General or his designee. Interviews (including interviews of
existing informant's). name checks (inchlding checks of local police intelligence
files). and physical surveillance and review of credit and
telephone records would be permitted during the preliminary investigation.
The Attorney General or his designee would have to review that
investigation within one month. Fnder the guidelines, preliminary investigations
do not reCluire approval by the Attorney General or his
designee and can continue for as long as ninety days with an additional
ninety-day extension. The remainder of the covert techniques
would be permitted in fnll intelligence investigations. Under the
Attorney General's guidelines. the Attorney General or his designee
only become invohed in the termination of such investigations (at the
end of one year), while the Committee's recommendations wonld require
the Attornev General or his designee to authorize the initiation
of the full investigation and the use of cOYert techniques in the investigation.
1. 01'('rf T('chniquP8 and l',Tamp Checks
Reromnwndatiol) ·?tJ.-Owrt te.chniCllH'S and nanw clwcks should be
permitted in all of the authorized domestic security investigations
GIJ Thp Attornpv Gpnpral is considpring additional guidplines on informants.
61 The period of ninety days begins when the informant is in PIacp and capahlp
of reporting.
327
described above, including preliminary and full preventive intelligence
investigations.
2. Oovert Techniques
a. Oovert Techniques Om'ereel
This section coyers the standards and procedures for the use of the
following covert techniques in authorized domestic security
investigations:
(i) electronic surveillance:
(ii) search and seizure or surreptitious entry;
(iii) mail opening;
(iv) informants and other cOYert human sources;
(v) mail surveillance;
(vi) review of tax returns and tax-related information;
(vii) other eoyer't tedmiques-including physical surveillance,
photographic suneillance. use of body recorders and
other consensual electronic surYeillance, and use of sensitive
records of state and local government, and other institutional
records systems pertaining to credit, medical history, social
welfare history, or telephone calls.52
b. Judicial TVarrant Procedures (Electronic Surveillance, Mail
Opening, Search and Seieul'e, and SurreptitiO'Us Entry)
The requirements for judicial WaTl'ants, set forth below, are not
intended to cover NSA communication intercepts. Recommendations
14 through 18 contain the Committee's recommendations pertaining
to NSA intercepts, the circumstances in which a judicial warrant is
required and the standards applicable for the issuance of such a
warrant.
Recommendation 51.-All non-consensual electronic surveillance,
mail-opening, and unauthorized entries should be conducted only
upon authority of a judicial warrant.
Recommendation 52.-All non-consensual electronic surveillance
should be conducted pursuant to judicial warrants issued under authority
of Title III of the Omnibus Crime Control and Safe Streets
Actof 1968.
The Act should be amended to provide, with respect to electronic
surveillance of foreigners in the United States, that a warrant may
issue if
(a) There is probable cause that the t'arget is an officer, employee,
or conscious agent of a foreign power.
(b) The Attorney General has certified that the surveillance is
likely to reveal information necessary to the protection of the nation
against actual or potential attack or other hostile acts of force of a
foreign power; to obtain foreign intelligence information deemed
essential to the security of the United St!ates; or to protect national
security information against hostile foreign intelligence activity.
(c) With respect to any such electronic surveillance, the judge
should adopt procedures to minimize the acquisition 'and retention of
non-foreign intelligence information 'about Americans.
52 The Committee has not taken extensive testimony on these "other covert
techniques" and therefore, aside from the .e;eneral administrative procedures
contained in c. below, makes no recommendations designed to treat these techniques
fully.
328
(d) Such electronic sun'eillance should be exempt from the disclosure
requirements of Title III of the I90R Act as to foreigners generally
and as to Americans if they are ilwolved in hostile foreign
intelligence activity.53
As noted earlier, the Committee believes that the espionage la,,·s
should be amended to include industrial espionage 'and other modern
forms of espionage not presently covered and Title III should incorporate
any such amendment. The Committee's recomendation is that
both that change and the 'amendment of Title III to require warrants
for all electronic suneillance be promptly made.
Recommendation 53.-)1ail opening should be conducted only pursuant
to a judicial warrant issued upon probable cause of criminal
actiyity as described in Recommendation 07. ,
Ree~mmendation .54.-rnauthorized entry should be conducted only
upon judicial warrant issued on probable cause to believe that the
pla,ce to be searched contains evidence of a crime. except unauthorized
entry, including surreptitious entry, against foreigners who are officers,
employees, or conscious agents ofa foreign power should be permitted
upon judi6alwarrant under the st'andards which apply to electronic
surveillance described in Recommendation 52.
c. Admin/strati'ce Procedures (Covert Human Sources, Mail
SUJ'l'eillance. Rel'iew of Taw Returns and Tam-Related Information,
and Other rovert Techniques)
Recommendation 55.-Covert human sources may not be directed 54
at ':1n American except:
(1) In the course of a criminal investigation if necessary to the
investigation pr01'ided that covert human sources should not be direr,
ted 'at an American as a part of an investigation of a committed act
unless there is reasonable suspicion to believe that the American is
responsible for the act and then only for the purpose of identifying
the perpetrators of the act.
(2) If the American is the target of a full preventive intelligence
investigation and the Attorney General or his designee makes a written
finding that 55 (i) he has considered and rejected less intrusive techniques;
and (ii) he believes that covert human sources are necessary
to obtain information for the investigation.
Recommendation 56.-Covert human sources which have been directed
at an American in a full preventive intelligence investigation
should not be used to collect information on the activities of the American
for more than 90 days after the source is in place and capable of
reporting, unless the Attorney General or his designee finds in writing
63 Except where disclosure is called for in connection with the defense in the
case of criminal prosecution.
54 A "co,ert human source" is an underco,pr agent or informant who is paId
or otherwise controlled by the agency. A cooperating citizen is not ordinarily
a co,ert human source. A co,ert human source is "directed" at an Amprlcan
when the intelligence agency requests the covert human source to collect new
information on the 'acn,ities of that individual. A cO\'ert human source is not
"dirpctPd" at a target if the intf'Iligence agency merply asks him for information
already in his posspssion. unless through repeatPd inquiries. or otherwise, the
ag-encv implicitly directs the informant aj("ainst the targ-elt of the in,estigation.
65 The written finrling must be made prior to the time the ('overt human sour('e
is directed at an American, unless exigent circumstances make application impossible,
in which case the application must be made as soon thereafter as
possible.
329
either that there are "compelling circumstances" in which case they
may be used for an additional 60 days, or that there is probable cause
that the American will soon engage in terrorist activities or hostile
foreign intelligence activities.
Recommendation 57.-All covert human sources used by the FBI
should be reviewed by the Attorney General or his designee as soon
as practicable, and should be terminated 56 unless the covert human
source could be directed against an American in a criminal investigation
or a full preventive intelligence investigation under these
recommendations.
Recommendation 58.-Mail surveillance and the review of tax returns
and tax-related information should be conducted consistently
with the recommendations contained in Par't iii. In addition to restrictions
contained in Part iii, the review of tax returns 'and tax-related
information. as well as review of medical or social history records,
confidential records of private institutions and confidential records of
Federal, state, and local government agencies other than intelligence
or law enforcement agencies may not be used against an American
except:
(1) In the course of a criminal investigation if necessary to the investigation;
(2) If the American is the target of a full preventive intelligence
investigation and the Attorney General or his designee makes a written
finding that 57 (i) he has considered and rejected less intrusive techniques;
and (ii) he believes that the covert technique requested by the
Bureau is necessary to obtain information necessary to the investigation.
Recommendation 59.-The use of physical surveillance and review
of credit and telephone records and any records of governmental or
private institutions other than those covered in Recommendation 58
should be permitted to be used against an American, if necessary, in
the course of either a criminal investigation or a preliminary or full
preventive intelligence inve~"tigation.
Recommendation 60.-Covert techniques should be permitted at the
scene of a potential civil disorder in the course of preventive criminal
intelligence and criminal investigations as described above. Non-warrant
covert techniques may also be directed at an American during a
civil disorder in which extensive acts of violence are occurring and
Federal troops have been introduced. This additional authority to
direct such covert teclmiques at Americans during a civil disorder
should be limited to circumstances where Federal troops are actually
in use and the technique is used only for the purpose of preventing
further violence.
Recommendation 61.-Covert techniques should not be directed at
an American in the course of a background investigation without the
informed 'nitten consent of the American.
Recommendation 62.-If Congress enacts a statute attaching criminal
sanctions to security leaks, covert techniques should be directed at
Americans in the course of security leak investigations only if such
50 Termination requires cessation of payment or any other form of direction or
control.
51 The written finding must he made prior to the time the technique is used
against an American, unless exigent circumstances make application impossible,
in which case the application must be made as soon thereafter as possible.
330
t~chniques are consistent with Recommendation 55 (1), 58 (1) or 59.
With respect to security risks, Congress might consider authorizing
covert techniques, other than those requiring a judicial warrant, to be
direcwd at Americans in the course of security risk 58 investigations,
but only upon a written finding of the Attorney General that (i) there
is reasonable suspicion to believe that the individual is a security risk,
(ii) he has considered and rejected less intI1lsive t~chniques, and (iii)
he believes the technique requested is necessary to the investigation.
(d) Incidental Overhears
Recommendation 63.-Except as limited elsewhere in these recommendations
or in Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, information obtained incidentally through an authorized
covert technique about an American or a foreigner who is not
the target of the covert technique can be used as the basis for any authorized
domestic security investigation.
e. Maintenance and Dissemination of Information
The following limitations should apply to the maintenance and
dissemination of infoI1nation collected as a result of domestic security
investigations.
1. Relevance
Recommendation 64.-Infonnation should not be maintained except
where relevant to the purpose of an investigation.
2. Sealing or Purging
Recommendation 65.-Personally identifiable information on
Americans obtained in the following kinds of investigations should be
sealed or purged as follows (unless it appears on its face to be necessary
for another authorized investigation) :
(a) Preventive intelligence investigations of terrorist or hostile foreign
intelligence activities-as soon as the investigation is terminated
by the Attorney General or his designee pursuant to Recommendation
45 or 69.
(b) Civil disorder assistance-as soon as the assistance is terminated
by the Attorney General or his designee pursuant to Recommendation
69, provided that lWhere troops have been introduced such
information need be sealed or purged only within a reasonable period
after their withdrawal.
Recommendation 66.-Information previously gained by the FBI
or any other intelligence agency through illegal techniques should be
sealed or purged as soon as practicable.
8. Di.~8emination
Recommendation 67.-Personallv identifiable information on Americans
from domestic securitv inves'tiqations may be disseminated outside
the Department of .Tustice as fonows:
(a) Preventive intelligence investigations of terrorist activitiespersonally
identifiable information on Amrricans from preventive
criminal intelligence investigations of terrorist activities may be diss('
minated only to:
58 If COn!!rPRR OOf'R not l'nnct n sf'cnrit, leak cfiminnI Rtntntl'. COll!!fI'RR mi!!ht
(,ollf<i,lpf 11l1thori7ine: CO,l'rt t('('hniql1l'f< in thl' Rl1ml' ('ir('l1mRtl1n('pf< l1R gpcl1rit, rigJ;;
investigations eithl'r as an interim mea~url' or a~ an alternati,e to snch a ~tatlltp.
331
(1) A foreign or domestic law enforcement agency which has
jurisdiction over the criminal activity to which the information relates;
or
(2) To a foreign intelligence or military agency of the United
States, if necessary for an activity permitted by these recommendations;
or
(3) To an appropriate federal official with authority to make personnel
decisions about the subject of the information; or .
(4) To a foreign intelligence or military agency of a cooperatmg
foreign power if necessary for an activity permitted by these recommendations
to similar agencies of the United States; or
(5) Where necessary to warn state or local officials of terrorist activity
likely to occur within their jurisdiction; or
(6) 'Yhere necessary to warn any person of a threat to life or property
from terrorist activity.
(b) Preventive intelligence investigations of hostile foreign intelligence
activities-personally identifiable information on America~s
from preventive criminal intelligence investigations of hostile intelhgence
activities may be disseminated only:
(1) To an appropriate federal official with authority to make personnel
decisions aoout the subject of the information; or
(2) To the National Security Councilor the Department of State
upon request or where appropriate to their administration of U.S.
foreign policy; or
(3) To a foreign intelligence or military agency of the United
States, if relevant to an activity permitted by these recommendations;
or
(4) To a foreign intelligence or military agency of a cooperating
foreign power if relevant to an activity permitted by these recommendations
to similar agencies of the United States.
(c) Civil disorders assistance-personally identifiable information
on Americans involved in an actual or potential disorder, collected
in the course of civil disorders assistance, should not be disseminated
outside the Department of .Tustice except to military officials
and appropriate state and local officials at the scene of a civil disorder
where federal troops are present.59
(d) Rackground investigations-to the maximum extent feasible,
the reslllts of backrrround investigations shoulrl be segregated within
the FBI and only clisseminated to officials o11tside the Department of
.Tustice authorized to make personnel decisions with respect to the
suhiect.
(e) All other authori7:ed clomestic sec11ritv invl'stigations-to governmental
offiC'ials who !Ire !l11thori7:erl to t!lke adion consistent with
the purpose of an invl'stigation or who have statutory duties which
require the information.
4. (h'er8iaht Al?l?ess
Rp('ommerulrdion 68.-0ffiC'l'rs of thp F,"eC'lltive branC'h. who are
mnde responsihle bv thrse rl'C'ommPIllhtions for overf:peing intelligl'nce
nctivitil's, ann appropriate congressional committees should
.. PPrRonl1llr idpntifillh11' infurmllttj,m on tprrori~t l1cthitv which }l{'r't'ainR to a
civil diRordpr rollld still he dis~eminated purnllant to (a) ahove.
332
have access to all information necessarv for their functions. The committees
should adopt procedures to protect the privacy of subjects of
files maintained by the FBI and other agencies affected by the domestic
intelligence recommendations.
f. Attorney General 01'ersight of the FBI~ Including Ter1nination
of Investigations an(l ('o/'ert Techniques
Recommendation 6.9.-The Attorney General should:
(a) Establish a program of routine and periodic review of FBI
domestic security investigations to ensure that the FBI is complying
with all of the foregoing rccommendations; and
(b) Assmc, ,vith respect to the following innstigations of Americans.
that:
(1) Preventive intelligence investigations of terrorist activity or
hostile foreign intelligence activity 'are terminated within one year,
except that the Attorney General or his designee may grant extensions
upon a written finding of "compelling circumstances";
(2) Covert techniques are used in preventive intelligence investigations
of terrorist, activity or hostile foreign intelligence activity only
so long as necessary and not beyond time limits established by the
Attorney General except that the Attorney General or his designee
may grant extensions upon a written finding of "compelling circumstances"
; un Civil disorders assistanc(' is terminated upon withdrawal of
federal troops or. if troops were not introduced. within a reasonable
time aft('r th(' finding by the Attorney Gelwral that troops are likely
to })(' r('quested. except that the Attorney Genernl 01' his designee may
grant extensions upon a written finding of "compelling circumstances,"
v. The Responsibilib/ and Authority of the Attorney General
for 01'ersight of Federal Domestic Security Activities Must
Be 01arifird and Geneml Oounsels and In.~prctol's General of
Intelligence Agencies Strengthened
The Committee's Recommendations givc the Attorney Gcneral
broad oversig-ht responsibility for federnl domestic sccmitv activities.
As the chief legal officer of the rnited States. the Attorney General is
the most appropriate official to be charged with ensuring that the intelligence
agencies of the United States conduct their activities in
accordance with the law. The Executiw Order. howenr. places primary
responsibility for oversight of the intelligence agencies with the
newly created Oversight Board.
Both the Recommenoations ann the Oroer rerognize the Attorney
General's primary responsibility to detect, or prevent, violations of
law by any employee of intelligence agencies. Roth charge the head
of intelligenc(' ag('ncies with the duty to report to the Attorney General
information which relates to possible viollltions of Jaw bv any
employee of the respertive intelligence a~encies. The Order also requires
'the Oversight Board to report periodically, at least quart~rly,
to the Attorney General on its findings and to report. in a timely manner.
to the Attorney General, any activities that raise serious questions
about legnlity.
333
a. Attorney General Resp01l.~ibility and Relationship "TVitk Other
Intelligence Agendes
These recommendations are intended to implemrnt the Attorney
General's responsibility to control and suprrvisc all of the domestic
security activitirs of the fcdcral goycrnmcnt ancl to oversee activities
of any agency affected by the Domestic Intelligence Recommendations:
Recommendation 7D.-The Attorney General should review the
internal regulations of the FBI awl oHler intelligence agencies engaging
in domestic security activities to ensure that such internal regulations
are proper and adequate to protect the constitutional rights of
Americans.
Recommendation 71.-The Attorney General or his designee (such
as the Office of Legal Counsel of the Department of .Tustice) should
advise the General Counsels of intelligence agencies on interpretations
of statutes anfl regulations adopted pursuant to these recommendations
and on such other legal questions as are clescribrd in b. helow.
Recommendation 'lB.-The Attorney General should have ultimate
responsibility for the investigation of alleged violations of law relatmg
to the DOllH'stic Intelligence RecomllH'ndations.
Recommendation 73.-The Attorney General should be notified of
possible allE>ged violations of law thr'ough the Office of Professional
Responsibility (described in c. below) by agency heads, General
Counsel, Or Inspectors General of intelligence agencies as provided
in B. belmv.
Recommendation 7"i.-The heads of all intelligence agencies affected
by these recommendations are responsible for the prevention and detection
of alleged violations of the law by, or on behalf of, their respective
agencies and for the reporting to the Attorney General of
all such alleged \'iolations. 6o Each such agency head should also assure
his agrncy's cooperation with the Attorney General in investigations
of all~ged violations.
b. General Oounsel and Inspector'8 General of Intelligence
The Committee recommends that the FBI and each other intelligence
agency should have a general counsel nominated by the President
and confirmed by the Senate. There is no provision in the Executive
Order making General Counsels of intelligence agencies subject to
Senate confirmation. The Committee believes that the extraordinary
responsibilities exercised by the General Counsel of these agencies
make it very important that these officials are subject to examination
by the Senate prior to their confirmation. The Committee further believes
that making such positions subject to Presidential appointment
and senatorial confirmation will increase the stature of the office and
will protect the indrpendenc(' of judgment of the General Counsel.
The Committee Recommendations differ from the Executive Orcler
in two other important respects. The Recommendations provide that
the General Counsel should review all significant proposed agency
activities to detrl1nine their legality. They also provide a mechanism
00 This recommendation must hr rrad along with rrcommrndations containrd
in Part ii, limiting thr authority of foreign intrlligence and military agrnC'ieR
to inyrstigatr srcurity }raks or srcurity risks involving their employees and
centralizing those investigations in the FBI.
334
,Ylwrrby the InspedOJ' General or Genrral Counsel of an intelligence
agency can. in extraordinary circumstances. and if requested by an
rmployrc of the Agency. provide information <'Erectly to the Attornry
General or appropriate congressional oversight committees without
informingtlU' hrad of the agency.
The Committf'f' Recommf'ndations also go bryond the Executive
Or(lC'r in requiring agrncy hrads to report to appropriate committ~es
ofthe Congress and the Attorney General on the activities of the Office
of thr Genrral Counsel and the Office of the Inspector Gf'nf'raL The
Committee believes that the reporting reguirrments will facilitate
ovrrsight of thr intelligence agencies and of those important offices
,yithin them.
Rrrommrndrrtion 7.5.-To assist tIl(' Attorney General and the
agency heads in the functions described in a. abm:e. the FBI and each
other intelligence agrncy should have a General Counsel. nominated
hy the President amI confirmed hy the Senate, and an Inspector Genrral
appointed by the agency head.
Recommendation 76.-Any individual having information on past,
rurrent. or proposed activities which appear to be illegal, improper,
or in violation of agrnry policy should be required to report the matter
imme(liatdy to the Agency hpad, General Counsel. or Inspector
Gelwra 1. Tf the Dlntter is not initiallv reported to the General Counsel,
he should be notified by the Agency head or Inspector GenHaL Each
agrncy should regularly remind employees of their obligation to report
surh information.
Recommendation 77.-As providec1 in Recommendation 74, the
heads of t.he FBI amI of othpr intelliO"f'1lce agencies are responsible
for reporting to the Attorney General alleged violations of law. When
such reports are made. the appropriate congressional committees
shonld be notified.61 .
Recom.m~ndrrtion 78.~The Genernl Counsel and Inspector General
of the FBI and of er1rh other intelligence agf'ncv shou1c1 have unrrstrirtf'c1
arcess to all information in thr possrssion of the agencv
and shonld have thr anthority to review all of the agency's aetivities.62
The. Attornev Gpneral. or the Office of Professiomtl Responsibility on
his hehaIf. s'h0111d have acrf'SS to all inforn1ation in thr possession of
an agrncy which. in the opinion of the Attorney General. is necessary
for an in,restimltion ofi11eO"al artivity.· .
Recommf'nrlation 7,9.-The Gpnernl COlmsel of thr FBI and of each
other intelligence agency shoulO review all signifirant proposed agency
activities to detrrminc their legality and constitntionality.
<1 Thf' In!';pector General ann Gf'nf'ral Coun!';pl shoulo ha'l'P authority, in extraoroinar:
v circumstances. ann if rerl1lPstpo hv an f'mployep of the I1gf'ncy
provioing information. to pa!';!'; the information oireptlv to the Attorney General
ano to notify thp apnl'onriate rongresoional committeps withont informing the
heao of the agency. Furthermore. nothing herein ;:houlo prohihit an emnloyee
from reporting on his owu slwh information oirectly to the Attorney General
or an appropriate rongre!';sional oversight rommittee.
• 2 Thp hf'I1O of the agency !';houlo he reouil'eo to provioe to the appropriatf'
oVf'rsi!.!'ht committf'es of thp Congrpss ano thl' EXPClltivf' hranch ano thf' Attorney
General an immPrliate f'xpIIl1nation. in writing. of any instance in
"'hich thl' Inspeptor Gpnernl or thf' Gl'nl'ral Counsel hns hepn df'nipd arrf'!,;s to
information. has hf'en instrnctl'o not to report on a particular activity or has
hern denieo the authority to investigate a particular activity.
335
Recommendation 80.-The Director of the FBI and the heads of
each other intelligence agency should be required to report, at least
annnally, to the appropriatB c'ommittee of the Congress, on the activities
of the General Connsel and the Office of the Inspector Genera1.63
Recommendation 81.-The Director of the FBI and the heads of
each other inte1ligence agency shonld be required to report, at least
annual1y. to the Atto1'lley General on aU reports of activities which
appear illegaL improper, outside the legislative charier, or in violation
of agency regulations. Such reports should include the General Counsel's
findings concerning these activities, a summary of the Inspector
General's investigations of these activities, and the practices and procedures
developed to discover activities that raise questions of legality
or propriety.
c. Office of Professional Responsibility
Recommendation 8~.-The Office of Professional Responsibility
created by Attorney General Levi should be recognized in statute. The
director of the office, appointed by the Attorney General, should
report directly to the Attorney General or the Deputy Attorney General.
The functions of the office should include:
(a) Serving as a central repository of reports and notifications
provided the Attorney General; and
(b) Investigation, if requestBel by the Attorney General of alleged
violations by intelligence agencies of statutes enacted or regulations
promulgated pursuant to these recommendations.64
d. Director of the FBI and Assistant Directors of the FBI
Recommendation 8S.-The Attorney General is responsible for all
oT the activities of the FBI, and the Direotor of the FBI is responsible
to, and should be under the supervision and control of, the Attorney
General.
Recommendation 8.~.-The Director of the FBI should be nominatOO
by the President and confirmed by the Senate to serve at the pleasure
of the President Tor a single term oT not more than eight years.
Recommendation 85.-The Attorney General should consider exercising
his power to appoint Assistant Directors OT the FBI. A maximum
term of years should be imposed on the tenure oT the Assistant
Director for the Intelligence Division.64a
'" The report should include: (a) a summary of all agency activities that
raise questions of legality or propriety and the General Counsel's findings concerning
these actirities; (b) a summary of the Inspector General's inrestigations
concerning any of these activities; (c) a summary of the practices and
procedures dereloped to discover activitie81 that raise questions of legality or
propriety; (d) a summary of each C'Omponen't, program or issue survey, including
the Inspector General's recommendations and the Director's decisions; and (e)
a summary of all other matters handled by the Inspector General.
The report should also include discussion of: (a) major legal problems facing
the Agency; (b) the need for additional statutes; and (c) any cases referred
to thf" DeDartment of .TusHf'P.
.. The functions of the Office should not include: (a) exercise of routine super,
ision of FBI domestic Sf"{'urity in,esti.!!ations; (h) making requests to other
agencil's to conduct in,estigations or direct covert teehniques at Americans;
or (c) in,ol,ement in any other supervisory functions which it might ultimately
hI' rpquirpd to invpsti!!ntp.
... It is not proposed that this rec'omwendation be enacted as a statute.
336
'ui. Administrative Hulemaking amd Increased Disclosure
Should Be Required
a. Administrative Rulenwking
Rec01mnendation 86.-The iUtorney General should apprm'e all administrative
regulations required to implement statutes cre,ated pursuant
to these recommendations.
Recommnldation 87.-Such regulati()ns~except for regulations concel'lling
investigations of hostilr forrign intrlligrnc(' acti\'ity 01' oth(']'
matters which are proprrly e1assified~ should 1)(' issued pnrsuant to the
Administrative ProcC'dures Act and should bC' subjC'ct to the approval
of thr Attorney Grllrral.
Recommendation 88.-The effectiw date of regulations pertaining
to the following mattC'rs should be delayed ninrty days. during which
time Congress would have the opportunity to reYiC'\y such rC'gulations:
6'
(a) Any CIA activities against Amrricans. as permittC'cl 1Il H.a.
above;
(0) ::\Iilitary activities at the time of a ci\"il disorder;
((') The authorized scope of domestic secudty investigations~ authorized
investigative techniques~ maintenance and dissemination of
information by the FBI ; and
(d) The termination of investigations and cowrt techniques as described
in Part iv.
O. Disclo8llre
Rl'com1lU'ndation 89.-Each year the FBI and other intelligrnce
agemirs affected by these recommendations should be required to seek
annual statutory authorization for their programs.
Rrcommrndation 90.-The Freedom of Information Act (5 U.S.C.
552 (b)) and the Federal Pri\'acy Act (5 r.s.c. ;";52 (a)) provide important
mechanisms by \yhich individuals can gain access to information
on intelligence acti\'ity directed against them. The Domestic Intelligence
Recommendations assume tha't these statutes will continue
to be vigorously enforced. In addition~ the Department of .rustice
should notify all readily identifiable targets of past illegal surveillance
techniques. and all COINTELPRO victims~ and third parties who had
receiYerl 'anonvmous COINTELPRO communications. of the nature
of the activities directed against them~ or the source of the anonymous
communication to them.6Ga
'uii. Civil Remedies Should Be Expanded
Recommendation 91 expresses the Committee's concern for establishing
a legislative scheme which will afford effectin' redress to people
who are injured by improper federal intelligence activity. The recommended
provisions for civil remedies are also intended to deter impropel'
intelligence activity \yithout restl'icting the sound exercise of
discl'rtion by intelligence officers at headqualiers or in the field.
As the Committee's investigation has shown~ many Americans have
suffererl injuries frolll domestic intelligence actiyity. ranging from deprivation
of constitutional rights of privacy and free speech to the
loss of a job or professional standing, break-up of a marriage. and
impairment of physical or mental health. But the extent, if 'any, to
"This review procedure would he similar to the procedure followed with respect
to the promulgation of the Federal Rules of Criminal and Civil Procedure.
65. It is not proposed that this recommendation be enacted as a statute.
337
which an injured citizen can seek relief-either monetary or injunctivc-
from the gO\'Cl'lllllPnt 01' from an individual intelligence officer is
far from clear lIlHler thp present state of the hny. -
One major disparity in the current state of the law is that, under
the Reconstruction era Civil Hights Act of 1871, the deprivation of
constitutional rights by an officer or agent of a state government proyides
the basis for a suit to redress the injury incurred; 66 but there is
no statute \yhich extends the same remedies for identical injuries when
they m'e caused by a federal officer.
In the landmark BiL'en.~ case, the Supreme Court held that a federal
officer could be sued for money damages for violating a citizen's
Fourth Amendment rights. 67 'Yhether monetary damages can be obtained
for violation of other constitutional rights by federal officers
remains unclear.
'Vhile we believe that any citizen with a substantial and specific
claim to injury from intelligence activity should have standing to sue,
the Committee is aware of the need for judicial protection against
legal claims which amount to harassment or distraction of government
officials, disruption of legitimate investigations, and wasteful expenditure
of gOYernment resources. 'Ve also seek to ensure that the
creation of a civil remedy for aggrieYed persons does not impinge upon
the proper exercise of discretion by federal officials. .
Therefore, \yc recommend that \vhere a government offiCIal-as opposed
to the, gOYermnent itself-acted in good faith and with the
reasonable belief that his conduct was la\yful. he should have an affirmatiYe
defense to a suit for damages brought under the proposed statute.
To tighten the system of accountability and control of domestic intelligence
acti\'ity, the Committee proposes that this defense be structured
to encourage intelligence officers to obtain written authorization
for questionable activities and to seek legal advice about them.68
To avoid penalizing federal officers and agents for the exercise of
discretion, the Committee believes that the government should indemnify
their attorney fees and reasonable litigation costs when they
are held not to be liable. To avoid burdening the taxpayers for the
deliberate misconduct of intelligence officers and agents, we believe
the gOYernment should be able to seek reimbursement from those
who willfully and knowingly violate statutory charters or the
Constitution.
Furthermore, we believe that the courts will be able to fashion discovery
procedures. including inspection of materi'al in chambers, and to
issue orders as the interests of justice require. to allow plaintiffs with
substantial claims to uncover enough factual material to argue their
case, while protecting the secrecy of gonrnmental information in
which there is a legitimate security interest.
The Committee recommends that a legislative scheme of civil remedies
for the victims of intelligence activity be established along the
•• 42 U.S.C. 1983.
•, BiVN/S v. Six Unknou:n Fed. Narcotics Agents, 403 U.S. 388 (1971) .
.. One mean~ of ~tructuring ~uch a dpfen~p would he to crpate a rphuttahle
prp~umption that an indiyidllal defendant acted ~o a~ to ayaH him~eIf of this
defense when he proyes that he actpd in good faith reliance upon: (1) a written
ordf'r or directiye by a gm'ernment officer f'mpowf'red to authorizf' him to take
action; or (2) a written assurance hy an appropriate legal officer that his action
is lawful.
338
following lines to clarify the state of the lawl to encourage the responsible
execution of duties created by the statutes recommended herein
to regulate intelligence agenciesl and to provi~e relief for the victims of
illegal intelligence a~tivity.
Recommendation 91.~Congress should enact a comprehensive oivil
rl.'meclies statute which "'ou1cl accomplish the following: 69
(a) Any Americnn with a substantial and specific claim 70 to an
actual or threatened injury by a violation of the Constitution by federal
intelligence officers or agents 71 acting under color of law should have
a federal cause of action against the government and the individual
federal intelligence officer or agent responsible for the violation. without
regard to the monet1ary amount in controversy. If actual injury
is proven in court I the Committee believes that the injured person
should be entitled to equitable relief, actual, general, and punitive
damages, and recovery or the costs of litigation!2 If threatened injury
is proven in court, the Committee believes that equitable relief and
recovery of the costs of litigation should be available.
(b) Any American with a substantial'and specificdaim to actual
or threatened injury by violation of the statutory charl:er for intelligence
activity (as proposed by these Domestic Intelligence Recommendations)
should have a cause of action for relief as in (a) above.
(c) Because of the secrecy that surrounds intelligence programs, the
Committee believes that a plaintiff should have two years from the
date upon which he discovers, or reasonably should have discovered,
the facts which give rise to a cause of action for relief from a constitutional
or statutory violation.
(d) Whatever statutory provision may be made to permit an individual
defendant to raise an affirmative defense that he acted within
the scope of his official duties, in good faith, and with a reasonable
belief that the action he took was lawful, the Committee believes
that to ensure relief to persons injured by governmental intelligence
activity, this defense should be available solely to individual defendants
and should not extend to the government. Moreover, the defense
should not be available to bar injunctions against individual
defendants.
viii:. Oriminal Penalties Should Be Enacted
Recommendation 9~.-The Committee believes that criminal penalties
should apply, where appropriate, to willful and knowing
51 Due to the scope of the Committee's mandate, we have taken evidence only
on constitutional violations by intelligence offi~rs and agents. However, the
anomalies and lack of clarity in the present state of the law {as discussed
above) and the breadth of constitutional violations revealed by our record,
suggest to us that a general civil remedy would be appropriate. Thus, we urge
consideration of a statutory civil remedy for constitutional violations by any
federal officer; and we encourage the appropriate committees of the Congress
to take testimony on this subject.
.,., The requirement of a substantial and specific claim is intended to allow
a judge to screen out frivolOUS claims where a plaintiff cannot allege specific
factf: which indicate that he was the targl't of iIleg-al intelligence activity.
71 "Federal intelligence officers or agents" should include a person who was
an intelligence officer, employee, or agent at the time a cause of action arose.
"Agent" should include anyone acting with actual, implied. or apparent authority.
72 Thp. right to recoyer "costf: of litigation" is intendl'd to include recovery of
reasonable attorney fees as well as other litigation costs reasonably incurred.
339
violations of statutes enacted pursuant to the Domestic Intelligence
Recommendations.
ix. The Smith Act and the Voorhis Act Should Either Be
Repealed OJ' Amended
Recommendation 93.-Congress should either repeal the Smith Act
(18 U.S.C. 2'385) and the Voorhis Act (18 U.S.C. 2386), which on
their face appear to authorize investigation of "mere advocacy" of
a political ideology, or amend those statutes so that domestic security
investigations are only directed at conduct which might serve as the
basis for a constitutional criminal prosecution, under Supreme Court
decisions interpreting these and related statutes.73
x. The Espionage Statute Should be Modernized
As suggested in its definition of "hostile foreign intelligence activity"
and its recommendations on warrants for electronic surveillance,
the Committee agrees "ith the Attorney General that there may
he serious deficiencies in the Federal Espionage Statute (18 U.S.C.
792 et seq.). The basic prohibitions of that statute have not been
amended since 1917 and do not encompass certain forms of industrial,
technological. or economic espionage. The Attorney General in a recent
letter to Senator Kennedy (Reprinted on p. S3889 of the Congressional
Record of March 23, 1976) describes some of the problem areas
of the statute, including industrial espionage (e.g., a spy obtaining
information on computer t(\chnology for 'a foreign power). The Committee
took no testimony on this subject and, therefore, makes no
specific proposal other than that the appropriate commitf(\es of the
Congress explore the necessity for amendments to the statut(\.
Recommendation 94.-The appropriate committees of the Congress
should review the Espionage Act of 1917 to determine whether it
should be amended to cover modern forms of foreign espionage, including
industrial, technological or economic espionage.
mi. Broader Access to Intelligence Agency Files Should be Provided
to GAO, as an Investigative Arm of the Oongress
RC(}ommendation 95.-The appropriate congressional oversight
committees of the Congress should, from time to time, request the
Comptroller General of the United States to conduct audits and reviews
of the intelligence activities of any department or agency of the
United States affected by the Domestic Intelligence Recommendations.
For such purpose, the Comptroller General, or any of his duly authorized
representatives, should have access to, and the right to examine,
all necessary materials of any such department or agency.
xii. Oongressional Oversight Should Be Intensified
Recommendation 96.-The Committee reendorses the concept of
vigorous Senate oversight to review the conduct of domestic security
activities through a new permanent intelligence oversight committee.
xiii. Definitions
For the purposes of these recommendations:
A. "Americans" means U.S. citizens, resident aliens and unincorporated
associations, composed primarily of U.S. citizens or res-
73 E.g'. Yates v. United States, 354 U.S. 298 (1957) ; Noto v. United States, 367
U.S. 290 (1961) ; Brandenburg v. Ohio, 395 U.S. 444 (1969).
340
ident aliens; and corporations, incorporated or having their
principal place of business in the United States or having majority
ownership by U.S. citizens, or resident aliens, including foreign
subsidiaries of such corporations provided, howev.er, "Americans"
does not include corporations dirooW by foreign governments or
organizations.
B. "Collect" means to gather or initiate the acquisition of information,
or to request it from another agency.
C. A "covert human source" means undercover agents or informants
who are paid or otherwise controlled by an agency.
D. "Covert techniques" means the collection of information, including
collection from record sources not readily available to a private
person (except state or local law enforcement files), in such
a manner as not to be detected by the subject. '
E. "Domestic security activities" means governmental activities
against Americans or conducted within the United States or its
territories, including enforcement of the criminal laws, intended
to:
1. protect the United States from hostile foreign intelligence
activity including espionage;
2. protect the federal, state, and local goverp.ments from
domestic violence or rioting; and
3. protect Americans and their government from terrorists.
F. "Foreign communications," refers to a communication between, or
among, two or more parties in which at least one party is outside
the United States, or a communication transmitted between points
within the United States if transmitted over a facility which is
under the control of, or exclusively used by, a foreign government.
G. "Foreigners" means persons and organizations who are not
Americans as defined above.
H. "Hostile foreign intelligence activities" means acts, or conspiracies,
by Americans or foreigners, who are officers, employees, or conscious
agents of a foreign power, or who, pursuant to the direction
of a foreign power, engage in clandestine intelligence activity,74
or engage in espionage, sabotage or similar conduct in violation
of federal criminal statutes.
1. "Name checks" means the retrieval by an agency of information
already in the possession of the federal government or in the
possession of state or local law enforcement agencies.
J. "Overt investigative techniques" means the collection of information
readily available from public sources, or available to a private
person, including interviews of the subject or his friends or
associates.
K. "Purged" means to destroy or transfer to the National Archieves
all personally identifiable information (including references in
any general name index) .
•<The term "clandestine intelligence activity" is included in this definition at
the suggestion of officials of the Department of Justice. Certain activities engaged
in by the conscious agents of foreign powers, such as some forms of industrial,
technological, or economic espionage, are not now prohibited by federal statutes.
It would be preferable to amend the espionage laws to cover such activity and
eliminate this term. As a matter of principle, intelligence agencies should not
investigate activities of Americans which are not federal criminal statutes.
Therefore, the Committee recommends (in Recommendation --) that Congress
immediately consider enacting such statutes and then eliminating this term.
341
L. "Sealed" means to retain personally identifiable information and
to retain entries in a general name index but to restrict access to
the information and entries to circumstances of "compelling necessity."
M. "Reasonable suspicion" is based upon the Supreme Court's decision
in the case of Terry Y. Ohio, 392 U.S. 1 (1968), and means specific
and articulable facts which taken together with rational inferences
from those facts, giye rise to a reasonable suspicion that specified
activity has occurred, is occurring, or is about to occur.
N. "Terrorist activities" means acts, or conspiracies, which: (a) are
violent or dangerous to human life; and (b) violate federal or
state criminal statutes concerning assassination, murder, arson,
bombing, hijacking, or kidnapping; and (c) appear intended to,
or are likely to have the effect of :
(1) Substantially disrupting federal, state or local government;
or
(2) Substantially disrupting interstate or foreign commerce
between the United States and another country; or
(3) Directly interfering with the exercise by Americans, of
Constitutional rights protected by the Civil Rights Act of 1968, or
by foreigners, of their rights under the laws or treaties of the
United States.
O. "Unauthorized entry" means entry unauthorized by the target.
 

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