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CHURCH COMMITTEE REPORTS

67
In the years after ID;,}6. the purpose of the Communist Party COIN
TELPRO change\1 somewhat. Snpreme Conrt \1ecisions snbstantially
curbed criminal prosecution of Communists.274 Subsequently, the FBI
"rationale" for COI~TELPRO \\'as that it had become "impossible
to prosecnte Commnnist Party memlwrs" and some alternutin' \\'as
needed "to contain the threat." 275
b. Early E,1'paIl8ioll of COIX7'ELPRO
FrOl11 ]H;")(; nntil H)(iO. the COTXTELPRO progl'Um \\'as primarily
aimed at the Comlllllnist Party organization. Bnt. in ~Iarch 1960,
participatin? FBI fiel\1 offices \wr£' \1in'eted to make efforts to pre,'
ent Communist "infiltl'Ution" of "legitimate maf'S organizations. sneh
as Pa l'l'nt -Teaclll'r Assol'iatiollS. ci "i I organizations, and racial aIHI
l'('li,!!iol!s groups." Th(' initial t(·chnique was to notify a lead!'r of the
organization. often by "anonymons commnnications." about the allPl.!
ed Conllllllllist in its midst.27n In some cases. both the Comnmnist
(/lid the "infiltrate\}" organization \\""re targeted.
This marked the beginning of the prog-ression from targl'ting Comn1llnist
Party membprs, to those allegedly undpr Communist "inflnl'ncl'."
to pl'rsons taking positions suppOl'tl'd by thl' Commnnists. For
pxampll'. in HHiJ targets uIHler the Commnnist Party COIXTELPRO
label included a gronp with some Commnnist participants urging- increaf'N1
employment of minorities 277 and a non-Communist g-roup in
opposition to tIl(' Honse Committee on l~n-American AetiYities.278
Tn ID6l. a COTXTELPHO operation \\'as initiated against the Socialist
"~orkers Party. The originating memol'UIH1nm said it was not
a "crash" program: and it \\'as nen'r gin·n high priority.279 The
S'YP's snpport for "such eanses as Castro's Cnba and integ-l'Ution
llroblpnls al'isinl.! in the Sonth" \H're note(l as factors in the FBI's
;J.C'cision to targ~'t tIll' organization. The Bnn'an also rplie(1 npon its
asse::-;sment that the S'YP \\'as "not jnst anotlwr socialist g-ronp but
follO\\'s the rerolutionary principll's of ~.rarx. Ll'nin. and Engl'ls as
intPrj)]'ptpd by Leon Trotsk~'" and that it \\'as "in freqnent contact
\yith international Trotskyitp gronps stopping short of 0pl'n and direct
contact with these gl'Onps.~' 2'0 The S"'P hall bel'n designated a::-; "snbyprsiyp"
on the "Attornpy General's list" sinep the I940s.2R
1
D. IXTELLIGEXCE ,\XD DmIEf;TlC Dlf;f;F,XT: 1})64-1976
1. .11(l7n DCI'f'1oprnent8 of the 1.9fl4-J/J76' Period
Beginning in the mid-sixtips. tho;' Fllite(1 States eXlwriencprl a period
of domestic llllrpst and protl'st nnparallelefl in this ('pntury. Yioll'nce
prnptpd in the pOWl'ty-stJ'i('ken nrban ghettos. and opposition to
"\mel'ican interYl'ntion in Yirtnam prodnced massiYe demonstrations.
'" E,g,. Yatc8" Tfnitrd Statrs, 354 1'.1;, 29S (1957),
'" Deposition of Supervisor, Internal Security Section, FBI Intelligence
DiYision, 10/16/75. pp, 10. 14,
''76 :\[ellloran<!um from FBI Hl'a<!l1uartl'rs to Xew York field officp, 3/31/GO,
277 ~[pmorllndum from PBI Hl'adquartl'rs to San Franeisco fipld office, 4/16/M,
e7" ~[l'lllorandum from FBI JIpadquartprs to Cle"pIlllHl fipld offiee, l1/G/M,
"0 Fort~'-five actions ,,"prl' appro"NI hr FBI Headl1Ullrtl'rs under the S'VP
f'OIXTJ<JLPRO froll! 1061 until it wa~ disconlill1lPd iu 10G9, 'rhl' SWP flrogram
was tlwu suhsump(l um!l'r til(' Xl',Y Ll'ft COIXTJ<JLPRO, SPl' pp, SS-R,<J,
200 ~IplllOrall(!llI11 from Dirpptor. FBI, to Xl'''' York fipld officl'. 10/12/Gl.
'" ~Il'lllorandulll from the Attorney Genpral to Heads of Departments and
Agencies, 4/29/53,
68
A small minority delilwrateh used ,-iolence as a method for achieying
smalJ minorit~, del iLl·rately llsed yiolence as a method for achieving
political goals-ranging from tllP brutal murder aJl(1 intimidation of
hlack Amel'lcans in parts of the South to th(' terrorist bombing of office
bnildings and governmrnt-supportrd unversity facilities. But
tLrpp Pn'sidpntial commissions found that the larger outbreaks of ,-iolence
in the ghettos and on the campusps \yerr most often spontaneous
reactions to e\'ents in a clilnate of social tension and uphea\'aJ.Zs2
Durin!! this perio(1. thousands of young Amrricans and members 01
racial minorities eame to belie",,' in ciyil disobedience as a yehicle for
protest and dissent.
The goyernment could haye set an example for the nation's citizens
and prewnted spiraling lawlessness by respecting the la\y as it took
steps to predict or preyent yiolence. But agencies of the rnitrd States,
sometimes abetted by public opinion and go\-ernment officials. all too
often disregarded the Constitutional rights of American in their conduct
of domestic intelligence operations.
The most significant denlollments in domestic intelligencp acti\-ity
during this period may be summarized as follO\ys:
a. Scope of Domestic Intelligence
FBI intelligence reports on protest actiyity and domestic dissent
accumulated massi ye information on la wful activity and law-abiding
citizens for vaguely defined "pure intelligence" and "prewntiye
intelligence" purposes related only remotely or not at all to law enforcement
or the preyrntion of yiolence. The FBI exaggerated the extent
of domestic Communist influence. and CO~IIXFIL im-estigations
improperly included groups \yith no significant connections to
Communists.
The FBI expanded its use of informers for gathering intelligence
about domestic political groups. sometimes upon the nrging of the
Attorney General. X0 significant limits were placed on the kind of
political or personal information collected by informers, recorded
in FBI files. and often disseminated outside the Bureau.
Army intelligence denloped programs for the massive collection of
information about, and sun-eillance of. ciyilian political actiyity in
the rnited States and sometimes abroad.
In contrast to preyious policies for centralizing domestic intelligence
inwstigations. the Federal Gonrnment encouraged local police to
establish intelligence programs both for their own use and to feed
into the Federal intelligence-gathering process. This greatly expanded
the domestic intelligence apparatus. making it harder to control.
The .Justice Depmiment established a unit for storing and Haluatjng
intelligence about ciril disorders ,,'hich \ras designed to use nonintelligence
agencies as regular sources of information. which. in fact.
drew on military intelligence as well as the FBI. and \yhich transmitted
its computer list of citizens to the CIA and the IRS.
b. Domcstic Intelligence A uthol'ity
. Intellig~nce gathering related to protest acti,-ity was generally
mereased m response to yague requests by Attorneys General or other
'" Rpport of the Xational AdYisor~' Commissioll on Ciyi! Disorders (1968), ell.
2; Rl'port of the Xntional Commission on tllP Cnnsps and Prl'yention of Yiolenee
(1969) ; Report of the President's Commission on Campus Unrest (l9iO).
69
officials outside the intelligence agencies; such inCTcases were sometimes
ratified retroacti\'ely by such officials.
The FBI's exclusin.' control oYer ciyilian (lolllPstic intplligpncr at
the Fe(leral len>l \yas consolidated by formal agrermrnts \yith the
Secret SetTice regarding protrcti\'e intelligence an(l \yith thp Bllreau
of Alcohol, Tobacco, and Firearms rcganling trl'l'orist bombillgs.
c. Domestic OOl'el't Action
The FBI dcn>loped new corcrt programs for disrupting and discrNliting
domestic political groups. nsing the techniques originally
applied to Communists. The most intensire dompstic intelligence
investigations. and frequently COIXTELPRO operations. \yere
targeted against prrsons identifird not as CTiminals or CTiminal
suspects. but as "rabble rousers," "agitators." "key aetirists." 01' "key
black extremists" because of thrir militant rlwtoric an(lgroup leadrrship.
The Security Index \yas redsed to incl1Hle such IH'rsons.
,Vithout imposing adequate safeguards against misusr. the I nt('l'llal
ReYenue Seryice passed tax information to the FBI and CIA. in
some cases in yiolation of tax regulations. At tlw nrging of tIl(' ,Vhite
Honse and a Congressional Committee. the IRS pstablished a program
for inn'stigating politically actin' groups and iIHli\'idnals. \rhich
included auditing their tax retul'lls.
d. Foreign Intelligence and Domestic Dissent
A 1966 agreement eoncprning "coordination" lwt\YE'en the CIA and
the FBI pel'll1ittpcl CIA il1\'or\'enlPnt in internal security functions.
Cnder pressnre from the .Johnson and Xixon ,Yhite Houses to detE'rmine
\yhether there was "foreign influence" behind anti-war protests
and black militant actiyity. the CIA brgan collecting intelligence about
domestic political gronps.
The CIA also conducted operations \yithin the rnited StatE's ullder
overly broad interprE'tations of its responsibility to protect the
physical security of its facilities and to protect intelligencE' "sourcps"
and "methods." ThE'se operations included snl'l'eptitious entry. recruitment
of informers in domrstic political groups~ and at ll'ast onl'
instance of warrantless \yiretapping approwcl by the Attorney
Genera1.
In the same period. the Kational Security Agency monitored international
communications of Americans involyed in (Jomestic dissent
despite the fact that its mission \yas supposed to be restricted to
collecting foreign intelligence and monitoring only foreign communications.
e.IntrusiDe Techniques
As domestic intelligence operations broadened a11(l fOCUSE'd upon
dissenters, the Goyernment increased the nse of many of its most
intrusive surveillance techniques. During the period from 1!J6-! to
1972, the standards and procedures for warrantless electronic SlllTrillance
were tightened, but actual practice \vas sometimE'S at odds \vith
the articulated policy. Also during these years, CIA mail opening
expanded at the Bureau's request. and XSA monitoring expanded to
target domestic dissenters. HowE'rer. the FBI cut back nsE' of certain
techniques under the pressnre of Cong!'rssional probes aIHI changing
public opinion.
70
f. Accountability and 0011trol
During this period several sustained domestic intelligence efforts
illustrated deficiencies in the system for controlling intelligence agencies
and holding them accountable for their actions.
In 1970, presidential apprmoal \vas temporarily granted for a plan
for intmagency coordination of domestic intelligence activities which
included several ille.gal programs. Although the approval was subsequently
revoked, some of the programs were implemented separately
by various agencies.
Throughout the administrations of Presidents .Tolmson and Nixon,
the investigative process was misused as a means of acquiring political
intelligence for the 1Vhite House. At the same time, the .Justice Department's
Internal Security Division, which should have been a check
against the excesses of domestic intelligence, generally failed to restrain
such activities. For example, as late as 1971-1973, thr FBI continued
tD evade the will of Congress, partly with .Justice Department
approval, by maintaining a secret "Administrative Index" of suspects
for round-up in case of national emergency.
g. Reconsideration of FBI Auth01'ity
Partly in reaction to congressional inquiries, the FBI in the early
1970s began to reconsider the extent of its authority to conduct domestic
intelligence activities and requested clarification from the Attorney
General and an executive mandate for intelligence investigations
of "terrorists" and "revolutionaries".
In the absence of any new standards imposed by statute, or by the
Attorney General, the FBI continued tD collect domestic intelligence
under sweeping authorizations issued by the ,Tustice Department in
197-1 for inYestigations of "subversiws," potential civil disturbances,
and "potential crimes". These authorizations were explicitly based on
broad theories of inherent executiYC power. Attorney General Edward
H. Levi recently promulgated guidelines which represent the first
significant attempt by the .Tustice Department to set standards and
limits for FBI domestic intelligence investigations.
2. Scope of Domestic Intelligence
During this period the FBI continued thr samr broad inYestigations
of the lawful activities of Americans that were based on the Bureau's
vag'ue mandate to collect intelligence about "subversion."
In addition, the Bureau-joined by CIA, NSA, and military intelligence
agencies-took on new and equally broad assignments to
investigate "racial matters," the "New Left," "student agitation," and
alleged "foreign influence" on the anti\var movement.
a. Domestic Protest and Dissent: FBI
"1Ve are an intelligence agency," stated a policy directive to all FBI
offices in 196!), "and as such are expected to know what is going on or
is likely to happen." 283 1Vritten in the context of demonstrations over
the Vietnam war and civil rights, this order illustrates the general
attitude among Bureau officials and high administration officials who
established intelligence policy: in a country in ferment, the FBI could,
and should, know Herything that might someday be useful in some
undefined manner.
2S3 SAC letter 67-Z7, 5/3/66.
71
(1) Raciallntelligence.-During the 1960s, the FBI, partly on its
own and partly in rrsponse to outside reqursts, denloprd s,,"eeping
programs for collecting domestic intrlJigence concrrning racial matters.
Tll('sr programs had roots in the late 1950s.284 By thr early 1960s,
they had grown to the point that the Durrau ,,"as gathering intrlligencr
ahout proposed "ciyil dpmonstrations" and the related acti,·ities
of "officials, committees, legislatures, organizations, etc.," in the "racial
fiel d." 285
In 196;'), FBI field offices were directed to supply "complete" infoI"
mation (including "Postl)()}lement or cancellation") :
regarding planned racial actiYity, snch as demonstmtions,
rallies, marches, Or threatened opposition tD activity of this
kind.
Field offices reportpd thrir fnll "coverage" of "mertings" and "any
other pertinrnt information concerning racial activities." 286
In late 1966, field officrs were instructed to begin preparing semimonthly
summaries of "existing racial conditions in major urban
areas," relying upon "established sourcrs," and "racial," "criminal,"
and "security informants." Thrse reports were to describe the, "general
programs" of all "civil rights organizations" and "black nationalist
organizations," as well as snbYersi"e or "hate-type" groups. The information
to be gathered was to include: "readily available personal backgrollnd
data" on "leaders and incliYiduals in the civil rights moveIlwnt"
and other "leadrrs and indiYiduals im'olved," as wrll as any
data in Bureau files on "subversive associations" they might have; the
"objectiw>s sought by the minority community;" the community reaction
to "minority demands;" and "the number, character, and intensity
of the techniques used by the minority community, such as picketing
or sit-in demonstrations, to enforce their demands." 287
Thus, the FBI was mobilized to used all its available resources to
discowr everything it could about "general racial conditions." 'Vhile
the stated objective was to arriYe at an "rvaluation" of potential for
violence, the broad sweep of the directives issued to the field resulted
in the collection and filing of vast amounts of information unrelated
to violence.
Some programs concerning "general racial matters" were directed
to concentrate on groups with a "propensity for violence and civil
disorder." 288 But ('\'en thrse programs were so overboard in their application
as to include Dr. )1artin Luther King, .Jr. and his non-violent
Sonthern Christian Leadership Conference in the "radical and violence-
prone" "hate group" category. The stated iustification, lUlsnpported
b~' any faets. was that Dr'. King might "abandon his supposed
'obedience' to ',,11ite. liberal doctrines' (nonviolence) and embrace
black nationalism." 289
Another leading ('iyil rights group. the Congress of Raclal Equality
(CORE), was investigated under the "Racial ~latters" Program 00cause
the Burean concluded that it was mm'ing "away from a legiti-
28' Rpp p. 50.
285 Hl64 FBI Manual Section 122. p. 1.
286 196;") FBI :\fanual Rpction 122, PP. 6-8.
087 FBI :\Ianllal Spction 122. rpyised 12/13/66, pp. 1'-9.
2S8 :\fpmorandum from FBI Headquartprs to all SACs, 8/25/67.
281l ~Iemorandum from FBI Headquarters to all SACs, 3/4/68.
72
mate ciyil rights organization~~and "assuming a militant black nationalist
posture"~ The FBI reachrd this conclusion on the grounds that
"some leaders in their public statements" had condoned ",'iolence as
a mr,ans of attaining Nrgro rights." The inyestigation "as intrnsifird,
enn though it was recognized there was no information that its 11wmbel'S
"advocate violence" or "participate in actnal ,'iolence.~~ 290
The same oYerbreadth characterized thr FBI's col1rction of intrlligence
about ",vhite militant groups." Among the gronps inYestigated
were those "known to sponsor drmonstrations against integration and
against the bnsing of Nrgro stndrnts to whitr schools." As soon as a
new organization of this sort ,vas formed, the Blll'rau used its informants
and "established sources" to determine "the aims and purposrs of
the organization, its leaders, approximate membership," and other
"hackground data,~' bearing npon "the militancy" of tlw group.290'
(2) "lf~11' L~ft" IntcltiQcncc.-The FBI colleded intelligence under
its VIDEM (Vietnam Demonstration) and STAG (Student Agitation)
Programs on "anti-Governmrnt demonstrations and protrst rallies"
which the Bureau considerrd "disrnrtire.~' Firld offices were
warned against "incomplete and nonspecific reporting" "hich nrgleeted
snch details as "number of protrsters present. identitirs of organizations.
and identities of speakers and leading activists." 291
The FBI attempted to define the "New Left," but with little success.
The Bureau agent who was in charge of New Left intelligence conceded
that:
It has never been strictly defined, as far as I knm,.... It's more
or less an attitude, I would think.
He also stated that the definition was expanded continually.292
Field offices were told that the New Left was a "~ubversire force"
dedicated to destroying our "traditional values." Although it had "no
definable ideology," it was sern as haring "strong Marxist, existentialist,
nihilist and anarchist overtones." Field offices were instructed that
"proper areas of inquiry" regarding the subjects of "Newo Left" investigations
were "public statements. the writings and the leadership
activities" which might establish their "rejection of la'v and order"
and thus their "potential" threat to security. Snch persons "ould also
he placed on the Security Index (for detention in a time of emergency)
because of tlwse "anarchistic tendencies." eYen if the Bureau could not
prove "membership in a subversive organization." 293
A Bureau memorandum which recommended the use of disruptive
techniques against the "New Left" paid particular attention to one of
its "anarchistic tendencies~':
200 RAe Letter 68--16. 3/12/6R Rubject: Congress of Racial Equality.
200. SAC Ll'tter 6R-~5. 4/30/68,
291 SAC ~remorandum 1-72; 5/23/72, Subject: Reporting of Protest Dem·
onstrations,
,.. Rupervisor, FBI Intplligence Division, deposition, 10/28/75, pp. 7-8.
"" SAC Letter 68-21, 4/2/68. This directive did caution that "mere dissent and
oppm<ition to Governmental policies pursued in a legal constitutional manner"
was "not sufficient to warrant inclusion in the Security Index." Moreover, "antiVietnam
or peace group sentiments" were not. in themselves. supposed to "justify
an inyp~tigation'" The failure of this admonition to achieve its stated objective is
discussed in the findings on "Overbreadth" and "Covert Action to Disrupt."
73
the New Left has on many oecasions viciously and scurrilously
attaeked the Diredor and the Bureau in an attempt to hamper
our innstigations and driye us off the college campuses. 294
Later instrudions to the field stated that the term "New Left" did
not refer to "a definite organization." out to a "loosely-bound. freewheeling,
college-oriented movement" and to the "more extreme and
militant anti-Vietnam war and antidraft protest organizations." These
instructions direeted it "eomprehensiye study of the whole mmoement"
for the purpose of assessing its "dangerousness." Quarterly reports
,,-ere to be prepared, and "subfiles" opened, under the following
headings:
Organizations ("when organized, objectiYes, locality which
adin, \\hcther part of a national organization")
Membership (and "sympathizers"-uE:e "best available informants
and sources")
Finances (including identity of "angels" and funds from
"foreign sources") .
Communist Influence
Publications ("describe publications, show cirC'lllation and
principal members of editorial staff")
Violence
Religion ("support of moyement by religious groups or individuals")
Race Relations
Political Activities ("details relating to position taken on
political matters including efforts to influenee public opinion,
the electorate and Government bodies")
Ideology
Edueation ("eourses ginn together with any educational outlinrs
and assignrd or suggested rrading")
Social Reform ("demonstrations aimed at social reform")
Labor ("all acti\Oity in the lahor field")
Public Appearances of Leaders ("on radio and teleYision"
and "bdore groups. such as labor, church and minority
groups," including "summary of subjed matter discussed")
Factionalism
Security Measures
International Rrlations ("trayel in foreign countries," "attacks
on rnited States foreign policy")
Mass Media ("indications of support of New Left by mass
media")
Through these massive reports. the FBI hoped to discover "the
true nature of the New Left movement." 295 Few Bureau programs
better reflect "pure intelligence" objectives which extended far beyond
even the most generons definition of "prenntive intelligence." 296
,.~ ;\femorandulll from C. D. Brennan to W. C. Sullivan. 5/9/68.
"'" ;\fpmorandulll from FBI Hearl'lnartprR to all SACR. 10/28/6B, and enc!osur€>,
Subject: Xew Left Mowmpnt-Report Outline.
200 A fnrthpr reaRon for collecting" information on the Xew Left waR pnt forward
h~' ASRistant Dirpetor Rrpnnan. Iwad of the FBI Intelli~encp Divi;.;ion in
]!)iO-l!)i1. Sim'p XP\\" Lf'ft "!parlers" had "pnhlicly professpd" their desire to
overthrow thl' (;ovl'l'nIllPnt. the Rnrpan "honld fill' the nan1('S of anYOllP who
".ioilwrl in mpmhpl'"hip" fol' "fntnl'e I'pfpl'pnr'p" in case tllPy eYer '''ohtained
a spnsitiYe Governrnpnt position." (Charles Brennan testimony, 9/25/75, Hearings.
Vol. 2, pp. 116-117.)
74
Apart :from the massive general reports required on the "New Left,"
examples of particular investigations included: a stockholders group
planning to protest their corporation's war production at the annual
stockholders meeting; 297 a university professor who was "an active
participant in Kew Left demonstrations," publicly surrendered his
draft card. and had been arrested in antiwar demonstrations. but not
convicted; 298 and two university instructors who helped support a
student "underground" ne,vspaper whose editorial policy ,vas described
as "left-of-center. anti-establishment, and opposed [to] the
rni,-ersitv administration." 299
The FBI also investigated emerging "New Left" groups, such as
"Free Universities" attached to various college campuses, to determine
whether they were connected "in any way" with "subversive groups."
For example, when an article appeared in a newspaper stating that
one "Free University" was being formed and that it was "anti-institutional."
the FBI sought to determine its "origin," the persons responsible
:for its ":formation," and whether they had "subversive backgrounds."
300 The resulting report described in detail the formation,
curriculum content, and associates of the group. It was disseminated
to military intelligence and Secret Service field offices and headquarters
in 'Washington as well as to the State Department and the Justice
Department.30l
b. FBI Informants
The FBI Manual has never significantly limited informant reporting
about the lawful political activities or personal lives of American
citizens, except for prohibiting reports about legal defense "plans or
strategy," "employer-employee relationships" connected with labor
unions, and "legitimate campus activities." 302 In practice, FBI agents
imposed no other limitations on the informants they handled and, on
occasion, disregarded the prohibitions of the Manua1.303
(1) Infiltration of the Klan.-In mid-1964, .Justice Department officials
became increasingly concerned about the spread of Ku Klux
Klan activity and violence in the Deep South. Attorney General Kennedy
advised President Johnson that, because of the "unique difficulty"
presented by a situation where "lawless activities" had the "sanction
of local law enforcement agencies," the FBI should apply to the Klan
the same "techniques" used previously "in the infiltration of Communist
groups." 304
Former Attorney General Katzenbach. under whose tennre FBI
activities against fhe Klan expanded, vigorously defended this deci·
2l1I :\Iemorandum from :\Iinneapolis field office to FBI Headquarters. 4/1/70.
2tl8 )[emorandum from FBI Headquarters to Pittsburgh field office. 5/1/70.
"'" :\Iemorandum from :\Ioblle field office to FBI Headquarters, 12/9/70.
300 )!PT11orandum from FBI Headquarters to Detroit fil'ld officI'S, 2/17/(\6.
301 :\Iemorandum from Detroit field office to FBI Headquarters, 4/15/66.
•'" FBI Manual, Section 107.
:lO:l See Fil1fling-.~ on lise of informants in "Intrusive Techniques." p. Hl2.
•'" Memorandum from Attorney General Kennedy to the President, June 1964,
qlloted in Victor Xavasky. KC11'1ledy JU8tice (Xew York: Atheneum. 1971), pp.
105-106. Thl' Presidl'nt askl'd forml'r CIA Director AlIl'n Dulles to evaluate the
situation in Mississippi. Upon his return from a survey of the state. Dulles E'ndorsed
the Attorney General's recomml'ndation that the FBI be used to "control
the terrorist activitiE's." ("Dulles Requests )Iore FBI Agents for Mississippi,"
New York Times, 6/27/64.)
75
sian as necessary to "deter violence" by sowing "deep mistrust among
Klan members" and making them aware that they were "under constant
obsenation." :JOS The FBI Jfanual did, in fact, advise Bureau
agents against "wholesale investigations" of persons who "mererly attend
meetings on a regular basis." 30G But FBI intelligence officials
chafed under this restriction and sought expanded informant coverage.
30' Subsequently, the Jfanual was revised in 1967 to require the
field to furnish the "details" of Klan "rallies" and "demonstrations." 308
By 1971, the Special Agents in Charge of field offices had the discretion
to investigate not only persons with "a potential for violence,"
but also anyone else who in the SAC's "judgment" was an "extrrmist."
309
(2) "Listening Posts" in the B7(l('k {/ommunity.-Two special informant
programs illustrates the breadth of the Bureau's infiltration
of the blark commlll1ity. In 1970. the FBI used its "established informants"
to determine the "background, aims and purposes, leaders and
Key Activists" in every blark student group in the rountry, "regardlessof
[the group's] past or present involnmrnt in disol'flrrs." 310 FieM
offices were instructed to "target informants" against these groups and
to "denlop such rO\'erage" "'here informants "'ere not already a"ailable.
311
In response to Attorney General Clark's instructions regarding
civil disorders intelligence in 1967, the Bureau launched a "ghetto
informant program" ,,,hich lasted until 1973.312 The number of ghetto
informants expanded rapidly: 4,067 in 1969 and 7,402 by 1972.313 The
original concept ,vas to rstabJish a "listening posf'm by recruiting a
prrson "who lins 01' works in a ghetto area" to provide information regarding
the "racial situation" and "racial activities." 315 Such informants
rouM include "the proprietor of a candy store or barber shop."
As the program denloprd, however, ghetto informants were:
utilized to attend public meetings held by extremists, to identify
extrrmists passing through or locating in the ghetto area,
to identify purveyors of extremist literature as well as given
specific assignments where appropriate,3lG
:lOS Testimony of Xicholas deB. Katzenbach 12/3/75. Hearings, Vol. 6, p. 207.
:lOO 190.' FBI Ill~nnal. Section 122, pp. 1-2.
301 FBI Executives conference memorandum, 3/24/66, Subject: Establishment
of a Special Squad Against the Kn Klux Klan.
3p!I1007 FBI manual,·Section 122, p. 2.
300 1971 FBI mannal. Sl'ction 122, p. 2.
"'. l\1l'morandum from FBI Executive Conference to Mr. Tolson, 10/29/70.
311 ~Iemorandnlll from FBI Hpadquarters to all SACs. 11/4/70.
312 ~Iemorandulll from G. C. ~Ioore to William C. SUllivan, 10/11/67. For Attornp~'
Gpneral Clark'" ordl'r. see np. R3-R4.
"10 ~rl'mOraJl(ll1lll from FBI to Splect Committl'e. 8/20/75 and enclosures.}
"" ~remoranduIl1 from G. C. ~IO'Ore to E. S. Miller. 9/8/72.
8l3l\Ipmorandum from G. C. ~Ioore to C. D. Brennan. JO/27/70.
010 ~IemoraJl(lllln from Moorp to ~Iil1er. 9/27/72. This proj!;ram continued until
1973. ,vhpn tlH' FBI flf'cifll'd to rrly on its regular extremi"t informants "for 'byprorluf't'
information on dvil unrest." The most "productive" ghetto informants
wprp "f'nm-prtpfl" into rf'gular informant;;, (FBI Inspf'Ction Division Memorandum,
11/24/72; ~Iemorllndum from Director Clarence ::\1. Kelley to all SAC~,
7/31/73.)
76
Material to be furnished by ghetto informants included names of
"Afro-American type book stores:' and their "owners: operators and
clientele.:' 317
(:1) Infiltration of the "New Left".-The FBI used its "security"
informant program to report extensively on all activities relating to
opposition to the Vietnam war. Moreover, informants already in groups
considered "subversive" by the FBI also reported on the activities of
other organizations and their members, if the latter \vere being "infiltratecP:
by the former groups.318
The agent who handled one informant in an antiwar group believed
to be infiltrated by "suln'ersi\'e groups and/or violent elements"
trstified that the informant told him "Herything she knew" about
the chapter she joined.319 Summaries of her reports indicate that she
.reported extensin,ly about personal matters and lawful political
activity.320 This informant estimated that her reports identified as
many as 1,000 people to the FBI over an IS-month period. The vast
majority of these persons were members of peaceful and law-abiding
groups, including the l~nited Church for Christ, which \vere engaged
in joint social welfare projects with the antiwar group which the
informant had infiltrated.321
Other FBI informants reported, for example, on the ",Yomen's
Liberation ~IO\'ement, identifying its members at several mid-western
universities 322 and reporting statemrnts made by women concerning
their personal reasons for participating in the women's movement.323
~rorrover, as in the case of informants in the black community,
efforts \\"ere made to greatly increase the number of informants \vho
could report on antiwar and rrlated groups. In 1969, the .Justice
Department specifically asked the FBI to use not only "existing
sources,:' but also "any other sources you may be able to develop" to
collect information about "serious ca';lpus disorders.:' 324 The Bureau
ordrred its fir]d offices in 1970 to "make every effort" to obtain
"informant coverage:' of e\'ery "New Left comnlunc." 325 Later that
yrar, after Directo-r Hoon'r J1ftrd restrictions against recruiting IS
to 21-year-old informants, field offices were urged to take advantage of
this "tremendous opportunity" to expand co\'erage of New Left
"collectiycs, communes, and staffs of their underground nr\vspapers,:'
326
:ll7 Philadelphia Field Office memo 8/12/68, re Racial Informant.
3" FBI :\Ianual Section 87.
310 Tf'~timon, of FBI 'Spe('hl Agf'nt. 11/20/75, p. 55.
320 Staff review of informant report summaries.
321 :\Iary Jo Cook. testimon" 12/2/7;), Hf'arings, Vol. 6, pp. 111, 119-120.
'" Rf'port of Kansas Cit, Fif'ld offi ('e. 10/20/70.
323 ~Iemoralldnm from Xew York Field Office to FBI Headquartf'rn. 5/28/69.
"" :\[emorandum from Assistant Attorney General J. 'Valter Yeagley to
.1. Edgar Hoover, 3/3/69. This memorandum stated that the Department was
considering "('ondncting a grand jury investigation" under the antiriot act and
othf'r statutf's.
325 ;\Iemoran(lum from FBI Headquarters to all SACs. 4/17/70. This diredi\'e
defined a "('ommune" as "a group of individuals residing in one location who
practice communal living, Le., they share income and adhere to the philosophy
of a ~Iarxist-Leninist-:\[aoist-oriented violent revolution."
"'" SAC Lettf'r 70-48, 9/15/70. This directive implemented one provisi(ll1 of the
"Huston Plan," which had been disapproved as a domestic intelligence package.
Ree pp. 113, 116.
77
c. Army SUI'I'ei77ancc of eil'ilian P07itical Actirity
In the early l[J60s. after senral commitments of troops to control
racial disturbancrs ancl rniorce court orders in the South, Army
intrllig-rnce brg-an collecting information on ciyilian political activity
in all arras ",here it IwlieYed ci\'il disorders mig-ht occur. The g-rowth
of the Army's domestic intellig-ence prog-ram typifil's, oncl' again, the
general tendl'ncy of information-gathering opl'rations to continually
broadrn thrir CO\'l'rag-e.
Shortly aftpr tIl(' Army was called upon to qupll ciyil disorders in
Detroit and to copP \yith an antiwar dl'monstration at the Pentag-on
in 1~67, the Army Chief of Staff approVC'd a recommendation for
"eontinuous counterintC'lligpncp inn~stigations" to obtain information
on "subnrsiw prrsonalitil's, g-roups or org-anizations" and their
"infturnce on urhan populations" in promoting ciyil disturbances.327
Thl' Army's "collrction plan" for civil disturbancC's specifically
targl'ted as "dissidl'nt l'lrml'nts" (without furt hl'r dl'finition) the
"ciyil rights mOYement" and the "anti-Vietnam/anti-drait moveml'nts."
328 As re\'ised later. Army intellig-ence-gathering extended
bl'yond "subyC'rsion" and "dissident groups" to "prominent persons"
who ,yere "friendly" with the "ll'aders of the disturbance" or
"sympathetic with their plans." 329
d. Federa7 Encouragement of Local Police Inte7ligence
In reaction to ciyil disordl'rs in 196;')-1966, Attorney General Katzenbach
turnl'd for ach'ice to the newly created President's Commission
on Law Enforcl'mrnt and Administration of Justice. After holding-
a conferrncl' with police and National Guard officials, the President's
Commission urg-ed police not to react with too much force to disorder
"in the course of demonstrations," but to make adyance plans for
"a true riot situation." This meant that police should establish "proceclures
for the aClluisition and channeling of intelligence" for the use
of "those who need it." 330 Former Assistant Attorney General Vinson
recalled the Justice Department's concern that local police did not
ha\'l~ "any usefnl intl'lligence or knO\yledge about ghettos, about black
communities in the big cities." 331
During the wintf'r of 1~67-1968. the Justice Department and the
National Ad"ison- Commission on Ciyil Disorders reiterated the message
that local p~lice shonld rstablish "intelligence nnits" to gather
and disseminate information on "potential" ci\·il disorders. These
nnits would use "undercoyer police personnel and informants" and
draw on "community leaders, agencies, and organizations in the
ghetto." 332 The Commission also urged that these local units be linked
327 See Memorandum for the Record from Milton B. Hyman, Office of the
General Counsel. to the Anny General Counsel, 1/23/71, in Military Sun:eillance,
Hearin~s before the Suhcommittee on Constitutional Rights, Committee
on the .T1Hliciary. United States Senate, 9:lrd Con~., 2nd Sess. (1974 J, p. 203.
32' Pederal n"ta Rmlk.~. romputer8 and thr Rill of Riqlit8, Hearings before
the Senate Subcommittee on Constitutional Ri~hts (1971 J, at pp. 1120-1121.
329 Frde,.,,1 n"t(f R"nk.~. He\lrim~s, at pp. 1123--113R
33. President's Commission on Law Enforcement and Administration of Justice,
The Challengc of Crime in a Free Society (1967), pp. 118-119.
"'" Frpd ~I. Vinson testimony. 1/27/76, p. 32.
33' Report of the National Advisory Commission on Civil Disorders (1968),
p.487 (Bantam Books ed.).
78
to "a national center and clearinghouse" in the Justice Department.333
One consequence of these recommendations was that the FBI, because
of regular liaison with local police, became a channel and repository
for much of this intelligenc-e data.
Local police intelligence provided a convenient manner for the FBI
to acquire information it wanted while avoiding criticism for using
covert techniques such as developing campus informants. For example,
in 1£)69, Director Hoo\'er decided "that additional student informants
cannot be de\'eloped" by the Bureau.334 Field offices were
instructed. how0\'er, that one way to continue obtaining intelligence
on "situations having a potential for violence" was to develop "indepth
liaison with local law enforcement agencies." 335 Instead of recruiting
student informants itself, the FBI would rely on local police
to do so.
These Federal policies contributed to the proliferation of local police
intelligence acti\'ities, often \vithout adequate controls. One result was
that still more persons were subjected to investigation who neither
engaged in unlawful activity, nor belonged to groups \vhich might be
violent. For example, a recent state grand jury report on the
Chicago Police Department's "Security Section" described its "close
working relationship" \vith Federal intelligence agencies, including
Army intelligcnce and the FBI. The report found that the police
intelligence system produced "inherently inaccurate and distortive
data" which contaminated Federal intelligence. One police officer
testified that he listed "any person" who attended two "public meetings"
of a group as a "member." This conclusion \vas forwarded "as a
fart" to the FBI. Subseqnently. an agency seE'king, "background
information" on that person from the Bureau in an employment
inycstigation or for other purposes would be told that thE' individual
was "a member." The grand jury stated:
Since federal agencies accepted data from the Security Section
without questioning the procedures followed. or methods
used to gain information. the federal government cannot
escape responsibility for the harm done to untold numbers of
innocent persons.336•
e. The Jll.~tice Department's !Jderdi1'ision Information Unit
(IDIU)
Joseph Califano, President Johnson's assistant in 1967, testified
that the Xewark and Detroit riots were a "shattering experience" for
,Justice Department officials and "for us in the ",Yhite House," They
were concerned about the "lack of intelligence" about "black groups."
Consequently, "there was a desire to have the Justice Department
have bettrr intelligence, for lack of a better term. about dissident
groups." This desire "precipitated the intelligence unit" established by
Attorney General Ramsey Clark in late 1967. According to Califano,
." Report of the National Advisory Commission. p. 490.
". SAC Letter 69-16. 3/11/69. This order "recognized that with the graduation
of senior classes, you will lose a certain percentage of your existing student informl1nt
corerl1ge." But this would "not be accepted as an excuse for not derel,
oping the necessary information."
'" SAC Letter 69-44. 8/19/69.
... "Improper Police Intelligence Activities." A Report by the Extended March
1975 Cook County (Illinois) Grand Jury, 11/10/75.
79
the President and thr 'Whitr Housr staff were insisting: "There must
be a way to predict Yiolence. ,Ve'ye got to know more about this." 337
In September 1DGi "\ttorney General Clark askrd Assistant Attorney
GC'lwral .Tohn Doar to revirw the Department's "facilities" for ciyil
disorders intelligence. '3s Doar recommended creating a Departmental
"intrlligence unit" to analyze FBI information about "certain persons
and groups" (without further definition) in the urban ghettos. He
proposed that its "scope be yery broad initially" so as to "measure
(he influence of particular groups." Doar recommended that, in addition
to the FBI. agencies who should "funnel information" to the
unit should include:
Community Relations ServicB
Ponrty Programs
Xeighhorhood Legal Sen-ices Program
Lahor Department Programs
Intelligence rnit of the Internal Revenue Sen-ice
Alcohol, Tobacco, and Firearms Diyision of the Treasury
Department
Xarcotics Bureau (then in the Treasury Department)
Post Office Department
Doar recognized that the .Tustice Department's Community Relations
Sen-ice, designed to conciliate racial conflicts, risked losing its "credibility"
and tlwreby its ability to help preyent riots, but he assured the
Attorney General that the "confidentiality" of its information could
be protected.339
A later study for Attorney General Clark added the following
agencies to Doar's list:
President's Commission on Civil Disorders
New .Tersey Blue Ribbon Commission (and similar state
agencies)
State Department
Army Intelligence
Office of Economic Opportunity
Department of Housing and rTrban Development (surveys
and Model City applications)
Central Intelligence Agency
National Security Agency
This study recommended that FBI reports relating "to the civil disturbance
problem" under the headings "black power, new left, pacifist,
pro-Red Chinese, anti-Vietnam war, pro-Castro, etc." be used to de-
3.17 .To>,eph Califano testimony, 1/27/76, pp. &--9. Califano states in retrospect
that the attempt to "predict violence" was "not a successful undertaking,"
that "advance intelligence about dissident groups" would not "have been of
much help." amI that what is "important" is "physical intelligence about
geography. hospitals. pmVC'r stations. etc." (Califano, 1/27/76, pp. 8, 11-12.)
338 In 1966, the .Tustice Df'partment had started an informal "Summer Project,"
staffed by a handful of law stUdents, to pull together data from the newspapers,
the U.S. Attorneys, amI "some Bureau material" for the purpose, according to
formf'r Assistant Attorney General Fred Vinson, Jr.. of finding- out "what's going
on in thf' hlack community." (Vinson. 1/27/76 p. 33.)
33ll ~remorandum frOm Assistant Attorney General John Doar to Attorney
General Clark, 9/27/67.
80
velop "a master index on individuals, or organizations, and by
cities." 340
Attorney General Clark approyed these recommendations and established
the Interdivision Information Unit (IDIU) for:
reviewing and reducing to quickly retrievable form all information
that may come to this Department relating to organizations
and individuals who may play a role, whether
purposefully or not, either in instigating or spreading civil
disorders, or in preventing or checking them.341
In early instructions, Clark had stated that the Department must
"endeavor to increase" such intelligence from "external sources." 342
In fact, according to its first head, the lDIU did use intelligence
from the Army, the Internal Revenue Service, and "other investigative
agencies." Sometimes IDIU information was used to "determine
whether or not" the Community Relations Sen-ice should "mediate"
a dispute. 343 The Unit developecl a computer system which could generate
lists of all "members or affiliates" of an organization, their location
and trayel, "all incidents" relating to "specific issues", and "all
information" on a "planned specific demonstration" J44
By 1970, the lDIU computer was receiving over 42,000 "intelligence
reports" a year relating to "ciyil disorders and campus disturbances"
from:
the FBI, the U.S. Attorneys, Bureau of Narcotics. Alcohol,
Tobacco, and Firearms Diyision of the Treasllr)' Department
and other intelligence gathering bodies within the Executive
Branch.345
IDIU computer tapes, which included 10-12,000 entries on "numerous
anti-war activists and other dissidents." were provided to the
Central Intelligence Agency in 1970 by Assistant Attorney General
.Terris Leonard. then thr Attornev Grneral's Chief of Staff for Civil
Disturbance and head of the Ci,'ii Rights Diyision.346 This list of persons
was sent to the Internal Reyenue Service where the Special
Services staff opened inteJIigrnce files on all per~ons and organizations
listed. Many of them were later inyestigated or audited, in some
cases merely because thev were on the list.
In 1971. 'the IDIU co'inputer included data on such prominent persons
as Rey. Ralph Abernathy, Caesar Chanz, Bosley Crowther
"'" Memorandum from Messrs. :\Iaroney, Nugent, McTiernan, and Turner to
Attorney General Clark, 12/6/67.
"" Memorandum from Attorney General Clark to Assistant Attorneys General
John Doar, Fred Vinson, Jr., Roger W. Wilkins. and J. Walter Yeaglpy, 12/18/67.
3C1 l\Ipmorandum from Attorney General Clark to Kevin T. Maroney, et al.,
11./9/67.
343 Testimony of Kevin T. Maroney (Deputy Assistant Attorney General),
1/27/76, pp. 1)9-60.
.... Memorandum from Assistant Attorney General Yeagley to Deputy Attorney
General Richard Kleindienst. 2/6/69.
"'" Justiee Department memorandum from James T. Devine, 9/10/70, Subject:
Interdivisional Information Unit.
"" Statement of Deputy Attorney General Laurence H. Silberman, .Justice
Depnrtmpnt. J/14/7fi. AC'eor<1ine: to this stntl'ment. a .JustiN' Department inquiry
in I!l7i) eonc1u<1e<1 that Leonar<1 "initiate<1 thl' transaction hy rl'qul'sting the CIA
to ehpek against itR own sources whl'thl'r any of the indi,iduals on the IDIU
list were engaged in foreign tra,el, or received foreign assistance or funding."
81
(former New York Times film critic), Sammy Davis, ,Jr., Charles
Evers, James Farmer, Seymour Hersh, and Cordta King. Organizations
on which information had been collected included the NAACP,
the Congress of Racial Equality, the Institute for Policy Studies,
VISTA, United Farm 'Workers of California, and the Urban League.
Ordinary private citizens who ,,-ere not nationally prominent ,,-ere also
included. One was described as "a local civil rights worker," another
as a "student at Merritt College and a member of the Peace and
Freedom Party as of mid-68," and another as "a bearded militant who
writes and recites poetry." 347
Thus, beginning in 1967-1968, the IDIU ,vas the focal point of a
massive domestic intelligence apparatus established in response to
ghetto riots, militant black rhetoric, antiwar protest, and campus disruptions.
Through IDIU, the Attorney General received the benefits
of information gathered by numerous agencies, without setting limits
to intelligence reporting or providing clear policy guidanc~. Each
component of the structure-FBI, Army, IDIU, local pollee, and
many others-set its own generalized standards and priorities, resulting
in excessive collection of information about law abiding citizens.
f. COJJflNFIL Investigations: 01'erbreadth
In the late 1960's the Communist infiltration or association concept
continued to be used as a central basis for FBI intelligence investigations.
In many cases it led to the collection of information on the same
groups and persons who were swept into the investigative net by the
vague missions to investigate such subjects as "racial matters" or the
"New Left. As it had from its beginning, the COMINFIL concept produced
investigations of individuals and groups who were not Communists.
Dr. ~1artin Luther King, Jr. is the best known example.348 But
the lawful activities of many other persons were recorded in FBI files
and reports because they associated in some wholly innocent way with
Communists, a t€I'm which the Bureau required its agents to "interpret
in its broacl sense" to include "splinter" and "offshoot" groups.349
During this period, when millions of Americans demonstrated in
favor of civil rights and against the Vietnam war, many law-abiding
citizens and groupf; came under the scrutiny of intelligence agencies.
Dnder the COMINFIL program, for example, the Bureau compiled
extensive reports on moderate groups, like the NAACP.350
.<1 Staff Memorandum for the Subcommittee on Constitutional Rights, United
State~ Senatp, 9/]4/71.
.", See detailed report on Martin Luther King, Jr.
... FBI Manual. Section 87.
300 The Bureau frequently disseminated reports on the NAACP to military
intelligence because (as one report put it) of the latter's "interest in matters
pertaining to infiltration of the NAACP." (Report from Los Angeles Field Office
to FBI Headquarters, 11/5/65.) All the national officers and board members
were li~ted. and any data in FBI files on their past "association" with "subversives"
was inclUded. :\Iost of this information went back to the 1940's. (Report
from Kew York Field Office to FBI Headquarters, 4/15/65.) When changes
occurred in the XAACP'~ leader~hipand board, the Bureau once ag-ain went back
to its files to dredge up "subversive" associations from the 1940's. (Report
from New York Field Office to FBI Headquarters, 4/15/66.) Chapter member~
hip information wa~ ~ometimes obtained hy "pretext telephone call ... utilizing
the pretext of being interested in joining that branch of the NAACP." (Memorandnm
from Los Angels field office to FBI Headquarter~, 11/5/65.) As di~cussed
pre,;ou~ly, the Bureau never fonnd that the NAACP had abandoned its consistent
anti-Communist policy. (See p. 49).
82
The FBI significantly impaired the democratic decisionmaking
process by its distorted intelligence reporting on Communist infiltration
of and influence on domestic political activity. In private remarks
to Presidents and in public statements, the Bureau seriously
exaggerated the extent of Communist influence in both the civil rights
and anti-Vietnam war movements.351
3. Domestic Intelligence Autlwrity
During this period there were no Tormal executive directives outlining
the scope of authority Tor domestic intelligence activity of the
sort previously issued by Presidents Roosevelt, Truman, Eisenhower,
and Kennedy.352 How'ever, there was a series of high-level requests
for intelligence concerning racial and urban unrest directed to the
FBI and milit,'lry intelligence agencies. As with the earlier formal
Presidl'ntial directives on subjects like "subversion," these instructions
provided no significant guidelines or controls.
a. FBI Intelligence
Since the early 19608, the .Justice Department had been making
sporadic requests for intelligence related to specific racial events.
For example, the FBI was requested to provide a tape recording of
a speech by Governor-elect George ",Yallace of Alabama in late 1962 353
and for "photographic coverage" of a civil rights demonstration on
the lOOth anniversary of the Emancipation Proclamation.354 On its
own initiative, the FBI supplied the Civil Rights Division with information
from a "confidential source" about plans for a demonstration
in Virginia, including background data on its "sponsor" and
the intention to make "a test case." 355 The Civil Rights Division prepared
regular summaries of information from the Bureau on "demonstrations
and other racial matters." 356
lI51 See examples of the exaggeration of Communist influence set forth in Findings
on Political Abuse. Such distortion continues today. An FBI Intelligence
Division Section Chief told the Committee that he could not "think of very
many" major demonstrations in this country in recent years "that were not
caused by" the Communist Party or the Socialist Workers Party. In response
to questioning, the Section Chief listed eleven specific demonstrations since
1965. Three of these turned out to be principally SDS demonstrations, although
some individual Communists did participate in one of them. Six others were
organized by the National (or Xew) ~Iobilization Committee, which the Section
Chief stated was subject to Communist and Socialist Workers Party "influence."
But the Section Chief admitted that the mobilization Committee "probably"
included a wide spectrum of persons from all elements of American society.
(R. L. Shackleford deposition, 2/13/76, pp. 8-8.) The FBI has not alleged that the
Socialist Workers Party is dominated or controlled by any foreign government.
(Shackelford testimony, 2/6/76, pp. 73-77, 114.)
... See Sections B-R and C-2.
363Memorandum from Director, FBI, to Assistant Attorney General Burke
Marshall (Civil Rights Division), 12/4/62.
3M Memorandum from St. J. B. (St. John Barrett) to Burke Marshall, 6/18/63.
... Memorandum from J. Edgar Hoover to Attorney General Robert Kennedy.
7/11/63.
356 Memorandum from Carl W. Gabel to Burke ~Iarshall, 7/19/63. This memorandum
described twenty-one such "racial matters" in ten states. inclUding- states
outside the South such as Ohio, Xew Jersey, Pennsylvania. Indiana. and Xevada.
Wrhile some of the items in this and later summaries related to violent or potentially
violent protest demonstrations, they went beyond those limits to include
entirely peaceful protest activity and group activities (such as conferences, meeting-
s. leadership changes) nnrelated to demonstrations. (Memoranda from Gabel
to ~Iarshall. 7/22 and 7/25, 8/2 and 8/22/6R) The Justice Department's role in
expanding FBI intelligence operations against the Klan is discussed at pp. --.
83
A formal directive, for a similar purpose, was sent by Attorney General
Kennedy to U.S. Attorneys throughout the South in May 1963. It
instructed them to "make a survei' to ascertain "any places where
racial demonstrations are exp€cted within the next 30 days" and to
make "assessments of situations" in their districts. The FBI was
"asked to cooperate." 357
President Johnson ordered the FBI to investigate and report on the
origins and extent of the first small-scale Northern ghetto disturbances
in the summer of 1964.358 After the FBI submitt~d a report on the
Watts riot in Los Angeles in 1965, however, Attorney General Katzenbach
advised President Johnson that the FBI should investigate
"directly" only the possible "subnrsive involvement." Katzenbach did
not believe that the FBI should conduct a "general investigation" of
"other aspects of the rioL" since these were local law enforcement matters.
The President approved this "limited investigation." 359 Nonetheless,
internal Bureau instructions in 1965 and 1966 went far beyond
this limitation.360 By 1967 new Attorney General Ramsey Clark reversed
the Departmenes position on such limitations.
After the riots in Newark and Detroit in the summer of 1967,
President Johnson announced that the FBI had "standing instruc~
tions" for investigating riots "to search for evidence on conspiracy." 361
This announcement accompanied the creation of a National Advisory
Commission on Civil Disorders to investigate the "basic factors and
causes leading to" the riots, including the "influence" of groups or
persons "dedicated to the incitement or encouragement of violence."
The President ordered the FBI in particular to "provide investigative
information and assistance" to the Commission.362 Director Hoover
also agreed to investigate "allegations of subversive influence, involvement
of out-of-statB influences, and the like." 363
In September 1967, Attorney General Clark directed the FBI to:
use the maximum resources, investigative and intelligence,
to collect and report all facts bearing upon the question as
to whether there has been or is a scheme or conspiracy by
any group of "'hat~ver size, effectiveness or affiliation, to
plan, promote or aggravate riot activity. 361
351 Telegram from Attorney General Kennedy to U.S. Attorneys, 5/27/63.
308 The basis for the inquiry was explained in the most general terms: "Keeping
the peace in this country is essentially the responsibility of the state government.
'Vhere lawless conditions arise, however, with similar characteristics from coast
to coast, the matter is one of national concern even though there is no direct connection
between the events and even though no Federal law is violated." (Text
of FBI Report on Recent Racial Disturbances. Xew York Times, 9/27/64.)
... ~Iemorandum from Attorney General Katzenbach to President Johnson,
8/17/65.
300 See p. 71.
'"" IWmarks of the President, 7/29/67, in Report of the National A(lvisory Commission
on Civil Di.~orders (1968), p. 537 (Bantam Books ed.)
:... Executive Order 1136.'5. 7/29/67.
363 Memorandum from C. D. DeLoach to Mr. Tolson, 8/1/67, Subject: Director's
Testimony Before Xational Advisory Commission on Civil Disorders. This memorandum
indicates that, following this testimony, Director Hoover ordered his
subordinates to intensify their collection of intelligenee about "vociferous rabblerousers."
The creation thereafter of a "Rabble Rouser Index" is discussed at
llP.R9-00.
"" ~Iemorandum from Attorney General Ramsey Clark to ,T. Edgar Hoover,
9/14/67.
84
Justice Department executives were generally aware of, and in some
cases sought to widen~ the scope of FBI intelligence collection. In a
lengthy review of Bureau reports~ John Doar~ Assistant Attorney
General for the Civil Rights Division, expressed concern that the
FBI had not "taken a broad spectrum approach" to intelligence collection,
since it had "focused narrowly" on "traditional subversive
groups" and on persons suspected of "specific statutory violations." 365
Reiterating this viewpoint, Attorney General Clark told Director
Hoover that "existing intelligence sources" may not have "regularly
monitored" possible riot conspirators in "the urban ghetto." He added
that it was necessary to conduct a "broad investigation" and that
sources or informants in black nationalist organizations,
SNCC (Student Nonviolent Coordinating Committee) and
other less publicized groups should be developed and expanded
to determine the size and purpose of these groups and
their relationship to other groups ...366
Clark described his directive as setting forth "a relatively new area of
investigation and intelligence reporting for the FBl." 367
In response to the Attorney General's instructions, the FBI advised
its field offices of the immediate "need to develop additional penetrative
coverage of the militant black nationalist groups and the ghetto
areas." 368
b. Army Intelligence
On January 10, 1968~ a meeting took place at the White House for
the purpose of "advance planning for summer riots." The White
House memorandum of the meeting reported:
The Army has undertaken its own intelligence study, and has
rated various cities as to their riot potential. They are making
contingency plans for troop movements, landing sites,
facilities, etc.
It added that the Attorney General and the Deputy Secretary of Defense
"had agreed to coordinate their efforts." 369 The Army General
Counsel's memorandum of the meeting stated that Attorney General
Clark had "stres.'led the difficulty of the intelligence effort," especially
because there were "only 40 Negro FBI agents" out of the total of
about 6,300. Clark added that "every resource" was needed in "the intelligence
collection effort," although he asked the Defense Department
to "screen" its "incoming intelligence" and send "only key items"
to the Justice Department.370
3M :\Iemorandum from Assistant Attorney 'General John Doar to Attorney General
Clark, 9/27/67.
.... :Uemorandum from Clark to Hoover, 9/14/67.
361 Clark to Hoover, 9/14/67. The Department's establishment of a special lmit
for intelligence evaluation is discussed at pp. 115-116.
368 SAC Letter 67-72,10/17/67. The scope of the "ghetto informant program" is
desprihed at pp. 75-76.
... Memorandum from Joseph Califano to the President, 1/18/68. Those present
were Attorney General Clark, Deputy Attorney General Warren Christopher,
Deputy Secretary of Defense Paul Nitze, Acting Army General Counsel Robert
Jordan, and Presidential assismnts Matthew Nimetz and Califano.
31. :\femorandum from the Army General Counsel to the Pnder Secretary of the
Army, 1/10/6R. Former Army Chief of St~ff H'lrold K. .Johnson has said that
therr were sen'ral other meetings at thp 'White Honse whprp thp Army was nrged
to takp a grl'llter role in the civil disturbance collection effort. (Staff summary of
Harold K. Johnson interview, 11/18/75.)
85
There is no record that at this or any other similar meeting in this
period the Attorney General or 'White House aides explicitly ordered
the Army to conduct intelligence investigations using infiltration or
other cm-ert surveillance techniques. However, even though Army collection
plans ,,-hich were circulated to the Justice Department and the
FBI 371 did not mention techniques of collection, the information they
described could only be obtained by covert surveillance. No objections
were voiced by the Justice Department.
Not until 1969 was there a formal civilian decision specifically
authorizing Army surveillance of civilian political activity. At that
time, Attorney General John Mitchell and Secretary of Defense Melvin
Laird considered the matter and over the objections of the Army
General Counsel, decided that the Army would participate in intelligence
collection concerning civil disturbances.372 The Armis collection
plan was not rescinded until June 1970, after public exposure and
congressional criticism.373
c. FBI Interagency Agreements
After the assassination of President Kennedy, the FBI and the
Secret Service negotiated an agreement which recognized that the
Bureau had "general jurisdiction" over "subversion." The term was
defined, more narrowly than it had been defined by practice in the past,
as "knowingly or wilfully advocat[ing]" o\-erthrow of the Government
by "force or violence" or by "assassination." Except for "temporary"
action to "neutralize" a threat to the President, the Secret Service
agreed to "conduct no investigation" of "members of subversive
groups" without notifying the FBI. The Bureau, on the other hand,
would not investigate individuals "solely" to determine their "dangerousness
to the President." 374
371 Federal Data Banks, Hearings, at p. 1137. On at least one occasion, Deputy
Attorney General Warren Christopher thanked an Army intelligence officer for
spot reports and daily summaries. (Letter from Deputy Assistant General Christopher
to Maj. Gen. William P. Yarborough, Assistant Chief of Staff for Intelligence,
5/15/68.) The Justice Department's intelligence analysis unit received
"army intelligence reports" during 1968 on persons and groups involved in "racial
agitation." (Memorandum from Assistant Attorney General J. Walter Yeagley to
Deputy Attorney General Richard G. Kleindienst. 2/6/69.)
372 Memorandum from Secretary of Defense :\Ielvin Laird and Attorney General
John N. :\Htchell to the President, 4/1/69. Suhject: Interdepartmental Action
Plan for Civil Disturbances. This reflected a failure on the part of the Army
General Counsel to persuade the Justice Department to relieve the Army of
its domestic intelligence-gathering role. (:\Iemorandum from Robert E. Jordan,
Army General Counsel, to the Secretary of the Army, Subject: Review of Civil
Disturhllnce Intplligencp Hi~torv, in Military Surveillance, Hearings, p. 296.)
373 Letter from Robert E. Lynch, Acting Adjutant General of the Army, to subordinate
commands, 6/9/70, Subject: Collection, Reporting, Processing, and Storage
of Civil Disturbance Information.
See discussion of the termination of this program in Section III ["Terminations"
Sub-finding under "Accountability and Control"].
3" Agreement Between the Federal Bureau of Invpstijmtion and the Secret
Service Concerning PreRidential Protection, 2/3/65. The FBI was to report to
Secret Servi.ce information about "subversives, ultra-rightists, racists and
fascists" who expressed "strong or violent anti-CS. sentiment" or made "statements
indicating a propensity for violence and antipathy toward good order and
government."
These reporting standards wpre modifipd in 1971 to rpquire the FBI to refer to
Secret Service: "Information concprning ch-il disturbances, anti-U.S. demonstrations
or incidents or demonstrations against foreign diplomatic establish(
Continued)
86
After Congress enacted antibombing le~islation in 1970, the FBI was
assigned primary responsibility for im-estigating "offenses perpetrated
by terrorist/revolutionary groups." 375 When these guidelines were
developed, the FBI shifted supervision of bombing cases from its
General Investigative Division to the Intelligenee Dh-ision because, as
one official put it, the specific criminal inwstigations were "so interrelated
with the gathering of intelligence in the racial and security
fields that overlap constantly occurs." 37G
The agreement with Secret Service and the "guidelines" covering
bombing investigations did not give the FBI any additional domestic
intelligence-gathering authority. They simply provided for dissemination
of information to Secret Service and allocated criminal investigative
jurisdiction between the FBI and the Alcohol, Firearms. and
Tobacco Division. Nevertheless, both presupposed that the FBI had
broad authority to investigate "subversi,-es" or "terrorist/re,-olutionary
groups."
4. Domestic Oovert Action
a. OOINTELPRO
The FBI's initiation of COINTELPRO operations against the Ku
Klux Klan. "Black Nationalists" and the "New Left" brought to bear
upon a wide -range of domestic groups the techniqul's prrviously developed
to combat Communists and persons who happened to associate
with them.
The start of each program coincided with significant national events.
The Klan program followed the widely-publicized disappearance
in 1964 of three civil rights workers in Mississippi. The "Black Nationalist"
program was authorized in the aftermath of the Newark
and Detroit riots in 1967. The "New Left" program developed shortly
after student disruption of the Columbia University campus in the
spring of 1968. While the initiating memoranda approved by Director
Hoover do not refer to these specific events, it is clear that they shaped
the context for the Bureau's decisions.
These programs were not directed at obtaining evidence for use in
possible criminal prosecutions arising out of those events. Rather,
they were secret programs-"under no circumstances". to be "made
known outside the Bureau" 377-which used unlawful or Improper acts
to "disrupt" or "neutralize" the activities of groups and individuals
targeted on the basis of imprecise criteria.
(1) Klan and "White Hate" OOINTELPRO.-The expansion of
Klan investigations, in response to pressure from President .Tohnson
and Attorney General Kennedy,318 was accompanied by an internal
(Continued)
ments ;" and "infonnation concerning persons who may be considered potentially
dangerous to individuals protected by the [Secret Service] because of their ...
participation in groups engaging in adivities inimical to the United States."
With respect to organizations. the FBI reported information on their "officprs,"
"size," "goals," "source of financial support." and other "background data."
(Agreement Between the Federal Bnrpau of InvPRtigation and the United States
SeC'ret Service Concerning Protective Responsibilitips. 11/26/71.)
3" Investigative Guidelines: Title XI. Organized Crime Control Act of 1970.
RPgulation of Explosives.
37. FBI Inspection Report. Domestic Intelligpnce Division. August 17-September
9, 1971. pp. 224--38.
3TI Memoranda from FBI headquarters to all SAC·s. 9/2/64; 8/25/67; 5/9/68.
878 See pp. 74-75.
87
Bureau decision to shift their supervision from the General Investigatin
Di"ision to the Domestic Intelligence Di,·ision. One internal FBI
argument for the transfer "as that the Intelligence Division ,vas "in
a position to launch a disruptiw counterintelligence program" against
the Klan with the "same effectiveness" it had against tlie Communist
Partv.379
Accordingly, in September 1964 a directive was sent to seventeen
field offices instituting a COINTELPRO against the Klan and what
the FBI considered to be other "'White Hate" organizations (e.g.,
American Nazi Party, National States Rights Party) "to expose, disrupt,
and otherwise neutralize" the activities of the groups, "their
leaders, and adherents." 380
During the 1964-1971 period, when the program was in operation,
287 proposals for COINTELPRO actions against Klan and "White
Hate" groups were authorized by FBI headquarters.38
! Covert techniques
used in this COINTELPRO included creating new Klan chapters
to be controlled by Bureau informants and sending an anonymous
letter designed to break up a marriage.382
(2) "Black Nationalist" OOINTELPRO.-The stated strategy of
the "Black Nationalist" COINTELPRO instituted in 1967 was "to
expose, disrupt, misdirect, discredit, or otherwise neutralize" such
groups and their "leadership, spokesmen, members, and supporters."
The larger objectives were to "counter" their "propensity for violence"
and to "frustrate" their efforts to "consolidate their forces" or to "recruit
new or youthful adherents." Field offices were instructed to
exploit conflicts within and between groups; to use news media contacts
to ridicule and otherwise discredit groups; to prevent "rabble
rousers" from spreading their "philosophy" publicly; and to gather
information on the "unsavory backgrounds" of group leaders.383
In March 1968, the program was expanded from twenty-three to
forty-one field offices and the following long-range goals were set
forth:
(1) prevent the "coalition of militant black nationalist
groups ;"
(2) prevent the rise of a "messiah" who could "unify and
electrify" the movement. naming specifically Dr. Martin Luther
King, ,T1'., Stokely Carmichael, and Elijah Muhammed;
(3) prevent violence by pinpointing "potential troublemakers"
and "neutralizing" them before they "exercise their
potential for violence;"
(4) prewnt groups and leaders from gaining "respectability"
by discrediting them to the "responsible" Negro community,
the "responsible" white community, "liberals" with
m Memorandum from J. H. Gale to Mr. Tolson. 7/30/64 (Gale was Assistant
Director for the Inspection Division).
380 :\Iemorandum from FBI Headquarters to all SACs, 9/2/64.
381 The aYera~(' of 40 "White Hate" aetion~ per year may be compared to an
ayerag-e of oyer 100 per year ag-ainst the Communist Party from 1956-1971
(totalling 1636). Exhibit 11, Hearings, yol. 6, p. 37l.
3'" These technique>; and thooe lL~ed against the other target groups referred
to helmv are discussed in greater detail in the COINTELPRO detailed report
and in the Coyert Action sf'ction of the Findings. Part III. p. 211.
38:1 :\Iemorandum from FBI Headquarters to all SAC'S, 8/25/67.
88
"vestiges of sympathy" for militant black nationalists and
"'NeTgro radI'caIs;" and '
(5) "prevent these groups from recruiting young people," 384
After the Black Panther P~rty emerged as a group of national stature,
F~~ field office~ wer~ mstructed to develop "imaginative and
hard-~llttmg. coulltermte.lhgence measures aimed at crippling the
BPP." PartIcular attentIOn was to be giwn to aggravating conflicts
between the Black Panthers and rival o-roups in a number of cities
where ~uch conflict had already taken 0;: the character of "gang ,,'arfare
WIth attendant threats of murder and reprisals." 385
During 1967-1971, FBI headquarters approved 379 proposals for
qOIN"T.E.LPRO actions against "black nationalists." 38G These operatIOns.
utIlIzed dangerous and unsavory techniques which gave rise to
the !'lsk. of. death and often disregarded the personal rights and dignity
of the VIctIms,
(3) "New Left" OOINTELPRO.-The most vaguely defined and
haphazard of the COINTELPRO operations was that initiated
against the "New Left" in May 1968. It was justified to the FBI
Director by his subordinates 011 the basis of the following considerations:
The nation was "undergoing an era of disruption and
violence" which was "caused to a large extent" by individuals
"generally connected with the New Left."
Some of these "activists" ,,'ere urging "revolution" and
calling for "the defeat of the rnited States in Vietnam."
The problem was not just that they committed "unla,,'ful
acts," but also that they "falsely" alleged police brutality,
and that they "scurrilously attacked the Director and the Bureau"
in an 'attempt to "llamper" FBI investigations and to
"drive us off the college campuses." 387
Consequently. the COINTELPRO was intended to "exposlc', disrupt.
and otherwislc' neutralize" tlw activities of "this group" and "persons
connected with it." 388 The lack of anv clear definition of "New Left"
meant. as an FBI supervisor testifiecl, that "legitimate"and nonviolent
antiwar groups were targeted because they \vere "lending aid and
comfort" to more disruptive groups.389
Further directives issued soon after initiation of the program
urged field offices to "vigorously and enthusiastically" explore "every
avenue of possible embarrassment" of New Left adherents. Agents
were instructed to gather information on the "immorality" and the
"scurrilous and depraved" behavior. "hahits, and living conditions"
of the membprs of targeted groups.390 This message \vas reiteratPod
several months later. when the offices were taken to task for theIr
failure to remain alert for and seek specinc data denieting the "depraved
nature and m6ral looseness of the New Left" and to "use this
"'!\femoranilum frt)m F1H He-aill}uarterl'\ to 1111 RACs. 3/4/68.
... ]\fpmoranilum from FBI Hpaill}ul1rtprl'\ to SACs. 11/25/68.
... The averag-e WI1l'\ 0\'1'1' 90 pel' year. (Exhibit 11. Hparings. Vol. 6, p. 371.)
387 Mlo'morandum from C. D. Brennan to W. C. SUllivan, 5/9/68.
... C. D. Brennan to W. C. Sullivan, 5/9/68.
""" Suplo'rvisor, FBI Intplligence Division, 10/28/75, p. 39.
300 ~1lc'morandum from FBI Headquarters to all SACs, 5/23/68.
89
n1ater:~al in a vIgorous and enthusiastic approach to neutralizing
them." 3S1
In July 1968, the fie1d offices were further prodded by FBI headquarters
to:
(~) prepare leaflets us!ng "tl~e m?S.t obnoxious pic,tures"
of 1\ ew Left leaders at vanous umyersltIes'
(2) instigate "personal conflicts or m;imosities" between
New Left leaders;
(3) create the impression that leaders are "informants
for the Bureau or other law enforcement aaencies" (the
"snitch jacket" technique) ; b
(4:) send articles from student or "underground" newspapers
which show "depraYity" ("use of narcotics and free
sex") of Xew Left leaders to university officials, donors.
legislators, and parents; .
(,~) have members arrested on marijuana charges;
(6) send anonymous letters about a student's activities to
parents, neighbors, and the parents' employers;
(7) send anonymous letters about Xew Left faculty members
(signed "A Concerned Alumni" or "A Concerned Taxpayer")
to university officials, legislators, Board of Regents,
and the press;
(8) usc "cooperatiw press contacts;"
(9) exploit the "hostility" between New Left and Old Left
groups;
(10) disrupt New Left eoffee houses near military bases
whieh arc attempting to "influenee members of the Armed
forces: "
(11) use eartoons, photographs, and anonymous letters to
"ridicule" the New Left;
(12) use "misinformation" to "eonfuse and disrupt" New
Left activities, sueh as by notifying members that events
have been cancelled.392
During the period 1968-1971. 291 COINTELPRO actions
against the "New Left" were approved by headquarters.393 Particular
emphasis ,,-as placed upon prrw·nting the targeted individuals from
public speaking or teaching and prO\-iding "misinformation" to confuse
demonstrators.
b. FBI Target Lists
The FBI's most intensi..e domestic intelligenee investigations and
COIXTELPRO operations were directed against persons identified,
not as criminals or eriminal suspects. but in vague terms such as
"rabble r011ser." "agitators." "key acti,-ists," or "key black extremists."
The Secruity Index for detention in time of national emergency was
reYised to include such persons.
(1) "Rabb7e Rouser/Agitator" Inde.1'.-Following a meeting with
the National Adyisorv Commission on Civil Disorders in August 1967.
Director Hoover oniered his subordinates to intensify collection of
3., :\Iemorandum from FBI Headquarters to all SACs. 10/9/68.
39' :\Ipmorandum from FBI Headqurlrtprs to all RACs. 7/6/68.
393 Approximately 100 per year (Exhibit 11, Hearings, Vol. 6, p. 371.).
90
intelligence about "vociferous rabble-rousers." 303a He 'also directed
"that an index be compiled of racial agitators and individuals who
ha,-e demonstrated a potential for fomenting racial discord." 394
The already vague standards for the Rabble Rouser Index were
broadened in N')\'ember 1967 to cover persons with a "propensity for
fomenting" any disorders affecting the "internal security"-as opposed
to only racial disorders-and to include persons of local as well as
national interrst. This included "black nationalists, white supremacists,
Puerto Rican nationalists, anti-Vietnam demonstration leaders,
and other extremists." A rabble rouser was defined as:
a person who tries to arouse people to violent action by
appealing to their emotions, prejudices, et cetera; a
demagogue.395
In )farch 1968, the Rabble Rouser Index was renamed the Agitator
Index and fir1cl offices were ordered to obtain a photograph of each
person on the Index. 396 However, expanding the size of the Agitator
Index lessened its value as an efficient target list for FBI intelligence
operations. Consequently, the Bureau developed a more refined tool
for this purpose-the Key Activist Program.
(2) "Key Acth·ist" PTogram.-Instructions were issued to ten major
fipld officps in January 1968 to designate certain persons as "Key
Activists," who ,vere defined as
individuals in the Students· for Democratic Society and the
anti-Vietnam ,,,ar groups [who] are extremely active and
most vocal in their statements denouncing the United Statps
and calling for civil disobedience and other forms of unlawful
and disruptin acts.
There was to be an "intensive investigation" of each Kpy Activist,
,,,hich might include "high-Iryel informant roverage" and "technical
surveillances and physical slllTPillancps." 397
The "New IA'ft" COINTELPRO ,,,as designed in part to "neutralize"
the Kry .\ctiyists, who ,,,ere "the moying forces behind the New
Left." 398 One of the first techniques employed in this program was to
obtain the Federal income tax returns of Key Aet.ivists for use in
disrupting their activitips.399 In October 1968,' the Kpy Activist Program
,,,as expanded to virtually all field offices. The field agents 'Yere instl'uctrd
to recommpnd additional persons for the program and to
"considpr if thp individual '''as rendered ineffective would it curtail
l disruptive] actiyity in his area of influence." 'While the FBI considered
Fedrral prosecution a "logical" l'rsult of these investigations and
"the best deterrent." Krv Acti,-ists 'H're not selected becausp they ,,,ere
susprcted of committing or planning to commit any specific Federal
crime. 400
3930 ~Iemorandum from C. D. DeLoach to :lIr. Tolson. 1'/1/67. (At the mE'eting,
a Commission member had a~kerl the Burea u to "identify the number of militant
:-leg-roes and white~.")
"'''Memorandum from C. D. Brennan to W. C. Sullivan, 8/3/67; SAC Letter
{;7-:)6,9/12/67.
3'" SAC Letter Xo. 67-70. 11/28/{;7.
300 :lfemorandl1l11 from FBI HellclquarterR to all SACs. 3/21/{;8.
301 ~Iell1orandUill from FBI Headquarters to nil SAC~, 1/30/{;R
39' ~Iemorandum from C. D. Brennan to ,Yo C. Sullivan, !'i/fl/{;8.
399 ~Iemorandull1 from C. D. Brennan to ,Yo C. Sullivan. 5/24/{;1'.
• 00 Memorandum from FBI Headquarters to all SAC~, 10/24/68.
91
(3) "Key BTack E,rh'C'Jnis(' Pi'ogram.-A "Key Black Extremist"
target list for concentrated imestigation and COINTELPRO actions
,yas instituted in 1970. Key Black Extremists ,yere defined as
leaders or actiyists [who] are particularly extreme, agitatiYe,
anti-Goyernment, and yocal in their calls for terrorism and
yiolence. 401
Field offices were instrncted to place all Key Black Extremists in the
top priority category of the Secnrity Index and in the Black Nationalist
Photograph Album, ,yhich concentrated on "militant black
nationalists" ,yho tra H'led extensiyely. In addition, the following steps
were to be taken:
(1) All aspects of the finances of a KBE must be determined.
Bank accounts must be monitored....
(2) Continuing consideration must be gi,-en by each office
to deyelop means to neutralize the effectiyeness of each
KBE....
(3) Obtain suitable handwriting specimens....
(4) Particular efforts should be made to obtain records of
and/or reliable witnesses to, inflammatory statements....
(5) Where there appears to be a possible violation of a
statute within the inyestigatiye jurisdiction of the Bureau,
[it should be] yigorously inyestigated....
(6) Particular attention must be paid to travel by a KBE
and eyery effort made to determine financial arrangements
for such trayel. ...
(7) The Federal income tax returns of all KBEs must be
checked annually....
Reports on all Key Black Extremists ,yere to be submitted every ninety
days, and the field was urged to use "initiative and imagination" to
achieve "the desired results." 403 Once again, the "result" was not
limited to prosecution of crimes and the targets were not chosen
because they were suspected of committing crimes.
(4) Security Index.-The Agitator Index was abolished in 1971
because "extremist subjects" were "adequately followed" through the
Security Index,,04 In contrast to the other indices, the Security Index
was not reviewed by the FBI alone. It had, from the late 1940's, been
largely a joint FBI-.Justice Department program based on the Department's
plans for emergency detention,,05 According to FBI memoranda,
morem-er, President .Johnson was directly involved in the
updating of emergency detention plans.406
After a large-scale March on the Pentagon against the Vietnam War
in October 1967, President Johnson ordered a comprehensive review
of the gm-ernment's emergency plans. Attorney General Clark was
appointed chairman of tl committee to reyiew the Presidential Emergency
Action Docml1E'nts (PEADs) prepared under the Emergency
Detention Program. One result of this re,-iew, in which the FBI took
part, "'as a decision to bring the Detention Program into line with the
401 ?lIf'morandum from G, C. Moorf' to C. D. Brennan, 12/22/70.
'03 :\If'illoranduill from FBI Headfluartf'rs to all SACs, 12/23/70.
'''' Memorandum from C. n. Brennan to W. C. Sullivan, 4/30/68.
'00 Sf'e IlP. 1)4-1);;.
"'" C. D. Brennan to ",Y. C. Sullivan, 4/30/68.
92
Emergency Detention Act of 1930, reversing the previous decision to
"disregard" as "unworkable" the procedural requirements of the Act,
which were tighter than the standards ,,-hich had been applied by FBI
and Justice.407
The Bureau also had to revise its criteria for inclusion of names on
the Security Index, which since 1950 had disregarded the statutory
standards. However, the definition chosen of a "dangerous individual"
was so broad that it enabled the Bureau to add persons not previously
eligible. A "dangerous individual" was defined as a
person as to whom there is reasonable ground to believe that
such person probably will engage in, or probably will conspire
with others to engage in, acts of espionage and sabotage,
including acts of terrorism or assassination and any intel'ference
with or threat to the survival of and effecti've operation
of the national, state, and local government8 and of the
national defense effort. [Emphasis added.] 408
The emphasized language greatly broadened the Security Index standards.
It gave FBI intelligence officials the opportunity to include on
the Security Index "racial militants", "black nationalists", and individuals
associated with the "New Left" who were not affiliated with
the "basic reyolutionary organizations" as the Bureau characterized
the Communist Party, which had previously been the focus of the
Security Index.409 Once again, the limitations which a statute was
intended to impose were effectively circumvented by the use of elastic
language in a Presidential dire.ctive.
Moreover, the Bureau adopted a new "priority" ranking for apprehension
in case of an emergency. Top priority was now given not only
to leaders of "basic subnrsive organizations." but also to "leaders of
anarchistic groups." 410 It ,vas said to be the "anarchistic tendencies"
of New Left and racial militants that made them a "threat to the
internal security." 411
Initially, the justice Department approved informally these changes
in the criteria for "the persons listed for apprehension." 412 After
several months of "study," the .Justice Department's Office of Legal
Counsel formally approved the new Security Index criteria. This was
the first time since 1955 that the Department had fully considered
the matter, and the previous policy of disregarding the procedures
of the Emergency Detention Aet of 1950 was formally abandoned.
If an emergencv occurred. the Attorney General would abide by "the
requirement that any person aetnally' detained will be entitled to a
hearing at ,vhirh time the eviclence will haw to satisfy the standards
of [the Actl." However. the Office of Legal Counsel dpclarpcl that the
Security Index criteria themseln~scould be-as they ,,-pre-less preeise
than thosp of the Act lwcansp of the "needed flexibilitv and discrption
at the operating lewl in ordpr to carryon an effectiw surwillance
"" See rm. 54--5" and Report on FBI Investi~ations.
"'" Presidpntial Emergency Action Document 6, as quoted in Brennan to Sullivan.
4/30/68.
• 00 l\Iemorandum from C. D. Brennan to W. C. Sullivan. 4/30/68.
410 C. D. Brennan to W. C. Sullivan. 4/30/6R
411 C. D. Brennan to W. C. Sullivan, 4/30/68.
412 :Uemorandum from .T. Edgar Hoover to .J. 'Walter Yeagley. ,,/1/G8; Yeagley
to Hoover, 6/17/68.
93
program." 413 Thus, while the plan to ignore Congress' procedural
limitations was abandoned, Congress' substantive standards were disregarded
as insufficiently "flexible."
c. Internal Revenue Service Program,y
(1) Misuse by FBI and CIA.-IRS information was used as an
instrument of domestic intelligence mainly by the FBI. For example,
in 1965, the Bureau obtained the tax returns of Ku Klux Klan members
in order to develop "discrediting or embarrassing" infornlation
as part of the Bureau's COINTELPROagainst the Klan.414
The procedure by which FBI obtained access to tax returns and related
information held by IRS was deemed "illegal" when it was discovered
by the Chief of the IRS Disclosure Branch in 1968.415 The FBI had
not followed the procedures for obtaining returns which required
written application to the IRS Disclosure Branch. Instead the Bureau
had arranged to obtain the returns and informatioIl surreptitiously
through contacts inside the IRS Intelligence Division. The procedure
for FBI access was regularized by the IRS after 1968: a formal request
on behalf of the Bureau was made to the IRS Disclosure Branch, by
the Internal Security Division of the Justice Department.
During this same period, the CIA was obtaining tax returns in a
maIlner similar to the FBI, although in much smaller numbers. Yet
even after procedures were changed for the FBI's access to tax information
in 1968, the IRS did not re-examine the CIA's practices.416
Therefore, CIA continued to receive tax return information without
filing requests as required by the regulations.
Between 1968 and 1974, either directly or through the Internal
Security Division of the Justice Department, the FBI requested at
least 130 tax returns for domestic intelligence purposes. This included
the returns of 46 "New Left activists" and 74 "black extremists," 417 as
part of Bureau COINTELPRO operations to "neutralize" these individuals.
418 These requests were not predicated upon any specific information
suggesting delinquency in fulfilling tax obligations.
Even after a formal request was required before supplying the FBI
with tax returns, the IRS accepted the Justice Department's undocu-
'" Among the criteria specifically approved by the Justice Department which
went beyond the statutory standard of reasonable likelihood of espionage and
sabotage were the expanded references to persons who have "anarchistic or
revolutionary beliefs" and are "likely to seize upon the opportunity presented
by a national emergency" to commit acts Which constitute "interference with"
the "effective operation of the national. state and local governments and of the
defense effort." (Assistant Attorney General Frank i\I. Wozencraft, Office of
Legal Counsel, to Assistant Attorney General J. Walter Yeagley, Internal
Security Division, 9/9/68.) The stand'ards as approved were transmitted to the
FBI, and its :Manual was revised accordingly. (Yeagley to Hoover. 9/19/68;
Hoover to Yeagley, 9/26/68; FBI Manual, Section 87, p. 45, revised 10/14/68.)
The FBI i:till maintained its Reserve Index, unbeknownst to the Department.
.,. One of the express purposes was to use tax information to "expose" the Klan
members "within the Klan organization [or] publicly by showing income beyond
their means." (Memorandum from F . .T. Baumgardner to W. C. Sullivan,
5/10/65.) Disclosure of tax information "pUblicly" or "within the Klan organization"
is prohibited by stU'tute.
<15 Memorandum from D. O. Virdin to H. E. Snyder, 5/2/68. Subject: Inspection
of Returni: by FBI.
.,. Donald O. Virdin testimony, 9/16/75, pp. 69-73.
m Staff Memorandum: Review of Materials in FBI Administrative File on
"Income Tax Returns Requested."
4,. Memorandum from C. D. Brennan to W. C. Sullivan, 12/6/68.
94
mented assertions that tax information was "necessary" in connection
with an "official matter" involving- "internal security." 419 Yet in making
such assertions, the Justice Department's Internal Security Division
relied entirely on the Bureau's judgment. Thus, while the IRS is
required by the statute to release tax information only where necessary,
it in effect delegated its responsibility to the Internal Security
Division which in turn delegated the decision to the FBI. Although
most FBI requests for tax information were for targets of various
COINTELPRO operations, the Justice Department official who made
the requests on behalf of the Bureau said he was never informed of the
existence of COINTELPRO.420
Even after 1968, the Bureau sometimes used tax information in
improper or unlawful ways. For example, the Bureau attempted to
use such information to cause IRS to audit a mid-western college professor
associated with "new left" activities at the time he was planning
to attend the 1968 Democratic Party National Convention in Chicago.
The FBI agent in charge of the operation against the professor explained
its purpose in a memorandum:
if IRS contact with [the Professor] can be arranged within
the next two weeks their demands upon him may be a source
of distraction during the critical period when he is engaged
in meetings and plans for disruption of the Democratic National
Convention. Any drain upon the time and concentration
which [the Professor], a leading figure in Demcon
planning, can bring to bear upon this activity can only accrue
to the benefit of the Government and general public.421
Among the tax returns which the CIA obtained informally from
IRS in an informal and illegal manner were those of the author of a
book, the publication of which the CIA sought to prevent,m and of
Ramparts magazine which had exposed the CIA's covert use of the
National Student Association.423 In the latter case. CIA memoranda
indicate that its officials were unwilling to risk a formal request for
tax information without first learning through informal disclosure
whether the tax returns contained any information that would be
helpful in their effort to deter this "attack on the CIA" and on "the
administration in general." 424
(2) The Special Serl,ice Staff: IRS Targeting of Ideological
Oroup8.-In 1969, the IRS established a Special Service Staff to
gather intelligence on a category of taxpayers defined essentially by
political criteria. The SSS attempted to develop tax cases against the
targeted taxpayers and initiated tax fraud investigations against some
who wonld otherwise never have been investigated.
The SSS originated as a result of pressure from the permanent Subcommittee
on Investigations of the Senate Committee on Government
Operations 425 and from President Nixon, acting through White House
'" Leon Green deposition, 9/12/75, pp. 6--8.
... Statement of .J. W. Yea~ley to Senate Select Committee, September 1975.
m ;\Iplliorandnlli from :\Iirlwpst City Field Office to FBI Hl'adquartprs, 8/1/68.
... CIA memorandum, Subject: BUTANE-Victor Marchetti.
42.1 CIA memorandum, Subject: IRS Briefing on Ramparts. 2/2/67.
.,. CIA memorandum. Subject: IRS Briefing on Ramparts, 2/2/67.
... Leon C. Green testimony. 9/12/75, p. 36.
95
assistants Tom Charles Huston and Dr. Arthur Burns.426 According
to the IRS Commissioner's memorandum, Dr, Burns expressed to him
the President's concern
oyer the fact that tax-exempt funds may be supporting activist
groups engaged in stimulating riots both on the campus
and \vithin our inner citiesY'
The administration did not supply any facts to support the assertion
that such groups were violat:ing tax laws.
After the SSS was established, the FBI and the Justice Department's
Interdivisional Information Unit (IDIU) became its largest
sources of names. An Assistant IRS Commissioner requested the FBI
to provide information regarding "various organizations of predominantly
dissident or extremist natnre and/or people prominently identified
within those organizations." 428 The FBI agreed, believing, as
one intelligence official put it, that SSS would "deal a blow" to "dissident
elements." 429
Among the material received bv SSS from the FBI was a list of
2.iWO organizations categorized as "Old Left," "New Left," and "Right
·Wing." 430 The SSS also receind about 10,000 names on IDIU computer
printouts.431 SSS opened files on all these taxpayers, many of
whom were later subjected to tax audits and some to tax fraud investigations.
There is no reason to believe that the names listed by the FBI
or the IDIU were selected on the basis of any probable noncompliance
with the tax laws. Rather, these groups and individuals were targeted
because of their politieal and ideological beliefs and activities.432
The SSS, by the time it was disbanded in 1973, had gone over
approximately half of the IDIU index and established files on those
indi\'iduals on whom it had no file. Names on the SSS list included
Nobel Prize winner Linus Pauling, Senators Charles Goodell and
Ernest Gruening, Congressman Charles Diggs, journalists Joseph
Alsop and .Jimmv Breslin, and attorney Mitchell Rogovin. Organizations
on the SSS list included: political groups ranging from the John
Birch Society to Common Cau~e; religious organizations such as the
B'nai Brith Antidefamation League and the Associated Catholic
Charities; professional associations such as the Ameriean Law Institute
and the Legal Aid Society; private foundations such as the Carnegie
Foundation; publications ranging from "Playboy" to "Commonwealth:"
and government institutions including the United
States Ci"il Rights Commission.433
SSS officials han" conceded that some cases referred to the field for
tax inYestigations would not llllve qnalifipd for referral but for the
ideological category in which they fell. 'l\rhile IRS field offices closed
out many cases because of the lack of tax grounds upon which legal
'OIl "Investig-ation of the ~pecial ~erYice ~taff of the IRS" hy the staff of the
Joint Committee on Internal Revenue Taxation. 6/5/75. pp. 17-18.
m Memorandum of IRS CommiRsioner Thrower, 6/16/69.
... ~Iemorandumfrom D. W. Bacon to Dirpctor. FBI, 8/8/69.
m :\Iemorandum from D..r. Brpnnan, .Jr., to W. C. Sullivan, 8/15/69.
<'" RR~ Bi·weekly Report, 6/Hi/70.
<31 SSS Bi-weekly Report. 8/29/69.
<32 For a disruRsion of IDIF standnrds. see PD. 18-81. 122-123.
<33 Donald Alexander testimony, 10/2/25, Hearings, Vol. 3, pp. 29-30.
96
action could be taken, referral from the SSS probably resulted in the
examination of some cases despite the lack of adequate grounds. Interviews
wtih IRS field personnel confirm that this did occur in several
instances.433a
Upon discovering that its functions were not tax-related, new IRS
Commissioner Alexander ordered the Special Service Staff abolished.
He testified:
Mr. ALExAxDER. I ordered the Special Srnice staff abolished.
That order was given on August the 9th, 1973. It was
implemented by manual supplements issued on August the
13th, 1973. We hrld the files. I ordered the files be held mtactI'm
not going to give any negative assurances to this Committee-
in order that this Committee and other Committees
could reyiew these fill'S to see what was in them, and see what
sort of information was supplied to us on this more than
11,000 indiyiduals and organizations as to whom and which
files were maintained.
I suggested, Mr. Chairman, that at the end of all of these
inquiries. I would like to take those files to the Ellipse and
have tho biggest bonfirr sincr 1814.
The CHAIRJ\L\X. "rell, I concur in that judgment. I would
only say this to you; in a way, it might be a more important
bonfire than the Boston Tea Party when it comes to protecting
individual rights of American citizens. I am glad you
feel that way. I am glad you took that action!34
5. Foreign I11telligerlCe and Domestic Dissent
In the late 1960's, CIA and NSA, acting in response to presidential
pressure, turned their technological capacity and g-reat resources toward
spying on certain Americans. The initial impetus was to determine
whether the antiwar movement-and to a lesser extent the
"black power" movement-were controlled by foreigners. Despite evidence
that there was no sig-nificant foreign influence. the intelligence
gathering which culminated in CIA's "Operation CHAOS" followed
the general pattern of broadening in scope and intensity. The procedure
for one aspect of these programs was established by an informal
agreement between the CIA and FBI in 1966, which permitted CIA to
engage in "internal security" activities in the United States.
a. Ori,qins of OIA Involvement in "Internal Security Fu7UJtions"
The National Security Act of 1947 explicitly prohibited the CIA
from exercising "police, subpoena, or law-enforcement powers, or
internal security functions." But the Act did not address the question
of the CIA's authority to conduct clandestine intelligence a.ctivity
within the United States for what Secretary Forrestal called "purposes
outside of this country." 435
Under Director Hoover, the FBI interpreted the term "internal
security functions" broadly to encompass almost "anything that CIA
.... Grepn. 9/12/75, pp. 65--66, 73-74: Statpment of Auditor. San Frllncisco District.
7/30/75. p. 1: statempnt of Colle<'tor. Los Angeles District. R!3/75.
..... Donald Alexander testimony, 10/2I7n, Hearings, Vol. 3, pp. 10-11.
... Hearings before the House Committee on EXTlpnditures in the Executive
Departments, on H.R. 2319, 80th Congo (1947), p. 127.
97
might be doing in the United States." 436 Throughout the 1950's and
into ~he early 1960's, Director Hoover's position led to jurisdictional
conflIcts between the CIA and the FBI.
The Bureau insisted on being informed of the CIA's activity in the
United States so that it could be coordinated with the Bureau. As the
FBI liaison with the CIA in that period recalled, "CIA would take
a~tion, it would come to our attention and we would have a flap." 431
In 1966 the FBI and CIA negotiated an informal agreement to regularize
their coordination. This agreement was said to have "led to a
great improvement" and almost eliminated the "flaps." 438
Under the agreement, the CIA would "seek concurrence and coordination
of the FBI" before engaging in clandestine activity in the
United States and the FBI would "concur and coordinate if the proposed
action does not conflict with any operation, current or planned,
including actin investigation of the FBI." 439 '\Then an operative
recruited by the CIA abroad arrived in the United States, the FBI
would "be advised" and the two agencies would "confer regarding the
handling of the agent in the lTnited States." The CIA would continue
its "handling" of the agent for "foreign intelligence" purposes. The
FBI would also be~ome involycd where there were "internal security
factors," although it was recognized that the CIA might continue to
"handle" the agent in the United States and provide the Bureau with
"information" bearing on "internal se~urity matters." 440
As part of their handling of "internal security factors," CIA operatiycs
were used after 1966 to report on domestic "dissidents" for the
FBI. There "'ere infrequent instances in which, according to the former
FBI liaison with CIA:
CIA had penetrations abroad in radical, revolutionary
organizations and the indiddual was coming here to attend a
conference, a meeting, and would be associating with leading
dissidents, and the question came up, can he be of any use to
us, can we have access to him during that period.
In most instances, because he was here for a relatively short
period, ,ve would levy the requirement or the request upon the
CIA to find out what was taking place at the meetings to get
his assessment of the individuals that he ,vas meeting. and any
other general intelligence that he could collect from. his associations
with the people who were of interest to US.441
The policies embodied in the 1966 agreement and the practice under
it clearly involved the CIA in the performance of "internal security
... Former FBI Liaison with CIA testimony, 9/22/75, p. 9.
.., Former FBI liaison with CIA testimony, 9/22/75, pp. 9-1l.
... Liaison, 9/22/75. p. 11. For a discussion of liaison problems between FBI
and CIA in 1970. Sl'l' np. 112-11R.
..... Liaison, 9/22/75, p. 52. "Central Intelligence A~ency Operations in the
United States," FBI-CIA Memorandum of Understanding, 2/7/66.
... Liaison, 9122/71), p. 55.
m Liaison, 9/22/75, PP. 57-58. These "internal security" aspects of the 1966
FBI-CIA a~reement were not the only pre-CHAOS arrangements bringing the
CIA into liaison with the FBI. For example, as early as 1963 the FBI Manual
wa" revi"ed to state that information concerning "proposed travel abroad" by
doml'stic "subvl'rsives" was to be "furnished by the Bureau to the Department
of ~tatl''' and the "Cl'ntral Intl'lligl'nf'l' AgE'ncv:" and fiE'ld office~ Wl're advi~E'd
to recommend the "l'xtent of foreign inve~tigation" which was required. (FBI
Manual Section 87, p. 33a, revised 4/15/63.)
68-786 0 - 76 • 8
98
functions." At no time did the Executive branch ask Congress to amend
the 1947 act to modify its ban against CIA exercising "internal security
fllnctions.~~Nor was Congress asked to clarify the ambiguity of the
1947 act about the CIA~s authoritv to conduct clandestine foreign
intel1igcnce and counterintel1igence acti,-ities within the Fnited States.
a matter dealt with eYen today bv Executive Order.442
Moreover. National Secur~ty'Council Intelligence Directive 5 provided
authority within the Executive Branch for the Director of Central
Intelligence to coordinate. and for the CIA~ to conduct, counterintelligence
activities abroad to protect the rnited States against not
only espionage and sabotage, but also "subversion." 443 Hmvever,
NSCID 5 did not purport to give the CIA authority for counterintelligence
activities in the United States~ as provided in the FBICIA
agreement of 1966.
b. CIA Inte71i,qence About Domestic Political Groups
In the late 1960s, the CIA increasingly was drawn into collecting
intelligence about domestic political groups, particularly the anti-war
movement, in response to FBI requests and to pressure from Presidents
.Tohnson and Nixon. A principal assistant to President Johnson testified
that high governmental officials could not believe that
a cause that is so clearly right for the country, as they perceive
it. would be so widely attacked if there '\6re not some
[foreign] force behind it.444
The same pressures and beliefs led to CIA investigations of "militant
black nationalists" and radical students.
(1) CIA Response to FBI Requests.-The FBI was the main channel
for mobilizing foreign intelligence resources and techniques
against domestic targets. The FBI regularly notified the CIA that it
wished coverage of Americans overseas.444a Indeed. the CIA regarded
the mention of a name in any of the thousands of reports sent to it
by the FBI as a standing requirement from the FBI for information
about those persons.445 FBI reports flowed to the CIA at a rate of
over 1.000 a month.446 From 1967 to 1974, the CIA responded with
over 5.000 reports to the FBI. These CIA disseminations included some
reports of information acquired by the CIA in the course of its own
operations. not sought in response to a specific FBI request.447
The FBI's broad approach to the investigations of foreign influence
which it coordinated with the CIA is shown by a memorandum
... Pre~ident Ford's Executiye Order 11905, 2/18/76. ThiR order, di~ussed more
fully in Part IV. R€'commendations. in effect reinforc€'~ the 1966 FBI-DIA a~reem€'
nt and defin€'s CIA counterintelli~€'nceduties abroad to include "foreign subYer~
ion" directed against the United Stat€'R.
•'" The Xational S€'curity Council Intelli~€'nceDirectives, or NSCIDs, have been
promulgated by th€' National Security Council to provide the basic organization
and direction of the intelligence a~encies.
... .To~eph Califano testimony, 1/27/76. p. 70.
.... Richard Ober testimony, 10/30/75, p. 88.
.., Ober, 10/28/75, p. 45.
'''Memorandum from Richard Ober to James Angleton, 6/9/70, p. 9.
•" Lett€'r from Director W. Colby to Vice Pr€'sident Rockefeller, 1'/8/75, p. 6 of
attachment.
99
prepared in the Intelligence Division early in 1969 summarizing its
"coverage of the New Left :"
Foreign influence of the New Left movement offers us a
fertile field to develop valuable intelligence clata. To date there
is no real cohesiveness between international New Left groups,
but ... despite the fadionalism and confusion now so prevalent,
there is great potential for the development of an international
student revolutionary movement. [Emphasis added.]
The memorandum expressed concern that "old line" leftist groups
were
. . . making a determined effort to move into the New Left
movement . . . [and were] influencing the thinking of the
New Left . . . against the police in general and the FBI in
particular, to drive us off the campuses; as well as attacks
against the new administration to degrade President
Nixon.448
There was no mention of, or apparent concern for, direct influence or
control of the "New Left" by agents of hostile foreign powers. Instead,
the stress was almost entirely upon ideological links and similarities,
and the threat of ideas considered dangerous by the FBI.
The enlistment of both CIA and NSA resources in domestic intelligence
is illustrated by the "Black Nationalist" investigations. In
1967, FBI Headquarters instructed field offices that:
... penetrative investigations should be initiated at this
time looking toward developing any information regarding
contacts on the part of these individuals with foreign elements
and looking toward developing any additional information
having a bearing upon whether the individual involved is currently
subjected to foreign influence or direction....
During your investigative coverage of all militant black
nationalists, be most alert to any foreign travel. Advise the
Bureau promptly of such in order that appropirate overseas
im'cstigations may be conducted to establish activities and
contacts abroad. [Emphasis added.] 449
The FBI passed such information to the CIA, which in turn began
to place individual black nationalists on a "watch list" for the interceptlion
of international communications by the National Security
Agency. After 1969, the FBI began submitting names of citizens engaged
in domestlic protest and violence to the CL\ not only for investigaJtion
abroad. but also for placenwnt on the "watch list" of the CIA's
mail opening project. Similar lists Df names went from the FBI to the
Xational Security Agency. for usp on a "watch list" for monitoring
other channels of international communication.
(2) Operation ClJAOS.-The CIA did not restrict itself to servicing
the FBI's requests. UncleI' 'White House pressure, the CIA developed
its own program-Operation CHAOS-as an adjunct to the
,.. Memorandum from C. D. Brennan to W. C. Sullivan re New Left Movement.
2/3/69.
". SAC Letter No. 67-66, 11/7/67.
100
CIA~s foreign count€rintelligence acti,-ities. although CIA officials
recognized from the outset that it had "definite domestic counterin·
tell igrnce asprcts." 400
Former CIA Director Richard Helms testified that he established
the program in response to Prrsident .Tohnson~s persistent interest in
the extrnt of forrign infhwnce 011 domestic dissidents. According to
Helms~ the President would repeatedly ask. "How are you getting
along with your examination r~ and "Have you picked up any more
information on this subject?" 451
The first CHAOS instructions to CIA station chiefs in August 1967
described the need for "keeping tabs on radical students and U.S.
Negro expatriates as ,wll as travelers passing through certain select
are,as abroad." The originally stated objective ,yas "to find out [the]
extent to which Soyiets. Chicoms (Chinese Communists) and Cubans
are exploiting our domestic problems in terms of espionage and sub,-
ersion." 452
Following the consistmt pattern of intelligence actirities, those
original instructions gradually broadened withont any precision in the
kind of forf'iign contacts which ,wre to be targeted by CIA operations.
For example:
-President Johnson asked the CIA to conduct a study of
"International Connections of the U.S. Peace Movement" following
the October 1967 demonstration at the Pentagon.453
In response~ CIA headquarters sent a directiye to CIA stations
seeking information on "illegal and subversive" connections
between U.S. aCJtivists and "communist, communist
front, or other anti-American and foreign elements abroad.
Such connections might range from casual contacts based
merely on mutual interest to closelv controlled channels for
party directives." [Emphasis added:] 454
-In mid-1968, the DDP described CHAOS to CIA stations
as a "high priority program" concerning foreign "contaets"
with the "Radical Left." which was defined as: "radical students,
antiwar activists. draft resistrrs and deserters. black
nationalists, anarchists~ and assorted 'New Leftists.'" 455
-In 1969, President Nixon's White House required the
CIA to study foreign communist support of American protest
groups and stressed that "support" should be "liberally const:
ued" to include "encouragement" by Communist countrIes.
456
-In the fall of 1969, CIA stations were asked to report on
any foreign support, guidance, or "inspiration" to protest
act.ivities in the United States.1St
... :\Iemorandum from Thomas Karn.me~~ines to .1ame~ Angleton, 8/15/67, p. 1.
451 Helm~. Rockefeller Commission, 4/28/75. pp. 2434-2435.
.., CIA HeadQuartel'1l cahle to ~PYl'ral firld ~tations, Aug-ust. 1967, p. 1.
""'Memorandum from Richard Helm~ to Prpsidl'nt .1ohnson. 11/15/67.
... VIA Cable from Acting DDP to various field stations. November 1967,
pp.I-2.
455 CIA Cable from Thomas Karamessines to various field stations, .July 1968,
p.l.
"" :\Il'morandum from Tom Hu~ton to the Deputy Dirl'ctor, CIA, 6/20/69, p. 1.
<51 Cable from CIA headQuartel'1l to stations, Xovemher 1969.
101
Thus, this attempt to ascertain and evaluate "foreign links" was so
broadly defined that it n>quil'ed much more than background information
or inYestigation of a fe\v individuals suspected of being agents
directed by a hostile power. Instead, at a time when there was
considel'llble international communication and travel by Americans
engaged in protest and dissent, a substantial segment by American
protest groups was encompassed by CIA collection requirements to
investigate foreign "encouragement," "inspiration," "casual contacts"
or "mutual interest." Once again. the use of elastic \yords in mandates
for intelligence activity resulted in overbroad coverage and collection.
In addition to their inteUigence activity directed at Americans
abroad, CHAOS undercover agents, while in the United States in
preparation for overseas assignment or between assignments, provided
substantial information about lawful domestic activities of dissident
American groups, as well as providing leads about possible foreign
ties.458 In a few instances, the CIA agents appear to have been encouraged
to participate in specific protest activity or to obtain particular
domestic information.459 The CHAOS program also involved obtaining
information about Americans from the CIA mail opening project
and other domestic CIA components 460 and from a National Security
Agency international communications intercept program.461
CIA officials recognized that the CIA's examination of domestic
groups violated the Agencis mandate and thus accorded it a high
degree of sensitivity. As CIA Director Richard Helms wrote in 1969,
when he transmitted to the White House the CIA's study of "Restless
Youth :"
In an effort to round out our discussion of this subject, we
have included a section on American students. This is an area
not within the charter of this Agency. so I need not emphasize
how extremely sensitive this makes the paper. Should anyone
learn of its existence, it would prove most embarrassing for
all concerned.462
The reaction to such admissions of illegality was neither an instruction
to stop the program or an attempt to change the Jaw. Rather, the 'White
House continued to ask for more information and continued to urge
the CIA to confirm the theory that American dissidents were under
foreign controI.463
Director Richard Helms testified that the only manner in which
the CIA could support its conclusion that there was no signi.ficant
foreign influence on the domestic dissent, in the race of incredulity
at the ,Vhite House, was to continua]]y expand the coverage of
CHAOS. Only by being able to demonstrate that it had inYestiga~ed
all anti-\var persons and all contacts bebveen tlH'm and any foreIgn
'58 C'harlPR ~IarcnleR tpl'timony, Rockefeller CommiRsion, 3/10/75. pp. 1538-1547,
1:;66-1';67: OllPr, 1)/24/7ii, p. 46. (For security reasons, the CHAOS agent case
officpr teRtifipd aR "Charles Marcnles".)
,,. :\larcnleR Contact Report, 4/17/71; }Iarculps, Rockefeller Commission, 3/10/
7ri. pp. 10')('1-1 i"iI'iR.
"'0 ~remorandl1m from Richard Ober to Chief, CI Project, 2/15/72.
461 Olwr. 10/30.7:; DD.l6-17.
46. Lptter from Richa rd HelmR to Hpnry KiRRingpr, 2/18/61).
463 Richard Helms deposition, Rockefeller Commission, 4/24/75, p. 223.
102
person could CIA "prove the negative" that none "'ere under foreign
domination.4G4
In ID72, the CIA Inspector General Jound "general concern" among
the overseas stations "over what appeared to constitute a monitorinlY
of the political vie,,-s and activities of Americans not known to be. o~
suspected of, being im'oh'ed in espionage." Se\'eral stations had "doubts
as to the nature and legitimacy of the program" because requests for
reports on "prominent persons" were based on "nebulous" allegations
of "subversion." 465 This led to "a reduction in the intensitv of attention
to political dissidents," 466 although the program was n~t terminated
until ;\larch 1974.467
By the end of the CHAOS program. 1:),000 different files were accumulated,
including more than 7.200 on American citizens. Documents
in these files included the names of more than :)00,000 persons and
groups, indexed by computer.4GB In addition to collecting information
on an excessive number of persons. some of the kinds of information
"-ere wholly irrelevant to the legitimate interests of the CIA or any
other government agency. For example. one CIA agent supplying
information on domestic activities to Operation CHAOS submitted
detailed accounts of the activities of ,,-omen who were interested in
""'omen's liberation." 4G9
c. 01A Security OperatioT/s Within the United States: Protee
·ting "Sources" and "jI[ethods"
The National Security Act of 1947 granted the Director of Central
Intelligence a vaguely-worded responsibility for "protecting intelligence
sources and methods from unauthorized disclosure." 470 The
legislative history of this provision suggests that it was initially
intended to allay concerns of the military sen-ices that the new CIA
would not oper~te with adequate safeguards to protect the military
intelligence secrets which would be shared with the CIA.471 However,
this authority was later read by the CIA to authorize infiltration of
domestic groups in order to protect CIA personnel and facilities from
possibly violent public demonstrations. It was also read to permit
electronic surveillance and surreptitious entry to protect sensitive
information.
The CIA undertook a series of specific security investigations within
the rnited States, in some cases to find the source of news leaks and
in others to determine whether government employees were involved
in espionage or otherwise constituted "security risks." These investigations
were directed at former CIA employees, employees of other
government agencies, ne,,-smen and other prh-ate. citizens in this'
countrv.472 Among the techniques used were physical surveillance,
... Hl'lms dl'position, Rockl'fl'ller Commission, 4/24/75, p. 234; 0ber deposition,
RO<'kefeller Commission, 3/28/75, pp. 137-138,
... Ml'morandum from Inspector General to Executive Director-Comptroller,
11/!l172, p. 1.
-l\fl'morandum from EXl'cutiYe Dirl'ctor-Comntroller to DDP, 12/20/72.
..7 Cable from CIA Director William Colby to Field Stations, March 1974.
... Rockefeller Commission Report. p. 23.
... Alt'ent 1. Contact Report, Volume II. Ag-ent 1 file.
47°;;0 P.S.C. 403 (d) (3l.
471 Lawrpncc Houston testimony, Rockrfeller Commission. 3/17/75, pp, 16i'i416,';
5.
m Rockefeller Commission Report, pp. 162-166.
103
mail and tax information cm'erage, electronic surveillance, and surreptitious
entry. Attorney General Robert Kennedy appears to have
authorized CIA wiretapping in one of these investigations. ",Yith this
exception, howewr, there is no suggestion that the CIA's security
investigations were specifically approved by the Attorney General.473
The CIA Office of Security established two programs directed at
protest demonstrations which im'oh'ed the CIA in domestic affairs
on the theory that doing so was necessary to safeguard CIA facilities
in the "United States.''' Proiect MERRIMACK (1967 to 1973) involved
the infiltration by CIA agents of ·Washington-based peace
groups and Black activist groups. The stated purpose of the program
,,-as to obtain early ,varning of demonstrations and other physical
threats to the CIA. However, the collection requirements were broadened
to include general information about the leadership, funding,
activities, and policies of the targeted groups.
Project RESISTAKCE (1967 to 1973) was a broad effort to obtain
general background information about radical groups 'across the country,
particularly on campuses. The CIA justified this program as a
means of predicting violence which might threaten CIA installations,
recruiters, or contractors. and gathering information ,vith which to
evaluate applicants for CIA employment. )luch of the reporting by
CIA field offices to headf!uarters was from open sources such as newspapers.
But additional information was obtained from cooperating
police departments, campus officials, and other local authorities,
some of whom in turn were using collection techniques such as
informants.
These programs illustrated fundamental weaknesses and contradictions
in the statutory definition of CIA authority in the 1947 Act.
",Vhile the Director of Central Intelligence is charged with responsibility
to protect intelligence "sources and methods." the CIA is forbidden
from exercising law enforcement and police powers and
"internal security functions." TIlE' CIA newr went to Congress for
a clarification of this ambiguity. nor did it seek interpretation from
the chid legal oflicpr of the rnitt'cl Statps-the AttorlH'y Generalexcept
on the rarest of occasions.477
m According to a "memorandum for the record" Rent by CIA General CounRel
Lawrence R. Houston to Deputy Attorney General "'ilIiam P. Rogers in 1954, an
agreement was reached at that time allo\ying the CIA to inYestigate on its own
any "aetual or probable yiolation of criminal statutes" involving the CIA's
"covert operations" and to determine for itself, without consulting the .Justice
Department, whether there were "possihilities for prosecution." The Justice
Department would not he informed if the CIA decided that there should be
no proseC'ution on tlw ground that it might lead to "revelntion of highly classified
information." Dlemorandum from Houston to Rogers. 3/1/54. and enclosed
memorandum from HOl1ston to the Director of Central Intelligence. 2/23/54.)
This praC'tice was re\'iewed and re-confirmed internally within the CIA on at
len,~t t,vo suhsef]uent orcllsions. Ofemorllndum from Houston to the Assistant
to the Dirpctor, CIA, l/ll/flO: memornndnm from Honston to the Depnty Director
of Centrnl IntelligenC'e. 6/10/64,) It was not terminated nntil 1975, (Memoranrlllm
from .Tohn S. \"arner. CIA (ipupral COllnsel, for the record. 1/31/75.)
iT< These CIA aeth·ities, Pro:iects :\fERRnIACK and RESTSTA~CE. were de,
scrihed in great detail hy the Rockefeller Commission. (Rockefeller Commission
Renort ('hs, 12 and 1:l.)
'" The Rockpfpllpf Commission Rpport rlescrihps "... two cases in whic]' telpphonps
of three ne\\'smen \\,pre 'tapped ... rOl1e] oC'cnrred in 1002. apparently
\yith till' knowlpdge and consent of Attorney General Kennedy." (Rockefeller
Commission Report, p. 164.)
104
d. NSA Monitoring
The Kational Security Agency was created by Executiye Order in
1952 to conduct "signals intelligencr," including the interception and
analysis of messages transmitted by electronic means. such as telephone
calls and telegrams,478 In contrast to the CIA, there has never
been a statutory "charter" for NSA.
The executi,:e directives ,vhich nuthorize XSA'sactiyities prohibit
the agency from monitoring communication between persons within
the United States and communication concerning purely domestic
affairs. The current NSA Director testified:
[The] mission of NSA is directed to foreign intelligence obtained
from foreign electrical communications....479
Howeyer. NSA has interpreted "foreign communications" to include
communication ,vhere one terminal is outside the United States. 'ender
this interpretation. NSA has. for many years, intercepted communications
between the United States and a foreign country eyen though
the sender or receinr was an American. During the past decade, NSA
increasingly broadened its interpretation of "foreign intelligence"
to include economic and financial matters and "international
terrorism." 480
The oyerall consequence. as in the case· of CIA actiyities such as
Project CHAOS, was to break down the distinction between "foreign"
and "domestic" intelligence. For examplr. in the 1960s. NSA began
adding to its "watch lists." at the request of various intelligence agencies.
the names of Americans suspected of inyolyement in civil disturbance
or drug activity which had some foreign aspects. Second,
Operation Shamrock. ,,,hich began as an effort to acquire the telegrams
of certain foreign targets, expanded so that NSA obtained from
at least two cable companies essentially all cables to or from the
Fnited States, including millions of the private communications of
Americans.
6. Intru8h'e Techniques
As domestic intelligencr actiyity increasingly broadened to cover
domestic dissenters undE'r many different programs. the government
in~ensifiedthe use of conrt techniquE'S which intruded upon individual
prIvacy.
Informants were used to gather more information about more
Americans, often targeting an indiyidual because of his political views
and "regardless of past or present inyolyement in disorders." 483 The
CIA's mail opening program increasingly focused upon domestic
groups, including "protest and peace ol'/ranizations" which ,vere covcreel
at the FBI's request.484 Similarly, NSA-Iargely in response to
Army, CIA, and FBI pressures-Bxpanded its international interception
program to include "information on U.S. organizations or indiyiduals
""ho arc engaged in actiyities which may result in civil
'" Memorandum from Pr~ident Truman to Secretary of Defenge, 10/24/52.
"" General Lew Allen testimony, 10/29/75, Hearings, Vol. 2. p. 6.
,"0 Allen, 10/29/75. Hearings. vol. 2. p. 11. The programs of NSA are di,scussed
further in the ~uccee-ding~ection, "Intru~iYeTechniques," p. 183.
~'" ~Iemorandum from FBI Executive Conference to ~Ir. Tol~on, 10/29/70. See
pp.74-76.
... ~Iemorandumfrom Hoover to Angleton, 3/10/72.
105
disturbances or othenyise subvert the national securitv of the United
States.~' 485 .
During this period, Director Hoover ordered cutbacks on the FBI's
use of a number of intrusin~ techniques. Frustration ,yith Hoover~s
cutbacks was a substantial contributing factor to the effort in 1970coordinated
by 'White House Aide Tom Charles Huston and strongly
supported by CIA Director Helms. XSA Director Gaylor and
Hoover~s Intelligence Division subordinates-to obtain Presidential
authorization for numerous illegal or questionable intelligence
techniques.
a. lVarrantle88 Electmnic Surveillance
(1) Exec-utive Branch Re8tricticm.s on Electronic Suruillanc:e:
19C.5-L9G8.-In ~farch 1965. Attornev General Xicholas deB. Katzenbach
established a new requirement for the FBI's intelligence operations:
the Bureau had to obtain the written approval of the Attorney
General prior to the implementation of any microphone suneillance.
He also imposed a six month limitation on both wiretaps and microphone
suneillances~ after ,yhich time ne,,, requests had to be submitted
for the Attorney General's re-authoriz'ation.486
Upon Katzenbach's recommendation, President Johnson issued a
directive in .June 1965 forbidding all federal gonrnment wiretapping
"except in conjunction with investigations related to national
security." 487 This standard was reiterated by Attorney General Katzenbach,
for both wiretapping and microphone surveillances three months
later. and again in .July 1966.487a
'Vhile the procedures were tightened. the broad "national security"
standard still allowed for qupstionahle authorizations of electronic
surveillance. In fact. Katzenbach told Director Hoover that he would
"continue to approv~ all such requests in the future as I have in the
past." He saw "no need to curtail any such actiyities in the national
security field." 488
In line with that policy~ Katzenbach approved FBI requests for
wiretaps on the Student Non-Violent Coordinating Committee,489
Students for a Democratic Society,490 the editor of an anti-communist
newsletter,491 a 'Washington attorney with whom the editor was in
frequent contact,492 a Klan official,493 and a leader of the black Revolutionary
Action Movement.494 According to FBI records~ Katzenbach
also initialed three memoranda informing him of microphone surveillances
of Dr. Martin Luther King, J 1'.495
... Memorandum from NSA MINARET Charter, 7/1/69.
... Memorandum from Hoover to Katzenbach, 3/30/65.
.., ~Iemorandum from President .Johnson to Hpads of Departments, 6/30/65.
..,. Memorandum from Katzenbach to Hoover. 9/27/65: Supplemental Memorandum
to the Supreme Court in Black v. United States, JUly 13, 1966.
Katzenbach also stated to Hoover that while he believed such techniques
could be properly used in cases involving organized crime, he would not approve
any such requests in the immediate future "in lil!'ht of the present atmosphere."
... Memorandum from Katzenbach to Hoover, 9/27/65.
... Memorandum from Hoover to Katzenbach, 6/15/65.
... Memorandum from Hoover to Katzenbaeh, 5/25/65.
<91 ~Iemorandum from Hoover to Katzenbach, 4/19/65, see footnote 266.
40' ~Iemorandum from Hom-°er to Katzenbach, 6/7/65, see footnote 266.
'"'Memorandum from Hoover to Katzenbach, 9/28/64.
••• :\Iemorandum from Hoover to Katzenhach. 3/3/65.
"5 Memoranda from Hoover to Katzenbach, 5/17/65, 10/19/65, 12/1/65.
106
There were no similar eleetronie surveillanee authorizations hv
Attorney General Ramsey Clark in eases involvinl! purely domesti'c
"national securiti' considerations.<9G Clark has stated that his policy
was "to confine the area of approval to international acti,'iti('s directly
related to the military security of the United States.<97
(2) Omnibu8 Orim'e Oontrol Act of 1.968.-1n response to a 1967
Supreme Court decision that required judicial warrants for the use of
electronic surYeillance in criminal cases,498 Congress enacted the Omnibus
Crime Control Act of 1968. This Act established warrant procedures
for wiretapping and microphone surveillances. but it included a
provision that neither it nor the Federal Communications Act of 19~4
"shall limit the constitutional power of the Pr('sident." 499 Although
Congress did not purport. to define the President's power,500 the Act
suggested five broad categories in which warrantless electronic surveillance
might be permitted. The first three categories related to
foreign intelligence and counterintelligence matters:
(1) to protect the nation against actual or potential attack
or other hostile acts of a foreign power;
(2) to obtain foreign intelligence information deemed essential
to the security of the United States; and
(3) to protect national security information against foreign
intelligence activities.
The last two categories dealt with domestic intelligence interests:
(4) to protect the United States against overthrow of the
government by force or other unlawful means, or
(5) against any other dear and present danger to the structure
or existence of the government.
Thus. although Con.gTeSS suggested criteria for warrantless eleetronic
surveillance for intelligence purposes, it left to the courts the task of
defining the scope of the national security exception, if any, to the
warrant requirement.
Between 1969 and 1972. the ~ixon administration used these criteria
to justify a number of questionable wiretaps. One New Left organization
was tapped becallse. among other factors. its members desired
to "take the radical politics they learned on camplls and spread them
among factory workers." 501 Four newsmen were wiretapped or bugged
during this period. as were sixteen executive branch officials, one
'00 For example. Clark turned down FBI requests to wiretap the National
Mohilization Committee Office for Demonstrations at the Democratic National
Conyention in Chicago in 1968. (Memoranda from Hoover to Clark 3/B/6R.
3/22/6R. 6/11/6R\. Clark decided that there was not "an adequate demonstration
of a direct threat to the national ~ecurity." (Clark to HooYer, 3/12/68) (These
memoranda appear at Hearings, Vol. 6, pp. 740-755.
497 Clark has stated that he denied requests "to tap Abha Ehan when he was
on a visit to this country, an employee of the United Nations Secretariat. the
Org-nnization of Arah Students in the F.S.. the Tanzanian ~Iission to the P.N.,
the offi(>e of tbe Agricultural Counselor at the Soyiet Emhassy and a corre~nondent
of TASS." [Statement of Former Attorney General Ramsey Clark, Hearings
hefore the Sllhcommittee on Administrativp Practice and Procedure, Committee
on thl' Judiciary. Fnitpd Statps Sennte (1974 \.1
'''' Katz Y. United States. 397 U.S. 347 (1967\. This case explicitly left open
tlw (]11P~tion of warrnntlpss plectronic snryeillance in "situation (s) involYingtlw
nationnl spcnrit"." (397 U.S.. at 358 n. 23.)
'9911' FS.C. 2511 (3).
500 Spp Unit('d Statcs Y. Unitcd Stat('s Distri('t Cnurt. 407 r.s. 2!l7 (1972).
G01 Memorandum from Hoover to Attorney General Mitchell, 3/16/70.
107
former executiye official, and a relative of an executive officia1." 502
There were IllllllerOllS wiretaps and some microphones used against the
Black Panther Party and similar domestic groups.503 Attorney General
.Tohn )litchell approved FBI requests for wiretaps on organizations
involyed in planning the November 1969 antiwar ")larch on
·Washington,·~ including the moderate Vietnam Moratorium Committee.
503'
(3) Supreme CO/at Rcstl'ictions on National Security Electronic
Surveillance: 1,97B.-.:The issue of national security electronic suneillance
was not addressed by the Supreme Court until 1972, when it held
in the so-called Keith case that the President did not haye the "constitutional
power" to authorize warrantless electronic suryeillance to
protect the security of the nation from "domestic" threats.504 The Cou~t
still remained silenL hmyeyer, on the legality of warrantless electrolllC
suryeillance where there was a "significant connection with a foreign
power, its agents or agencies." 505 As a result of this decision, the Justice
Department eliminated as criteria for the use of warrantless electronic
suryeillance the two categories, described by Congress in the
1968 Act, dealing with domestic intelligence interests.506
b. CIA Mail Opening
AIthour:h Director Hoover terminated the FBI's own mail opening
progrJ.lms~in 1966, the Bnrean's nse of the CIA program continued. In
1969. upon the recommendation of the official in charge of the CIA's
CHAOS program, the FBI began submitting names of domestic political
radicals and black militants to the CIA for inclusion on its mail
opening "·Watch List." 507 By 1972, the FBI's list of targets for CIA
mail opening included:
New Left activists, extremists, and other subversives.
Extremist and Xew Left organizations.
Protest and peace organizations, such as People's Coalition
for Peace and .Justice, Kational Peace Action Committee, and
Women's Strike for Peace.
Sub"ersire and extl'emist g"l'OUps. such as the Black Panthrrs.
·White Panthers. Black Nationalists and Liberation
Groups, Students for a Drmocratic Society, Resist, Revolutionary
Union, and other New Left Groups.'
W! See Findings C and E. pp. 183 and 225.
503 For example. at one time in ~Iarch 1971 the FBI wa::; conducting one microphone
surveillance of Black Panther Party leader Huey Xewton. seven wiretaps
of Black Panther Party offices including Xe,,·ton's residence. one wiretap
on another hlack extremist group. one wiretap on .Tewish Defense League headquarters.
one wiretap on a "New Left extremist group". and t,,·o wiretaps on
"New Left extremist actirities." (Memorandum from W. R. Wannall to C. D.
Rrf'nnan. 3/W/71, printed in Hearings. YoL II, pp. 2,0-271.)
50'" ~remoranda from HOOYE'r to Attorney General :\Iitchell. 11/5/69 and
11/7/6fl. This anrl other aspects of electronic surveillance in this period are
discussed In Findings (' and E in greater detail. pp. 183 and 22".
50< rnitrd 8fatr8 v. PlIifrd 8tafr.~ ni8frict rourt. 407 r,S. 2fl, (1972).
"'" T"lIifrd 8faf"8 v. Fnifr(/ 8tatr8 ni8fl'icf rourt. 407 r,S.. at 309 (1972),
500 ~remoraJ1(lum from William Olson to Elliott Richardson..Tune 1973. TTntil
lfl7;'. hmvever. the .Justice Department stretched the term "connection with a
forpign power" to inclUde domestic groups. such aR the .Tewish Defpnsp League,
whosf' protest actions against a foreilm nation were helieved to threaten the
rnited States' relations \vith that nation. [ZwriIJon v. Jfitrhr77. 516 F. 2d 594
(D.f'. f'ir. lfl,;,),]
607 Memorandum from FBI/CIA Liaison Agent to D. J. Brennan, 1/16/69.
108
Traffic to and from Puerto Rico and the Virgin Islands
showing anti-U.S. or subversive sympathies.50S
Thus~ thr mail opening program that began fourteen years earlier as a
means of discoYrring hostile intelligence efforts in the United States
had expanded to encompass communications of domestic dissidents of
all types.
c. Expansion of NSA Monitoring
Although NSA began to intercept and disseminate the communications
of selected Americans in the early 1960s~ the systematic inclu'
3ion of a wide range of American names on the "Watch List" did not
occur until 1967.
The Army Chief of Staff for Intelligence requested "any information
on a continuing basis" that NSA might intercept concerning:
A. Indications that foreign governments or individuals or
organizations acting as agents of foreign governments are
controlling or attempting to control or influence the activities
of U.S. "peace" groups and "Black Power" organizations.
B. Identities of foreign agencies exerting control or influence
on U.S. organizations.
C. Identities of individuals and organizations in U.S. in
contact with agents of foreign governments.
D. Instructions or advice being given to U.S. groups by
agents of foreign governments.509
Two years later. NSA issued an internal instruction intended to
ensure the secre('v of the fact that it was monitoring and disseminating
commnnications to and from Americans.51O This memorandum
described the "\Yat('h List" program in terms which indicated that
it had widened beyond its originally broad mandate. In addition to
describing the prog-ram as covering- foreigners who "are attempting"
to "influence, coordinate or control" U.S. groups or individuals who
"mav foment civil disturbance or otherwise undermine the national
security of the U.S.." the memorandum indicated that the program
intercepted communications dealing with:
Information on U.S. organizations or individuals who are
engaged in activities wh'ich may result in civil disturbances
or otherwise subvert the national soourity of the U.S.51l
This standard. which was clearly outside the foreign intelligence
mandate of NSA, resulted in sweeping coverage. Communications
such as the following were intercepted, disseminated, and stored in
Government filps: discussion of a peace concert: the interest of the
wife of a U.S. Senator in peace causes; a correspondent's report from
Southeast Asia to his ma.galline in New York; an anti-war activist's
request for a speaker in New York.
According to testimony before the Committee. the material which
resultpd from the "\Vatch List" was of little intelligence value; most
5<l8 Routing Slip from J. Edgar Hoover to .Tames Angleton (attachml'nt),
3/10/72.
609 DOD Cable. Yarborough to Carter, 10/20/67.
610 NSA's name, for example, was to be kept off any of the disseminated
"produi't."
611 MINARET Charter, 7/1/69.
109
intercepted communications were of a priYate or personal nature or
i1wolyed rallies amI demonstrations that were public Imowlfodge.512
d. FBI Clltbacks
The reasons for .r. Edgar Hoover's cutback in Hl66 on FBT use of
several COye1t techniques are not clear. HoO\"er's former assistants
have cited 'Yidely divergPllt factors.
Certainly by the mid-1960s. Hoover was highly sensitive to the
possibility of danmge to the FBI from public exposure of its most
intrusive intelligence techniques. This sensitiYity was reflected in a
memorandum to Attorney General Katzenbach in September 1965,
where Hom"er refel'rerl to'''the present atmosphere" of "Congressional
and public alarm and opposition to any activity which could in any
way be termed an invasion of privacy." 513 The FBI Director was
particularly concerned about an inquiry by the Subcommittee on
Aclministrati'"e Practice and Procedure of the Senate .Judiciary Committre
ch~ired bv Senator Edward Long.
(1) The Long" Subcommittee Im·pstigatiol1.-The Senate Subcommittee
was primarily investigating electronic surwillance and mail
cover. The Bureau \yas seen as a major subiect of the inquiry, although
the Internal Revenue Service and other Executive agencies
were also included.
In Februarv 1965. President .Tohnson asked Attornev General
Katzenbach to coordinate all matters relating to the im:estigation,
and Katzenbach then met with senior FBI officials to discuss the
problems it raised.515 According to a memorandum by A. H. Belmont,
one of the FBI Director's principal assistants, Katzenbach stated
that he planned to seC' Senator Edwarcl Long. the Subcommittee
chairman. for the purpose of "impressing on him that the committee
would not want to stumble by mistake into an area of extreme interest
to the national security.;' According to Belmont. the Attorney
General added that he "might have to resort to pressure from the
President" anrl that he aid not want the Subcommittee to "undermine
the rrstrirted and tightly controllprl operations of the Bureau."
FBI officials had assured Katzenbach that their actiyities were, indeed,
"tightly controlled" and restricted to "important security
matters." 516
The following note on the memorandum of this meeting provides
a sign of Director HooYer's attitude at that time:
I don't see \vhat all the excitement is about. I would have nO
hesitancy in discontinuing all techniques-technical coverage.
microphonrs. trash coyers, mail covers, etc. 'Vhile it
mirrht handicap us I doubt they are as yaluablc as some
51'W. R. W~nnall IFRT A~~i~tant Dirf'ctor for Intf'lIil:pncp). 10/3/75. p. 13.
"Thp fppling i~ thM therp wa~ "pry littlp in the way of goorl prorlnct as a resnlt of
onr h~"in.l: snnnliNl nanw~ to XSA."
5l:l:\[Pillornnnllill from Hom"er to Kntzenhal"h. 9/1 4/6;'). This mPilloranrlllm rlpalt
~npcif}('nlly with l'1f'dronil" surwillnncp anrl rlirl not illf'ntion mail opf'nings or
"Rlrrck Rnl: .Tohs." Hom'er ~airl tllP FBI harl "fliscontinllP(]" microphone sur"eilInll('
f'S Ihllg~). rr rpsrridion which Attomev Gl'neral Katzenhaeh said went too
far. (K~tzl'nha,..h to Hom"pr. 9/27/(;i).) .
5L':\[l'11101'"nr111m from A. H. Bplmont to Mr. Tolson. 2/27/65. Katzpnhaeh testimonv.
12/3/7". Hparing~. Vol. fl. p. 204.
516 :\lpmorandum from A. H. Belmont to C. Tolson. 2/27/65.
110
believe and none warrant the FBI being used to justify
them.511
Several days later, according to a memorandum of the FBI Director,
the Attorney General "adVIsed that 11e had talked to benaLOr Long,"
and that t11e benatOl' "said 1112, lnd. not want to get lllto allY nauollal
security area." 510 Katzenbach has contirmed that 116 "would have been
concerned" in these Circumstances alJout the ~ubcommltteesdemands
for informatlOn about "matters of a national seCUl'lty nature" and that
he was "declining to provide such information" to Long.51
"
Again in UHi6, the FBI took steps to, in the wordS of Bureau official
Cartha DeLoach, "neutralize" the "threat of being embarrassed
by the Long Subcommittee." 5"0 This time the issue mvolved warrantless
electronic surveillance by the FBI, particularly in organized
crime matters. DeLoach and another ranking Bureau official visited
Senator Long to urge that he issue a statement that "the FBI had
never participated in uncontrolled usage of wiretaps or microphones
and that FBI usage of such devices had been completely justified in an
instances." 521 The Bureau prepared such a statement for Senator
Long to release as his own, which apparently was not used.522 At
another meeting with DeLoach, Senator Long agreed to make "a
commitment that he would in no way embarrass the FBL" When the
Subcommittee's Chief Counsel asked if a Bureau spokesman could
appear and "make a simple statement," DeLoach replied that this
would "open a Pandora's box, in so far as our enemies in the press
were concerned." Senator Long then stated that he would call no
FBI witnesses.523
(2) Director Hoover's Restrictions.-The Director subsequently
issued instructions that the number of warrantless wiretaps installed
at anyone time be cut in half. One of his subordinates speculated
that this was done out of a concern that the Subcommittee's "inquiry
might get into the use of that technique by the FBI." 524
In July 1966, after hundreds of FBI "black bag job" operations
had been approved over many years, Director Hoover decided to
eliminate warrantless surreptitious entries for purposes othe,r than
microphone installations.525 In response to an Intelligence Division
analysis that such break-ins Were an "invaluable technique," although
"clearly illegal," Hoover stated that "no more such techniques must
be used." 526 Bureau subordinates took Hoover's "no more such tech-
617 Hnover Note on Belmont Memorandum to Tolson. 2/27/65.
518 Memorandum from Hoover to Tolson, et aT., 3/2/65.
OJ" Katzenbach testimony. 12/3/75, Hearings, Vol. 6, pp. 205-206.
62(l ~frmorandumfrom DeLoach to Tolson. 1/21/66.
521 :\Irmorllndnm from DI'Lollf'h to Tol~"n. ] /10/fl6.
m Memorandum from )'f. A. Jones to Robert Wick, 1/11/66.
M3 Mrmorandum from DeLollch to Tolson, 1/21/66.
524 C. D. Brl'nnan deno~ition. 9/23/7fi. p. 42.
525 According to FBI records and the recollections of Bureau llgents. the following
numher of microphone surveillances involving "~urreptitious entry" were
in~talled in "internal sl'curity, intl'llig-encl', lind counterintellig-l'nce" investigations:
1964: SO: 100,,: "fl: 1966: 4: 1967: 0: 100S: fl: lfl6fl: S: 1fl70: 1,,: lfl71 : 6;
1fl72: 22: Hl73: 1S: 1fl74: 9; 1flT;): 13. Thl' ~imilllr fig-nres for "criminal inve~tig-ations"
lindufHng- in~tlll1ations authorized hy judicial warrant after 1008) are:
1!)()4: 1'3: Ifl6:l: 41 : 1oofl: 0; 1967: 0: Hl6S: 0: 1flnfl: 3: H170: II: ]971: 7: 1fl72:
1!l' H)7::!: 27: 1974: 22; 1975: 11. (~femorllndum from FBI to Select Committee,
10/17/75. )
". Hoover note on memorandum from Sullivan to DeLoach, 7/19/66. This
memorandum cited liS a "prime example" of the utilitv of a "blllCk hag- johs" a
breakin to steal records of three high-ranking Klan officials relating to finances
111
niques" language as an injunction against the Bureau's mail opening
program as well.""' Apparently, a termination order was issued to
field offices by telephone. FBI mail-opening \yas suspended, although
the Bureau continued to seek information from CIA's illegal
mail-opening program until its suspension in 1973.
A year and a half before Hoover's cutbacks on wire-tapping, "black
bag jobs," and mail-opening, he prohibited the FBI's use of other
covert techniques such as mail co\"ers and trash covers.528
FBI intelligence officials persisted in requesting authority for "black
bag" techniques. In 1967 Director Hoover ordered that "no such recommendations
should be submitted." 529 At about this time, Attorney
General Ramsey Clark was asked to approve a "breaking and entering"
operation and declined to do 80.530 There was an apparently unauthorized
surreptitious entry directed at a "domestic subversive target"
as late as April, 1968.531 A proposal from the field to resume mail
opening for foreign counterintelligence purposes was turned down by
FBI officials in 1970.532
7. Accountability and Oontrol
a. The Huston Plan: A Domestic Intelligence Network
In 1970, pressures from the 'White House and from within the intelligence
community led to the formulation of a plan for coordination
and expansion of domestic intelligence activity. The so-called "Huston
Plan" called for Presidential authorization of illegal intelligence techniques,
expanded domestic intelligence collection, and centralized evaluation
of domestic intelligence. President Nixon approYed the plan and
then, five days later, revoked his approval. Despite the revocation of
official approvaL many major aspects of the plan \vere implemented,
and some techniques which the intelligence community asked for
permission to implement had already been underway.
In 1970. there was an intensification of the social tension in America
that had provided the impetus in the 19608 for eYer-widening domestic
intelligence operations. The spring invasion of Cambodia by United
States forces triggered the most extensive campus demonstrations and
student "strikes" in the history of the \var in Sontheast Asia. Domestic
strife heightened even further \yhen four students were killed by Naand
membership which "we haye been using most effectiYely to disrupt the
organization."
527 Wannall. 10/13/75, pp. 45-46. There is to this day no formal order prohibiting
FBI mail-opening. although Assistant Director ",,'annall contended that
general FBI :\[anual instructions now applicahle forbid any unlawful tl'chnique.
• 28 These tl'('hniques werl' not prohibited by law. Thl'ir use was bannl'd in all
cases. inclUding serious ('riminal investigations and forl'ign counterintelligl'nce
matters. (~Iemorandum from W. f'. SulliYan to A. H. Belmont. 9/30/64.) ~Iail
('overs. which may be uSNI to idl'ntify from thl'ir l'xteriors ('ertain Il'ttl'rs which
can then be openl'd with a ,iudicial warrant. Wl're rl'institutl'd with Justicl' Department
approyal in 1971. (~Iemorandum from Hom-er to ~Iitchell, 7/27/71;
~Iemorandum from Assistant Attorney Genl'ral Will Wilson to Hoover, 9/31/71.)
521 ~Iemorandum from Hoover to Tolson and DeLoa('h, 1/6/67.
530 "Once Mr. Hoover, apparently at the request of the :'Iational Security Agency,
sought approyal to break and pnt€'r into a foreign mission at the Fnited :'lations
to procure cryptographk matfrials to facilitate decoding of intrrcepted transIllis~
iollS. Thp request was presented with somp nrg('n('r, rp,iected and presented
again on perhnps sewml orrasions. It was neyer npprowcl and ('onstitllted the
only r('(]ue~t of tha t kind." [Rta teIJI('nt of former Attorne, General Ra I11sev Clark.
Henrings brfore thp Rennte Judiriarr Subcommittre on' AdministratiYe Practice
aIH] Pro('edure. (1974).1
5:11 ~Iemornnclnm from FBI to Senntl' Spied Committee. 2/23/75.
53. ~Iemorandumfrom W. A. Branigan to W. C. Sullivan, 3/31/70.
112
tional Guardsmen at Kent State "Cniversity. 'Vithin one twenty-four
hour period, there ,yere 4:00 bomb threats in Nmy York City alone. To
respond, ~"'hite House Chief of StafL H. R. Haldeman, assigned principal
responsibility for domestic intelligence plmming to staff assistant
Tom Charles Huston.533
Since June 1969, Huston had been in touch with the head of the
FBI Domestic Intelligence Division, Assistant Director ~William C.
Sulli,·an. Huston initially contacted Sullivan on President Nixon's behalf
to request "all information possibly relating to foreign influences
and financing of the New Left." 534 Huston also made similar requests
to CIA, NSA, and the Defense Intelligence Agency. The quality of
the data provided by these agencies, especially the FBI, had failed to
satisfy Huston and Presidential assistant John Ehrlichman.535 Thereafter,
Huston's continued discussions with Assistant Director Sullivan
convinced him that the restraints imposed upon domestic intelligence
techniques by Director Hoover impeded the collection of impOl
·tant information about dissident activity.536
(1) Intelligence Oommunity Press1lres.-The interest of the 'Vhite
House in better intelligence about domestic protest activity coincided
with growing dissatisfaction among the foreign intelligence agencies
with the FBI Director's restrictions on their performance of foreign
intelligence functions in America.537
The CIA's concerns crystallized in March 1970 when-as a result
of a "flap" over the CIA's refusal to disclose information to the
FBI-Hoover issued an order that "direct liaison" at FBI headquarters
with CIA "be ternlinated" and that "any contact with CIA
in the future" was to take place "by letter only." 538 This order did
not bar interagency communication; secure telephones were installed
and working-level contacts continued. But the position of FBI
"liaison agent" with CIA was eliminated.539
CIA Director Helms subseqnently attempted to reopen the question
of FBI cooperation with CIA requests for installing electronic
surveillances and covering mai1.540 Hoover replied that he agreed with
Helms that there should be expanded "exchange of information between
our agencies concerning ~ew Left and racial extremist matters."
However, he refused the request for aid with electronic surveillance
and mail coverage. Hoover cit~d the "widespread concern
633 Memorandum from John R. Brown to H. R. Haldeman, 4/30/70.
5MMemorandum from Sullivan to DeLoach, 6/20/69; Memorandum from Hus·
ton to Hoover. 6/20/69.
635 Tom Charles Huston testimony, 5/23/75, p. 19.
536 Huston, 5/23/75, pp. 23, 28.
537 Helms deposition, 9/10/75, p. 3; Bennett deposition, 8/5/75, p. 12; Gayler
deposition, 6/19/75, pp. 6-7. As early as 1963, the FBI Director had successfully
opposed a proposal to the President's Foreign Intelligence Advisory Board by
CIA Director John McCone for expanded domestic wiretapping for foreign
intelligence purposes. C\Iemorandum from W. C. Sullivan to C. D. DeLoach,
3/7/70\. In 1969, CIA Director Richard Helms was told by thl' Bureau. when he
asked it to institute electronic surveillance on behalf of the CIA, that he should
"refer sUi'h re(jue~ts direi'tly to Attorney General for approval." C\lemorandum
from Sullivan to DeLoach. 3/30/70.) The administrators of NSA also failed to
persuade Director Hoover to lift his restraints on foreign intelligencp plectronic
snrvpillance. (Staff summary of Louis Tordella interview. 6/16/75.)
538 Note by HooYer on letter from Hplms to Hoover~ 2/2fi/70.
<1' Former FBI Liaison with CIA tl'stimony. 9/22/71). p. 3.
..0 Memorandum from Sullivan to DeLoach, 3/30/70, pp. 1-2, 4.
113
by tlw American public regarding the possible misuse of this type of
cOn'rnge." Theil' n:"c in "(lome:"tic inn'stigations" po:"ed legal problems
not ellcountered ;;in similar opcrations abroad." Hoovcr added, "The
FBI's efi'ecti\-ene:"s has always depcnded in large measure on our
capacity to retain the fu]] confidence of the American pcople." ii41
(2) The Intemgency ('olnmittec Hepod.-In the follO\ying months,
Tom ellaI'll,s Ellston arranged a meeting between President Nixon
nnd the directors of the FBI, CL-,", );SA, awl DL\ on .Tnne 5, 1H70.542
The President's emphasis was npon improH'd coordination among the
agencies to strengt]wn their capabilities to collect intelligence about
"revolutionary aeti \-ism" an(l ;'the support-ideological and other\
vise-of foreign po\vers" for these aeti \-ities. The talking paper
prepared by IInston for the President to read at the meeting dcclared,
"'" c are now confl'Onted with a new and gnn-e crisis in our countryone
which we know too little about.ii43
From this meeting emanated the Special Report of the Interagency
Committee on Intelligence (Ad Hoc), prepared jointly by representatives
of the FBI, CIA, NSA, and DIA, and submitted to the President
a month late1'.541 The report presented the President a series of options,
and Huston recommended that the President approve the following:
(1) "coverage by NSA of the communications of U.S.
citizens using international facilities;"
(2) "intensification" of "electronic surveillances and penetrations"
directed at individuals and groups "who pose a
major threat to the internal security" and at "foreign nationals"
in the United States "of interest to the intelligence
community;"
(3) removal of restrictions on "legal" mail coverage and
relaxation of "restrictions on covert coverage" [mail opening]
on "selected targets of priority foreign intelligence and
internal security interest;"
(4) modification of "present restrictions" on "surreptitious
entry" to allow "procurement of vitally needed foreign cryptographic
material" and "to permit selective use" against
"high priority internal security targets;"
(5) relaxation of "present restrictions" on the "development
of campus sources" to permit "expanded coverage of
violence-prone and student-related groups;'
(6) "increased" coverage by CIA "of American students
(and others) traveling or living abroad;"
(7) appointment of a "permanent committee consisting of
the FBI, CIA, NSA, DIA. and the military counterintelligence
agencies" to evaluate "domestic intelligence" and to
"carry out the other objecting specified in the report." 545
Huston also raised and dismissed questions about the legality of
two collection techniques in particular. "Covert [mail opening] cov-
G41 ~Iemorandum from Hom-er to Helms, 3/31/70_
"'" Huston deposition, 5/23/75, p_ 32.
543 Presidential Talking Paper, 6/5/70, from the Nixon Papers.
!144 The report was written by the Research Section of the FBI Domestic Intelligence
Dh-ision on the basis of committee decisions and FBI Director Hoover's
revisions (Staff Summary of Richard Cotter interview, 9/15/75.)
"'" The seven recommendations were made in an attachment to a memorandum
from Huston to Haldeman, 7/70.
68-766 o· 76 • 9
114
erage is illegal, and there are serious risks involved," he 'Hote. "Hmvever,
the advantages to be derind from its use outweigh the risks." 546
As for surreptitious entry, Huston advised:
Use of this technique is clearly illegal: it amounts to burglary.
It is also highly risky and could result in great embarrassment
if exposed. However, it is also the most fruitful tool
and can produce the type of intelligence which cannot be obtained
in any other fashion." 547
Huston testified that his recommendations "reflected what I understood
to be the consensus of the ,,-orking group" of intelligence
officials on the interagency committee.548
.Just over a ,veek later, the FBI, CIA, NSA, and DIA ,,-ere advised
by Huston that "the President has ... made the following decisions"to
adopt all of Huston's recommendations.549 Henceforth, with Presidential
authority, the intelligence community could intercept the
international communications of Americans; eavesdrop electronically
on anyone deemed a "threat to the internal security;" read the mail of
American citizens; break into the homes of anyone regarded as a
security threat; and monitor the activities of student politicaJ groups
at home and abroad.
There is no indication that the President was informed at this time
that XSA was already covering the international communications of
Americans and had been doing so for domestic intelligence purposes
since at least 1967. Nor is there any indication that he was told that the
CIA was opening the mail of Americans and sharing the contents with
the FBI and the military for domestic intelligence p1ll'poses. In effect,
the "Huston plan" supplied Presidential authority for operations previously
undertaken in secret without such authorization. For instance,
the pfan gave FBI Assistant Director Sullivan the "support" from
"responsible quarters" which he had believed necessary to resume the
"black bag jobs'" and mail-opening programs Director Hoover had
terminated in 1966.550
Nevertheless. the FBI Director was not satisfied with Huston's
memorandum 'concerning the authorization of the plan.551 Hoover
went immediately to Attorney General Mitchell, who had not known
of the prior deliberations or the President's "decisions." 552 In a memorandum,
Director Hoover said he would implement the plan. but only
with the explicit approval of the Attorney General or the President:
04" :\Iemorandum from Huston to Haldeman, 7/70.
547 Memorandum from Huston to Haldeman. 7/70. In using thc word "burglary."
Huston said he sought to "escalate the rhetoric ... to make it as
bold as possible." He thought that. as a staff man, he should give the President
"the worst possible interpretation of what the recommendation would result
in." (Huston Mposition. 5/22/75. p. &<).)
54' Huston deposition. 5/22/75. p. 8.
5.9 ~[emorandnm fwm Tom Charles Huston to Intelligence Directors, 7/23/70.
"'''Memorandum from SulliYan to DeLoach, 4/14/70.
'" An as~istant to the head of the Defense Intelligence Agency recalls agreeing
with his superior that the memorandum from Huston to the intelligence directors
;.;howCli that the White Hou;.;e had "passed that one down about as low as they
could go" and that the absence of signatures by the President or his ton ahles
indicnted "what a hot potato it was." (Staff summary of James Stillwell interyiew.
5/21175.)
652 Mitchell testimony, 10/24/75, Hearings, Yol. 4, p. 122.
115
Despite my clear-cut and specific opposition to the lifting of
the various inwstigati\-e restraints referred to above and to
the creation of a permanent interagency committee on domestic
intelligence, the FBI is prepared to implement the
instructions of the ,Yhite House at your direction. Of course,
we would continue to seek your specific authorization, where
appropriate, to utilize the various sensitive investigative
techniques im-olved in individual cases. 553
CIA Director Helms shortly thereafter indicated his support for the
plan to the Attorney General, telling him "we had put our backs into
this exercise." 554 Nonetheless, Mitchell advised the President to withdraw
his approva1.S55 :Huston was told to rescind his memorandum,
and the 'Yhite House Situation Room dispatched a message requesting
its return.55G
(3) lmplementation.-The President's withdrawal of approval for
the "Huston plan" did not, in fact, result in the termination of either
the NSA program for covering the communications of Americans or
the CIA mail-opening program. These programs continued without
the formal authorization which had eeen hoped for. 557 The directors
of the CIA and NSA also continued to explore means of expanding
their involvement in, and access to, domestic intelligence.558 A new
group, the Intelligence E\-aluation Committee (lEe), was created by
Attorney General Mitehell within the Justice Department to consider
such expansion.559 NSA, CIA, Army counterintelligence, and the FBI
.., Memorandum from Hoover to Mitchell, 7/25/70.
50' Helms memorandum for the record. 7/28/70.
"·l\Iitchell. 10/24/75, Hearings, Vol. 4, p. 123.
... Huston deposition, 5/23/75, p. 56; staff summary of David McManus interview,
7/1/75.
M'Director Helms thinks he told Attorney General Mitchell ahout the CIA
mail program. Helms also IJelieves President Nixon IDiay have known aIJout the
program although Helms did not pPfsonally inform him. (Helms, 10/22/75,
Hearings, Vol. 4. pp. 88-89.) l\Iitchel! denied that Helms told him of a CIA maiIopening
program and testified that the President had no knowledge of the
program. "at least not as of the time ,ve discussed the Huston Plan." (l\Iitchel!,
9/24/75. Hearings, Vol. 4, pp. 120, 138.)
058 In l\Iarch 1971. :'ISA Director :'Ioel Gayler and CIA Director Helms met with
Attorney General Mitchell and Director Hoover. According to Hoovl'r's memorandum
of the meeting, it had bl'l'n arrangl'd by Helms to discuss "a hroadl'ning
of operations, partiCUlarly of tlte yery confidential tY[Jl' in eOYl:'ring' intelligence
both domestic and foreign." Hooyer waR again "not enthusiastic" because of
"thl' hazards inYolYed." MitchI'll askl'd Helms and Ga~-ll'r to prl'pare "an in-depth
examination" of the collection methods they de~ired. (Ml'morandum for the files
hy ,J. Edgar Hom-er, 4/12/71.) It was less than two months after this meeting
that. according to a CIA ml'morandum. Director HelmR hriefed :\1itchell on the
mail program. (CIA memorandum for the record, 6/3/71.) Eyen hefore this ml'et·
ing. :'ISA Director Gayll'r sent a memorandum to Attorney General :\litchell and
Def.-nse Spcretary l\Ielyin Laird descrihing ":'ISA's Contribution to Domestic
Int.-lligpnce." This memorandum refers to a di~cussion with both Mitchell and
Laird on how NSA could assist with "intl:'lligellce hearing on domestic problems."
'l'he memorandum mentioned til!' monitoring of foreign support for subYl'rsive
aetiYitips. as ,wI! a ~ for drug trafficking. although it did not discuss specifically
the :'IRA ""'fitch List" of Americans. DiemoraJl(lnm from :'ISA Director Noel
Gayler to the Secretar~- of Dpfen~e ami the Attorney Genprill. January 26,1971.)
:'IRA offidal Benson Buffham rpcorded that hI' jlf'rsonally showed this memornndnm
to .:\Iitchell and had been told bv the .:\Iilitarv Assistant to Secretarv
Lainl that thp Secretary had read and agrel'cl with it. OIl'll1orandum for the
l"E,pord IJy Bpnson K. Buffham. 2/3/71.)
559 )Il'morandum from Assistant Attorney GenNal Robert Mardian to Attorney
General Mitchell, 12/4/70.
116
each sent representatives to the lEe. NSA Director Gayler provided
the lEe with a statement of NSA's capabilities and procedures for
supplying domestic intelJigence.5GO Although the lEe merely evaluated
raw inte.lligence. data, over 90 percent of which came to it
through the FBI, it had access to domestic intelligence from NSA
coverage and the CIA's mail-opening and CHAOS programs, which
was channeled to the FBVGl
Two of the specific recommendations in the "Huston Plan" were
thereafter implemented by the FBI-the lowering of the age limit
for campus informants from 21 to 18 and the resumption of "legal mail
covers." 562 Two men ,vho had participated in developing the "Huston
Plan" were promoted to positions of greater influence within the
Bureau.563 More important the Bureau greatly intensified its domestic
intelligence investigations in the fall of 1D70 without using "clearly
illegal" techniques. The Key Black Extremist Program was inaugurated
and field offices were instructed to open approximately 10,500
new investigations, including investigations of all black student groups
"regardless of their present or past involvement in disorders." All
members of "militant Ne,,- Left campus organizations" were also to be
investigated even if they were not "known to be violence prone." The
objective of these investigations was "to identify potential" as well as
"actual extremists." 564
The chief of the Domestic Intelligence Division in 1970 said the
"Huston Plan" had "nothing to do" with the FBI's expanded intelligence
activities. Rather. both the "Huston Plan" and the Bureau intensification
represented the same effort by FBI intelligence officials "to
recommend the types of action and programs which they thought
necessary to cope with the problem." 565 Brennan admits that "the FBI
was getting a tremendous amount of pressure from the 'White House,"
although he attributes this pressure to demands from "a vast majority
of the American people" who wanted to know "why something wasn't.
being done" about violence and disruption in the country.566
b. Political Intelligence
The FBI practice of supplying political information to the White
House and, on occasion, responding to 1Vhite House requests for
such information was established before 1964. Howe,-er, under the
administrations of President Lyndon Johnson and Richard Nixon,
this practice grew to unprecedented c1imensions.567
(1 ) Name Ched.- Reque8f8.-1Yhite House aides servin.!! under Presidents
.Tohnson and Nixon made numerous requests for "name checks"
600 Memorandum from Ga,ler to Laird nnd ~IitphplI. 1/26/71.
M1. For a discussion of thp FBI as "consumpr." see pp. 107-109.
562 Tllf' resumption of mail cm-ers is discussed ahove at footnote 521'. FBI
fipld officps wpre instructed that thr, conId rprrnit ] R-21 ,pn r-old informers in
Srntpm]wr 1!}70. (SAC Lrtter No. 70-48, !}jJil/70.) Spe. p. 76.
6" The hpnd of thp FBI Dompstie InteIligpncp Didsion. WilliAm C. SnIlinn.
wns promotpd to he Assistant to the Dirpptor for nIl investigntive ann intelligence
actiyitips. His succpssor in chargp of thr Domestic InteIIigenee Division
wns Chnrles D. Brennan.
"'" Exeenth'ps ('nnferencp to Tolson, 10/29/70; )Iemoranclum from FBI HE'ad-
(jl1n rtprs to all SACs. 11/4/70.
663 Brenn~n npnosition. !}!2V7;). nn. 2!l--::l1.
5<1' Brennau t('''timon~·. 9/2:)/7;'. Hp~rings. Yolo 2. p. 108.
5<17 TllP jllvol,'pment of thf' ('pntrnl Intf'lligf'ncp Agpnc, in improper activitips
for the 'White House is described in the Rockefeller Commission Report, Ch. 14.
117
of FBI filps to plicit all Bnrpau information on particular critics of
each administration.•Johnson aides requested such reports on critics
of the escalating ,varin Yietnam.'>os President .Johnson's assistants
also requested name checks Oil members of the Senate staff of Presidential
candidate Barry Gold,vater in 1964,509 on .Justice and Treasnry
Department officials responsible for a phase of the criminal investlgation
of .Tohnson's former aide Bobby Baker,509a on the authors of
books critical of the "Tarren Commission report, 570 and on prominent
newsmen.571 President Nixon's aides asked for similar name checks
on another newsman. the Chairman of Americans for Democratic
Action, and the prod{lcer of a film critical of the President.572
According to a memorandum by Director Hoover, Vice President
Spiro Agnew recei"ed ammunition from Bureau files that could be
used in "destroying [the] credibility" of Southern Christian Leadership
Conference leader Rewrend Ralph Abernathy.573
(2) Democratic National Convention, Atlantic City, 1964.-0n
August 22, 1964, at the request of the White House, the FBI sent
a "special squad" to the Democratic National Convention site in
Atlantic City, New .Tersey. The squad was assigned to assist the
Secret Service in protecting President Lyndon .rohnson and to ensure
that the convention itself would not be marred by civil disruption.
But it went beyond these functions to report political intelligence
to the White House. Approximately 30 Special Agents, headed by
Assistant Director Cariha DeLoach, "were able to keep the 'Vhite
House fully apprised of all major developments during the Convention's
course" by means of "informant coverage, by use of various
confidential techniques, by infiltration of key groups through use of
undercover agents, and through utilization of agents using appropriate
cover as reporters." 574 Among these "confidential techniques"
were; a ,viretap on the hotel room occupied by Dr. Martin Luther
King, Jr., and microphone surveillance of a storefront serving as headquarters
for the Student Nonviolent Coordinating Committee and
another civil rights organization.575
.... Letter from J. Edgar Hoover to Marvin Watson, 6/4/65.
... Memorandum from Hoover to :\loyers, 10/27/64, citPfI in FBI summary
mpmorandum, subject: Senator Barry Goldwater, 1/31/75.
.... ;\lemorandum fpom DeLoach to Tolson, 1/17/67.
57. Memorandum from Hoover to Marvin Watson, 11/8/66.
571 See Findin!'( on Political Ahuse. p. 225.
572 Tetter from .J. Edg-ar Hoover to .Tohn D. Ehrlichman, 10/6/69; House
.Tudiciary CAmmittee Hearing-s, ~tatement of Information (1974), Book VII,
p. 1111; Book VIII. p. 1&~. Dir{'{'tor HDover vohmteered information from
Bureau files to the Johnson "'hite House on the 'author of a play satirizing the
President. (:\lemorandum from Hom'er to Watson. 1/9/67.)
5" Memorandum from Hom'er to Tol;;:on. ('t al., 5/18/70. Agne,,- admits ha,-ing
rece-iYed such information. hut denips having asked for it. (Staff summary of
Spiro Aj!,"Ilew inten-iew, 10/15/75.)
... 'femorandum from C. D. DeLoach to :l\fr. Mohr. 8/29/64.
575 DeLoach memorandum. 1'/29/64: f'artha DeLoach testimony, 12/3/75. Hearings.
Vol. 6, p. 177. A 1975 FBI InspPction R('port has sppc'ulatpd that the
SNf'C hug may ha'l'e been planted because the Bureau hnd information in 1964
that "an apparpnt mpmhpr of thp f'ommunist Party. USA. was enga,lring in
consirlernhlp nctivity. mnch in a leadership capacity in thp Student Nonviolent
f'oordinating Committee." (FBI summary memorandum. 1/30/75.) It is unclear,
hmvever. whptlwr this hug \HIS pven npproved internally hy FBI Hearlquarters.
as orrlinarily required hy Rnrenu proC'ednrps. DpLoach stated in a contemporaneous
memorandum that the microphone surveillance of SXCC was instituted
(Continued)
118
Neither of the electronic surveillances at Atlantic City were specifically
authorized by the Attorney General. At that time, Justice
Department procedures did not require the written approval of the
Attorney General for bugs such as the one directed against SNCC in
Atlantic City. Bureau officials apparently believed that the wiretap
on King was justified as an extension of Robert Kennedy's October 10,
1963, approval for surveillance of King at his then-current address
in Atlanta, Georgia, or at any future address to which he mig-ht
mOYe. 576 The only recorded reason for instituting the wiretap on Dr.
King in Atlantic City, however, was set forth in an internal memorandum
prepared shortly before the Convention:
Martin Luther King, Jr., head of the Southern Christian
Leadership Conference (SCLC), an organization set up to
promote integration which we are investigating to determine
the extent of Communist Party (CP) influence on King
and the SCLC, plans to attend and possibly may indulge in
a hunger fast as a means of protest.577
Walter Jenkins, an Administrative Assistant to President Johnson
who was the recipient of information developed by the Bureau, stated
that he was unaware that any of the intelligence was obtained by
wiretapping or bugging.578 DeLoach, moreover, has testified that he
is uncertain whether he ever informed Jenkins of these sources.579
Walter Jenkins, and presumably President Johnson, received a
significant volume of information from the electronic surveillance
at Atlantic City, much of it purely political and only tangentially related
to possible civil disturbances. The most important single issue
for President Johnson at the Atlantic City Convention was the seating
challenge of the Mississippi Freedom Democratic Party to the
regular Mississippi delegation.580 From the electronic surveillances
of King and SNCC, the White House was able to obtain the most
intimate details of the plans of individuals supporting the MFDP's
challenge unrelated to the possibility of violent demonstrations.
Jenkins received a steady stream of reports on political strategy
in the strup:gle to seat the MFDP delegation and other political plans
and discussions by the civil rights groups under surveillance.58l Moreover,
the 1975 Inspection Report stated that "several Congressmen,
(Continued)
"with Bureau approval." (Memorandum from DeLoach to Mohr, 8/29/64.) But
the Inspection Report concluded that "a thoroug-h review of Burf'au records fails
to locate any memorandum containing [internal] authorization for same." (FBI
summary memorandum. 1/30/75.)
6'1' Mr. DeLoach citf'd the fact that in the summer of 1964 "there was an ongoing
electronic surveillance on Dr. )Iartin Luther King ... aR authorizf'd by
Attorney General KennE'dy." (Cartha DeLoaCh tE'stimony. 11/2{\/75. p. 110) The
Inspf'ction Report noted that the Special Agent in Chargf' of thf' Nf't;\'ark officf'
was inRtructed to inRtitute thf' wiretap on the ground that "thi> Burenu had authorit;
r from the Attorney General to cover any residences which King may
use with a technical inRtallation." (FBI summary memorandum 1/30/75. ~uhject:
"Special Squad at Democratic l\"ational Convention. Atlantic City, Xe\"
.TerRf'Y. August 22-28.1964.")
677 )If'morandum from W. C. Sllllivan to A. H. Belmont. 8/21/64.
578 f'tnff Rummar:> of Waltf'r .Jenkins inteniE'w, 12/1/75.
'" DeLoach. 11/26/7il. p. 114.
5S0 Tlwodore Whitf'. Makin,'" of tlle Prp.qirlent 1.964 (Xe\" York: Athenillm. 100;;).
pp. 277-280. Walter .Tenkim alRo confirmed thiR characterization. (Staff summar:>
of .Jenkins interview. 12/1/75).
581 Memorandum from DeLoach to Mohr, 8/29/64.
119
Senators, .and Governors of Statrs" ",'ere overheard on the King tap.582
Accordmg to both Cartha DeLoach and 'Walter ,Trnkins, the Bureau's
coverage in Atlantic City ,\Us not designed to seITe political
ends. DeLoach testified:
I was sent there to provide information ... ,vhich could
reflect on the orderly progress of the com'ention and the
danger to distinguished indi"iduals, and particularly the
danger to the President of the United States, as exemplified
by the many, many references [to possible civil disturbances]
in the memoranda furnished ~Ir. ,Jenkins....583
.Tenkins has stated that the mandate of the FBI's special unit did not
encompass the gathering of political intelligence amI speculated that
the dissemination of any such intelligence was due to the inability of
Bureau agents to distinguish dissident acti"ities which represented
a, genuine potential for violence.584 Jenkins did not believe the 'White
House ever used the incidental political intelligence that ,,,as received.
However, a document located at the Lyndon B. ,Johnson Presidential
Library suggests that at least one political use was made of Mr. DeLoach's
reports. 585
Thus, although it may han been implemented to prevent violence at
the Convention site, the Bureau's coverage in Atlantic City-which
included two electronic surveillances-undeniably provided useful political
intelligence to the President as ,w11.586
(3) By-Product of FOI'eign Intelligence Covemge.-Through the
FBI's coverage of certain foreign officials in 'Washington, D.C., the
Bureau was able to comply ,,,ith President Johnson's request for reports
of the contacts between members of Congress and foreign officials
opposed to his Vi('tnam policy. According to a summary memorandum
prepared by the FBI:
On March 14, 1966, then President Lyndon B. Johnson informed
Mr. DeLoach [Cartha DeLoach, Assistant Director
of the FBI] ... that the FBI should constantly keep abreast
of the actions of [certain foreign officials] in making contact
,,,ith Senators and Congressmen and any citizen of a prominent
nature. Th(' Pr('sident stated he strongly felt that much
of the protest concerning his Vietnam policy, particularly
the hearings in the Senate, had been generated by [certain
foreign officials].587
581 :\Iemorandum from H. X. Bassett to :\Ir. Callahan, 1/29/75.
583 DeLoach. 11/26/75, p. 139.
584 Staff summary of Jpnkins interview, 1/21/75.
ii!i5 Exhibit 68--2, Hearing-s, '·o!. VI, p. 713.
"S6 FBI memoranda indicate that in l(l68 Yice Prpsident Hubert Humphrey's
F.x('Cutire A~si~tant. Bill Connel!. a~ked the Bureau to send a "special team" to
the forthcoming- Democratic Xational Conyention, since Prpsident Johnson "al]
pgedl.r told tile Yice Prpsident that the FBI had been of ~reat sen-ice to him and
11(' had ])el'n gir<>n ('onsidprahle information on a timely basis throughout the
entin' ('onnntion." Dlemorandum from DeLoach to Tolson, 1'/7/68). After talking
with Connpl!. Dirpctor Hoonr adyised till' :"AC in Chicag-o that the Burpan
was "not going to g-pt into an~'thing- political hut anything- of pxtrem<> action or
riolpnce contemplated we "'ant to jpt Comwll know." (:\Ipmorandnm from Hooypr
to Tol~on. pt al.. 8/15/68,) Dpmocratic Party Treasurpr .Tohn Cri"well madp a
~illlilar rl'llnpst. ~tating that Postma~tpr Gplwral :UmTin 'Vatson "had informed
him of the great serrice perfornwd hy thl' FBI during til(' last Dpll10cratic Con,
,·pntion." Dlemorandum from DeLoach to Tolson, 8/22/68.)
5., FBI summary memorandum, 2/3/75.
120
As a result of the President's request, the FBI prepared a chronological
sml1mary-apparentJy based in part on existing dec-tronir s\ll'Yeillanres-
of the contacts of each Senator, Representative, or legislative
staff membN \,ho communicated \vith selected foreign officials during
the period July 1. 10G4. to ~1arch 17. 10(\(). This 57-rage summar:v wacs
transmitted to the 'White House on ~farch 21, 1966, with a note that
certain foreign officials \\"ere "making more contacts" \vith four named
Senators "t.han \vit.h other United States legislators." 58g A second summary,
prepared on further contacts between Congressmen and foreign
officials, was transmitted to the vVl1ite House on May 13, H166. From
then until the end of the Johnson Administration in January 1969,
biweekly additions to the second summary were regularly disseminated
to the 'White House.589
This practice \vas reinstituted during the Nixon Administration.
On July 27, 1970, Larry Higby, Assistant to H. R. Haldeman, informed
the Bureau that Haldeman "wanted any information possessed
by the FBI relating to contacts between [certain foreign officials]
and :Membcrs of Congress and its staff." T\vo days later, the
Bureau provided the 'White House with a statist.ical compilation of
such contacts from January 1, 1967, to the present. Unlike the case of
the information provided to the Johnson vvnite House, however, there
is no indication in related Bureau records that President Kixon or his
aides \vere concerned about critics of the President's policy. The Bureau's
reports did not identify individual Senators: they provided
overall statistics and two examples of foreign recruitment attempts
(with names removed).590
In at least one instance the FBI, at the request of the President and
with the approval of the Attorney General, instit.uted an electronic
surveillance of a foreign target for the express purpose of intercepting
telephone conversations of an American citizen. An FBI memorandum
states that shortly before the 1968 Presidential election, President
Johnson became suspicious that the South Vietnamese were
trying to sabotage his peace negotiations in the hope that Presidential
candidate Nixon would win the election and then take a harder line
toward North Vietnam. To determine the validity of this susnicion.
the White House instructed the FBI to institute physical surveillance
of Mrs. Anna Chennault, a prominent Republican, as \'Oell as electronic
surwiJJance directed against a Sonth Vietnamese target.591
The electronic suneillance \vas authorized by Attorney General
Ramsey Clark on October 29. 1968, installed the same day, and continued
'until January 6, 1969.592 ThllS. a "foreign" electronic suneillance
\vas instituted to targ-et indirectlv an American citizen who could
not be legitimatel'O surnilled directly. Also as part. of this investigation,
President .Tohnson personally ordered a check of the long distance
toll ca]] records of Vice Presidential candidate Spiro Agnew.593
588 FBI summary memorandum, 2/3/75.
5'" FBI summary memorandum, 2/317;;.
590 FBI summary memorandum. 2/3/75. See Findings on Political Abuse.
501 FBI summary mf'morandum. 2/1/75.
5Il2 Memoranrlum from Director, FBI to Attorney General. 10/29/6R: memorandum
from Dirertor. FBI to Attorney General, 10/30/68; memorandum from
Director. FBI to Attorney Genf'raJ. 3/27/69.
Attorney Genf'ral ('lark testified that hI' was unawarp of any sun'eillance of
Mrs. Chennault, (Clark, 12/3/75. Hearings, vol. 6. pp. 251-252.)
593 See Findings on Political Abuse, p. 225.
121
(4) The Sw'ccil7ance of Joseph [{mft (1969).-There is no substantial
indication of any genuine national se('mity rationale for the electronic
smwillance onr::ieas of columnist .Joseph Kraft in 1UGD..John
Erlichman testified before the Senate ,ratergate Committee that the
national secmity ,yas im'olnd, uut did not elaGorate fmther.5D4
Bryond this general claim, howen'r, thrre is little cyidcnce that any
national sl'curity issue ,yas inyolwd in thr case. Fonner Deputy Attorney
General and Acting FBI Director ~"'il1iam Ruckelshaus testified
that after rHiewing' the mattel' he "could ne\'er sec any national security
justification" for thc sUlTcillance of Kraft. Ruckelshaus stated
that thc Administration's "j ustification" for uugging Kraft's hotel
room was that he was "asking questions of some members of the North
Yietname::ie Gonnllnent." Huckelshaus belie\'ed that this was not an
adequate national secmity justification for placing' "any kind of surnillance
on an American citizen or newsman." 595 ::HI'. Kraft agreed
that he "as in contact "ith North Vietnamese officials while he was
abroad in 1969, but noted that this ,yas a COlnlllOIl practice among
,iomnalists and that "at the time" he nCYer kno'Yingly published any
classified information.596
The documentary record also renals no national security justification
for the FBI's electronic suneillance of )11'. Kraft oyerseas.
The one memorandum which referred to "Possible Leaks of Information"
by Kraft does not indicate that there dearly was a leak of national
security significance or that )Ir. Kraft ,yas responsible for such
a leak if it occmrecl."D7 Fmthermore, the hotel room bug did not produce
any eyidence that Kraft receiYed or published any classified
information.59s
.., .John Ehrlichman testimony, Senate Watergate Committet', 7/24/73, p. 2535.
Arrof(ling to tht' tran~rri]lt of the 'Yhite House tapes, President Xixon stated to
John Dt'an on April 16, 1973:
"What I mean is I think in the case of the Kraft stuff what the FBI did, they
\wre both fine. J ha,e checked tt. ~ facts. There were some done through pri,ate
sourcE's. }[ost of it was donE' through thE' BurE'au aftE'r we got-Hooyer didn't
want to do Kraft. "'hat it involvt'd apparently, John, was this: the leaks from
thr XSC [Xational Security Council]. ThE'Y \wre in Kraft and others columns
and we were trying to plug the It'aks am! \w had to g;et it done and finally we
turnE'd it OYE'r to Hoover. And then when thp hnllabaloo de\'E'loped we just
knorked it off altogether... ." (I'ubmission of Recorded Presirlential Conversations
to the Committee on thE' .Jurlieiary of the HousE' of RE'presentatives by
Prt'~ident Richarrl Kixon, 4/~O/74.) The Prt'si(lt'nt'~ statt'ment was made in the
rontpxt of 'coaching' .John Dean on \yhat to sa~' to the 'Vatergate Grand Jury.
.""5 William Rucldeshaus testimon~' before the Subcommittee on Administrative
Prarotict' and Procedure, 5/9/74, p. 320.
... Kraft testifiE'd that Henry Kissing;er, then the President's Special Adviser
for National Security, informed him that he had no knowlt'dge of t'itIler the wiretap
or the hotel room hng;. Kraft also stated that former Attorney Gent'ral Elliot
Rirhardson indicated to him that "there was no justification for thE'sE' actiYities."
l.Jo~eph Kraft tt'stimony, Senate Subcommittee on Administrative Practice and
Prof'pdnre, 5/10/74, p. 381.)
597 LPtter from "T. C. SulliYan to }[r. Hoover. 7/12/69.
... While thl' summariE's sent to HoO\'er by Sullivan did show that Kraft con·
tadt'd North Vietnamese officials (Lettt'r from I'llllh'an to Hooyer. 7/12/69), the
Burt'all did not diseovE'r any improprietiE's or indiserE'tions on his part. When
Rllrkt'lshaus was asked if his rt'view of tht'st' sllmmarit's reyealt'd to him that
Kraft engaged in any condllct ,,-hilE' abroad that pO>led a dangE'r to the national
st'rurit". he replit'd: "Absollltt'ly not." IRllckelshalls tt'stimony l)pforf' tht' Sub,
committee on Administrative Practict' and Procedure, 5/9/74. p. 320.)
122
Similarly, there is no evidence of a national security justification
for the physical surveillance and proposed electronic suneillance of
Kraft in the fall of 1969. A Bureau memorandum suggests that the
Attorney General requested some type of coverage of Kraft,G99 but the
record reveals no purpose for this cm-erage. The physical suneillance
was discontinued after five weeks because it had "not been productive."
Apparently, the Attorney General himself "-as 111lconvinc<>d
that a genuine national security justification supported the Kraft
surveillance: he refused to authorize the requested wiretap, and it was
consequently never implemented.6oo
(5) The "n" lViretaps.-The relative ease with ,,-hich high administration
officials could select improper intelligence targets was demonstrated
by the "17" wiretaps on Executive officials and newsmen installed
bebveen 1969-1971 under the rationale of determining the
source of leaks of sensitive information.GOOa In three cases no national
security claim ,vas even advancecl. ,Yhile national security issues were
at least arguably involved in the initiation of the other taps, the program
continued in two instances against persons who left the government
and took positions as advisors to Senator Edmund l\fuskie, then
the leading Democratic Presidential prospect.601
The records of these ,viretaps were kept separate from the FBI's
regular electronic surveillance files; 602 their duration in many cases
went beyond the period then required for re-authorization by the Attorney
General; and in some cases the Attorney General did not authorize
the tap until after it had begun.603 In 1071, the records were
removed from the FBI's possession and sent to the ,Yhite House..
Thus. misuse of the FBI had progressed by 1971 from the regular
receipt by the ,nlite House of political "tid-bits" and occasional requests
for name checks of Bureau files to the use of a full array of
intelligence operations to serve the political interests of the administration.
The final irony was that the Xixon administration came to
distrust Director Hoover's reliability and, consequently, to develop a
·White House-based covert intelligence operation.604
c. The Justice Department's Internal Security Division
FBI intelligence reports flowed consistently to the .Justice Department.
especially to the IDIU established by Attorney General Clark
in 1967 and to the Internal Security Division. Before 1971. the Justice
Department proyided little guidance to the FBI on the proper scope
of domestic intelligence investigations.605 For example, in response to
a Bureau inquiry in 1964 about whether a group's activities came
"within the criteria" of the employecsecurity program or were "in
50. Memorandum from W. C. Sullivan to ~Ir. DeLoach, 11/4/69.
""" Mpmorandum from Sullivan to DpLoach. 12/11/69.
600a For discussion of dissemination of political intelligence from the "17" wiretaps.
see Finding on Political Abuse, p. 225.
001 Sen. Edmund :\fuskie testimony, Senate Foreign Relations Committee,
l)/1017~ Exe('nth-e Spssion. pp. 1)0-:11.
00lI :\Iemorandum from W. C. Sullivan to C. D. DeLoach, 5/11/69.
603 Rpport of thp Housp oTnrliciau Committee. RI2()/74. pp. 146--11'>4.
6Q4 The creation of the "plumbers" unit in the White House led inexorably to
Watenmte. See Report of the Honse Judiciary Committee, 8/20/74, pp. 157-162,
166--170.
605 An example of a generalized Departmental instrnction is Attorney General
Clark's order of September 1967 (see p. 79) regarding civil disorders.
123
violation or any other rederal statute," 60G the Internal Security Division
replied that there mlS "insufficient evidence" for prosecution and
that the granp's leaders \vere "becoming more cautious in their utterances."
G07 Xevertheless, the FBI contillUed for years to investigate
the group with the knowledge and approval of the Division.
(1) The "New" InteJ'1lCll8ecurity Dh'ision.-'Yhen Robert Mardian
was appointed Assistant ~~ttorney (renera] in late 1070, the Internal
Security Division assumed a more active posture. In fact, one or the
alternatins to implementation of the "Huston Plan" suggested to
Attorney General ,John :Mitchell by ,Yhite House aide John Dean
was the invigoration of the Division.GOS This included )Iardian's establishment
of the lEO to prepare domestic intelligence estimates.
Equally significant. however, was )Iardian's preparation of a ne\v
Executive Order on federal employee security. The new order assigned
to the moribund Subnrsive Activities ('antral Roard the function of
designating groups ror what had been the "Attorney General's
list." G09 This attempt to assign broad ne,v functions by Executive fiat
to a Board with limited statutory responsibilities clearly disregarded
the desires or the ('ongress.61O
According to Mardian, there was a "problem" because the list had
"not been updated ror 17 years." He expected that the revitalized
SACB \vould "deal specifically "ith the revolntionary /terrorist organizations
which have recently become a part or our history." 611
Assistant Attorney General Mardian's views coincided with those
of FBI Assistant Director Brennan, who had seen a need to compile
massive data on the "New Leff' ror ruture employee security purposes.
612 Since FBI intelligence investigations were based in part on
the standarcls for the "Attorney General's list." the new Executive
Order substantially redefined and expanded FBI authority. The new
order included groups who advocated the use of force to deny individual
ri~hts under the "laws of anv State" or to owrthrow the government
of "any State or subdivision thereor." 613 The new order also
continued to use the term "subversive," although it was theoretically
more restrictive than the previous standard ror the Attorney General's
list because it required "unlawful" advocacy.
600 :\[emorandum from FBI Director to Yeagley, 1/31/64.
• 07 Memorandum from Yeagley to FBI Director, 3/3/64. There was no reauthorizntion
of the continuing inYeRtigation between 1966 and 1974.
668 ::\Iemorandum from Dean to Mitchell, 9/18/70.
6()9 Execntive Orner 11605, 7/71.
"'0 R~' 1971. the RACB had the limited function of making findings that specific
indiYiduals and gTOUps were Communist. Its registration of Communist had
bpen dePlared unconRtitutional. [Lllbertson v. Subversit"e Activities Control Board,
31'2 V.R. 70 WI(5).1
811 Robert C. l\Iardian, address before the Atomic Ener,!D' Commission Security
Conference. WaRhington. D.C. 10/27/71. Mardian added that the "problem" was
that. without an updated. formal IiRt of RUlwersiYe organizations, f€'d€'ral agencips
wpre rNjuired "to indiYidnally eYaluate information regarding membership
in aljpg-ed1y Rnbr€'rsh'e org-anizationR based on raw data fUl'l1iRhed by the Federal
Rnr€'au of Inyestigation or other goYernmental sources."
'12 Rrpnnan tpRtimon~.. 9/25/75, Hparings, Vol. 2, 116-117.
tn3 Executiyf' Order 11(';05, 7/71. By contraRt. the prior order had been limited
tOlZ'l"nnnS sef'king fOJ"pill]e yio]:ltion of rights "nndpr thp Constitution of the
Fnited Rtates" OJ" sepking "to altpr the form of ,g(H"ernnwnt of the United States
h~' unconstitutional meanR." Executiw Order 10450 (1953).
124
Mardian made it clear that, under the order, the FBI was to provide
intelligence to the Subversive Activities Control Board:
We have a new brand of radical in this country and we are
trying to address ourselves to the new situation. With the investigative
effort of the FBI, we hope to present petitions
to the Board in accordance with requirement of the Executive
Order.614
FBI intelligence officials learned that the Internal Security Division
intended to "initiate proceedings against the Black Panther Party,
Progressive Labor Party, Young Socialist Alliance, and Ku Klux
Klan." They also noted: "The language of Executive Order 11605
is very broad and generally coincides with the basis for our investigation
of extremist groups." 615 Mardian had, in effect, provided a new
and wider "charter" for FBI domestic intelligence.616
(2) The Sulliccan-ilfardianRelatio1tship.-ln 1971, Director Hoover
expressed growing concern over the close relationship developing
between his FBI subordinates in the Domestic Intelligence Division
and the Internal Security Division under ~Iardian. For example, when
FBI intelligence officials met with Mardian's principal deputy,
A. ·William Olsen, to discuss "proposed changes in procedure" for the
Attorney General's authorization of electronic surveillance, Hoover
reiterated instructions that Bureau officials be "verv careful in our
dealings" with Mardian. Moreover, to have a source of legal advice
independent of the Justice Department, the FBI Director created a
new position of Assistant Director for Legal Counsel and required that
he attend "at any time officials of the Department are being contacted
on any policy consideration which affects the Bureau." 617
In the summer of 1971, William C. Sullivan openly challenged FBI
Director Hoover, possibly countin~ on ~Ianljan and Attorney General
Mitchell to back him up and oust Hool'Cr.618 SullinUl charged in one
memorandum to Hoover that other Bureau officials lacked "objectivity"
and "independent thinking" and that "they said what they did
because they thought this \yas what the Director wanted them to
sav." 619
'Shortly thereafter, Director Hoover appointed ,Y. ~Iark Felt, formerly
Assistant Director for the Inspection Division, to a newly created
position as Sullinn's superior. Apparently realizing tl1at he was
on his way out, Sulli\'an gave Assistant Attorney General ~Iardian the
FBI's documents recording the authorization for, and dissemination
0,. Hearings on the appropriation for the Department of Justif'e before the
HOllse Subcommittee On Appropriation~, 92nd Cong., 2nd Sess., (1972), p. 67:t
1115 Inspection Report, FBI Domestic Intelligence Division, August 17-Sep,
tember 9, 1971.
616 The hostile ~ongre~sional reaction to this Order. \vhich shifted duties by
FJxeclltive fiat to a Boaro createo by ~tatute for otber purposes, led to the death
of the SACB when no appropriation was granted in 1972.
617 FBI Executives Conference )Iemorandum. 6/2/71. The first As~istant Direc,
tor for Legal Counsel was Dwight Dalbey. who hao for years heen iu charge of
the legal training of Bureau agents. Dalbey's elevation early in 1971. and Hoover's
requirement that he reYiew all legal a~pects of FBT policy. induding intelligence
milttpr~. WilS a major change in Burpau procpoure. Dlemorandum from Hoover to
All Bureau Officials and Supervisors, 3/8/71.)
lllS FBI Summary of Interview with Robert )TanUan, 5/10/73, pp. 1-3.
019 Memorandum from Sullivan to Hoover, 6/16/71.
125
of, information from the "17" ,,-iretaps plac'ed on Execntin> officials
and ncw~m('n in 1!H)9-1H71. The absence of thpsp materials ,,-as not disconreel
by other FBI officials until after Sullinlll \yas forced to resign
in September 1071.620 ~Ial'(1ian e\-entually took part in the transfer of
the~e records to the ·White House.621
Thus, the Attomey General's principal assistant for intemal security
collaborated with a ranking FBI official to conceal yital records,
uHimately to be secreted a,Yay in the ,Yhite House. This provides a
stl'iking example of the manner in which channels of legitimate authority
,,-ithin the Executiye Branch can be abused.
d. The FBI's Secret "Administmtive Index"
In the fall of 1971, the FBI confronted the prospect of the first serious
Congressional curtailment of domestic intelligence investigations-
repeal of the Emergency Detention Act of 1950-and set a
course of evasion of the will of Congress which continued, partly with
.Justice Department approval, until 1973.
An FBI Inspection Report viewed the prospect of the repeal without
great alarm. In the eYent the Act was repealed, the FBI intendea
to continue as before under "the Gowrnment's inherent right to protect
itself internally." 622 After the repeal took place, Bureau officials
elaborated the following rationale for keeping the Security Index of
"potentially dangerous subversives:"
Should this country come under attack from hostile forces,
foreign or domestic, there is nothing to preclude the President
from going before a joint session of Congress and requesting
necessary authority to apprehend and detain those who would
constitute a menace to national defense. At this point, it
would be absolutely essential to haye all immediate list, such
as the SI, for use in making such apprehensions.623 [Emphasis
added.]
Thus, FBI officials hoped there would be a way to circumvent the
repeal "in which the essence of the Security Index and emergency
detention of dangerous individuals could be utilized under Presidential
powers." 624
Assistant Director Dwight Dalbey, the FBI's Legal Counsel, recommended
writing to the Attorney General for "a reassessment" in order
to "protect" the Bureau in case "some spokesman of the extreme left"
claimed that repeal of the Detention Act eliminated FBI authority
for domestic intelligence activity. Dalbey agreed that, since the Act
"could easily be put bllck in force should an emergency convince Con-
"""l\Tpmorandum from T. J. Smith to E. S. Miller. 5/13/73. pp. 1, 8.
621 FBI Summary of Interview with Robert Mardian, 5/10/73. pp. 2-3. The
'Yatl'rgatl' S]JP{'ial Pro~ecutor invpstigaterl the~e eYent~. and did not find suffident
pyidence of criminal conduct to brin~ an indiC'tment. Howeyer, they occurred
at thl' time of intpnse White House pre~~ure to dpYelop a criminal prospcution
a~ain~t Danipl Ellsbprg over the Pentagon Papl'r~ matter. The di~missal of
C'harge~ again~t Ell~bprg in 1973 was largely dul' to the helated di~covery of the
fact that Ellshprg had Iwen oyerl1Pard on a wirptap indkated in these records,
\yhkh wprp withheld from the court. preventing its dptermination of the pertinency
of the material to the EJlsherg case.
""" Tnspl'dion Rpport. Dompstic InteJlig-pnC'P Dh-ision. R/17-9/9/71, p. 98.
623l\lemofllndum from R. D. Cotter to E. S. l\liller, 9/21/71.
62. l\lemorandum from Cotter to Miller, 9/17/71.
126
gress of its need," the Bureau should "have on hand the necessary
action information peltaining to individuals." 625 Thereupon, a letter
was sent to Attorney General Mitchell proposing that the Bureau be
allowed to "maintain an administrative index" of indi\'iduals who
"pose a threat to the internal security of the country." Such an index
would be an aid to the Bureau in discharging its "investigative responsibility."
Rowenr, the letter made no reference to the theory prevailing
within the FBI that the new "administratin index" would
serve as the basis for a revived detention program in some future
emergency.625a
Thus. when the Attorney General replied that the repeal of the Act
did not' prohibit the FBI from compiling an "administrative index"
to make "rea.dily retrievable" the "results of its investigations," he did
not deal with the question of whether the index would also serve as a
round-up list for a future emergency. The Attorney General also st.ated
that the Department did not "desire a copy" of the new i~dex, abdICating
even the minimal supervisory role performed prenously by ~he
Internal Security Division in its review of the names .on the ~e~urIty
Index.626 FBI officials realized that they were "now 1ll a posltlOn to
make a sole determination as to which individuals should be included
in an index of subversive individuals." 627
There were two major consequences of the new system. First, the
new "administrative index" (ADEX) was expanded to include an
elastic category: "the new breed of subversive." 628 Second, the previolis
Reserve Index, which had never been disclosed to the Justice
Department, was incorporated into the ADEX. It included "teachers,
writers, lawyers, etc." who did not actively participate in subversive
activity "but who were nevertheless influential in espousing their
respective philosophies." It was estimated that the total case load under
the ADEX would be "in excess of 23,000." 629
One of the FBI standards for placing someone on the ADEX list
demonstrates the vast breadth of the list and the assumption that it
could be used as the basis for detention in an emergency:
An individual who, although not a member of or participant
in activities of revolutionary organizations or considered an
activist in affiliated fronts, has exhibited a revolutionary
ideology and is likely to seize upon the opportunity presented
625 Memorandum from D. J. Dalbey to C. Tolson, 9/24/71.
.,.. Memorandum from Hoover to Mitchell, 9/30/71.
82e Memorandum from Mitchell to Hoover, 10/22/71.
027 Memorandum from T. J. Smith to E. S. Miller. 11/11/71. It was noted that in
the past the Department had "frequently removed individuals" from the Security
Index hecause of its strict "legal interpretation."
It!8 This new breed was described as follows:
"He may adhere to the old-line revolutionary concepts but he is unaffiliated
with any organization. He may belong to or follow one New Left·type group today
and another tomorrow. He may simply belong to the 100se1,\' knit group of revolutionaries
who have no particular political philosophr bnt who continuous'y plot
the overthrow of our Government. He is the nihilist who seeks only to destroy
America."
"On the other hand, he may be one of the revolutionary black extremists who,
while perhaps influenced hy groups such as the Black Panther Party. is also
unaffi1iatpd either permanently or temporarily with any blar-k organization hut
with a seething hatred of the whitI' establishment wi'l assassinate. pxplode, or
otherwise dpstroy white America." (T. J. Smith to E. S. Miller, 11/11/71.)
.,. Memorandum from T. J. Smith to E. S. ;\Iiller, 11/11/71.
127
by national emergency to commit acts of espionage or sabotage
, including acts of terrorism, assassination or any inferference
with or threat to the suniyal and effective opemtion
of the national, state, and local go\-ernments and of the defense
efforts. [Emphasis added.JG3o
These criteria were supplied to the Justice Department in 1972, and
the Attorney General did not question the fact that the ADEX ,niS
more than an administrative aid for conducting investigations, as
he had previously been told.631
A Bureau memorandum indicates that "representatives of the Department"
in fact agreed with the view that there might be "circumstances"
,,-here it ,Yould be necessary "to quickly identify persons
who were a threat to the national security" and that the President
could then go to Congress "for emergency legislation permitting apprehension
and detention." 632
Thus, although the Attorney General did not formally authorize
the ADEX as a continuation of the previous detention list, there was
informal Departmental knowledge that the FBI would proceed on that
basis. One FBI official later recognized that the ADEX could be
"interpreted as a means to circunlYent repeal of the Emergency
Detention Act." 633
8. Reconsideration of FBI Authority
In February 1971, the Subcommittee on Constitutional Rights of
the Senate Judiciary Committee began a series of hearings on federal
data banks and the Bill of Rights which marked a crucial turning point
in the development of domestic intelligence policy. The Subcommittee,
chaired by Senator Sam J. Enin of North Carolina, reflected growing
concern among Americans for the protection of "the privacy of the
individual against the 'information power' of government." 634
Largely in response to this first serious Congressional inquiry into
domestic intelligence policy, the Army curtailed its extensive surveillance
of civilian political activity. The Senate inquiry also led, after
Director Hoover's death in 1972. to reconsideration by the FBI of the
legal basis for its domestic intelligence activities and eventually to a
request to the Attorney General for clarification of its authorityYs
630 ~Iemorandum from FBI Headquarters to all SACs, 11/15/71.
631 Memorandum from Hoover to Mitchell, 2/10/72; ct. memorandum from
Hoover to Mitchell, 9/30/71 for the preVious statement.
632 Memorandum from T. J. Smith to E. S. ~Iiller, 8/29/72.
633 ~Iemorandum from Domestic Ill'telli~ence Division. Position Paper: Scope
of Authority, Jurisdiction and Responsibility in Domestic Intelligence Investiga.
tioM, 7/31/72.
... Federal Data Banks, Hearings, Opening Statement of Senator Ervin, Fl'bruary
23.1971, p. 1. Senator Ervin declared that a major objecth-e of the inquiry was
to look into "programs for taking official note of law-abiding people who are active
politically or who participate in community activities on social and political
issu('s." The prohlem. as Senator En-in saw it, was that there were citizens
who felt "intimidated" hy these proJ:(rams and were "fearful ahout exercising their
right;; under the First Amendment to ;;ign petition;;, or to speak and write freely
on curr('nt issu('s of Gov('rnment policy." TIll' ranking minority nll'mhE'r of th('
Subcommittee. Senator Roman Hruska, endorsE'd the need for a "penetrating and
searching" inquiry. (Hearings. pp. 4, 7.)
6X AI;;o during )IarC'h 1fl71. an FBI officE' in )fedia. PE'nnsvlnmia was broken
into: a suh;;tantial numllPr of document;; were removed and f'oon hegan to appear
in the press. One of these wa;; {'aptioned COIXTELPRO. The Bnreau reacted
by ordering its field offices to "discontinue" COIXTELPRO operations "for
(Continued)
128
a. Development8 in 1972-1974
There is no indication that FBI "guidelines" material or the FBI
Manual ])royisions themseh'es \yere submitted to, or requested by, the
.rustice Department prior to 197:2,G3G Ind('ed, \,}1('n D('puty Attorney
General Richard Kleindienst testified in February 197:2 at the hearings
on his nomination to be _\ttorney Gen('ral, 11(': stated that he was
"not sure" \,hat guidelines w('re used by t h(' FBI. Kleindienst also
stated that he belieYed FBI inwstigations \ycre "restricted to criminal
conduct or the likelihood of criminal conduct." GO; Director Hooyer
noted on a nm,spaper report of the testimony, "Prepare succinst memo
to him on our guidelines." 638
After Hoowr's death in 197:2, a sharp split dewloped \yithin the
Domestic Intelligence Diyision oyer \yhether or not the Bureau should
continue to reIv on the yarious Executive Orders as a basis for its
authority.G39 ~
Acting Director Gray postponed making any formal decisions on
this matter; he did not formally request ach'ice from the Attorney
General.G40 ~Ieanwhile, the Domestic Intelligence Division proceeded
(Continued)
~€'curity rea~ons because of their ~ensitiYity," It wa~ sugge~t€'d, how€'Y€'r, that
"counter-intplligpnc€' action" would be considered "in exc€'ptional instances" so
long as there were "tight procedures to insure absolute secrecy." (Memorandum
from Brennan to Sullivan, 4/27/71; Memorandum from FBI Headquarters to all
SAC·s. 4/28/71.) For actions taken tliereafter, see COIKTELPRO report,
G:1O After repeal of the Emergency Detention Act in the fall of 1971, the FBI's
A~sistant Director for Legal Coun~el recommended that the BurE'au's requ€'st
for ,approval of its new ADEX also include a more general request for re-affirmation
of FBI domestic intelligence authorit~' to inyp~ti.gate "~ubypr~iYe activit~',"
(Memorandum from D..J. Dalbey to Mr. Tolson, 9/24/71.) The letter to the Attorney
GE'neral reviewed the line of "Presidential directives" from 1939 to 1953.
(:\Iemorandum from Hoover to Mitchell, 9/30/71.) The Attorney Gen€'ral replied
with a general endorsement of FBI authority to investigate "subyersive activities,"
(Memorandum from Mitchell to Hooyer, 10/22/71.)
,m Richard Kleindienst testimony, Senate Judician' Committee, 2/24/72, p. 64
638 FBI routing slip attached to Was/,il/glon P08t article. 2/24/72. ThE' FBI'~
summary of its "guidelines," submitted to the Attorney General stated that its
im'estigations were partly based on criminal statutes, but that "subH'r~iYe aetiyit~
· , .. often does not clearly im'olYe a specific spction of a specific ~tatllte,"
Thu~. im'estigations w€'re al~o hased on the 1fl39 Roo~E'Yelt directiYes which were
said to have been "reiterated and broadened b~' subsequent Direetiws." IAttachment
to Hoover memorandum to Kleindienst, 2/25/72,) (Emphasis added.)
~'" The hackground for this developmcnt ma~' hI' summariz('d as foHows: In
:\1ay Ifl72, FBI int('lligence officials prepared a "position paper" for Acting Director
L. Patrick Gray. This paper merE'ly recited the Y,arious Pre~idE'ntial directiyp~,
EXE'cutiyE' Orders, delimitation agreements. and general authorizations from the
Attorney GE'neral, with no att€'mpt at anal~'si~. (FBI Dome~tic Intellig€'nce Dh'i~
ion. Position Paper: Investigations of SU!JYt'rsion. 5/HJ/72.) A~~istant DirE'ctor
E. S. :\1iller. head of the Domestic Intelligence Diyision. withdrE'w this pappr at a
conferE'nce with Gray and other top Bureau officials; Miller th"n initiated work
on a more extE'nsiYe po~ition paper. which was complpted in .July. It concludE'd
that domestic intellig-('nce inv('stigation~ cnulll practicahly 1)(' hai'f'd on the "concept"
that their purpose was "to prE'vE'nt a yiolation of ,a statute." The paper also
imlicatf'd that thf' ADEX \,ould bi' rf'yised so that it could not he "interpreted as
a l11ean~ to rircumYE'nt repeal of thE' Emergency Dptention Art," IFBI DOJlle~tir
Intellig-ence Division: Position Paper: Scope of FBI Authority, 7/31/72; T. J.
Smith to E. S. :\1iller. 8/1/72. )
640 Gray did order that the Bureau should indicat€' it~ ".iuri~llictional authority"
to im'e~tigate in e"E'ry casE'. "hy citing thE' pertinent proyision of the e.~. ('odE'.
or oth€'r ,authorit~'." and al~o that the BurPflu ~hould "indicate whether or not
an im'estigation was directE'd l,~' D.J (Dppartlllent of .JusticE'). or we opE'ned it
without any reque~t from D.J." In the latter case, the Bureau was to "cite our
reasons." (FBI routing slip, 8/27/72.)
129
on its mYll to l'E'vise the pertinent .\fanual sections and the ADEX
standards,on The list ,vas to be trimmed to those who were ;;an adual
danger nO\v," reducing the Illlmber of persons on the AVEX by twothirds.
G'2 -
A revision of the FBI "Manual ,yas completed by "May 1073. It was
described as "a major step" away from "heavy reliance upon Presidential
Directins" to an approach "based on existing Federal statutes.G'"
Althoug:h field offices ,.-ere instructed to "close" im'estigations not
meeting the new criteria. headquarters didllot ,,-ant "a massive revie,v
on crash basis" of all existing cases. 6H
After a series of regional conferences 'Yith field office supen-isors.
the standards ,vere revised to allmv greater flexibility.6l5 For the first
time in FBI history, a copy of the Manual section for "domestic subversive
inycstigations" ,vas sent to the Attorney Genera1.646
After Clarence M. Kellev was confirmed as FBI Direetor, he authorized
a reqnest for gnirlancf>. from ~Utorney GenE'J'a1 Elliot Richardson.
Gl ? Kelley advised that it "would be folly" to limit the Bureau
"" GlIP official ohsen-ed that there ,vert' "some indh-iduals now includt'd in
,\DEX E'ven though they do not realistically pose a threat to the national seeurit~-."
III' addpd that this woulel Ipa'-p thp Burpau "in a yulnprahlp position if our
gnidt'lines ,,,ere to be scrntinized by interested Congressional Committees." (Memorandum
from T..J. Smith to E. S. ~Iiller, 8/29/72.)
"" ~Iemorandnm from Smith to ~Iillf'r. 8/:!\l/7:!. Thf' anticipntpd rE'duction was
from lii.2iifl Ithe currpnt ti,g-ure) to 4.78G (the tOli t,yO priorit.,- catei!:ories). The
,Justice Department was advised of this change. (~Iemorandum from Gray to
Kleindienst, 9/18/72.)
", Draft copit's were distrihuted to the field for suggestions. (E. S. ~Iiller to
~Ir. Felt, 5/22/73.)
&" ;\Ipmorandum from FBI Headquarters to all SAC's. 6/7/73. The memorandum
to the field stated. looking' hack on past Bureau policy. that since the FBI's authority
to investigate ",u\)yersiye elements" had never heen "seriously challenged
until recently," Bureau versol1l,el (and "the general puhlic") had accepted "the
FBI's right to handle internal security matters and inrestigate suhrersire actiyities
without reference to specific statutes." But the "rationale" based on "Presidential
Dirf'ctiyes" was no longer "adequate."
'TIlt' field was afh-ised that the "chiE'f statutes" upon which the nE'W criteria
werp hasE'd were those df'aling with rehf'lIion or insurrection 08 U.S.C. 2Ci&3) ,
seditious conspirac~- (18 U.S.C. 2584) and adrocating O\-erthrow of the government
118 V.RO. 2528). The ADEX was to he "strictly an administrative device"
amI ,11OUlcl !llay no part "in inyt'stigatiYe clecisions or policies." The revision also
eliminated "overemphasis" on the Communist Party.
045 For E'xample. the fiE'ld offices saw the nE't'd to undertal,e "preliminary inquirit's"
hefore it was known "whether a statutory basis for investigation exists."
This spE'rifically applied where a person had "contact with known subrersive
groups or snbjects." but the Bureau did not know "the purpose of the contact."
These preliminary invf'stigations could go on for at least 90 days, to determine
whetlH?r "a statutory hasis for a full im-estii!:ation exists." ~Ioreover. at the urging
of thf' fiE'ld snperrisors. the period for a preliminary investigation of an allegedly
"suhYf'rsiye organization" was expanded from 45 to 90 days. (~Iemorandumfrom
FBI Headquarters to all 'SACs, 8/8/73.)
640 This was apparently "in connection with" a request made earlier by Senator
Edward ~I. Kenned~-, who had requested to see this section at the time of the
confirmation hf'arings for Attorney General Kleindienst in 1972. (Kleindienst,
Spnatp Judiciary Committee, 2/24/72, p. 64; memorandum from Kellt'y to Richarflson.
8/7/73.)
647 In a memorandum to the Attorney General. Director K"Uey cited St'nator
Ram .J. En-in's riew that the FBI should be prohibited by statute "from investigating
an~- pprson witbout tlH' indiridnal's ('onspnt. unless the Gorernment has
rl"ason to hpliere that the person has committpcl a crime or is about to f'ommit
a ('rime." Kelley then summarized tlw position paper prepared by the Domestic
(Continued)
68-786 0 - 76 - 10
130
to investigations only when a crime "has been committec1/~ since the
government had to "defend itself against revolutionary and terrorist
efforts to destroy it." Consequently~he urged that the President exercise
his "inherent Executin power to e,)Jpand by further defining the
FBI's investigatin authority to enable it to denlop advance information"
about the plans of "terrorists and revolutionaries who seek to
overthrow or destroy the Govel'llment.~'648 [Emphasis added.]
Director Kelley~s request initiated a process of reconsideration of
FBI intelligence authority by the Attorney Gencl'l1l. G
• o
The general study of FBI authority was superceded in December
H)73 when Acting Attorney General Robert Bork, in consultation with
Attorney General-designate 'Villiam Saxbe. gan higher priority to a
Departmental inquiry into the FBI's COINTELPRO practices. Responsibility
for this inquiry was assigned to a committee headed by
Assistant Attol1ley General Henry Peterson.650
Even at this stage. the Bureau resisted efforts by the Department to
look too deeply into its operations. Director Kelley advised the Acting
Attorney General that the Department should exclnde from its review
the FBI's "extremely sensiti"e foreign intelligence collection techniques."
651
(Continllpd)
Intellig-encE' Division and the Bureau's current policy of attpmpting to rely on
statutory authority. However, he obsen-ed that the statutes upon which the
FBI "'as relying wpre either "desig11ed for the Civil War era. not the Twentieth
Century" (the rebellion and insurrE'ction laws) or had heE'n "reduced to a fragile
shE'll lIy the SuprE'me Court" (thE' Smith Act dealing with advocacy of overthrow).
Moreover, it was difficult to fit into thE' statutory framework g-roups
"such as the Ku Klux Klan, which do not sE'ek to oVE'rthrow the Government,
but nE'vertheless are totalitarian in nature and seek to deprive constitutionall~'
guaranteed rig-hts."
Kelley stated that, while the FBI had "statutory authority," it still needed
"a definite rE'quirempnt from the PrE'sident as to the nature and type of intellig-
ence data he requirE'S in the pursuit of hi8 responsihilitips hasE'd on our statutory
authority." (Emphasis added.) 'While thE' statutes g-ave "authority," an Executive
Order "would define our national security objectives." The FBI Director
added:
"It would appear that the PresidE'nt would rather sppll out his own reouirempnts
in an Expcutive Ordpr instpad of having- Congrpss tpll him what the FBI
might do to help him fulfill his obligations and responsibilities as President."
6<' :\fpmorandum frOID Kelley to Richardson. 8/7/73.
6<. Even bpfore KE'lley's request, Deputy Attorney Gpneral·Designate William
Ruckplshaus (who had served for two months as Acting FBI Director between
Gray nnd Kellpy). sent a list of que~tions to the Bureau to begin "an in-dpnth
examination of ~ome of the prohlpms facing the Bureau in the future." (Memorandum
from Ruckelshaus to Kel}p:v, 7/20/73.) The Ruckplshaus study was
intprrupted by his depnrturE' in the "Satnrnav Kight Massacre" of October 1973.
650 1\fpmorandum from Bork to KE'llE'Y, 12/5/73.
651 These techniqnes WE're handlE'o within the BnrE'an "on a strictly nE'E'l1-toknow
Imsis" and KeI1E'~' beIiE'vE'd that tllE'Y shonlo not he incluoeo in a StllO~'
"whicb will Ill' beyond the control of the FBI." (1\Iemorandum from KellE'Y to
Bork. 12/11/73.)
OnE' BnrE'au memornndnm to thE' pptE'rSE'n committE'E' E'VE'n snggE'stE'O that thC'
Attornpy GE'neral flio not han' authorit~· oypr tl1(' FBI's forpLgn connterintelli·
l!E'ncp onerations. s;ncp the Burpan was accOlmtahlp in this nrea flirE'ctly to thC'
TTnitpd ~::tatE'~ Intplli!rE'ncp Ronrd amI thp Xntional Rpcnritv ('onncil. IPptprsen
('ommittC'e Rpnort. pp. 34-3;'.) The PC'tprspn ('ommittpp ~hnrnlv rejectpo this
Yip,,". esnpcinllY hpcansE' thC' arT 7,or pqniva1pnt of thp F.R. TntC'lli!rpncp Board
hnn annrm'pn the rtiscrpoitPfl "Hnston nlan" in H170. Thp ('nmmittep I1pclarpo:
"Thprp cnn he no nonht tllat in tlw arpn of forE'kn conntprintclli.!rpncp. as in all
its othpr fl'nctiol1s. thp FBI is sllhjpct to t]lp nO,,"E'r ano authority of the Attorney
Gencral." (Petersen Committee R~port. p. 35.) . .
131
~\s a result, the Prterscn committee's re,-ie,v of COIXTELPRO did
not considcr anything mOl'6 than a brief FBI-prepared summary of
foreign counterintelligence opcrationsYc Mol't'oYer, the inquiry into
domestic COIXTELPRO cases ,vas based mainly on short summaries
of each incident compiled by FBI agents, with Department attorneys
making only spot-checks of the underlying files to assure the accuracy
of the summaries. Thus. the inquiry ,vas unable to consider the
complete story of COIXTELPRO as reflected in the actual memoranda
discussing the reasons for adopting particular tactics and the means
by which they were implemented.eo:)
Thus, at the same time that the Bureau ,vas seeking guidance and
clarification of its authority. Yestiges remained of its past resistance
to outside scrutiny anel its desire to rely on Exeenti,-e authority, rather
than statute, for the definition of its intelligence acti,-ities.
b. Recent Domestic Intelligence Authority
In the absence of any new standards imposed by statute, or by the
Attorney General, the FBI continued to collect domestic intelligence
under sweeping authorizations issued by the Justice Department in
1974 for inYestigations of "subversives," potential civil disturbances,
and "potential crimes." These authorizations were explicitly based on
conceptions of inherent Executive power, broader in theory than the
FBI's own claim in 1973 that its authority could be found in the
criminal statues. Attorney General Levi l{as recently promulgated
guidelines which stand as the first significant attempt by the Justice
Department to set standards and limits for FBI domestic intelligence
investigations.G55
(1) Executiue Order 104-50, As Amended.-The Federal employee
security program continued to seITe as a basis for FBI domestic intelligence
investigations. An internal Bureau memorandum stated that
the .rustice Department's instrnction regarding the program:
specifically requires the FBI to check the names of all civil
applicants and incumbents of the Executive Branch against
our records. In order to meet this responsibility FBIHQ
records must contain identities of all persons connected with
subversi,-e or extremist activities, together with necessary
identifying information.65e -
FBI field offices were instructed in mid-1974 to report to Bureau
headquarters such data as the following:
Identities of subversive and/or extremist groups or movements
(including front groups) with which subject has been
identified, period of membership. positions held, and a summary
of the type and extent of subversive or extremist activities
engaged in by subject (e.g., attendance at meetings or
e," FBI )Ipmorandnm. "Overall Rpe'ommendations-Counterintelligence
Activity." Appendix to Petersen Committee Report.
"'''' Henry Petersen Testimony. 12/8/75. Hearings. Vol. 6, pp. 27(}""71.
", Attorne~- General's Guidelines: "Domestic Recurity Investigations," "Reporting
on Civil Disorders and Demonstrations lnvo},-ing- a Federal Interest,"
alHl "White HansI' Personnel Recurity and Background Investigations."
ow )[p1llorandmn fro1ll A. B. Fnlton to ::\Ir. "'annalI. 7/10/74. See pp. 42-44 for
discussion of the initiation of the program.
132
other functions, fundraising or recruiting activities on behalf
of the organization, contributions, etc.) .657
In .Tune 1074. President Nixon formal1y abolished the "Attorney
General's list," upon the recommendation of Attorne~' General Saxbe.
However, the President's order retained a reYised definition of the
type" of org·ani7-ation". af'f'ocintion "'l1ich "'onld stil1 he considrred in
evaluating prosprcti"e federal employees.GOS The .Justice Department
instruetrd the FBI that it should "detect organi7-ations with a potential"
for falling within the terms of the order and investigate "indiyiduals
who are active either as members of or as affiliates of" such
organi7-ations. The Department instructions added:
It is not necrssarv that a crime occur brforr the inyestigation
is initiated. but onlv that a reasonable e\-aluation of the
amilable information sriggests that the aetiyitirs of the organization
may fall within the prescription of the Ordrr....
It is riot pos8ible to set definite parameter8 corerin.q the
initiation of investigations of potential organizations falling
within the Order but once tl1P im'estigation reaches a stage
that offers a basis for determining that the activities are legal
in nature, then the inve~tigation should cease, but if the
inve~tigation suggests a determination that the organization
is engaged in illegal activities or potentially illegal activities
it should continue. [Emphasis added.]
The Department applied "the same yardstick" to investigations of
individuals "when information is received suggesting their involve,ment."
659
(2) Giril Dis()rder8 lntelligence.-The ,Justice Department also
instructed the FBI in 1974 that it should not, as the Bureau had suggested,
limit its civil disturbance reporting "to those particular situations
which are of such a serious nature that Federal military
personnel may be called upon for assistance." The Department advised
that this suggested "guideline" was "not practical" since it "would
place the burden on the Bureau" to make an initial decision as to
"w'hetl1Pr militarv personnel mav ultimatelv be needed." and this
responsibility rested "legally" with the President. Instead, the FBI
was ordrrrd to "continue" to report on
657 Memorandum from FBI Headquarters to all SACs, 8/16/74.
658 Executive Order 11785, 6/4/74. The new standard: "Knowing membership
with the specific intent of furthering the aims of, or adherence to and active
partipipation in, anv foreim or domr~tic orf!anization. association, moyement,
group. or combination of persons (hereinafter referred to as organizations)
whiPh unlawfully advocate8 or practices the commission of acts of force or
Yiolence to prewnt others from exercising their rights under the Constitution or
laws of the l;nited States or of 0111) .~tate. or which seeks to oyerthrow the Gm'ernment
of the United States or any State or 8ubdivision8 tllereof by unlawful
menns." [Emphasis aflded.]
6591femorandum from Glen E. Pommerening, Assistant Attorney General for
Administration, to Kelley, 11/17/74.
With respect to one organization. tilE' DeT)artment advised the Bureilu that
"despite the aholition" of the Attorne~- General's list, the group "would still
come within the criteria" of the employee securit~· program if it "may have
f'11!!'ageo in ilf'tiyities" of the sort prosf'rilwd hy the reyised eXf'cutiYe order.
(Memorandum from Henry E. Petersen to Clarence Kelley, 11/13/74.)
133
all significant incidents of ci,'il unrest and should not be
restricted to situations where, in the judgment of the Bureau,
military personnel ewntnally may be used. 660
~loreo,'er, under this authoritv the Bureau was also ordered to
"continue" i'eporting on .
all disturbanC'es where there are indications that extremist organizations
such as the Communist Party, Ku Klux Klan, or
Black Panther Partv are believed to be involnd in efforts
to instigate or exploit them.
The instnlctions specifically declared that the Bureau "should make
timely reports of significant disturbances, even when no specific violation
of Frderallaw is indicated." This was to be done, at least in part,
through "liaison" with local law enforcemrnt agencies.66i
Even after the .Tustice Department's IDrC dismantled its computerized
data bank, its basic functions continued to be performed
by a Civil Disturbance Fnit in the office of the Deputy Attorney General.
and the FBI was under instructions to disseminate its civil disturbance
reports to that l~nit.662
FBI officials considered thrse instructions "significant" because they
gave it "an official, written mandate frDm the Department." The
Department's desires were viewed as "consistent with what we have
already been doing for the past several years," although the Bureau
~lanual was rewritten to "incorporate into it excerpts from the
Department's letter." 663
(:3) "Potential" CTimes.-The FBI recently abolished completely
the administrative index (ADEX) of persons considered "dangerous
now." RowenI', the .Tustice Department has advanced a theory to
support broad power for the Executive Branch in investigating groups
which reprE'sf'nt a "potential threat to the public safety" or which have
a "potrntial" for violating specific statutes. For example, the Department
advisee] the FBI that the General Crimes Section of the Criminal
Division had "recommended C'ontinued innstigation" of one group on
the hasis of "potential violations" of the antiriot statutes.665 These same
6<0 "On the other hand." the instructions stated amhiguously, "the FBI should
not report E'very minor local disturhance where there is no apparent interest to
the President, the Attorney General or other Government officials and ag-encies:'
(:\Iemorandum from Petersen to Kelley. 10/22/74.)
061 :\Iemorandull1 from Petersen to Kelley. 10/22/74. The FIn was expected to
"he aware of disturhances and patt{'rns of disorder." althoug-h it is not to report
"each and ('very relatively insignificant incident of a strictly local nature."
062 ~Iemorandum from Petersen to Kelley, 10/22/74. Frank Nyland testimony,
1/27/76. pp. 46-58.
.., ~I{'morandull1 from .T. G. Deegan to 'V. R. \YannalI. 10/30/74. From a
leg-al viewpoint, the .Justice Departm{'nt's instructors dealing- with the collection
of intellig-ence on potential civil disturbances were significant because
th{'~' relied for authority on: (1) the President's powers under Article IV. section
4 of thp Constitution to protect the states. ujJon application of the legislature or
the e,ecutin. ag-ainst "domestic violence:" (2) tlle statute (10 U.S.C. 331. et
sef].) anthorizing the use of troops; and (3) the Presidential directive of 1969
<1e~i.!!n'ltiug the Attorne~' General as chief civilian officer to coordinate the
Goyernment's respon~e to civil disturhances. DIemorandnm from Petersen to
Kelley. 10/22174: ~Iemorandum from ~Ielyin Laird and .John ~Iitchell to the
Presidpnt. 4/1/69.)
.., 18 U.S.C. 2101-2102.
134
instructions added that there need not be a "potentiaF for yiolation
of any specific statute.GGG
(-±) rlaim of Inh('1'ent E,Y'('Cllti1'C PoweJ'.-The Department's theory
of executiye pO\Yer was set forth in 197± testimony before the Honse
Internal Secmity Committee. According to Deputy Assistant Attorney
General 1(eyin ::Ual'Oney, "the primary hasis" for FBI domestic intelligence
authority rests in "the constitutional po"ers and responsibilities
Yested in the President under Article II of the Constitution,"
These pO\wrs ,wre specified as: the President's cluty undertakc>n in his
oath of office to "presel'Ye. protect. and defrncl thr Constitution of the
United States;" GG7 the Chief Executin's dnty to "take Care that the
La,Ys be faitl{fully executed:" 668 the President's responsibilities as
Commander-in-Ch'ief of the military; and his "power to conduct our
foreign relations," 6GO
TI{r chairman of the Internal Security Committee. Rep. Richard H,
Iehord, stated at that time that, C'xcept in limitC'C1 arpa.s, the Congress
"has not directly imposed upon the FBI clearly defined duties in the
acquisition, use, or dissemination of domestic or internal security
intelligence." 670
Subsequently, the FBI Intelligence Diyision reyised its 1972-1973
position on its legal authority, and in a paper completed in 1975 it
returned to the view "that the intelligence-gathering actiyities of the
FBI haye had as their basis the intention of the President to delegate
666 :\Tf'morandum from Petersen to Kelley, 11/13/74. This memorandum added:
"[,Yj ithout a hrofld range of intelligence information, the President and the
departments and agencies of the Executive Branch could not properly and adequately
protect our nation's security and enforce the numerOll,~ 8tatltte8 pertaining
thereto ... [TJhe Department, and in particular the Attorney General,
must continue to be informed of those organizations that engage in violence which
rppre~ent a potential threat to the public sa1etll," rEmvha~i~ added.]
667 The opinion of the Supreme Court in the United States v. United States
Di8triet Court, 407 U.S. 297 (1972)-the domestic ~ecurit:r wiretapping ca~estated,
"Implicit in that duty is the power to protect our Government against
tho~e who would suhyert or oyprthrow it hy unlawful means.:'
668 A 19th century Supreme Court opinion was cited as having interpreted the
word "laws" broadly to encompass not only statutes enacted by Congress, but
also "the rights, duties. and obligations growing out of the Constitution itself,
our international rplations and all the protection imvlied hy the nature of GOYernment
under the Constitution." [In Re Neagle, 135 U.S. 1 (1890).J
669 The latter power was said to relate "more particularly to the Executive's
power to conduct foreign intelligence activities here and abroad." (Kevin Maroney
te"timony, "Domestic Intelligence Operations .for Internal Security Purposes,"
Hearings before the House Committee on Internal Security, 93d Cong., 2d Sess.
(1974), pp. B332-3335.) Mr. Maroney added:
"'Ve recognize the complexity and difficulty of adequately spelling out the
FBI's authority amI responsibility to conduct domestic intelligence-type investi~
mtions. The concept national secllJ·it~· is admittedly a broad one, while the term
subversiye actiyities is eyen more difficult to define."
Mr, :\Iaroney also cited the follO\ying from the Supreme Court's opinion in the
domestic security wiretapping ca~e: "The gathering of security intelligence is
often long-range anf1 involves the interrelation of various sources and types of
information. The exact targets of such surYeillance mav be more fHfficuJt to
identify ... Often, too. the emphasis of domestic intelligence gatllPring- is on
the preyention of unlawful actiyity or the enhancement of thp Goyernment's preparedne~
s for ~ome possible future crisis or pmergpncy. Thus. thp focus of
donH'stic suryeillance may he less prerise than thflt directed against more conyentional
types of crime." [United States Y. United Stote.8 District Court, 407
U. S. 2!li. 322 (1!li2)'1
670 House Committee on Internal Security Hearings. 1974, pp. 3330-3331.
135
his Constitutional authority/' as 'Yell as the statutes "pertaining to the
national securitv." G71
The Attorne,: General has continuecl to assert the claim of inherent
executive' pm,'~r to coneluC't ,vaITant ]Pss elec'tronic surveillance of
American citizens, although this power has been exercised sparingly.G72
The .Tustice' Department has also claimed that this inherent executive
power permits ,varrant less surreptitious entries.G73 Hmvenr, the Executive
Branch has recent ly joined a bipartisan group of Senators and
Hepresentati\"es in sponsoring a legislative proposal requiring judicial
warrants for all eleetl'onic slllTeillance bv the FBI.
(5) Att01"ney General Levi's Guidelil~es.-Dnring 1975, the CongTess
anel the Exccuti \'e Branch lJPgan major pjforts to review the
field of domestic intelligence. A Presidential commission headed by
Vice President Hockefellpl' inquired into the CL~'s improper sUt'veillance
of ~\nH.'ricans.n" ~\ttorneY General Edward H. Levi established
a committee in the .Justice Department to develop "guidelines"
for the FBI."'" and the .Justice Department began to ,vork on draft
legislation to require warrants for national security electronic sur"
eillance.6
'G
These efforts han~ begun to bear fruit in recent months. President
Ford has issuecl an Exceutin' 01'(ler regulating foreign intelligence
actiYities: G77 Attorne)' General Leyi has promulgated several sets of
"guidelines" for the FBL"" ~\ncl the administration has endorsed a
specific bill to establish a \n1l'rant proceclure fol' all national security
\viretaps and bugs in the rnitecl States.G
'9
0;1 'Y" Ra~'mOl](l "'annall, Assistant Dirf'ctor for t1w Intplligence Division.
:\!pmoranrlum Oll thf' "Ra~is for l-'Rr Xational Spcurity rntE'lligpll('p Inn'stigations."
2/13/75"
,:" AftE'r sP\'l'ral rpcent transformations. tllP polic~' of the Attornp~" General
\I"as pstahlisllprl ns nutllorizing warrantless surypil!ancp "only whf'n it is shown
t1lat its suhjpcts nrp the ncth'f', conscious ngf'nts of foreign pO\yprs:" nnrl this
stanrl:1nl "is nppliprl with pnrticulnr strin,gpll(,~' \yhprf' tllp sulljf'ets nrp .\mprif'nn
('itizPIH; or ])f'l'lnnllPnt rf'sidpnt nliens:' (.lusticf' Df'pnrtl1lf'nt memoranrlum from
Ron Carr. Specinl .·\ssi~tant to the Attorney Genernl, to :\Iike Shaheen, Counsel
Oll 1'I'Ofpssiollnl Rf's]Jonsihility, 2/~()/7(i")
",,, In :\!a~' Hl7;;. fo]' tllp fir~t timE' in .\nlPriPnn lIistor~·. the DE'pnrtmenr of
.lustirp puhlirly ns~prtpd the pmypr of the Exprutiyp Rrnnch to rOl1fluct warrnnt,
lpss snrreptitious pntrips uncollllPrtp(l with trw USP of elertronic surYE'il!ance. This
()('C11lTE'rl in n lpttpr to tllp rniterl Rtntf's Court of ApPPals for t1w District of Columhin
concerning nn nppeal h~' .lohn ElIrli('lIm:1n" Ehrlichmnn \yns aPl)f'aling a
('onYirtioll arising from til(' hrE'ak-in nt till' oftJroe of Dnniel Ellshprg's lls~'chiatrist
nft p l'jl1lhlkation of thp "Ppnta,gon PappI's" in In7I.
The .Justice Department's position was that "wnrrantless searches illvolYing
phy~i<'al pntries into prh'nte )lrpmi~ps" can hp "la\yful uIHlpr the Fourth AnlPndIJIPnt:'
if thpy are "w'ry rnrpflll!y r',mtrol!p(l:"
"TIlE'rp must hE' solid reason to lIeliPYp thnt forpign espionn,gp or intelligpncf' is
inyolyprl" In nrlditioll. tllp intrusion into nn~' ZOllP of pxpected priYar~' lllUst IJP
kpnt to the minimum nn(l tllf'rE' must Ill' pPl'sonal nuthorizntion h~' tIw Prpsirlent
or thE' Attorne;> Genern!." (Letter from .Tohn C. Kenney, Acting Assistant AttorneY
Gpllf'rnl. to Hugh E" ClillP. Clprk of tile l'nitpd Rtates Court of Apppals for the
J)i,.t'·ict of Columhin. 5/n/75")
67' Rockefeller Commission Report
67' T,Pyi, 12/11/7;"), Hpnrings. Yo!. G, p~), ~16-317"
67' Lpvi, l1/fi/7;;. Henrin!,s, Yo!. 5, p. 90.
6'7 Expruti\'p Ordi'r 11;;0'1. 2/1.'</7G,
'" A1tornp~' Gpnpral's Guidplinps, "nomp~ti(' Sl'curitY IllYE'stigntions", "'Yhitelumsl'
Pf'rsonnpl Rf'curit~' nl1fl Rn('kgroun,l InYP~tigations". :lIHI "Reporting Oll
Civil Disordprs nnrl DplJlonstrations Inro!yillg n Fpderal Intprest", 3/10/76,
670 S. 3197, introduced 3/23/76.
136
These Executiye initiatives are a major step forward in creating
safeguards and establishing standards, but they are incomplete without
legislation,G'O Among the issues left open by the President's
Executive Order, for example, are: (1) the definition of the term
"foreign sub\'ersion" used to characterize the counter-intelligence
responsibilities of the CIA and the FBI; and (~) clarification of the
vague provisions in the Xational Security Act of ID-!7 relating to the
authority of the Director of Central Intelligence to protect "sources"
and "methods;" and (3) amplification of the 19+7 Act's prohibition
against the CLt's exercise of "law enforcement po\yers" or "internal
security functions."
Although they represent only a partial ans,Yer to the need for permanent
restraints. the initiati,'es of the Executin Branch demonstrate
a willingness to seriously consider the need for legislative
action. The Attorney General has recognized that Executi,'e "guidelines"
are not enough to regulate and authorize FBI intelligence
activities. 'iO' The Committee's conclusions and recommendations in
Part IV of this report indicate the areas most in need of legislative
attention.
• SO The major questions posed by the President's ExecutiYe Order and the
Attorney General's guidelines for the FBI are di"cus~ed in the recommendation
section of this report, as are the problem~ with the national ~ecurity electronie
surveillance uill.
••, Leyi Testimony, 12/11/75, Hearings, Vol. 6, p. 345.

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