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CHURCH COMMITTEE REPORTS

ADDITIONAL VIEWS OF SENATOR PHILIP A. HART
The Committee's proposal on domestic intelligence is a carefully
crafted system of controls to prevent abuse and preserve vigorous dissent
in America. The report lays out the issues, notes the problems, and
suggests solutions. Committee members and staff, under Senator Mondale's
conscientious leadership, grappled with the exceedingly difficult
task of shaping broad principles into workable safeguards.
The recommendations would narrow the scope of permissible intelligence,
set standards and time limits for investigations, control
dissemination, and provide civil remedies for improprieties.
This comprehensive scheme may be the best we can do to set the
delicate balance wheel between liberty and security. It is a considerable
accomplishment, and I endorse its consideration by the appropriate
legislative committees. I do so, however, with misgivings that
the Committee's record fails to justify even this degree of preventive
intelligence investigation of American citizens.
Unlike investigation of committed crimes, "preventive intelligence"
means investigating persons thought likely to commit particularly serious
acts; it is intended to prevent them. Providing, for the first time,
statutory authorization of such surveillance is a dramatic and dangerous
step. Congress should take that step with the utmost caution.
It is appealing to say we should let the FBI do evervthing possible
to avert bombing of the Capitol or other terrorist acts. But in America
we must refuse to let the Government "do everything possible." For
that would entail spying on every militant opponent of official policy,
just in case some of them may resort to violence. We would become
a police state. The question, then, is whether a limited form of preventive
intelligence, consistent with preserving our civil liberties, can
be justified by the expected benefits and can also be kept under effective
control.
Thp Committee was reluctant to authorize any investigations except
those of committed or imminent criminal acts. Nevertheless, our
Report concludes that some preventive intelligence is justified because
it might prevent a significant amonnt of terrorist activity without
posing unacceptable risks for a free society.
However, the shocking- record of widespread abuse su~gests to me
thllt before Congress endorses II blneprint for preventive mtelligence,
we need a more ri:rolOus presentation of the case for it than was offerpd
to this Committee.
The FBI only provided the Committee with a handful of substantiated
cases-out of the thousands of Americans investigated-in which
preventive intelligence produced warning of terrorist activity. Further,
most of those few investigations which did detect terrorism could
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not have been opened under the Committee's proposed restrictions.1
In short, there is no substantial record before the Committee that preventive
intelligence, under the restrietions "We propose, would enable
the Government to th,vart terrorism.
Essentially, ,,-e are asking the American people to accept the risks
of preventive intelligence on the hypothetical possibility that the worst
imaginable terrorist acts might be averted. Faced with the specter of
bombings or assassination plots, we may be in danger of sanctioning
domestic spying without any significant prospect that such intelligence
activities will in fact prevent them.
It might be argued that with adequate restraints to focus on hard
core terrorism, preventive intelligence should be authorized even
though we cannot demonstrate it is likely to prevent much violence.
In that view, some insurance would be worth the limited cost.
Assuming that premise, there are two overriding issues:
-When may the Government investigate the activities of
Americans engaged in political dissent; and
-When may the Government use informants to spy on those
AmericaI's ~
If we are to have a preventive intelligence program at all, then I believe
the Committee's recommendations on both these issues require refinement.
The Committee found that most improper investigations have been
commenced merely on the basis of political advocacy or association,
rather than on specific information about expected terrorist activity.
The recommendations would preclude mere advocacy or association as
a predicate for investigating Americans. In practice, however, that
would simply require specific allegations that an unpopular dissident
group was planning terrorist violence.
Of course, if the FBI receives a tip that .Tohn Jones may resort to
bombing to protest American involvement in Vietnam, the Bureau
should not be forced to sit on its hand until the blast. But our proposals
would permit more than revie,,- of federal and local records
on John Jones a ld interviews of his associates, even in a preliminary
investigation. On the basis of an anonymous letter, with no supporting
information-let alone any indication of the source's reliability-the
FBI could conduct secret physical suneillance and ask existing informants
about him for up to three months, ,,-ith the Attorney General's
approval.
The Committee ,,-as concerned about authorizing snch extensive
invrstigations before there is even a "reasonable basis of suspicion"
the subiect ,vill engage in terrorism. The Report offers examples of
how this recommendation would work, and indicates our desire to
1 In most of those cases warning came throulrh informant penetration of local
chapters of a national organization undertaken becanse some of the national leaders
had indicated a willingness to use violent means. Thp Committpe's guidelines
preclnde inYestigating an organization's entire memtwrship throughout the conntryon
the basis of specific information about somp individuals.
In the most sinister tprrorist conspiracies. only penetration of the inner circle
is likely to provide advance warning of an assassination or kidnapping plot. Our
record sngg-ests that the only way for the FBI to ha"Ve much chance to detect
sUe'h plots in advane'e would be blanket penetration of pyprY militant nrntpst
group in the country. And that would mean a return to precisely the kind of Big
Brother government which was attempted in the past.
361
ins~llate lawful political activity from investigation of violent terrOrIsm.
Rut these very examples il1ustrate how inextricable the two
may be at the outset of an inquiry into an allegation or ambiguous
information. The task of finding out whether a dissident is contemplating
violence or is only involved in vigorous protest inevitably
requires investigation of his protest activities. In the process, the FBI
could follow the organizers of a Washington peace ral1y for three
months on the basis of an al1egation they might also engage in violelwe.
The second major issue is the use of paid Government informants
to spy upon Americans. The great majority of abuses uncovered in
domestic intel1igence involved the pervasive use of informants against
dissident political groups. The Committee defers the question of
whether judicial approval should be required for targeting informants,
until review by the Attorney General alone has been tested.
In my view, control of informants and control of wiretapping can
be distinguished only on the basis of present constitutional doctrine;
the Supreme Court has not found the use of informants to violate
Fourth Amendment guarantees against Government intrusion. However,
in terms of the values underlying both the First and Fourth
Amendments, our record shows tluit the use of informants can, if
anything be even more intrnsive and more easily abused than electronic
surveillance. As a matter of policy, they should be stringently controlled.
From the prosecutor's viewpoint, a wiretap is more precise and
reliable than an informant. The accuracy of an informant witness may
be vulnerable to chal1enge. But as a source of intelligence, informants
can be directed at all of the subject's associates. They can follow the
subject from place to place and can even be asked to elicit information
through specific questions. In effect, a wel1-placed informant can be
a "walking, thinking 'bug'." The use of such informants is at the heart
of the chilling effect which preventive intelligence has on political
dissent.
Whether informant penetrations are to be approved by the Attorney
General or by a judge, the Committee report recognizes the great
dangers they pose.2 'Ve recommend a high standard for their use:
Probable cause to believe the target soon will engage in terrorist
activity. My concern is that, in an effort to accommodate the realities
of preventive intel1igence, our proposals may render this standard
illusory.
The FBI argued that, in the case of tightly knit conspiracies, it
could not meet that standard without the initial resort to informants.
• Some of the "practical" reasons advanced against judicial warrants for informants
do not bear close scrutiny. The Committee was told there is no fixed
point when a potential source becomes an "informant," comparable to installation
of a wiretap. It was also urged that full supervision of an informant re-quires
day-to-day monitoring- of his activities; and that the Attorney General
could exercise more comprehensive control. But our proposals do identify a
specific event, targeting- the informant on particular persons, which requires
a decision by the Attorney General. The basic wisdom of the Fourth Amendment
is its insistence that a disinterested party apply the appropriate standard
rather than the head of an investigative ag-ency. The Attorney General's ongoin!!:
supervision of informant use could supplement the threshold decision of a neutral
mag-istrate, just as it would for wiretaps. There is no need to choose between
them.
362
Therefore, the Committee would permit "temporary" targeting of
informants for up to five months. In efIed, the FBI could bootstrap its
investigation by employing informants to collect enough information
to justify their use. The Committee does require that this use of informants
be terminated if probable cause cannot be established within
five months. But it is doubtful that such termination would be effective
to provide the high standard of protection the Committee feels
is necessary for the use of such an intrusive technique.3
To a great extent, our proposals for controlling preventive intelligence
ultimately rely upon the Attorney Generaf and congressional
oversight committees. In view of the performances of the Congress
and the Justice Department for the past two decades, it is not easy to
have full confidence in their ability to prevent abuses of domestic
intelligence without precise detailed statutory prohibitions.
MoreO\'er, our task is not to fashion legislation which seems adequate
for the present period of national calm and recent revelations of
intelligence abuses. 'Ve do not need to draft safeguards for an
Attorney General who makes clear-as Attorney General Levi has
done-his determination to prevent abuse. 'Ve must legislate for the
next periods of social turmoil and passionate dissent, "hen the current
outrage has faded and those in power may again be tempted to investigate
their critics in the name of national security.
In a time of crisis, acts of violence by a tiny minority of those
engaged in political protest will again place intense pressures on
officials in the Department of Justice to stretch any authority we
provide to its limits. For these reasons we must be extremely careful
not to build too much flexibility and discretion into a system of preventive
intelligence which can be used against domestic dissidents. As the
Supreme Court has wisely observed: .
The greater the importance of safeguarding the community
from incitements to the overthrow of our institutions by
force and violence, the more imperative is the need to presene
inviolate the constitutional rights of free speech, free press
and free assembly in order to maintain the opportunity for
free political discussion, to the end that government may be
responsive to the will of the people and that changes, if
desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the wry foundation of constitutional
government. (DeJong v. Oregon, 299 11.8.353,365.)
PHILIP A. HART.
3 The informant would still be in a position to report and the FBI could continue
to ask him questions, as they could of any citizen. Indeed, he might yolunteer
information in order to re-establish a paying relationship. The only constraint
is that the FBI could no longer giye him direction. After fiY(~ months,
however. even the most unsophisticated informant would be aware of those subjects
and targets in which the Bureau was interested.
ADDITIONAL STATEMEXT OF SENATOR
ROBERT MORGAN
In 1776 the citizens of a new America, in declaring their independence
from a repressive government, set forth the goals, ideals and
standards of their new goveI'llment in the Declaration of Independence.
As we prepare to celebrate the 200th anniversary of the birth of
our country later this year, we ,viII reaffirm the beliefs of our forefathers
that America will be a free country, with a gm'ernment of laws
and not one of men. That the Senate Select Committee on Intelligence
has completed its year-long investigation into the secret activities of
this country's intelligence agencies and is releasing this Report is a
great testament to the freedom for which America stands.
During the course of the past year, the Committee has discovered
and revealed to the American people many actions of agencies of oUl'
government which were undertaken in complete disregard for the
principles of our democratic society. The Committee:s Report documents
many of these abuses, basing its findings diredly on the admissions
of officials of the governmental agencies being investigated
and upon information taken directly from the files of those agencies.
The Report also analyzes those findings and recommends guidelines
and procedures designed to protect the rights of -American citizens in
the future, while at the same time ensuring that our intelligence agencies
maintain the capability to function effectively. I fully support
the findings, analyses and recommendations, and make this additional
statement only for the purpose of sharing with the n:aders of this
Report some of my personal thoughts on the significance of the Committee's
work and where we go from here.
The Committee has approached the performance of its obligation
mandated by Sen. Res. 21 with an abundance of caution. Many of
the Committee's executive session hearings, because of the sensitive
nature of the subject matter, ,vere e,-en restricted to Members and
only those staff who were assigned specific duties relevant to the
inquiry. Because of the dedication of the Members and staff to the
seriousness of the undertaking, we are approaching the completion
of our work with a remarkably clean record as far as leaks of classified
material detrimental to the security of the country are concerned.
From the beginning of OUl' ,vork until the end, the Committee has
gone beyond the dictates of normal congressional investigation to try
to accommodate concerns of the agencies under investigation for the
security of material requested by the Committee. To this end, long
hours were spent negotiating over what material would be made available
to the Committee in response to its requests and in what form
that material would be given to the Committee once access to it had
been acquired. Nevertheless, on many occasions the Committee received
material from which significant details had been deleted, necessitating
further negotiations with the responsible agencies and, in
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364
some cases, severely hampering the Committee's inquiry into important
and sIgnificant areas.
While it is understandable that executive agencies whose very operations
are secret would be in some respect resistant to senatorial inquiry
into their activities, I can only interpret the strong resistance
to some Committee demands and inquiries as being symptomatic of
the atmosphere within the agencies which contributed to the occurrence
of abuse in the first instance-one of the basic distrusts of the
actions of fellow American cItizens who have as their goals the
strengthening of this nation's ideals, of its moral fiber.
Just as the American citizen was denied the right to decide for
himself what was or was not in the best interest of the country, or
what actions of a foreign government or domestic dissident threatened
the national security, the impression has been generated by some that
the Congress cannot be trusted with the nation's crucial secrets. As
the elected representative of the citizens of my state, I am entrusted
with the right and duty to properly conduct the business of our
government. Without knowledge of governmental actions or effective
means of overseeing those actions, my efforts to fulfill the requirements
of that obligation are, at least, severely hampered; at most,
impossible, and the successful implementation of an adequate system
of checks and balances, as set forth in our Constitution, is effectively
negated.
The Committee's Report contains clear examples of the denial of
the rights of American citizens to determine the course of American
history. While the FBI's counterintelligence activities directed at
American citizens on many occasions violated the rights of the targets
of the programs, a greater abuse was the belief fostered that th(> ordinary
American citizen was not compewnt enough to, indenpndpntly of
govprnmental actions, decide, given fnll knowh'dqe of all facts. what
was in his or her best interest or in the best interest of the country.
The judicial process, to w'hich we turn for settlement of onr disputes
and mmishment of criminals. was also largelv ignored. FBI action
was based, for example, on the assumption that all Americans opposed
to this country's particiEation in the Vietnam War might one
day take to the streets in violent protest, thereby threatening our
national security. It was assumed, for example, that right-wing,
anti~ommunist groups in the 19608 wonld gain the sympathies of
too many Americans thereby impeding policies of the then administration,
so their taxes were checked. It was assumed, for example.
that every black student on every college campus in America would
resort to violence, so procedures were undertaken to establish files
on all of them.
All of these actions deny Americans the right to decide for themselves
what will not be tolerated in a free society.•Tustice Douglas,
defending the freedom of speech in his dissenting oJlinion in Dennis
v. U.S., 341 U.S. 494, spoke words which vividly reflect the necessity
that we, to remain free, must hold high this basic right of 8e1£determination
which has enabled us to atiIJain the strength and prosperity
that we as a nation now enjoy. Justice DougJoas \vrote,
Full and free discussion has indeed been the first article of
our faith. 'We have founded our political system on it. It has
been the safeguard of every religious, political. philosophical,
economic, and racial group amongst us. We have counted on
365
it to keep us from embracing what is cheap and false; we have
trwsted the comrrwn sen.~e of our people to choose the doctrine
true to our genlus and to reject the rest. Thls has been the outstanding
tenet that has made our institutions the symbol of
freedom and equality. vVe have deemed it more eosUy to liberty
to suppress a despised minority than to let them vent
their spleen. vVe have above all else feared the political censor.
We have wanted a land where our people can be exposed to
all the diverse creeds and cultures of the world. [Emphasis
added.]
Furthermore, just as the American citizen must 'be given the right
to validly assess the significance and merit of political change sought
by others, the eleded representatives of the people must have knowledge
of governmental action to properly determine which perceived
threats to our way of life are real, .Justice Brandeis, in Olmstead v.
U.S., 277 U.S. 438, said, "The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without
understanding."
The continued existence of our democracy demands that we zealously
protect the inherent right of all Americans to be free from
unwarranted intrustion into their lives by governmental action.
History has demonstrated, from the time of the founding of Christianity
through the founding of these United States, through today,
that there is a place for differences of opinion among our citizenry;
for new, bold and innovative ideas. Thomas Jefferson wrote that "the
republican is the only form of government which is not eternally at
open or secret war with the rights of mankind." To maintain our
Republic, we must be willing to tolerate the right of every American
citizen to, within the confines of the law, be different.
Throughout the existence of the Committee, I have often said that
while the occurrence of the events which gave rise to the investigation
were unfortunate and are, in many instances, embarrassing to
our country and some of its agencies, public disclosure was necessary
in order to clear the air so that the agencies could devote their full
attention to properly carrying out their important duties. I feel the
Committee as a whole shar,es this view and has attempted to enhance
the performance of the functions of the agencies by making specific
recommendations which, when implemented and coupled with the
establishment of an effective oversight committee, will guarantee
that our country will not be subverted, nor subvert its ideals in the
name of national security or other improperly perceived threats. It is
my sincere hope that our citizens will view this Report as one of the
many expressions of freedom we will make this year and that it will
rekindle in each of us the belief that perhaps our greatest strength lies
in our ability to deal frankly, openly, and honestly with the problems
of our government.
ROBERT MORGAN.

INTRODUCTION TO SEPARATE VIEWS OF SENATORS
JOHN TOWER, HOWARD H. BAKER, JR., AND BARRY
M. GOLDWATER
Our mutual concern that certain remedial measures proposed by
this Committee threaten to impose undue restrictions upon vital and
legitimate intelligence functions prevents us, in varying degrees, from
rendering an unqualified endorsement to this Committee's findings and
recommendations in their entirety. We also perceive a need to emphasize
areas of common agreement such as our unanimous endorsement
of intelligence reforms heretofore outlined by the President.
Therefore, we have elected to articulate our common concerns and
observations, as viewed from our individual perspectives, in separate
views which follow.
JOHN TOWER, Vice Ohairman.
HOWARD H. BAKER, JR.
BARRY M. GOLDWATER.
(867)

SEPARATE VIEWS OF SENATOR JOHN G. TOWER,
VICE CHAIRMAN
"Then the Senate mandated this Committee to condud an investigation
and study of activities of our Nation's intelligence community, it
recognized the need for congressional participation in decisions which
impact virtually every aspect of American life. The gravamen of our
eha rge was to examine the Nation's intelligence needs and the performance
of agencies charged with intBlligence rrsponsibilities, and to
make such assessments and recommendations as in our judgment are
necessary to maintain the delicate balance between individual liberties
and national security. I do not believe the CommittBe's reports and
accompanying staff studie's comply fully with the charge to maintain
that balance. The Committee's recommendations make significant
departures from an overriding lesson of the American experiencer-the
right of American citizens to be free is inextricably bound tQ their
right to be srcure.
I do not question the existence of intelligence excesses-the abuses
of power, both foreign and domestic, are well documented in the Committee's
report.
Nor do I question the need for expanded legislative, executive, and
judicial involvement in intelligence policy and practices--the "uncertainties
as to the authority of United States intelligence and related
agencies" were explicitly recognized by Senate Resolution 21.
Nevertheless, I question, and take exception to, the Committee's
report to the extent that its recommendations are either unsupported.
by the factual record or unduly restrict attainment of valid intelligence
objectives.
I believe that the 183 separate recommendations proposing new
detailed statutes and reporting procedures not only exceed the number
and scope of documented abuses, but represent over-reaction. If
adopted in their totality, they would unnecessarily limit the effectiveness
of the Nation's intelligence community.
In the area of foreign intelligence, the Committee was specifically
mandated to prevent "... disclosure, outside the Select Committee, of
any information which would adversely affect the intelligence activities
... of the Federal Government." In his separate view, Senator
Barry Goldwater clearly points up the damage to our efforts in Latin
America occasioned by release of the "staff report" on covert action
in Chile. I objected to releasing the Chile report and fully support
Senator Goldwater's assessment of the adverse impact of this "ironic"
and ill-advised disclosure.
(369)
68-786 0 - 76 - 25
370
" Another unfortunate aspect of the C'ommittee~s foreign report is
Its respo~se to incidents of lack of accountability and control by recommelHh~
Ig the imposition of a layering of Executi\"e Branch reviews
at operatIOnal lewIs and needless bifurcation of the decisionmaking
process. The Presi(lent's reorganization which centralizes foreign
intelligence operations and prO\'icles for constant rC\'iew and oversight,
is termed "ambiguous." Yet the Committee's recommended statutory
changes would [in addition to (luplication awl multiplication of
decisions] acld little except to insure that the existing functions set
up by the President's program ,,-ere "explicitly empowered," "reaffirmed"
or provided with "adequate stafi'." By concentration ul?on
such details as which cabinet officer should chair the various reVIew
groups or speak for the President, the Committee~s approach unnecessarily
restricts Presidential discretion, without enhancing efficiency,
control, or accountability. The President's reorganization
is a thorough, comprehensin response to a long-standing problem. It
should be supported, not pilloried with statutory amendments amounting
to little more than alternative management techniques. It is far
more appropriate for the Congress to place primary legislative emphasis
on establishing a structure for Congressional Oversight which
IS compatible with the Executive reorganization while eliminating the
present proliferation of committees and subcommittee's asserting
jurisdiction over intelligence activities.
Another area in which I am unable to agree with the Committee's
approach is cO\"ert action. It would be a mistake to attempt to require
that the Congress receive prior notification of all covert activities.
Senator Howard Baker repeatedly urged the COlllmittee to adopt the
more realistic approach of obligating the Executive to keep the Congress
"fully and currently informed". I believe any attempt by the
legislative branch to impose a strict prior notification requirement
upon the Executive's foreign policy initiatives is neither feasible nor
consistent with our constitutionally mandated separation of powers,
On the domestic front the Committee has documented flagrant
abuses. Of particular concern ,,"ere the political misuses of such
agencies as the Federal Bureau of Investigation and the Internal
Revenue Service. However, while thoroughly probing these reprehensible
activities and recommending needed changes in accountability
mechanisms, the Committee's "corrective" focus is almost
exclusively on prohibitions or limitations of agency practices. I
hope this approach to remedial action will not be read as broad criticism
of the overall performance of the intelligence community or a
minimization of the Committee's own finding that "... a fair assessment
must place a major part of the blame upon the failures of senior
executive officials and C'ongre8s." In fact, I am persuaded that the
failure of high officials to investigate these abuses or to terminate
them when they learned of them was almost as reprehensible as the
abuses themselves.
371
A further objectionable aspect of the Committee's approach is the
:,cope of the proposed limitations on the use of elf'etronic suneillance
and informants as im"estigatiye techniques. "'ith respect to electronic
surnillance of Americans sllspected of intelligence activities inimical
to the national intrrest, thr Committee would limit authority for such
probes to violations of specific criminal statutes. This prOI)osal fails
to arl(lress the real problem of utilizing electronic suneillance against
myriad forms of espionage. A majority of the Committee recommended
this narrow standard ,,"hile acknowledging that existing
statutes offer inadequate eo\"erage of "modrrn forms of espionage."
The Committee took no testimony on re\"ision of the espionage laws
and simply proposed that anothrr committer "rxplore the necessity
for amrndments." To prohibit electronic surnillance in these cases
pending such re\,ision is to sanction an unnecessary risk to the national
security. In adopting this position the Committee not only ignores the
fact that appellate courts in two federal circuits have upheld the
Executive's inherent authority to conduct such surveillance, but also
fails to endorse the Attorney General's comprehensiye proposal to
remedy objection to current practices. The proposed safeguards, which
inclmle requirements for the Attorney General's certification of hostile
foreign intelligence im'oln>ment ana issuance of a judieial warrant
as a condition precedent to E'lectronic surveillance, represent a significant
expansion of civil librrties protections. The proposal enjoys
hi-partisan support in Congress and I join those members urging
prompt enactment.
I am also oppospa to the methoos ano means proposeo by the Committee
to regulate the nse of informants. Informants have been in the
past ano will remain in the future a vital tool of law enforcement. To
aoopt the Committee's position ano imposp stringpnt, mechanical time
limits on the use of informants-particularly regarding their use
against terrorist or hostile foreign intelligence activities in the United
States-would be to place our faith in standards which are not only
illusory, bnt unworkable.
In its overly broad approach to eliminating intelligence abuses, the
Committee report urges departure from the Congress' role as a partner
in national security policy and. comes dangerously close to being a
blueprint for authorizing Congressional management of the day-today
affairs of the intelligence community. 'Vhether this management
is attempted. through prior notification of a shopping list of prohibitive
statutes and regulations, it is a task for which the legislative
branch of government is ill-suited. I belie\'e the adverse impact which
would be occasioned bv enactment of all the Committee recommenda~
tions would be suhstmitial.
Substantial segments of the Committee's work product will assist
this Congress in proceeding with the task of insuring the conduct of
necessary intelligence activities in a manner consisten.t with our obligation
to safeguard the rights of American citizens. However, we must
now step back from the klieg lights and abuse-dominated atmosphere,
and balance our finoings and recommendations with a recognition that
our intelligence agencies ane1 the men ano women who serve therein
have, been and will always be essential to the existence of our nation.
372 ..
This Committee was asked to provide a constitutionally acceptable
framework for Congress to assist in that mission. We were not mandated
to render our mtelligence systems so constrained as to be fit for
employment only in an ideal world.
In addition to the above remarks I generally endorse the positions
set forth in Senator Baker's individual views. I specifically endorse:
His views stating the need for legislation making it a
criminal offense to publish the name of a United States intelligence
officer stationed abroad under cover.
His position that there must be a system of greater accountability
by our intelligence operations to the United States
Congress and the American people.
HIS concern that the Congress exercise caution to insure
that a proper predicate exists before any recommendations
for permanent reforms are enacted into law.
His view that there be careful study before endorsing the
Committee's far reaching recommendations calling for an
alteration of the intelligence community structure. I also
support the individual views of Senator Goldwater.
Further, I specifically endorse:
His assessment that only a small segment of the American
public has eyer doubted the integrity of our Nation's intelligence
agenCIes.
His opinion that an intelligence system, however secret,
does not place undue strain on our nation's constitutional
government.
His excellent statement concerning covert action as an
essential tool of the President's foreign policy arsenal.
His opposition to the publication of an annual aggregate
figure for United States intelligence and his reasons therefor.
His views and comments on the Committee's recommendations
regard the National Security Council and the Office of
the PreSIdent. Specifically, comments number 12,13 and 14.
His views challenging the proposed limitations concerning
the recruitment of foreigners by the Central Intelligence
Agency.
His views and general comments concerning the right of
every American, including academics, clergymen, businessmen
and others, to cooperate with his government in its lawful
pursuits.
For the reasons stated above, I regret that I am unable to sign the
final report of the Select Committee to Study Governmental Operations
With Respect to Intelligence Activities.
JOHN G. TOWER,
Vice Ohairman.
SEPARATE VIEWS OF SENATOR HOWARD H. BAKER, JR.
At the close of the Senate Watergate Committee, I felt that there
was a compelling need to conduct a thorough examination of our intelligence
agencies, particularly the CIA and the FBI. Congress
never had taken a close look at the structure or programs of either
the CIA or the FBI, since their inception in 1947 and 1924, respectively.
l
Moreover, there never had been a congressional review of the
intelligence community as a whole. Therefore, I felt strongly that
this Committee's investigation was necessary. Its time had come. Like
the Watergate investigation, however, for me it was not a pleasant
assignment. I say that because our investigation uncovered many
actions by agents of the FBI and of the CIA that I would previously
have not thought possible (e.g., crude FBI letters to break up marriages
or cause strife between Black groups and the CIA assassmation
plots) in our excellent intelligence and law enforcement institutions.
Despite these unsavory actions, however, I do not view either the FBI
or CIA as evil or even basically bad. Both agencies have a long and
distinguished record of excellent service to our government. With the
exception of the worst of the abuses, the agents involved truly believed
they were acting in the best interest of the country. Nevertheless, the
abuses uncovered can not be condoned and should have been investigated
long ago.
I am hopeful, now that all these abuses have been fully aired to the
American people through the Committee's Hearings and Report, that
this investigation will have had a cathartic effect; that the FBI and
CIA will now be able to grow rather than decline. Such growth with a
healthy respect for the rule of law should be our goal; a goal which
I am confident can be attained. It is important for the future of this
country that the FBI and CIA not be cast as destroyers of our constitutional
rights but rather as protretors of those rights. With the
abuses behind us this can be accomplished.
LONG-TERlII IMPROVEMENT OF INTELLIGENCE COMlIIUNITY
On balance, I think the Committee carried out its task responsibly
and thoroughly. The Committee's report on both the Foreign and
Domestic areas are the result of extensive study and deliberation, as
well as bipartisan cooperation in its drafting. The Report identifies
many of the problems in the intelligence field and contains positive suggestions
for reform. I support many of the proposed reforms, while
differing, at times, with the means we should adopt to attain those
reforms. In all candor, however, one must recognize that an investigation
such as this one, of necessity, will oause some short-term damage
to our intelligence apparatus. A responsible inquiry, as this has been,
will in the long run result in a stronger and more efficient intelligence
community. As my colleague Senator Morgan recently noted at a Committee
meeting, such short-term injury will be outweighed by longterm
benefits gained from the re-structuring of the intelligence com-
1 Upon the expiration of the Watergate Committee in September 1974, I had
the privilege to consponsor with Senator Weicker, S. 4019, which would have
created a joint committee on Congress to oversee all intelligence activities.
(373 )
374
munity with more efficient utilization of our intelligence resources.
Former Director 'Villiam Colby captured this sentiment recently
in a Xew York Times article:
Intelligence has traditionally existed in a shadowy field
outside the law. This year's excitement has made clear that
the rule of law applIes to all parts of the American Government,
including mtelligence. In fact, this will strengthen
American intelligence. Its secrets will be understood to be
necessary ones for the protection of our democracy in tomorrow's
world, not covers for mistake or misdeed. The guidelines
within which it should and should not operate will be
clarified for those in intelligence and those concerned about
it. Improved supervision will ensure that the intelligence
agencies will remain within the new guidelines.
The American people will understand and support their
intelligence services and press their representatives to give
intelligence and its officers better protection from irresponsible
exposure and harassment. The costs of the past year
were high, but they will be exceeded by the value of this
strengthening of what was already the best intelligence service
in the world.2
The Committee's investigation, as former Director Colby points
out, has probed areas in which reforms are needed not to prevent
abuses, but to better protect and strengthen the intelligence services.
For example, it is now clear that legislation is needed to make it a
criminal offense to publish the name of a United States intelligence
officer stationed abl'oad. 3 Moreover, the Committee's investigation
convinced me that the State Department should revise its publication
of lists from which intelligence officers overseas predictably and often
easily can be identified.
Yet we have not been able, in a year's time, to examine carefully all
facets of the United States' incredibly important and complex intelligence
community.4 'Ve have established that in some areas problems
exist which need intensive long-term study. Often these most important
and complex problems are not ones which lend themselves to
quick or easy solutions. As Ambassador Helms noted in his testimony
during the Committee's public hearings:
. . . I would certainly agree that in view of the statements
made by all of you distinguished gentlemen, that some result
from this has got to bring about a system of accountability
that is going to be satisfactory to the U.S. Congress and to
the American people.
2 New York Times, Jan. 26, 1976.
3 I intend to propose an amendment to S. 400 to make it a criminal offense to
publish the name of a United States intelligence officer who is operating in a
cover capacity overseas.
• For many months, the Committee thoroughly and exhaustively investigated
the so-called "assas~ination plots" which culminated with the filing of our report
on XOH>mher 18, 1975. This invpstigation was vitally important in ordpr to clear
the air and set the record straight. And, it was instructive as to how "sensitive"
operations are conducted within our intelligence structure. But, it necessarily
shortened the time available to the Committee to investigate the intelligence
community as a whole.
375
No\y, exactly how you work out that accountability in a
secret intelligence organization, I think, is obviously going to
take a good deal of thought and a good deal of work and I
do not haye any easy ready answer to it because I assure you
it is not an easy answer. In other words, there is no quick fix.
(Hearings, Vol. I, 9/17/75, p. 124).
TIIOROLGII STLDY .NECESSARY IX SEVERAL AREAS
The areas \vhich concern me the most are those on which we as a Committee
have been able to spend only a limited amount of time,5 i.e.,
espionage, counterintelligence, covert action, use of informants, and
electronic suneillance. It is in these areas that I am concerned that
the Committee be extremely careful to ensure that the proper thorough
im'estigatory predicate exist before any permanent reform recommendations
be enacted into la"'.
Our investigation, however, has provided a solid base of evidencB
from "'hich a permanent oversight committee can and should lmmch
a lengthy and thorough inquiry into the best way to achieve permanent
restructuring in these particularly sensitive areas. It is my view that
such a study is necessary before I am able to endorse some of the Committee's
recommendations which suggest a far reaching alteration of
the structure of some of tlw most important facets of our intelligence
system.
Therefore, while I support many of the Committee's major recommendations,
I find myself unable to agree with all the Committee's
findings and recommendations in both the foreign and domestic areas.
Nor am I able to endorse every inference, suggestion, or nuance contained
in the findings and supporting individual reports which together
total in the thousands of pages. I do, however, fully support
all of the factual revelations which our report contains concerning
the many abuses in the intelligence field. It is important to disclose
to the American people all of the instances of wrongdoing we discovered.
'With such full disclosure, it is my hope that we can turn the
corner and devote our attention in the future to improving our intelligence
gathering capability. ",Ve must have reform, but \ve must accomplish
it by improving, not limiting, our intelligence productivity. I
am confident this can be done.
CUMULATIVE EFFECT OF RECO~DIENDATIONS
With regard to the totality of the Committee's recommendations, I
am afraid that the cumulative effect of the numerous restrictions
which the report proposes to place on our intelligence community may
be damaging to our intelligence effort. I am troubled by the fact
that some of the Committee's recommendations dip too deeply into
many of the operational areas of our intelligence agencies. To do so,
I am afraid, will cause practical problems. The totality of the proposals
may decrease instead of incr('use our intelligence product. And, there
5 The Committee's mandate from Congress dictated that the abuses at home
and abroad be giren detailed attention. And, there are only a finite number of
important problems which can be examined and answered conclusively in a
year's time.
376
may be serious ramifications of some proposals which. will, I fear,
spawn problems which are as yet unknown. I am unconvmced that. t~e
uncertain world of intelligence can be regulated ,vith the use of ngid
or inflexible standards.
Specifically, I am not convinced that the ans,,-ers to all our probleJ!1s
are found by establishing myriad Executive Branch boards, committees,
and subcommittees to manage the day-to-day operations of the
intelligence community. vVe must take care to avoid creating a Rube
Goldberg maze of review procedures which might result in a bureaucratic
morass which would further increase the burden on our
already heavily overburdened tax dollar.
We should not over-reform in response to the abuses uncovered.
This is not to say that ,,-e do not need new controls, because we do.
But, it is to say that the controls we impose should be well reasoned
and add to, not detract from the efficiency of our intelligence gatherering
system.
Increased Executive Branch controls are only one-half of the solution.
Congress for too long has neglected its role in monitoring the
intelligence community. That role should be significant but not allencompassing.
Congress has a great many powers which in the past
it has not exercised. 'Ve must now do our share but, at the same time,
we must be careful, in reacting to the abuses uncovered, that ,ve not
swing the pendulum back too far in the direction of Congress. Both
wisdom and the constitutional doctrine of separation of powers dictate
that Congress not place itself in the position of trying to manage
and control the day-to-day business of the intelligence operations of
the Executive Branch. Vigorous oversight is needed, but it should be
carefully structured in a new powerful oversight committee. I believe
this can be achieved if we work together to attain it.
In moving toward improving our intelligence capability, we must
also streamline it. It is in this approach that my thoughts are somewhat
conceptually different from the approach the Committee is recommending.
I am concerned that we not overreact to the past by
creating a plethora of rigid "thou shalt not" statutes, which, while
prohibiting the specific hypothetical abuse postured in the Report,
cast a wide net which will catch and eliminate many valuable intelligence
programs as well.
The Committee Report recommends the passage of a large number
of new statutes to define the functions of and further regulate the
intelligence community. I am troubled by how much detail should be
used in spelling out the functions and limitations of our intelligence
agencies for all the world to see. Do we want to outline for our adversaries
just how far our intelligence agencies can go? Do we want to
define publicly clown to the last detail what they can and cannot do?
I am not sure we do. I rather think the answer is found in establishing
carefullv strnctured charters for the intelligence agencies with accountability
and responsibilitv in the Executive Branch and vigilant
oversight within the Legislative Branch.
377
PRESIDENT~S PROGRAM
It is my view that we need to take both a moderate and efficient course
in reforming our intelligence gathering system. In that regard, I think
President Ford~s recent restructuring of the intelligence community
was an extraordinarily good response to the problems of the past. The
President~s program effected a massive reorganization of our entire
intelligence community. It was a massive reaction to a massive problem
which did not lend itself to easy solution. I am pleased that many
of the Committee~s recommendations for intelligence reform mirror
the President~s program in format. Centralizing the command and
control of the intelligence community~ as the President~sprogram does,
is the best way to ensure total accountability and yet not compromise
our intelligence gathering capability.
Therefore, I endorse the basic framework of intelligence reform,
outlined by President Ford~ as embodying: (1) a single permanent
oversight committee in Congress, ,,-ith strong and aggressi\-e staff, to
oversee the intelligence community;6 (2) the Committee on Foreign
Intelligence to manage the day-to-day operation of the intelligence
community; (3) the re-constituted Operations Advisory Group to review
and pass upon all significant covert actions projects;7 and (4)
the Intelligence Oycrsight Board to monitor any possible abuses in the
future, coordinating the activities and reports of what J am confident
will be the considerably strengthened offices of General Counsel and
Inspector General. This framework will accomplish the accountability
and responsibility \ve seek in the intelligence community \vith both
thoroughness and efficiency. ,Vithin this fl'amework~Attorney General
Levi~s new guidelines in the Domestic Security area will drastically
alter this previously sparsely supenise(l field. These guidelines will
centralize responsibility for domestic intelligrnce within the Department
of .Justice and will preclude abuses sllch as COIXTELPRO from
ever reoccurring.s
SPECIFIC REFORC\rs
·Within this basic framework. we must look to how \ve are going to
devise a system that can both effectively oversee the intelligence community
and yet not impose strictures which \vill eliminate its productivity.
It is to this end that I suggest we move in the following
direction:
• My original support for a single joint committee of Congress has evolved,
somewhat as affected by the events of this past year's House Intelligence Committee
im-estigation, to support for a single Senate committee. However, I also
favor the mandate of the new committee including, as does the present S. 400, a
charge to consider the future option of merging into a permanent joint committee
upon consultation with and action by the House of Representatives. The moment
for meaningful reform is now and we must not lose it by waiting for a joint committee
to be appr<"lYed by both Houses of Congress.
7 I think a rule of reason should apply here. All significant projects certainly
should receive careful attention from the Group. On the other hand, I would not
require a formal meeting with a written record to authorize the payment of 2
sources in X country at $50 per month to be changed to the payment of 3 sources
in X country at $40 per month.
• I applaud the detailed guidelinc~ issued by the Attorney General to reform the
Department's entire domestic intelligence prograllJ I think he is moving in the
right direction by requiring the FBI to meet a specific and stringent standard for
opening an intelligence investigation, Le., the Terry v. Ohio standard.
378
(1) Demand responsibility and accountability from the Executive
Branch by requiring all nUlJor policy decisions and all major intelligence
action decisions be in \Yl'lting, and therefore retrievable.u .
(2) I recommeml, as I have previously, that Congress enact a ~al'labon
of S. -4:00, which I had the privilege to cosponsor. S. 400 16 the
Government Operations Committee bill which would create a perJ.llanent
oversight cOlllmittee to review the intelligence commumty.
The existing Congressional oversight system has pl'oviued i~lfrequent
and inetiectuall'eview. And, many of the abuses revealed mIght have
been prevented had Congress been doing its job. The jurisdiction of the
new committee should include both the CIA and the FBI, and the committee
should be required to revie\v and report periodically to the
Senate on all aspects of the intelligence community's operations. In
particular, I recommend that the Committee give specific careful
attention to how we might improve as well as control our intelligence
capability in the counterintelligence and espionage areas.
(3) Simultaneously with the creation of a permanent oversight
committee, Congress should amend the Hughes-Ryan Amendment
to the 1974 Foreign Assistance Act, § 662, which now requires the
intelligence community to brief 6 committees of the Congress on
each and every major intelligence action. Former Director Colby
strikes a responsi\'e chord when he complains that the present system
will lead to leaking of vital intelligence information. ",Ve must put a
stop to this. This can be done by allowing the intelligence community
to report only to a single secure committee.
(4) Concomitantly with improved oversight. we in Congress must
adopt stringent procedures to prevent leaks of intelligence information.
In this regard. I recommend we create a regular remedy to prevent
the extraordinary remedy of a single member of Congress disclosing
the existence of a covert intelligence operation with which he
does not agree. Such a remedy could take the form of an appeal procedure
within the Congress so that a single member, not satisfied with a
Committee's determination that a particular program is in the national
interest. will be prO\'ided with an avenue of relief. This procedure,
hmvever, must be coupled \vith stringent penalties for any member
of Congress who disregards it and discloses classified information
anyway. I intend to offer an amendment to institute such a remedy
when S. 400 reaches the Senate floor. 10
(5) The positions of General Counsel and Inspector General in the
intelligence agencies should be elevated in importance and given increased
powers. I feel that it is extraordinarily important that these
• Never again should we be faced with the dilemma we faced in the assassination
investigation. 'We climbed the ladder of authority only to reach a point
where there were no more written rungs. Responsibility ceased; accountability
ceased; and. in tlJe end, we could not say wlJetlJer some of tlJe most drastic
actions our intelligence community or certain components of it had ever taken
a~ainst a foreign country or foreign leader were approved of or even known
of by the President who was in office at the time.
10 I would favor a procedure, within the Con~ress, which would in effect create
an avenue of appeal for a member dissatisfied with a Committee determination
on a classification issue. Perhaps an appeal committee made up of the Majority
and )linority leaders and other appointed members would be appropriate. Leaving
the mechanics aside, however, I believe the concept is important and can be
implemented.
379
positions, particularly that of General Counsel, be upgraded. For that
reason, I think that it is a good idea to have the General Counsel, to
both the FBI and the CIA, subject to Senate confirmation. This adds
another check and balance which will result in an overall impmvement
of the system."2 Additionally, I feel that it is equally important to provide
both the General Counsel and Inspector General with ullI'Bstricted
acc.ess to all raw files within their respective agencies.12a This was not
always done in the past and ,,,ill be a healthy addition to the intraagency
system of checks and balances.
(6) I am in favor of making public. the aggregate figure for the
budget of the entire intelligence community. I believe the people of
the United States have the right to know that figure." 3 The citizens of
this country have a right to know how much of their money we are
spending on intelligence production. But, they also want to get their
money's worth out of that tax dollar. They do not want to spend that
money for intelligence production which is going to be handicapped;
which is going to produce poor or inaccurate intelligence. Therefore, I
am opposed to any further specific delineation of the intelligence community
budget. Specifically, I am opposed to the publication of the
CIA's budget or the NSA's budget. It seems to me we are dealing with
the world of the unknown in predicting what a foreign intelligence
service can or cannot extrapolate from these budget figures. We received
no testimony which guaranteed that,if Congress were to publish
the budget figure for the CIA itself, a hostile intelligence organization
could not extrapolate from that figure and determine much more accurately
what the CIA capabilities are in any number of vital areas.
'Without such testimony, I am not prepared to go that far. The public's
right to know must be balanced with the efficiency and integrity of
our intelligence operations. I think we can accomplish both by taking
the middle road; publishing the aggregate figure for the entire intelligence
community. It is this proposal that I have voted in favor of.
There are a number of other specific findings and recommendations,
supported by a majority of the Committee, which require additional
brief comment.
'" I differ with the Committee in that I would not have the General Counsel and
Inspector General file reports and/or complaints concerning possible abuses with
the Attorney GeneraL Rather, I think the more appropriate interface in a new
oversight system would be for both to take complaints to the Intelligence Oversight
Board and the new congressional oversight committee. The Attorney General
would remain the recipient of any and all complaints regarding possible
violations oflaw.
1.20 I support the Committee's recommendation that 'agency employees report
any irregularities directly to the Inspector General without going through the
chnin of command, Le. through the particular division chief involved.
13 I do not feel that, despite my personal view that the aggregate budget
figure Rhould be discloRed to the public, only six to eleven members of the Senate
have the right to release unilaterally the actual budget figures. A majority of
both Housel' of CongresR should be necessary to release such information. And,
while I would cast my vote in favor of the release of the aggregate budget figure,
I am troubled that there may be no Ruch vote. I am not sure the "right" result,
justifies the "wrong" procedures, because the next time the wrong procedure
can just as easily be utilized to reach the wrong result.
380
FOREIG~ I~TELLIGEXCE RECO~DIEXDATIOXS
( 1) COVERT ACTION
I believe the covert action capability of our intelligence community
is vital to the United States. 'Ye must maintain our strength
in this capacity, but, we must also control it. The key and difficult
question, of course, is how we can control it without destroying or
damaging its effectiveness. In my view, the best way to both maintain
strength and yet insure accountability is to have strict control of the
covert action programs through the Operations Advisory Group, with
parallel control and supervision by the proposed permanent congressional
oversight committee.
Covert action is a complex "Cnited States intelligence capability.
Covert action provides the United States with the ability to react to
changing situations. It is built up over a long period of time. Potential
assets are painstakingly recruited all over the \,orld. Having reviewed
the history of covert action since its inception, I do not look upon the
intelligence a,gents involved in covert action as a modern day group of
bandits who travel the world murdering and kidnapping people.
Rather, a vast majority of covert action programs are not only valuable
but well thought approaches through media placement and agents
of influence which produce positive results.
Covert action programs cannot be mounted instantly upon a crisis. It
is naive to think that our intelligence community will be able to address
a crisis without working years in advance to establish sources
in the various countries in which a crisis might occur. These sources
provide what is referred to as the "infrastructure," which must necessarily
be in place throughout the world so that the United States can
predict and prevent actions abroad which are inimical to our national
interestY I believe that, were we to completely abolish covert action or
attempt to remove it from the CIA and place it in a new separate
agency, these sources would dry up; and, when a crisis did come, our
intelligence community would not be able to meet it effectively. Not
only do I question the effecti\'eness a new separate agency for covert
action would have, but such a re-structuring would unnecessarily increase
our already burgeoning bureaucracy.
I think that it is important to realize that covert action cannot be
conducted in public. We cannot take a Gallup Poll to determine
whether we should secretly aid the democratic forces in a particular
~ountry. I do not defend some of the covert action which has taken place
in Chile. But, the fact remains that we cannot discuss publicly the
many successes, both major and minor, which the United States has
achieved through the careful use of covert action programs. Many individuals
occupy positions of power in the world today as a direct result
of aid given through a covert action program. Unfortunately, we
cannot boast of or even mention these significant achievements. In
short, we cannot a.pproach covert action from a public relations point
of view. We should not forget that \ye must deal with the world as
it is toclay-\yith our adversaries employing their equivalent of covert
14 For example. testimony before the Committee established that the CIA's
failure to act more positively in Portugal was a direct re~mlt of an absence of sufficient
clandestine infrastructure. William E. Colby testimony, 10/23/75; William
Xelson testimony, 11/7/75.
381
action. 1Ve must either say that the intelligence community should
have the power to address world problems in this manner, under the
strict control of the President and Congress, or we should take away
that power completley. I cannot subscribe to the latter.
Finally, the issue remains as to how we can best control covert action
through statutory reform. First, I believe the Executive Branch
can and should care:£ully review each significant covert action proposal.
This will be accomplished through the Operations Advisory
Group under the program outlined by President Ford.
Second, Congress can control covert action by passing legislation
requiring that the new oversight committee be kept "fully and currently
in:£ormed." This, I believe, is the appropriate statutory language
to apply to covert action. I do not agree with the Committee's recommendation
that "prior notice" be given to Congress for each and every
covert action project. As a matter 0:£ practice, the important and signifcant
covert action programs will be discussed with the oversight committee
in a form 0:£ partnership; and this is the way it should be. "Fully
and currently in:£ormed" is language which has served us well in the
atomic energy area. It has an already existing body of precedent that
may be used as a guide for the :£uture. It is flexible, like the Constitution,
and provides a strong, broad base to work :£rom. I am not prepar{jd to
say, however, that in the years ahead there may not be some vitally sensitive
situation of which Congress and the oversight committee should
not be told in advance. While the likelihood of this occurring is not
great, we should never foreclose with rigid statutory language possibilities
which cannot be foreseen today. Our statutory language must
be flexible enough to encompass a variety of problems and potential
problems, yet rigid enough to ensure total accountability. "Fully and
currently informed" accomplishes both purposes.
( 2) CIA PUBLISHING RESTRICTIONS
In the area of restrictions on the CIA's publishing of various materials,
I am in complete agreement that anything published in the
United States by the CIA, or even sponsored indirectly by the CIA
through a proprietary, front, or any other means, must be identified
as coming from the CIA. Publications overseas are another matter.
We should allow the Agency the flexibility, as we have in our recommendations,
to publish whatever they want to overseas and to publish
under whatever subterfuge is necessary and thought advisable.15
DOMESTIC INTELLIGENCE RECOMMENDATIONS
While the Committee's Domestic Intelligence Report represents an
excellent discussion 0:£ the problems attendant to that field of intelligence,
I feel several of the recommendations may present practical
problems. Although our objective 0:£ achieving domestic intelligence
reforms is the same, I differ with the majority of the Committee in
how best to approach the achievement 0:£ this goal.
15 I do not view the "domestic fallout" as a real problem. To be sure, some
publications by the CIA abroad will find their way back to the United States.
However, to try to impose severe restrictions to prevent such fallout would cause
unnecessary damage to the CIA's valid production of propaganda and other
publications abroad.
382
(1) I~VESTIGATlVE STAKDARDS
Scope of Domestic Security Investigations
At the outset, I note that most of my concern with the standards
for investigations in the domestic security area stem from the fact
that "domestic security" is defined by the Committee to include both
the "terrorism" and "espionage" areas of investigation. Severe limitations,
proscribing the investigation of student groups, are more readily
acceptable when they do not also apply to terrorist groups and foreign
and domestic agents involved in espionage against the United States.
To include these disparate elements within the same "domestic security"
rubric, it seems to me, will create unnecessary problems when it
comes to the practical application of the theoretical principles enunciated
in the Committee's recommendations.
(a) Pre~'entive intelligence investigati0118-The Committee's recommendations
limit the FBI's permissible investigations in these
critical areas of terrorism and espionage under standards for
what the Committee delineates as preventive intelligence investigations.
Under these standards the FBI can only investigate where:
it has a specific allegation or specific or substantiated information
that (an) American or foreigner will 800n engage in
terrorist activity or hostile foreign intelligence activity
[emphasis added.] 16
In am not convinced that this is the best way to approach the real
problem of limiting domestic intelligence investigations. While in
theoretical terms the standards of the recommendations may seem
appropri'ate, I fear the inherent practical consequences of their
application to the cold, real world of terrorism and espionage. The
establishment of an imminency requirement by not permitting any
investigation by the FBI unless the allegation or information received
establishes that the person or group will "soon engage" in certain
activity might prohibit any number of legitimate and necessary FBI
investigations. For example, an allegation of an assassination attempt
on a public figure at an unspecified date in the future could be precluded
from investigation; or, vague information received by the
FBI that there was a plan to obtain some nuclear components, but no
indication of when or how, could also be prohibited from investigation.
~urely, matters such as these should be the valid subjects of investigatIon-
no matter how vague or piecemeal the information isY
(b) Tinw limits-The Committee's recommendations would limit
any preliminary FBI investigation of an allegation of wrongdoing
in the Domestic Security area to 30 days from the receipt of the information,
unless the Attorney General "finds" 18 that the investigation
need be extended for an additional 60 days. The FBI inYestigation may
continue beyond 90 days only if the investigatory efforts establish
"reasonable suspicion" that the person or group "will soon engage in"
"" Committee Domestic Report. p. 320.
173Iy experience dictates that many inyestigations are begun with very limited
or sketchy information. FBI agents and inyestigators in general are not always
or eyen often immediately presented with information which constitutes probable
cause of a crime. Probable cause is often established only ,through painstaking
inyestigation; putting bits and pieces together. I think we must take this into
consideration when formulating threshold inyestigatory standards.
18 It is unclear what standard is to be the predicate for any such finding.
383
terrorist or foreign espionage acti\-ities. 19 And, even a full preventive
intelligence investigation is not permitted to continue beyond "one
year," except upon a finding by the Attorney General of "compelling
circumstances." 20
",Yhile well-intentionecL I am not persuaded that these are \yorkable
standards. I just don't think \ve can categorize all investigations into
these rigid time frames. Innstigations just are not conducted that way.
Thirty days, for example, is probably not even enough time to obtain a
license check return from some states. ~IoreoYer, limiting an investigation
to one year may not be realistic when it applies to investigating a
violence prone group like the SLA or a Soviet l'nion espionage ring.
These investigations are not easily or quickly accomplished, I do not
believe that the creation of artificial time limits is the best way to approach
the real concern of the Committee, \yhich is that \ye establish
institutional controls on domestic security investigations. I \vould
prefer approaching the control and accountability problems by providing
periodic Department of .Justice reviews of all categories of
domestic intelligence im-estigations; 1I0t by imposing specific time
limits upon all investigations.
( 2) INFOR:lIANTS
The Committee recommends broad ne\v restrictions on the use of
informants by the FBI. While our investigation has established that,
in the domestic intelligence field, there have been numerous abuses
in the use of informants, I do not think that the proposed recommen-'
dations are the best vehicles to achieve the needed reform. I cannot
subscribe to recommendaitons limiting the use of informants to
stringent time standards.21 To limit use of informants to periods of "90
days" 22 unless the Attorney General finds "probable cause" that an
American will "soon" engage in terrorist or hostile foreign intelligence
activity is impractical and unworkable. ",Vhen groups such as the SLA
attempt to rob, kill, or blow up buildings, it is clearly necessary to
cultivate informants who may provide some advance warning. I am
concerned that the Committee's recommendations will preclude this
vital function of the FBI. ~Ioreover, specific time limits, it seems to
me, will prove to be impractical. For example, at the end of the prescribed
time, with not enough evidence for arrests, will informant X
be terminated and replaced by informant Y who starts anew, or are
informants thereafter banned from penetrating the particular groupeven
if violence prone or involved in espionage?
It should be remembered that informants are the single most important
tool of the FBI, and local police for that matter, in the fight
against terrorism and espionage, as well as organized crime, narcotics,
and even the ever pervasive street crimes of murder, rape, and
robbery. Indeed, they are the very lifeblood of such investigations.
Moreover, informants are involved in a wide spectrum of activities
19 Committee Domestic Report, pp. 320-323.
20 Compelling- circumstances is not further defined. so it is unclear what standards
should ue applied in making such a determination.
":\Iy concerns here parallel those I ha,-e with respect to the general inYestigaton-
standards reconllnendecl.
22 'fhe Committee allows an additional 60 days if the Attorney General finds
"compelling circumstances."
384
from attending public meetings to actual penetration attempts. I am
concerned that theoretical and abstract restrictions designed only for
"domestic intelligence", if enacted, \vould soon limit our legitimate
law enforcement efforts in lllany other fields as well. People and actions
do not always fit nicely in neat little boxes labeled "domestic intelligence,"
particularly in the terrorist and espionage areas to which the
proposed restrictions on informants would apply. Congress should
carefully consider the scope and ramifications of any recommendations
with respect to informants.
It is my view that the better way to approach the problems encountered
in the use of informants is to put their use under strict
supervision of the Department of Justice. Creation of a special staff or
committee for this purpose, centralized in the Department of Justice,
would provide effective controls over the potential abuses in the use
of informants, yet not hamstring their legitimate and valuable use.23
( 3) ELECTRONIC SURVEILLANCE
I wholeheartedly support S. 3197, the new electronic surveillance
bill sent to the Congress by President Ford.24 It needs consolidated bipartisan
support because it represents a significant advance from
existing practice. For the first time, it will bring all governmental
electronic surveillance under the scrutiny of judicial warrant procedures.
I commend the efforts of President Ford in taking this extraordinary
step forward in the regulation of electronic surveillance.
In supporting S. 3197, I do not regard the existing wiretaps presently
maintained under the direction and control of Attorney General
Levi as being in violation of the Constitution. The present practice
of electronic surveillance authorization and implementation rests upon
a long-standing body of precedent which provides a firm constitutional
base for their continued maintenance. The President's approach is to
move from the present practice toward better practices and procedures
for authorization. The abuses of electronic surveillance of the past
clearly dictate a need for a system of judicial warrant approval. Under
the President's proposal the American people will be able to rest easyassured
that electronic surveillance will be employed carefully, yet
when needed to combat serious criminal and espionage activity.
I differ with a majority of the Committee insofar as they recommend
that before a judge can issue a warrant for electronic surveillance he
must find more than that an American is a conscious agent of a foreign
power engaged in clandestine intelligence activities. The Committee
would require that probable cause be established for "criminal activity"
before a wiretap can be authorized. I think this departure
from the S. 3197 standard would be a dangerous one because it would
eliminate certain areas of espionage, particularly industrial espionage,
23 Attorney General Levi is in the process of establishing guidelines to regulate
the use of informants. I recommend, however, that these guidelines be enforced
through some appropriate form of Department of Justice review of the
FBI's use of informants.
.. The bill enjoyed a bipartisan co-sponsorship of Senators.
385
from electronic surveillance. :M:any areas of espionage do not involve
clearly criminal activity. Indeed, forms of espionage may not constitute
a criminal offense, but should be the valid target of an espionage
investigation. For example, a situation such as American oil company
executives providing unclassified but important oil reserve informatIon
to a Soviet agent might not be a permissible subject of electronic
surveillance if "criminal activity," rather than hostile foreign intelligence,
were the standard.25 I think the Committee proposed standard
would harm the FBI's espionage efforts and would therefore be a
mistake.
(4) CIYIL RE~IEDIES STATUTE
I oppose any broad new civil remedies statute in the field of domestic
intelligence as both dangerous and unnecessary. It is dangerous because
it could easily open the flood gates for numerous lawsuits filed
seeking injunctive relief in the courts to thwart legitimate investigations.
It is unnecessary because any substantial actions are already permitted
under present Supreme Court decisions, such as Bivem v.
United States, for violation of constitutional rights. There is simply
no valid reason to carve out a broad new category of lawsuits for those
not only injured by domestic intelligence methods but "threatened with
injury." 26 No such statutory provisions are available for "victims" in
any other specific category of activity. The present avenues of relief
provided by law today are clearly sufficient to address any future
abuses in the domestic intelligence field. I note that we have not had the
benefit of any sworn testimony from the many constitutional 'and cnminallaw
experts in the country, either pro or con such a proposal. Without
the benefit of an adequate record and with my concern about the
practical results of such a statute, I cannot support its enactment.
( 5) CIVIL DISORDERS
A final recommendation which requires brief comment in the Committee's
proposed standards permitting the FBI to assist "federal,
state, and local officials in connection with a civil disorder." The Committee's
recommendation will not allow any investigation by the F.B.I.,
not even preliminary in nature, unless the Attorney General finds in
writing that "there is a clear and immediate threat of domestic
violence" which will require the use of Federal troops.
My reservation about this recommendation is that I think it deprives
the Attorney General of the necessary flexibility in dealing with
2S Those involved in the obtaining of information about our industrial procI'SSI'S,
vital to our national security, for our adversaries should be the legitimate
subject of l'lectronic surveillance, notwithstanding that no criminal statute is
violated. I do not think we can afford to wait for exhaustive reform of our
espionage laws. I note that the section of the proposed S.l dealing with espionage
reform has presented great difficulty to the drafters. Indeed, drafting espionage
into a criminal statute presents some of the same overbreadth problems
that the Committee has been concerned with in the domestic intelligence area.
26 For example, would a cause of action exist simply because X notices a federal
agent following him in an automobile, notwithstanding the nature or status of
the particular investigation?
68 ...786 0 - 76 - 26
386
these delicate matters (i.e., civil disturbances) and might tend to
exacerbate a possibly explosive situation. If the Attorney General is
not allowed to dispatch FBI agents to the scene of disorders it seems
to me that ,ye deprive him of the ..ery means he needs to make the
extraordinarily important decision as to whether Federal troops are
likely to be used.
I believe the better practice would be to permit preliminary investigation
by the FBI of potentially volatile situations so that the Attorney
General might make the most reasoned decision possible with
respect to what I consider the drastic step of deploying Federal troops
to quell a civil disorder in one of our cities.
WATERGATE-RELATED IXQ"LIRY
Finally, I ,vish to address briefly an area of the Committee's
investigation which I pursued for the most part independently. At
the close of the Senate 'Yatergate investigation 1 filed a report as part
of my individual views 27 which outlined remaining areas of investigation
,,,ith respect to the relationships bet"'een the Central Intelligence
Agency and the former CIA employees who participated in the 'Yatergate
break-in.2s By virtue of my membership on this Select Committee,
I have been able to pursue a further inqUIry into these matters, and
wish to thank the Chairman and the Vice Chairman for the staff
assistance and latitude provided me to pursue this area of investigation.
Many of the concerns raised in the 'Vatergate Committee investigation
have been overtaken by time and events. For example, the reported
references to illegal CIA domestic activities have now been confirmed,
as described in detail in the Committee's Report. The reference to the
CIA maintaining a file on Jack Anderson 29 proved to be part of a
lengthy investigation and physical surveillance of Anderson by the
CIA during a "leak" inquiry. Similarly, the detailing of Howard
Hunt's post-retirement contacts with the CIA has been supplemented
with still more such contacts.3D Since July 1974, we have witnessed a
variety of other disclosures relative to the CIA's domestic activities;
indeed, the creation of our Senate Select Committee on Intelligence
Activities "'as due in part to the continuing public concern about these
matters.
unlike the Watergate Committee investigation of CIA activities,
which larg.ely was terminated because of the refusal of the CIA to turn
over documents,31 this investigation was conducted in an atmosphere of
cooperation. After some initial difficulties, which the Committee en-
27 Senate Watergate Committee Final Report, S. Res. 93--981, pp. 1105-1165.
28 The "Action ReqUired" section of the report. at pages 1150-1157, enumerated
unresolved matters and identified materia'ls not provided to the Watergate
Committee by the CIA.
.. Senate Watergate Oommittee Final Report, p. 1128.
30 For example this disclosure of personal correspondence (detailing certain
of Hunt's activities in 1971 and 1972) between Hunt and the CIA secretary stationed
in Paris whom Hunt sought to have reassigned to work for him at the
White House.
31 By letter of ~Iarch 7, 1974, former Director Colby informed the Senate Water·
gate Committee that certain items of requested information would not be made
urailable to that committee. Such a withholding of timely information, including
that which was totally exculpatorJ', unnecessarily focused an aura of suspicion
and guilt.
387
countered in a variety of areas, the cooperation afforded by the CIA
was exemplary. In particular, I especially want to express m.y appreciation
to former Director vYilliam Colby and present Director George
Bush for cooperating to the fullest extent in this investigation. I also
want to thank Ambassador Richard Helms and former Counterintelligence
Chief .James Angleton for their patience and extensive
assistance in numerous conferences, in trying to reconstruct the elusive
details of this significant period.
In pursuing this area of inquiry, the Committee staff examined a
great volume of highly sensitive material, much of which contained
speculative matters and a multitude of information of marginal relevance.
This information, which had not been made available in large
parl to the Separate vVatergate Committee, was examined in raw form
and without sanitization deletions. Because of the sensitivity of the
material, it waS reviewed on the Central Intelligence Agency premises.
Thus, it was in a spirit of cooperation that this examination was accommodated;
and, this experience indicates that the Congress and the
intelligence community can cooperate in an investigation without incurring
unauthorized disclosure of sensitive information.32
At the close of this Committee's examination of the available record,
I wish to state my belief that the sum total of the evidence does not
substantiate a conclusion that the CIA per se was involved in the range
of events and circumstances kno\vn as vVatergate.33 However, there was
considerable evidence that for much of the post-Watergate period the
CIA itself \vas uncertain of the ramifications of the various involvements,
witting or othenvise, between members of the Watergate
burglary team and members or components of the Agency. Indeed.
the CIA was appar,ently at times as perplexed as Congressional investigators.
34 It should be noted that the Agency undertook an extensive
internal inquiry in an effort to resol ve these uncertainties.
The imestigation of vVatergate and the possible relationship of the
Central Intelligence Agency thereto, produced a panoply of puzzlement.
vVhile the available information leaves nagging questions and
contains bits and pieces of intriguing evidence, fairness dictates that
an assessment be rendered on the basis of the present record. An impartial
evaluation of that record compels the conclusion that the CIA,
as an institution, was not involved in the vVatergate break-in.
HOWARD H. BAKEIR, Jr.
3Jl For example, the staff was given access to the :\Iartinez contact reports (to
which access was refused during the 'Watergate Committee investigation) in their
entirety. This review was accomplished in secure facilities at the CIA, and no
notes were taken of sensitive information contained in the reports not related
to Hunt or in some other way rele\-ant to the Committee's inquiry. I cite this as
an example of how a Congressional investigation can be thorough and yet not
threaten the integrity of CIA secret documentation, containing names of officers
and other highly classified information.
33 I am filing with the Committee the detailed results of this investigation in
the form of classifier! memoranda. These memoranda will be turned over to the
successor permanent oversight committee to be kept in its secure files. No useful
purpose would be served in further publicizing the contents, because much of it
is fragmentary and its sum total reinforces the findings stated herein.
"For example. a Colby to Helms letter of 2R January, 1974. references seven to
nine communications from Hunt whi~e he was at the 'Vhite House to Helms'
secret.ary, with the query: "Can you give us some idea as to what they were
about.?"

INDIVIDUAL VIEWS OF SENATOR GOLDWATER
For over a year the Senate Select Committee on Intelligence Activities
has been conducting hearings and taking testimony. Almost six
months of this time \vas frittered away in an wlproductive investigation
into alleged assassinrutions (see my individual views accompanying
the foreign section of this report).
Thanks to extensive and often sensationalized public hearings, the
deficiencies of our domestic intelligence agencies have now been exposed,
labelled, and largely admitted to. In response, the indi \'idual
agencies have undertaken substantial reforms and the Administration
itself has piloted corrections by a thoughtful and detailed Executive
Order 11905, 2/18/76.
Not satisfied, however, the Select Committee's Report sets forth a
voluminous and rambling trerutise which pillories the nation's domestic
intelligence agencies, fixf'-s individual culpability, ignores agency efforts
at reform, and urges the adoption of recommendations and findings
unsubstantiated by fact.
The Report sets forth frequent and unfounded criticism of "executive
power." Ignoring both past and present efforts by the Executive
to provide guidance and reform, the Report voices theoretical objection
to the conduct of intelligence activities by the "Chief Executive and
his surrogates." Unhappily, the sweeping dissatisfadion of theoreticiruns
and academicians is not reflected in the record of the Select
Committee's proceedings and is almost wholly unsupported by testimony.
The pronouncements within the Report deal in a high-handed
manner with matters that received little or no attention by the Committee
and are, consequently, utterly devoid of an adequate record.
The free-wheeling, self-righteous, and frequently moralizing thrust
of the Report therefore assures recommendations which are bottomed
in wish and speculation rather than in fact or testimony. Recommendations,
for example, that civil remedies be expanded to cover parties
alleging "injuries" from domestic intelligence activity; that statutes
be enacted to create a cause of action for those allegedly so aggrieved;
that criminal sanctions be enacted for willful violation of recommended
statutes; and that the Smith and Voorhis Acts be repealed or
amended, are all glibly presented without so much as a shred of evidence
having been entered into the record in their support.
Although the Report has flatly assured its readers that "the scope
of our recommendations coincides with the scope of our investigation",
such assurances are clearly hollow when, for instance, the Report affirms
in preamble to certain recommendations that the President has no
inherent power to conduct a wiretap without a warrant. Repeatedly and
without qualification, the Report reiterates such a proposition, without
referring to the unsettled state of the case law, the views of legal
scholars, or the relative silence of the Supreme Court on the matter.
vVhen, further, the Report counsels restrictions on, say, the use of
(389 )
390
informants or the suneillance of foreign intelligence activities, it goes
beyond restrictions already in the Attorney GeneraFs Guidelines with
scant attention to the effectiveness of the guidelines or their application.
Again and [tgain the Report makes far-reaching recommendations
which are unsubstantiated by the evidence. Thus the Report urges that
the FBI not attempt frustration of hostile foreign intelligence activities
by "specialized" techniques unless approved by the Attorney
General upon advice of the Secretary of State. 'Vhat the Report omits,
however, is any showing that the Attorney General or the Secretary of
State is available, capable, or prepared, to undertake such a role.
In similar fashion, the Report's Recommendations are frequently
critical of the Executive Order's determination to repose all domestic
oversight in a Board rather than ,"est it exclusively or principally
with the Attorney General. The apparent basis for the Report's
preference (and hence its criticism of the Administration's Executive
Order) is the brief and fairly bald conclusion that the Attorney General
is the "most appropriate official charged with ensuring that the
intelligence agencies of the LTnited States conduct their activities in
accordance with the law." No pxamination of feasibility, organization,
or jurisdiction, buttresses the Report's conclusion in this respect.
The Report likewise recommends almost wholesale enactment of
legislation to prevent recurrence of abuses and repetition of improprieties
in the domestic area. In this respect the Report exhibits a
decidedly hasty and almost exclusive preference for statute where
Order, Rule, or Reg'ulation would provide more expeditious, more
particularized, and more flexible remedies. In view of the tentative
and even halting nature of so many of the Committee's conclusions,
the clamor for statutes is premature and ill-advised. To urge the quick
enactment of criminal provisions is even more injudiciouf'. and, in
some cases, verges on the fatuous.
To be precise: the Selpct Committee has endorsed Recommendation
52, which reads: "All non-consensual electronic sunei11ance should
be conducted pursuant to warrants issned under authority of Title III
of the Omnibus Crime Control and Sa fe Strpets Act of 1968." At the
same time. however, the Select Committee admits that "industrial
espionage and other modern forms of espionage (are) not presently
covered" by the criminal law, and that "there may be serious deficiencies
in the Federal Esnionage Statute (18 U.S.C. 792 et seq.)." In fact,
the Report is constrained to admit that it "took no testimony on this
subject." Nonethelpss, in the ,"ery tepth of its own admission, the Splect
Committee endorses a Recommendfltion that '"ould rpstrict al7 electronic
suneillance to the narrow and exclusi"e confines of the criminal
law. At Sf'lect Committf'e direction. our counter-intrlligence efforts
would be forbidden bv law to avail tlwmselYes of electronic surveillance
in the as vet undefined. but admittedly vital, arpas of economic,
technological. imd industrial espionagp. With virtual imnunity an
American could pass. deliYeI', or spll to the agent of a hostile foreign
power any and all secrets of industrv or trchllOlogy-llO"wever important
to the nation's economy or well-bpin.~-whilethp FBI would be
effectinlv precluded from action. As criminal sanctions do not attarh-
anil, in fact. may very well be incanablp of attarhin.Q'-to "in.dustrial
pspionage", electronic surYeillancp "'ould be denied the natIOn's
391
intelligence agencies in any effort to forestall, prevent or even monitor,
hostile foreign intelligence activity in the economic or technological
sphere. ,Yhile the Report blithely recommends that the espionage
laws be modernized to include technological or industrial espionage,
it nowhere confronts the massive practical difficulties in such a suggestion.
FEDERAL BUREAU OF I:-<VESTIGATION
During the last decade or so of :Y1r. Hoover's tenure abuses crept
into the operations of the Bureau. Because these are thoroughly ventilated,
if not overdrawn, in the Majority Report, I shall not dwell on
them here, "'ith one exception: at times, suggestions from the 'White
House or the conjectures of Presidential aides directly sparked eaves(
lropping and interference with the political process.
.\llllost invariably, hoW\wer, Bureau impropriety can be attributed\\'
hethpl' (Erectly or by implication-to higher authority. As in the
foreign sector. the record of domestic abuse and excess is a commentary
on improper or deficient guidance. ,Vhile particular programs or personnel
cannot be spared -their proportionate share of responsibility
for impropriety, ultimate accountability for Bureau excesses must rest
with a negligent Executive and an inattentive Congress.
'While I concnr in the general objectives of the Committee to insure
no repetition of abuses of which the FBI may have been guilty in the
past, I strongly disagree "'ith certain specific recommendations in the
Committee's report.
I do not feel the best interests of this country would be served by
imposing extraordinary cnrbs on the FBI or by opening additional
channels through which political influence could flow into the inner
workings of the FBI. And to a certain extent. the recommendations
I find objectionable would tend to accomplish exactly that.
I refer specifically to Recommendation 85, which encourages the
Attorney General to exercise his authority to appoint executives in
the FBI at the level of Assistant Director.
The Attorneys General, with rare exceptions, have historically been
political supporters of the President and his party. By exhorting an
Attorney General to by-pass the Director of the FBI and appoint
Assistant Directors, we run the risk of further extending White House
intrusion into the daily operations of the FBI. FBI Assistant Directors
t'ake part in administrative decisions and policy-making, and they
exercise day-to-day authority over the operations of their respeotive
divisions. Traditionally, they have been professionals who advanced
through the ranks of the FBI. Their law enforcement expertise, combined
with administrative ability, 'are qualities needed by the Director
of the FBI in discharging his duties. )loreover. any chief executive
officer of 'a line agency should have flexibility in choosing his principal
assistants.
The Office of the General Counsel of the FBI is a career position;
and the person who occupies that office has traditionally been selected
by the Director. No valid reasons have been given to require his nomination
by the President and confirmation by the Senate. As a general
rule. the Director or Administrator of a bureau or agency is permitted
to choose his own General Counsel.
392
Personal integrity cannot be assured through such measures as Recommendation
R5. Proper supervision by the Attorney General and
effect.i,'e Congressional O\'ersirrht can. and should. hO\vever, serve to
discourage abuses of the sort that concern all of us.
I take exception. also. to Recommendations 45. 55-A and 55-B. that
impose constraints on preventin) intelligence inwstigations and use of
informants. The ,vOl'k of the FBI in this area is far too vital to thr
security of the Amrrican people to impose such stringently restrictive
refjuirements and time limitntions on its investigative efforts.
'With domestic terrorism burgeoning in this country. I submit it is
very risky to forbid the FBI to conduct preliminarv investigations of
foreigners or citizens unless there is a "specific allegation" or proof
that such individuals "",ill soon engage in telTorist arti"ity or hostile
foreign intelligence activity." Here. again. as in some of the foreign
recomnwl1flations ,,'e seem to be sa:ving. "Don't put out the firr \vhile it
is small: wait until it becomes a confla,gration."
Hostilr forces at home and abroad are bound bv no such chains.
And. I don't want to be party in hamstringing the FBI so that it cannot
rffectivel:v frustrate those \1'ho would espouse the bomb and the gun
to impose their evil will on America.
Ho,1' in the world is the FBI to ;,:;ubstantiate information that ter,
rm'ists amI enemy agents \vill act against Anwricans without at least
preliminary investigation? To rrquire them to have such proof in hand
before m'en initiating investigation seems unrealistic and is potentially
injurious to our security.
The recommendation also states that such preliminary investigation
must 1X' concluded within 00 davs. unless the .Utornev General or his
desi!!l1ee finds that the facts w'arrant additional investigation up to
60 days.
Arr' we trul,v prepared to say to the FBI: you must concluoe your
prewntiYC' intelligence investigations \vithin 00 or 90 oays unless you
establish "reasonable suspicion" that individuals 11'ill in fad commit
a terrorist act or engage in hostile foreign intrlligencp activity?
And, even then, a tilllP limit of one vpar' is rp('ommended for a full
preventh'e intelligrncp investigation. barring a finding of "compelling
circumstances" bv the Attornev General. Can we be assured that our
enemies will be so obliging as to commit an act within the time span we
prescribr?
And I questioh the effectiveness of the recommended measures in
prrventing- abuses of Americans' pri,'acy or in assuring non-violent
<lissentrrs in our countrv that they will not be inhibiterl by FBI
actions. " '
I submit that effecti\'(' and proper CongTPssional oversight and
superTision by the Attorney Genrral obviates the necessity of stringent
standards and time limitations where a fjuick response by the FBI
may be nf'eded to ayert disaster.
",Vhilt' I tend to agree with the motins and objt'ctin's of my collpagues
011 the Committee on Recommendations 55~A and B. I maintain
the refjuirements and limitations imposed on the FBI's use of
informants go beyond \"hat is neeessary.
Hmy ran we possibly rxpect the FBI to dewlop instant security
informants. use them for no days, and tlwn turn them off like a light
switch?
393
Are we truly qualified to dictate to a professional law enforcement
agency under what circumstances it can use security informants and
for how long? The value of such informants has been demonstrated
over and over again. Good, stable, effective informants with proved
credibility are not easy to come by.
The fact is that their cooperation must be cultivated. Their credibility
must be tested. Their stability must be evaluated. Time and
patience are essential. Does it make sense to state exactly under what
circumstances and for how long a period the FBI will be permitted
to accomplish these aims?
The stakes are too high tD risk imposing unworkable or cumbersome
restrictions-the stakes being human lives and the security of
our country.
I have misgivings regarding Recommendation 90-B, which pro\
·ides a new civil action recourse to Americans who feel that their
Constitutional rights have suffered actual or even threatened violation
by Federal officers or agents in intelligence investigations. This
provision would have the effect of injecting the courts into the investigative
process. even at early stages of investigations when attempts
are being made to substantiate or disprove specific allegations of
actions requiring legitimate investigation.
We would open the way for individuals and agent.'> hostile to our
country and its lawful government tD impede and tie up in prolonged
litigation investigations required to preserve national security and
prevent violence.
Turmoil, upheaval, and readjustment have taken their toll of the
FBI. Fortunately for the nation, the many high-caliber and patriotic
men and women who are the FBI have continued to serve with dedication
and loyalty.
INTERNAI, REVENUE SERVICE
Nowhere has the perversion of domestic intelligence been more vividly
demonstrated than in the Select Committee's investigation of the
Internal Revenue Service. ",Vith much relish but no excuse, IRS functionaries
have pried and spied on countless organizations and
activities. Intelligence components of the IRS have indiscriminately
investigated hundreds of thousands of taxpayers and have amassed
reams of information wholly irrelevant to the IRS's narrow responsibility
for collecting the taxes. IRS agents have for decades conducted
intrusive campaigns of snooping virtually without let or
hindrance. and certainlv without justification in fact or in law.
In 1961, for instance. the IRS initiated a program to conduct a
test audit of various "right-wing" organizations. Termed the "Ideological
Organizations Audit Program." the project attempted intensive
investigation of 10,000 tax-exempt organizations that was far
removed from even-handed enforcement of the internal revenue laws.
Precedent having been established. a Special Services Staff was organized
in 1969 to conduct audits of "activist" and "ideological" taxpayers.
Audits were run without reference to established tax criteria
and the "special service" rendered the nation was the unwarranted targeting
of 18,000 indi\'iduals and 3.000 groups. Its insatiable appetite
BARRY GOLDWATER.
394
still unsatisfied, the IRS next established an "Information Gathering
and Retrieval System" (IGRS) in order to garner still more general
int('lligence. IGRS was hatched in 1973, and, during its two y('ars of
life, proceeded to gather and store information in voracious fashion.
Some 465,442 individuals or organizations wer(' examinecl before the
program was terminated in 1975.
Operating secretly and w-ithout standards or safeguards, IGRS was
typical of the arroganc(' of tIl(' tax collectors. Abuses uncovered in
connection with the IRS's Operation Lepr('chaun (1969-1072) merely
represent the expected and logical extension of policies ,yhich are as
profoundly contemptuous of the American taxpayer as they are characteristic
of the IRS's perennial efforts to transform itself into a repository
of domestic intelligence.
I have refused to sign the final report of the Select Committee on
Intelligence Operations in the belief that it can cause severe embarrassment,
if not graw harm. to the ~ation's foreign policy. The domestic
part of the repOlt has a strong dose of 20-20 hindsight. It will raise
more questions than it answers. R('putations will suffer and little will
have been gained.
·When the resolution ('reating the S('lect Committee was presented to
the Senate. I endorsed it because I felt it was necessary to conduct
such an investigation into any possible abuses on the privacy of American
citizens. I thoroughly expected that the Commlttee would concentrate
its efforts in this particular field, but wry little work was
done on it. Xot much can be gained from reading the report as a result
of this, and I am, frankly, disappointed that we don't know more
today than we did a year and a half ago about questions raised on this
subject.
SLPPLE)!EXTAL VIEWS OF SEXATOR CHARLES )IcC. ~hTHIAS, JR.
I fully support the Final Report and the Findings and Recommendations
of the Select Committee on Intellig~nce.
The reaJfirmation of Constitutional gonmunent requires more than
rhetoric. It inyolves, at a minimum, the rendering ofacoounrts by
those who haye held public trust. H also demands that we renew those
principles that are at t,he center of our democracy. In my view, the
Select Committee's Report is a critical contribution to the process of
Constitutional government.
Those who won our independence 200 years ago understood the
need to ensure "domestic tranquility" and to "provide for the common
defense." Our intelligence services have played a valuable role in the
attainment of those goals.
The Founders of our Nation also understood the need to place governmental
po\ver under the rule of law. They knew that, power carried
with it the seed of abuse. In framing the Constitution, they created
a system of checks and balance5 that would preclude the exercise
of arbitrary power. For they recognized that the exercise of power
by individuals must be constrained. As ,Tefferson wrote, "In questions
of power, let no more be heard of confidence in man, but bind him
down by the chains of the Constitution."
When Senator Mansfield and I first proposed the creation of a Select
OommitJtee on Intelligence in the wake of \Vatergate, we were not seeking
to weaken the nation's intelligence service but to strengthen it.
Effective government rests on the confidence of the people. In the
aftermath of 'Y'atergate and charges of domestic spying and misuse
of the intelligence agencies, that confidence was severely strained. And
in the face of excessive claims of presidential prerogative, Congress
had abdicated its Constitutional responsibilities to oversee and check
the exercise of executive power in the intelligence operations of the
government.
Secrecy and democratic government are uneasy partners. Intelligence
operations are in essence secret operations. But that does not
mean that they can be immune from the rule of law and the standards
our system of government places on all government operations.
If we can lose our liberties from a too-powerful Government intruding
into our lives through burdensome t.axes or an excess of regulations,
we can surely lose them from government agencies that collect
vast amounts of information on the la\dul activities of citizens in the
interest of "domestic intelligence." The excessive breadth of domestic
intelligencp operations investigated by the Committee and many of
the techniques used against Americans can severely chill First Amendment
rights and deeply infringe upon personal privacy.
The Framers of our Constitution recognized that the vitality of our
civil life depends on free discussion. They also recognized that the
right of privacy is fundamental to the sanctity of the individual. That
is why we have the First and Fourth Amendments. Speech and political
ideas are often unsettling. But it is only through free debate and
(395)
396
the free exchange of ideas that the people can inform themselves and
make their government responsive. And it is through the protection
of privacy that we nourish the individual spirit. These are the characteristics
that set us apart from totalitarian regimes.
In this, our Bicentennial year, Amerioans have a special opportunity
'to reaffirm the values of our for~bears.We have emerged from
the dangers of the post-war era and the trauma of the last decade not
by forsaking those values but by adhering to them. To 'be worthy of
our forebears and ourselves, we need only have the courage to keep
to the course. By bringing the intelligence arm of the government
within our constitutional system, correcting abuses, and checking
excesses, we will enable the proper range of intelligence activity to
go forward under law in the service of the country.
CHARLES McC. MATHIAS, Jr.
o

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