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CHURCH COMMITTEE REPORTS
C. EXCESSIVE USE OF INTRUSIVE TECHNIQUES
)L\,TOR FrXDIXG
The intelligence community has employed surreptitious colle~tion
techniques-mail opening. surreptitious entries. informants, and
"traditional" and highly sophisticated forms of electronic surveillance-
to achieve its owrly broad intelligence targeting and collection
objectives. Although there are circnmstances where these techniques.
if properly controlled. are legal and appropriate. the Committee
finds that their wry nature makes them a threat to the personal
privacy and Constitutionally protected activities of both the targets
and of persons who communicate with or associate with the targets.
The dangers inherpnt in the lise of these techniques have been compounded
by the lack of adequate standards limiting their use and by
the absence of reYiew by nentral authorities outside the intelligence
agencies. As a consequence. these techniques have col1ected enormous
amounts of personal and political information selTing no legitimate
gowrnmental interest.
Subjindings
(a) Given the highly intrusive nature of these techniques,l the legal
standards and procedures regulating their nse have been insufficient.
There have been no statutory controls on the use of informants; there
have been gaps and exceptions in the law of electronic surveilJance;
and the legal prohibitions against warrantless mail opening and
surreptitious entries have been ignored.
(b) In addition to providing the means by which the Government
can collect too much information about too many people. certain
techniques han their mvn peculiar dangers:
(i) Informants have provoked and participated in violence and
other illegal activities in order to maintain their cover, and they have
obtained membership lists and other private documents.
(ii) Scientific and technological advances have rendered traditional
controls on electronic sUlTeillance obsolete and have made it more
difficult to limit intrusions. Because of the nature of wiretaps, microphones
and other sophisticated electronic techniques. it has not always
been possible to restrict the monitoring of communications to the persons
being innstigated.
(c) The imprecision and manipulation of labels such as "national
1 The techniques noted here do not constitute an exhaustiye list of the surrE'ptitious
means h~' which intelligE'llce agencies hayE' collE'Cted information. ThE'
FRI, for examplE', has ohtainE'd a great deal of financial information ahout Ameriran
ciitzE'ns from tax returns filed with the Internal Reyenue Seryice. (See IRS
Report: Sec. I, "IRS Disclosures to FBI and CTA.") This section, howE'YE'r, is
IimitE'd to prohlE'ms raised h:> electronic suryeillance. mail opening. surreptitious
E'ntries informants and electronic surveillances.
( 183)
184
securitv," "domestic ~ecuritv:: "sub\'ersiw actidties,:: and "foreign
intelligence': ha\'e led to unjllstified use of these techniques.
Elaboration of Finding8
The preceding section described ho" the absence of rigorous standards
for opening, controlling. and terminating inn'stigations subjected
many dinrse elements of this society to scrutiny by intelligence
agencies, without their being suspected of violating any la". Once an
investigation was opened: almost any item of information about a
targees personal behavior or political views was considered ,vorth
collecting.
Extremely intrusive techniques-such as those listed above-havl~
often been used to accomplish those overly broad targeting and collection
objectives.
The paid and directed informant has been the most extensively used
technique in FBI domestic intelligence investigations. Informants
were used in 83% of the domestic intelligence investigations analyzed
in a recent study by the General Accounting Office.1a As of .June 30,
1975: the FBI was using a total of 1,500 domestic intelligence informants.
2 In 1972 there were over 7,000 informants in the ghetto informant
program alone. In fiscal year 1976. the Bureau has budgeted more
than $7.4 million for its domestic intelligence informant program:
more than twice the amount allocated for its organized crime informant
program.3
vViretaps and microphones have also been a significant means of
gathering intelligence. 1~ntil 1972, the FBI directed these electronic
tE'chniques against scores of American citizens and domE'stic organizations
during investigations of such matters as domestic "subycrsive:'
acti"ities and leaks of classified information. The Bureau continues to
use these techniques against foreign targets in the rnited States:
The most E'xtensive use of elE'ctronic suryeillance has been by the
National Security Agency. KSA has electronically monitored (without
,viretapping in the traditional sense) international communication
links since its inception in 1952; because of its sophisticated terhnology.
it is capable of interrepting and recording an enormous number
of rommunications between the 1~nited States and foreign countries.4
All mail opening programs han now been terminated, but a total
of t"elve such operations were conducted by the CIA and the FBI in
ten American cities bebveen 1940 and 19n.5 Four of these were operated
by the CIA. whose most massive project involved the opening of
more than 215.000 letters between the rnited States and the Soviet
t'nion over a twenty-year period. The FBI conducted eight mail opening
programs, three of which included opening mail sent bE'tween two
points in the United States. The longest FBI mail opening program
1a Report to the House Committee on the .Judiciary, hy the Comptroller General
of the United States, "FBI Domestic Intelligence Operations-Their purpose and
scope: Issues that Xeed to be Resolved," 2/24/76, p. 96.
2 FBI memorandum to the Sele<'t Committee, 11/28/75.
3 ~Iemorandum, FRI O?;crall lntrlligcnrc Program FY 1977 COlllpurn/ to FY
1976 undated. The cost of the intelligence informant program comprises pa~'ments
to informants for sen'ices and expense as well as the costs of FBI personnel.
support and overhead.
4 ~ee :'\~A Report: Sec. I. "Jntroduction and Summary."
'See ~Iail Opening Reports: Sec. I, "Summary and Principal Conclusions."
185
lasted. \yith one period of suspenSIOn. for approximately twenty-six
years.
o The FBI hac; al~o ('oJu!lIl'ted llillldn'dc; of \yaJ'J'antlpss slll'J'eptitions
plltripc;-hn'ak-ins-dnrilll-t tIl(' past twenty-fin' ,wal's, Often tlil'se
pntripc \\'('1'(' ('OlH]IIl'te(] to install plel't]'()nic listpnin~' dp\-icpc;: at othPl'
t iJllPS t Il('y imol n'd physi('a I c;pa rchl's f()r in fOJ'lllat i,~n. The ,,-idps])J'pacl
usp of ,,-arl'Hntless slll'l'pptitiollS pntJ'ip~ ag'ainst lloth fOJ'('ign and do1I1estic
targds ,,-as tpJ'lliinatpd hy thp BnJ'('ali in l!)(i(i ],"t tIl(' FBI has
occasionally made snch entries t;gainst foreign targets in morp I'pepnt
years.
v .\11 of thpsp tpc1l1liqlles han> ],ppn IIIl'llpd against .\nll'rican citizPIl:-i
as "'ell as against cprtaill foreign targets. On the tlwory that tllP
exe('lItin>'s J'('sponsihility in tIll' ,lrea of "national spcllrity" and "forpign
intplligPIH'p" jllstitjpd tlll'ii' IIH> ,,-ithonl thp nppd of jwlicial snper\-
ision. thp intp]]igelH'p ('olllnlllllity 1)'}lip\'('d it \yas frpp to dirpc! thl'sl~
tpchniqnes against indiyiduals and organizations \yhom it lwlien>d
threatpnp(l thp ('01llltrY's s?('lIrity. TIlP standards gon'rning thp m;p of
thpse techniqllps han' ill'en iIlI\H'l~cisl' and snsceptihlp to pxpansi\'(> intPl'pretatioll
and in tIll' absence of any jm]icial check on the application of
tllPSP nlgllp standards to particular casps. it ,,-as relatin>ly easy for
intelligencp agpnpips and tll<'ir sll\Jl'riors to pxtPIH] tll<'Jll to many casps
\yhere they \"ere clparly inappropriate. Lax intel'llal controls on the
nse of SOllIe of tlll'se tpclmiqnes COIII\)OlllH]e(] the problem.
These intrllsiw tpc1l1liqllPs hy thpir nT\- lIatlll'p inn1<]p(] tlw priyate
COlllJlIllllications and al'ti\'itips hoth of tIl<' incli\-iellialc; tlIPY \ypre elirpl'te(]
against an(1 of the jlpJ'SOll:"i with \"hOIiI thp targ'ds ('Olll'nlllnicatp(]
or asc;ociatpd. Conseql1('ntly. tlwy l)J'oYidp(] tIll' nH'anc; by \\'hich a]]
typps of infol'lllation-inc!llding pprc;onal an(1 political infoJ'mation
totally llllrplated to any legitimatp gon'rllllH:,ntal ol,jpl'tiyp-\wJ'(> colIpctp(]
and in SOJllP casps (]is,-,;pl11inatp(] to thp highest Ip\-p],.; of tlIP
f,!:0n>l·nlllent.
Subfinding (a)
Giyen the highly intrusi \'e natlll'e of these techniqnes. the legal
standards and procedures regulating tlwir use have been insnfficient.
There han been no statntory controls on tll(' llse of informants; there
have been gaps and exceptions in tll(' law of electronic slllTeillnnce; and
the legal prohibitions against \n1l'rant less mail opening and surreptitious
entries haye been ignored.
1. The .17J81'11('1' of ,"'tl!futOI,lj Rl'stmilits 011 thl' [-se of fll/OI'IIUllits
Then' arp 110 statutps ()]. publishp<l ]'eg-illations gO\'(>l'ning the usp of
informants." Consequently. the FBI is irep to use informants. gui(](·d
onh by itc; o\yn intel'llal (]ireetins which call be change(] at any tinIP by
FB'T (;f1i(·jals without apprond fronl outsi(]e the Bui'cau.'· .
G Title 21' of the rnited States Codp proyides onl~- that appropriations for the
DppurtnlPnt of Justice are anlilahle for payment of informants. 21' r.S.l'. *;)24.
7 The Attol'lley General has announced that Ilt' \Yill issue guidelines on the use
of informants in the near future. and our recommendations pro"ide standards for
informaut control and prohihitions on informant HctiYity. (See pp. :~2K) In
:)(ldition. the Attornpy Genpral's recrntl~- promulg-ated g;uidelinps on "Domestic
Sp('urity Inypstig;ations" limit tilt' usp of informants at 'the parl~' stagp,", of sudl
inrlllirip,", amI IH'oyidp for re\'jp\y h~- tllP .Inc-tice J)ppHrtnwnt of tllP initiation of
"full inypstigations" in which np\Y informants nnl~' he recruited,
186
Apart from comt decisions prC'cllHling- thC' usC' of informants to
C'ntl'ap pl'I':'0I1S into criminal acti\·ity. thl'l'C' aI'(' fl'\Y jndil'ial opinions
lll'al ing- ,,·ith informants aJJ(l most of t hosC' concern criminal rat her
than inte 11 ig-l'nn' in formants,' The l'n iu'd :"iratl's Sn)ll'('llll' ('ourt has
npn'!' ['ull'(l on ,\"llethel' tIl(' nse of intelligence informants in the
contpx'ts n'\"E'alpd by the Committee's inwstig-ation offend Fir"t
,\.ml'ndnll'1lt rig-his of f!'t'l'dom of ('xpression awl association."
In tIl(' absence of rpgulat ion throngh statutt'. pnblishe{lregnlarion.
or comt decision. the FBI ha" ns(>(l inform:lllh to rppor~ on Yirtually
('\'ery aspeet of a targNed group or indiYi(lnal's aetiYity. incllHling
Itndul political exprpssion. polil ical meNing-s, the identities of group
memlw['s and their associates. thr "thoughts and frclings. intpntions
ilnd ambitions." of memlwrs.'° and personal matters irrelenlllt to any
legitimatl' gonrnmental intprest. Informants han also been u5rd by
tlw FBI to obtain thc confidential records and documents of a g-roup."
Informants coul(l br usp{l in an~' intplligpncp ill\·pstigation. FBI
dirpcti\'es han not limite(l infol'mant rppOlting to aetnal 0[' lik<'ly
yiolcnce or other yiolations of la \\".'2 Xor has any determination ]wcn
ma{lr concrrning ,YIlPt hrr the substantial intl'llsion rppresentpd by
informant CO\'erage is jnstilied by the goyprnmenfs interest in obtaining
information, or ,Yhether less intrusiw means ,nmld adeqnately
SetTe t hp goYernnwnfs inten'st. There has aIso bepn no reqnil'l'ment
that tIl{' drcisions of FBI officials to nse informants bp rpyirwpd by
anyone ontsidr the FBI. In short. int('ll igencc informant conrail'
has not bern subject to tIl(' standards ,Yhich gonrn thr n5(' of other
intrusin, teclmiqurs such as plectronic suneillancp. ('yen though informants
can produce a far broader range of information.
2. Gaps and Exceptions in the L((U' of Electronic Surveillance
Congress and the Supreme' Court haY(' both addressed the legal
issues raised by electronic slllTPillancp. but t hp law has been riddled
,Yith gaps ami eveptions, The' Executin branch has been able to
apply yague standards for the use of this technique to particular cases
H In a criminal case inYol,ing- charg-es of jury bribery. United State8 ". Hoffa.
885 r,S. 293 (1900). the SuprpnH' Court ruled that an informant",.; testimony
concerning conyersations of a defendant couhl not he considered tlIP product of a
warrantless search in Yiolation of the Fourth AmendnlPnt on the g-round the
llefendant had ('onspntell to the preSE'ncE' of the informant, In another criminal
casp, [,CWi8 v. ['J/ited Statc8. 385 r.s. 20G (l9GG), the Court stated that "in
tllP llptpction of many t~·pps of primps. thp Govprnment is entitlpd to USe' dE'coys
and to conceal the identit~· of its agE'nts."
• In a morE' rpcent casE'. thE' California SuprpnIP Court hE'hl that sE'crpt
~nrYeillance of ('las~ps and .~rOllp lllpC'ting-:::: at a nniYer:-:ity throng-h the US? of
IllH]prCOYE'r ag-ents was "likE'I.'· to posp a suhstantial rE'straint upon thE' eXE'rcisE'
of First AnIPndnlPnt rig-hts." 11'liitc Y. naris. 333 Pac. Rep. 2ll. 223 (1973)
Citing- a nlllllher of r.s. Suprpmp Court opinions. thp California Suprpmc COllrt
sta tpll in its unanimolls dE'Pi"ion :
"In yiE'w of this sig-nifip,wt potpntial chilling pffpet. tllp chaIlpng-pd sUrYE'illanpp
adi"ities can onl~' hp sustaine(] if [thp Governlllent] pan llpmonstratp a
'comppIling' state interpst which justifies the rpsultant dptE'rrencp of First
.\nlPndlllPnt rig-hts and 'Ylliell eHnnDt hp ,spl"\'E'd b~' alternatiYe mE'ans les,; instrn,
I\'e all fUll(lall1E'ntal rig-hts." ;)33 Pac, Rep. 2d, at 232
'" Gary RO\yp tE'stimon~', 12/2/75 Hparing-s. Yo!. G. pp. 111. 118.
11 Cook. ]2/2/73. Hearing-s. Yo!. G, p. ]]1.
"ThE' FBI :\fanual of InstnlPtions prosprihp,; onl~' rt>porting: of pri,ilE'g:E'{]
('olllmullipntions ])pt,Yeen nn atton1P~' anll plipnt. legal "(]{,fpllsP plnns or strntE'gy."
"pmplo:ver-eml)lo~'E'P rp1ntionships" (whE'rp an informant is COllllE'PtE'(] with a
lahor llnioll), nnll "legitimatE' institlltioll or camplls actiyities" at schools, (FBI
)Ianllal Spction 107.)
187
as it has seen fit. and, in tIll' case of XSA monitoring, the standards
and procedures for the use of electronic sUlTeillance \Yere not applied
at all.
'Vhen the Supreme Court first considered \yiretapping, it held that
the \yarrantless use of this technique \yas constitutional because the
Fourth Amendment's \Yarrant requirement applied only to physical
trespass and did not extend to the seizure of conyprsation. This
decision, the 18:28 case of Olmstcad Y. Cnlted Statcs, im~olypd a criminal
prosecution, and left federal agencies free to engage in the
unrestricted use of \yiretaps in both criminal and intelligence im-estigations.
13
Six years later, Congress enacted the Federal Communications Act
of 1934, which made it a crime for "any person," without authorization,
to intercept and di Ylllgp or publish the contents of \yire and radio
communications. The Supreme Court subsequently constrlH~d this section
to apply to federal agents as \yell as to ordinary citizens, and held
that evidence obtained directly or indirectly from the interception of
\yire and radio comnmnications \vas not admissible in court." But
Congress acquiesed in the .Justice Department's position that these
cases prohibited only the di "lilgence of contents of wire communications
outside the exe('uti\~e branch,l;; and GO\-ernment wiretapping for
intelligence purposes other than prosecution continued.
On the ground that neither the 1934 Act nor the Supreme Court
decisions on wiretapping were meant to apply to "grave matters involving
the defense of the nation," President Franklin Roosevelt
authorized Attorney General .Jackson in 1940 to apprO\~e wiretaps
on "persons suspectc(] of subversive aeti\~ities against the Gon~l"Ilment
of the rnited States, including suspected spies."IG In the absence
of any guidance from Congress or the Court for another quarter
century, the cxecutiH branch first broadened this standard in 184G
to permit wiretapping in "cases vitally affecting the domestic security
or where human life is in jeopardy," 17 ancl then modified it in 1965
to allow \yiretapping in "inwstigations related to the national security."
18 Intel'l1al .Justice Department policy required the prior
appnmd of the Attol'lley General before the FBI could institute \Yiretaps
in particular eases, 10 but until tIll' mid-18liO's t IlPre ,,-as no require-
13 DIll/stead v. United States, 277 V.S. 438 (1928).
)l X (J rr!one Y. r~n it,rd States. 30~ C S, 3D7 (1937) ; 308 r.s, 338 (1D39).
l' For examlllp, letter from Attornpy Gpneral ,Jnck~on to Rl'll. Hatton Sunllner~,
3/1D/41; Spp Electronic S\1l~\'pillancl'I{Pllort; Spc. II,
16 :Uemorandum from President Roose\~elt to the Attorney General 5/21/40.
17 Letter from Attorney Genpral Tom C. Clark to President Truman, 7/17/46.
18 DirpctiYe from President .To!Jnson to Head~ of Agencies, 6/30/65.
'" Pre~ident RooseYelt'~ 1940 ordpr dirpeted the Attorney Gpneral to approve
\yiretajJ~ "aftpr inyp~tigation of thp need in pnch ca~e." Dlemorandum from
l'rp~ident Rooseyelt to Attorney General Jackson, 5/21/40.) HO\veyer, Attorney
Gel.eral Francis Dicldle recalled that Attorney General Jackson "turned it ovpr
to Edgar lIooH'r \yithout him~elf ]la~~ing on pach cn~e" in 1940 and 1941. Biddle'~
practice he-ginning in 1941 conformed to the President's order. (Francis Biddle,
III Brief Authority (Garden Cit~': Doubleda~~, 1962), p. 167.)
Since HHl;;, PXlllicit writtpn authorization ha~ heen requirpd, (DirectiYe of
l're~ident .John~on (;/30/();).) Thi~ requin'mpnt ho\wypr. ha~ often hpen di~~
regarded. In yiolation of thi~ rPfjlJirPlllPnt. for PXllmlJlp, no writtpn authorization~
werp ohtained fmm tIll' Attorney Gelleral~or from an~~ OIlP pl~p-for n ~prie~
of four \\"irptall~ illllllpmpntpd inl!),1 amI ID,~ on Yeoman ('harlp~ Radford, two
of his frielld~, and hi~ father-in-law. See Electronics SUl'Yeillallce Report; Sec. VI.
(ContinuPd)
188
ment of periodic reapprm'al by the Attorney GeneraU0 In the absrnce
of any instruction to terminate them, some \viretaps remained in effect
for years.21
In HH)7. the Supreme C01ll't reversed its holding in the Olmstead
case and decided that the Fourth ~\mendnwnt's \varrant requirement
did apply to electronic slilTeillances.2o It expressly declined, howe\"('1'.
to extend this holding to cases im'olving the "national security." 20a
Congress followed suit the next year in the Omnibus Crime Control
Act of ID68, which established a warrant procedure for electronic surveillance
in criminal cases but included a provision that neither it nor
the Federal Communications ~\ct of 1D34 "shall limit the constitutional
power of the President." 23 Although Congress did not purport to
define the President's power. the Act referred to five broad categories
which thereafter selTed as the .Justice Department's criteria for warrantless
electronic surveillance. The first three categories related to
foreign intelligence and counterintelligence matters:
(1) to protect the Xation against actual or potential attack or
other hostile acts of a foreign power;
(~) to obtain foreign intelligence information deemed essential
to the security of the rnited States: amI
(3) to protect the national security information against foreign
intelligence activities.
The last two categories dealt 'with domrstic intelligence interests:
(4) to protect the United States against overthrow of the gO\'ernment
by force or other unla\dul means. or
(5) agalnst any other clear and present danger to the structure
or existence of the government.
In 1972, the Supreme Court held in United States v. United States
District Oourt.23a that the President did not have the constitutional
power to authorize warrantless electronic surveillances to protect the
(Continued)
The first and third of these taps were implemented at the oral instruction of
Attorney General John ~fitchell. (~femorandum from T. J. Smith E. S. ~Iiller,
2/26/73.) The remaining taps were implemented at the oral request of David
Young, and assistant to John Ehrlichman at the \Vhite House, who merely in,
formed the Bureau that the requests originated with Ehrlichman and had the
Attorney General's concurrence. (~lemorandumfrom T. J. Smith to E. S. ~Iiller.
6/14/73.
2' Attorney General Xicholas Katzenbach instituted this requirement in ~larch
1965. D1emorandum from J. Edgar Hoover to the Attorney General, 3/3/65.)
21 The FBI maintained one wiretap on an official of the Xation of Islam that
had originally been authorized by Attorney General Brownell in 1957 for seven
years until 1964 without any subsequent re-authorization. (~lemorandum from
J. Edgar Hoover to the Attorney General, 12/31/65, initialed "Approved: HB,
1/2/57.")
As Nicholas Katzenbach testified: "The custom was not to put a time limit
on a tap, or any wiretap authorization. Indeed, I think the Bureau would have
felt free in 1965 to put a tap on a phone authorized by Attorney General Jackson
before World War II." (Xicholas Katzenbach testimony, 11/12/75, p. 87.)
22 Katz v. United Statc8, 389 1'.8.347 (1967).
22' The Court wrote: "Whether safpguards other than prior authorization by
a magistrate would satisfy the Fourth Amendment in a situation lIn-olving the
lUltional "ecurity is a que"tion not 11l'PRcnted b~' this case." 3S9 r .8. at :1.')1'\ n. :.!3.
2318U.S.C.2511 (3).
233 407 U.S. 297 (1972)
189
nation fl'om domestic threats.2< The Court pointedly refrained, ho\,,ever,
from any "judgment on the scope of the Presidents' suneillance
power with respect to the activities of foreign powers, \"ithin or without
this country." 25 Only "the domestic aspects of national security"
came \"ithin the ambit of the Court's decision.20
To conform with the holding in this case, the .Justice Department
thereafter limited warrantless wire tapping to cases involving a "significant
connection with a foreign power, its agents or agencies. 27
At no time, hm"ever, \wre the Justice Department's standards and
procedures eYer applied to KSA's electronic monitoring system and its
"watch listing" of American citizens.28 From the early 1960's until 1973,
NSA compiled a list of individuals and organizations, including 1200
American citizens and domestic groups, whose communications were
segregated from the mass of commun.ications intercepted by the
Agency, transcribed, and frequently disseminated to other agencies
for intelligence purposes.2U
The Americans on this list, many of whom were active in the antiwar
and eivil rights movements, were placed there by the FBI, CIA,
Secret Service, Defense Department, and NSA itself without prior
judicial warrant or even the prior approval of the Attorney GeneraL
In 1970, NSA began to monitor telephone communications links bet\"
een the United States and South America at the request of the
Bureau of Narcotics and Dangerous Drugs (BNDD) to obtain information
about international drug trafficking. BNDD subsequently
submitted the names of 450 American citizens for inclusion on the
2' At the same time, the Court recognized that "domestic security surveillance"
lllay involve different policy and practical considerations apart from the surveillance
of 'ordinar~' crime,' 407 l'.S. at 321, and thus did not hold that "the same
type of standards and procedures prescribed by Title III [of the 1968 Act] are
necessarily applicable to this case." (407 l:.S. at 321.) The Court noted:
"Gh'en the potential distinctions between Title III criminal sun-eillances and
those inVOlving the domestic security, Congress may wish to consider protective
standards for the latter which differ from those already prescribed for specified
erime in Title III. Different standards may be eompatible with the Fourt Amendment."
(407 L.S. at 321.)
25 407 l:.S. at 307.
'6407 L.S. at 320. United States v. ['nited States District Court remains the
only Supreme Court case dealing with the issue of warrantless electronk surveillance
for intelligence pumoses, Three federai circuit courts have considered
this issue since 1972, howeypr. The Third Circuit and the Fifth Cireuit both held
that the Presiclent may eonstitutionally anthorize warrantless eleetronic snrveillance
for foreign eounterespionage and foreign intelligence purposes. [United
States \'. Butel/ko, 494 F.2d 593 (3d Cir. 1974), eert. denied sllb 110m. I1;anov v.
['I/ited States, 419 L.S. 881 (1974) ; and ['nited State8 v. BrOlcn, 484 F.2d 418
(i'ith Cir., 1973), eert. denied 415 l:.S. 960 (1974).] The District of Columbia Cireuit
held unconstitutional the warrantless eleetronk sun-eillance of the Jewish
Defensp League, a domestic organization whose activities allegedly affected
1'.S. So\'iet relations but which was neither the agent of nor in collaboration
with a foreign power. [Zlcribon \'. Mitchell, i'i16 F.2d 594 (D.C. Cir., 1975)
(en bal/e).]
To Testimony of Deputy Assistant Attorney General Kevin ~Iaroney, Hearings
before the Senate Subcommittee on Administrative Practice and Procedures,
6/2!l/72. p. 10. This language paralled that of the Court in United States v.
l'nited St((te.~ District COllrt, 407 LS. at 309 n. 8.
28 Although Attorne~' General John :\Iitchpll and .Justice Department offieials on
the Intelligence Enlluation Committe? appal'pntly learned that ::'\SA was making
a contribution to dompstie intelligence in 1\)71. there is no indication that the
FBI tol<l them of its submission of names of Americans for inclusion on aNSA
"watc'h list." \Yhpn Assistant Attorney Gpueral IIpnry pptersen learned of these
practices in 1!l73. Attorney General Elliott Riehardson ordered that they be
terminated. (See Report on ::'\SA: Sec. I, "Introduction and Summary.")
2Il See ::'\SA Report: See. I, "Introduction and Summary."
190
'Watch List, again without warrant or the approval of the Attorney
General.3D
The legal standards and procedures regulating the use of microphone
survei11ancc have traditionally been even more lax than those
regulating the use of ,,-irctapping. 'The first major Supreme Court
decision on microphone survei11ance was Goldman \-. United States,
316 U.S. 129 (1942), \vhich held that such surveillance in a criminal
case was constitutional when the installation did not involn a trespass.
Citing this case, Attorney General McGrath prohibited the trespassory
use of this technique by the FBI in 1952.31 But two years latera
few weeks after the Supreme Court denounced the USe of a microphone
installation in a criminal defendant's bedroom 32-Attorney
General Browne11 gave the FBI sweeping authority to engage in
bugging for intelligence purposes. ". . . (C) onsiderations of internal
security and the national safety are paramount," he wrote, "and, therefore,
may compel the unrestricted use of this technique in the national
interest." 33
Since Brownell did not require the prior approval of the Attorney
General for bugging specific targets, he largely undercut the policy
that had developed for wiretapping. The FBI in many cases could
obtain equivalent coverage by utilizing bugs rather than taps and
\vould not be burdened with the necessity of a formal request to thl'
Attorney General.
The vague "national interest" standards established by Brownell.
and the policy of not requiring the Attorney General's prior approval
for microphone insta11ations, continued until 1965, when the Justice
Departme.nt began to apply the same criteria and procedures to both
microphone and telephone surnillance.
3. Ignoring the P1'Ohibition.s Against lVw'ra;ntless Mail Opening ami
S'urreptitiO'Us Entries
Warrantless mail opening and surreptious entries, unlike the use
of informants and electronic suneillance, have been clearly prohibited
by both statutory and constitutional law. In violation of these prohibitions,
the FBI and the CIA decided on their o\Yll when and how
these techniques should be used.35
Sections 1701 through 1973 of Title 18 of the "Cuited States Code
forbid persons other than employees of the Postal Service "dead letter"
office from tampering with or opening mail that is not addressed to
them. Violations of these statutes may result in fines of up to $2000
30 :\lemorandum from Iredell to Gayler, 4/10/70; See XSA Report: Sec. I.
Introduction and Summary. BXDD originally requested XSA to monitor the
South American link because it did not believe it had authority to wiretap a few
public telephones in New York City from which drug deals were apparently being
arranged. (Iredell testimony, 9/18/75, p. 99.)
.1 Memorandum from the Attorney General to Mr. Hoover, 2/26/52.
32 Irvine v. California, 347 U.S. 128 (1954).
33 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
35 While such techniques might have been authorized by Attorneys General
under expansive "internal security" or "national interest" theories similar to
Brownell's authorization for installing microphones by trespass, the issue was
never presented to them for decision before 1967. when Attorney General Ralllse~'
Clark turned down a surreptitious entry request. There is no indication that the
legal questions were considered in anr depth in 1070 or 1971 at the tim£' of the
"Huston Plan" and its al'ternlath. See Huston Plan Report: Sec. III, 'Who,
What, When and Where.
191
and imprisonment for not more than fin' years. The Supreme Court
has also held that both First ~\.mendnlPnt and FOUl'th Amendment
restrictions apply to mail opening.
The Fourth ~'unenchnent concprns weI'(' articulated as early as 1878,
\yhen the Conrt "Tote: ' ,
The constitntional guaranty of the right of the people to be
secure in their papers against unl'('asonable searches and
seizures extends to their papers. thus closed against inspection.
\Y!wTenr they mlH be. 'Yhilst in the mail. they can only
be oppned and ex'amin'ed nnder likE' warrant .. : as is rrqnired
\yllPn papers are snbjeeted to search in one's myn honsehold.
eo
This principle \yas reaffirmed as recently as Hl70 in Cnited States Y.
ran Leewcell. :)\Hi l-.S. :2.J-H (IH70). The infringenwnt of citizens' First
.\mendment rights resulting from \yarrantless mail oppning \yas first
recognized by Justiee Holmes in ID:21. "The use of the mails," he "Tote
in a dissent now embraced by preyailing legal opinion. "is almost as
much a part of free speech as the right to use our tongnes." 3, This
principle. too. has been affirmed in recent years. 38
.
Breaking and entpring is a common law felony as \ypll as a nolatian
of state and fecleral statutes. ,Yhen eommitted by GO\'t'rnment
agents, it has long been recognized as "the ehief evil 'against \yh1ch
the \yonling of the Fourth Amendment is directed." 3fl
In the one judicial deeision concerning the legality of warrantless
"national security" break-ins for physical srarch purposes, United
States District Court Judge Gerhard Gesell held such entries unconstitutional.
This case. United 8tatc8 v. ElIr7ich1llan!O involved
an entry into the office of a Los ~\ngeles psychiatrist. Dr. Le\yis Fielding,
to obtain tIl(' medical rrcords of his elipnt Daniel Ellsberg. who
was then under federal indictment for renaling elassified documents.
The entry \yaS appro\'ed by two Presidential assistants, John
Ehrlichman and Charles Colson. \yho argued that it had been justifiecl
"in the national interest.'· Ruling on the clefendants' discovery
motions. Judge Gesell found that becanse no search walTant was
obtained:
The search of Dr. Fielcling's office \yas dearly illegal under
the unambiguons mandate of the Fourth ~-~mrndment. ..
[T]he Government must comply \yith the strict constitutional
and statutory limitations on trespassory searcllPs and
arrests eyen \yllPn knm\"ll foreign agents are inyolved....
To hold othrrwise. except under the most exigellt circumstances.
\yonl(l be to abandon the Fourth Amendment to tIll'
\yhim of the Executi\'c in total disregard of the Amendment's
history and purpose!1
'" Rx Parte .Jacksol1. 96. "[', S. 7n. 73:3 (1878),
'17 Jfi11Calikee PIIV, Co, \". Bllrleson. 25::; r.S. 407. 437 (1921) (dissent).
38 See Lall/ont Y. Postll/aster Geneml, 381 "[',So 301 (19G5) ; Proeunier Y. :lJartinez.
4lG U.S. 39G (1975).
"" rniter! 8t(/te8 Y. lJniter! States nistrict ('ollrt. 407 1"S 21)7. 313 (1972).
"3W F. Snpp. :W. (D.D.C.1974).
H 37G F, Snpp. at 33.
192
In the appeal of this decision, the Justice Department has taken the
position that 11 physical search may be authorized by the Attorney
General \vithout a warrant for "foreign intelligence" proposes.42
The warrantless mail opening programs and surreptitious entries
by the FBI and CIA did not Hen conform to the "foreign intelligence"
standard, hO\ve,-er, now were they specifically approved~in each case by
the Attorney General. Domestic "subversives" and "extremists" were
targeted for mail opening; and domestic "subversives" and "\Yhite
Hate groups" were among those targeted for surreptitious entriesY
rntil the Justice Department's recent statement in the Ehrlichman
case, moreover, no legal justification had eYer been advanced publicly
for violating the statutory or constitutional prohibitions against physical
searches or opening mail \vithout a judicial warrant, and none has
ever been officially advanced by any Administration to justify warrantless
mail openings.
8ubfinding (b)
In addition to providing the means by which the Government
can collect too much information about too many people, certain techniques
have their own peculiar dangers:
(i) Informants have provoked and participated in violence and
other illegal activities in order to maintain their cover, and they have
obtained membership lists and other private documents.
(ii) Scientific and technological advances have rendered obsolete
traditional controls on electronic surveillance obsolete and have made
it more difficult to limit intrusions. Because of the nature of wiretaps,
microphones, and other sophisticated electronic techniques, it has not
always been possible to restrict the monitoring of communications to
the persons being investigated.
a. The Int7'Usi1'e Nat1l1Y' of the Intelligence Informant Technique
The FBI employs two types of informants: (1) "intelligence
informants" who are used to report on groups and indivi.duals i.n the
course of intelligence inYestigations. and (2) "criminal informants,"
who are used in connection with im-estigations of specific criminal
activity. FBI intelligence informants are administered by the FBI
Intelligence Division at Bureau headquarters through a centralized
system that is separate from the administrati,-e system for FBI criminal
informants. For example. the FBI's large-scale Ghetto Informant
Program was administered by the FBI Intelligence Division. The
Committee's im-estigation CE'ntered on the use of FBI intelligence informants.
The FBI's criminal informant program fell outside the
scope of the Committee's mandate, and accordingly it was not
examined. .
The Committee recognizes that FBI intelligence informants in
violent groups have sometimE's played a key role in the enforcement of
42 Letter from Actin!;" Assistant Attorney General John C. Keeny to Hugh E.
Klinf'. Clerk of tIl{' P.S. Court of Appeals for the District of Columbia. ri/9/75.
'" The Supreme Court's decision in Unitcd 8tatc8 Y. United 8tatc8 Di8trict
OOllrt. 407 U.S. 297 (1972), clearly estahlislwd the principlf' that sueh warrantless
im-asions of tIl(' priyacy of Americans are unconstitutional.
193
the criminal law. The Committee examined a number of such cases,H
and in public. hearings on the use of FBI intelligence informants included
the testimonv of a former informant in the Ku Klux Klan
whose reporting ancI court room testimony was essential to the arrest
and conviction of the murderers of Mrs. Viola Liuzzo, a civil rights
worker killed in 1961'),4" Former Attorney General Katzenbach testified
that informants were vital to the solution of the murders of three civil
rights workers killed in J1ississippi in 1964.46
FBI informant coverage of the ,Yomen's Liberation Jlovement resulted
in intensin l'f'porting on the identities and opinions of women
,,'ho attended ,YL)I meetings. For example. the FBI's Xew York
Field Office summarized one informant's report in a memorandum to
FBI Headquarters:
Informant ach'ised that a ,VL~I meeting was held on
______________________________________.47 Each woman at
this meeting stated why she had come to the meeting and how
she felt oppressed, sexlially or othenvise.
According to this informant. these women are mostly concerned
",ith liberating ,,'omen from this "oppressive society."
They are mostly against marriage, children, and other states
of oppression caused by men. Fe,,' of them, according to the
informant, have had political backgrounds.48
Indi\,idual women \vho att{'nded ,YLJI meetings at michwstern
uni\-ersities ,,-ere identified by FBI intelligence informants. A report
by the Kansas City FBI Field Office stated:
Informant indicates members of ,Yomen's Liberation
campus group \vho are now enrolled as students at l-niversity
of JIissonrL Kansas City, are , , ,
________ • ,49 Informant noted that , and
________,50 not currently students on the r:~IKC campus are
reportedly roommates at .51
.. In one case, an FBI informllnt involved in an intelligence inve>;tigation
of the Detroit Black Panther Party furnished advance information regarding a
planned ambush of Detroit police officers which enabled the Detroit Police Department
to take necessary action to prevent injury or death to the officers and
resulted in the arrest of eight persons and the seizure of a cache of weapons. The
informant also furnished information resulting in the location and confiscation by
Bureau agents of approximately fift~· sticks of dynamite available to the Black
Panther Party which likely resulted in the saving of liveR and the prevention of
property damage. (Joseph Deegan testimony, 2/13/76, p. 54)
45 Rowe, 12/2/75, Henring>;, Vol. 6, p. 115.
46 Katzenbach testified that the case "could not have been Rolyed without
acquiring informants who were highly placed members of the Klan." (Katzenbacll,
12/3/75, Hearings, Vol. 6, p. 215.)
H Date and address deleted at FBI request so as not to revenl informant's
iclentit~-.
48 Memorandum, from New York Field Office to FBI Headquarters, re: Women's
Liheration ~Iovement, 5/28/69, p. 2.
4. Xames deleted for security reaRons.
;;0 XameR deleted for security reaRons.
"Xames and addresses deleted for security reasons.
68-786 0 - 76 - 14
194
Informants ,,"ere instructed to report "everything" they knew about
a group to the FBI.
... to go to meetings, 'nite up reports ... on ,vhat happeneeL
,,-ho ,ms there ... to try to totally identify the
background of every person there, ,vhat their relationships
were, ,vho they ,ycre E,-ing ,vith. who they ,vere sleeping
with, to try to get some sense of the local structure and the
local relationships among the people in the organization.52
Another intelligence informant described his mission as "total reporting."
Rowe testified that he reported "anything and everything I
observed or heard" pertaining to any member of the group he infiltrated.
53
E,-en where intelligence informants are used to infiltrate groups
,vhere some members are suspected of violent actiYity, the nature of
the intelligence mission results in g'onl'llI11ental intrusion into matters
irrelennt to that inquiry. The FBI Special ~\gents ,vho directed an
intelligence informant in the Ku Klux Klan testified that the
informant
... furnished us information on the meetings and the
thoughts and feelings. intentions and ambitions. as best he
knC\v them, of other members of the Klan. both the rankalHl
file and the leadership. 54
Intelligence informants also report on other groups-not the subject
of intelligence inYestigations-which merely associate with, or
are eyen opposed to, the targeted group. For example, an FBI informant
in the VVA1,V had the following exchange ,vith a member of
the Committee:
Senator HART pIich.) .... did you report also on groups
and individuals outside the rVYA1,YJ. such as other peace
groups or individuals ,vho were opposed to the war whom you
came in contact with because they ,vere cooperating with the
[VVA,v1 in connection with protest demonstrations and
petitions?
Ms. COOK. ••• I ended up reporting on groups like the
United Church of Christ. Amrrican Civil Liberties Fnion. the
National Lawyers Guild. liberal church organizations
[whichJ quite often went into coalition with the VVA1,V.55
This informant reported tlw ir1entitirs of an estimated 1,000 individuals
to the FBI, although the loral chaptrr to ,vhirh she ,vas
assigned had onlv 55 regular members.5G Similarly. an FBI informant
in the Ku Klux Klan reportr,l on the artivities of civil rights
and black groups that he obsernd in the course of his ,vork in the
Klan.57
In short. the intelligence informant technique is not a prerise instrument.
By its nature. it extends far be~-onc1 the sphere of proper gOYC'rn-
'" Cook, 12/2/75, Hearings, Vol. 6, p. 111.
53 Rowe, 12/2/75, Hearing-s, Vol. 6, p. 116.
M Special Agent, 11/21/75, p. 7,
55 Cook, 12/2/75. Hearings, Vol. 6, pp. 119, 120.
or, Cook, 12/2/75, Hearings, Yol. 6. p" 120.
57 Rowe, 12/2/75, Hearings, Vol. 6, p, 116.
195
mental interest and risks governmental monitoring of the private liyes
and the constitutionally-protected acti,-ity of Americans. Xor is the
intelligence informant technique used infrequently. As reflected in
the statistics described above. FBI intelligence inrestigations are
in large part conducted through the use of informants; and FBI
agents are instructed to "dnelop ]'('liable informants at all levels and
in all segments" of groups under investigation.5R
b. Other Danger8 ill the Intelligence Informant Tech nique
In the absence of clear guidelines for informant conduct. FBI paid
and directed intelligence informants have participated in violence and
other illegal actirities and ha,-e taken membership lists and other
private documents.
1. Pal'ticipationin Violence and Other 17legal Activity
The Committee's ilwestigation has reYealecl that there is often a
fundamental dilemma in the use of intelligence informants in violent
organizations. The Committee recognizes that intelligence informants
in such groups ha,-e sometimes played essential roles in the enforcement
of the criminal law. At the same time, howe,-er, the Committee
has found that the intelligence informant technique carries ,,-ith it
the substantial danger that informants will participate in, or provoke.
violence or illegal activity. Intelligence informants are frequently
infiltrated into groups for long-term reporting rather than to coIled
evidence for use in prosecutions. Consequently. intelligence informants
must participate in the acti,-ity of the group they penetrate to presen-e
their cover for extended periods. 'Where the group is inroh-ed in
riolence or illegal activity. there is a substantial risk that the inforant
must also become involved in this activity. As an FBI Special
Agent who handled an intelligence informant in the Ku Klux Klan
testified: "ryou] couldn't be an angel and be a good informant."59
FBI officials testified that it is Bureau practice to instruct informants
that they are not to engage in violence or unlawful activity and. if
they do so. they may be prosecuted. FBI Deputy Associate Director
Adams testified:
... we hare informants who have gotten im-olved in the
violation of the law. and we have immediately connrted their
status from an informant to the subject, and'have prosecuted,
I would say, offhand ... around 20 informants.6o
The Committee finds. however, that the existing guidelines dealing
with informant conduct do not adequately ensure that intelligence
informants stay within the law in carrying out their assignments.
The FBI "Manual of Instructions contain no prm-isions gm'erning
informant conduct. 'While FBI employee conduct regulations prohibit
an FBI agent from direeting informants to engage in violent
or other illegal activity, informants themselres are not governed by
these regulations since the FBI does not consider them as FBI
employees.
68 FBI ManuaL Section 107 c(3).
59 Special Agl"nt, 11/21/75, p. 12.
00 Adams, 12/2/75, Hearings, Yo1. 6, p. 150.
196
In the absence of clear and precise written provisions directly applicable
to informants. FBI intelligencp informants haw engaged in violpnt
and otllPr illegal activity. For example, an FBI intel1igence informant
,dw ]wnetratpd the Ku Klux Klan and reported on its
activities for on'r fin' years testified that on a number of occassions he
and other Klansmen had "beaten people sewrely, had boarded buses
and kicked people off; hac] ,,-ent in restaurants and beaten them with
blackjacks, chains, pistols." 61 This infoI1nant described hmv he had
taken part in Klan attacks on Freedom Riders at tlw Birmingham,
Alabama, bus depot, ,,-here "baseball bats, clubs, chains and pistols"
were nsed in be.atings.62
Although the FBI Special Agents who directed this informant instrncted
him that he "as not to engage in violence, it was recognized
that there "as a snbstantial risk that he ',onld become a participant
in violent activity.
As one of the Agents testified:
... it is kind of difficult to tell him that we wonld like. yon to be
there on deck, obsen-ing, be able to giye us information and
still keep yourself detached and uninvo]yed and clean, and
that ,ms the problem that we constantly had.63
In another example, an FBI intelligence informant penetrated
"right Wing" groups operating in California under the names "The
Minutemen" and "The Secret Armv Oroganization." The informant
reported on the activities of these "right ,,-ing" paramilitary groups
for a period of five years but was also involved in acts of violence or
destruction. In addition, the informant actually rose to a position of
leadership in the SAO and became an innovator of various harassment
actions. For example, he (\c]mittedlv participated in firebombing
of an automobile and was present, conducting a "sllrYeil1ance" of a
professor at San Diego State rniversity, "hen his associate and
subordinate in the SAO took out a gun and fired into the home of the
professor, wounding a young "oman.64
An FBI intelligence informant in a group of antiwar protesters
planning to break into a draft board claimed to haw provided technical
instruction and materials that ,verp essential to the jl1egal breaktestified
to the committee:
Everything they learned abont breaking into a bnilding or
climbing a "a11 or cntting glass or destroying lockers, I taught
them. I got sample eqnipmpnt, the type of windows that we
would go throngh. I picked up off the job and taught them how
to cnt the glass, hmv to drill holes in the glass so yon cannot
hear it and stuff like that, aJl(l the FBI snpplied me with the
equipment needed. The stuff I did not have, the [the FBI] got
off thpir mvn agents. 65
The Committee finds that ,,-here informants are paid and directed
by a goyernment agpn('y, the gon'rnnwnt has a responsibility to
61 RmYl' dppo>;ition. 10/17/75. p. 12.
eo RowE'. 12/2/75, HE'arings, Yo1. 6. p. 118.
., ~pPC'inl Ag-pnt. 11/21/7;";. pp. 16-17.
6! ~IplllOral1dllm from tllP FBI to SE'nate SE'IE'C't Committee. 2/2()/7(). with
P11('1 OSIl rps.
6G Hard." 9/29/75, pp. 16-17.
197
imposp drar rpstrietiolls OJl tllPir ('(mduct. rmHittPll practice or gpnpral
proyisiolls ainw\l at persons otlwl' than the informants thrmsplws
are not snffieient. In tllP inH'stigation of \'iolpnce or il1rgal activity, it
is e&"ential that the gOH'rnment not be implicated in such activity,
B. J[embn·ship Lists awl O[hel' PI'/W[C J)()(,lImeld,~ 01J!II/ned liy the
(i01'l'1'lIlJIellt Through Illtelliycilct In/oll/lallts
The Committl'e finds that tlwre are inadequate guidelines to regulate
the C'ondurt of intelligence informants ,vith resprct to pri\'ate and
confidpntial documents. such as Illrmbership lists. mailing lists and
papers relating to Ipgal matters. TIll' Fourth Amendment prov~des
that citizens shall be "securt' in their ... papPI'S and effects, agalllst
unreasonable, searches and s(>izures" and requires probable cause to
belipvc therc has ])('en a violation of law beforp a srarcll warrant may
issue. )loreonr the Supreme Court, in NAAOP v. Alabmna,6G held
that the First ~\.mendmenrsprotpetions of spepch. assembly and group
association dio. not permit a state to con1])el the production of the
membership list of a group engaged in lawful activity. The Court distinguisheo.
the case where a state ,,,as able to demonstrate a "controlling
justification" for such lists by showing a group's activities in\'
olveo. "acts of unla,,,ful intimio.ation and violpllcP.'· 6Ga
There are no provisions in tIl\' FBI )[anual which preclude thr
FBI from obtaining pri \'atp and confidential documents through
intelligence informants. The ~Iallllal does prohibit informant reporting
of "any information pprtaining to dpfpnsp plans or stratpgy," but
t he FBI intrrprets this as applying only to pri \-ilegpd communications
hptwprll all attornpy awl client in connection with a specific court
proceeding.G
'
The Committec's inn'stigation has sho\vn that. the FBI, through
its intelligence informants and sources. has sought to obtain membership
lists and other confidential documents of groups and individwl1s.68
For examplr. one FBI Special Agent testified:
I remember one Hening . . . [an informant] called my
home and said I ,,,ill meet you in a half an hour ... I have
a complete list of eYerybod~: that I haw just taken out of the
fill'S, but I haw to have it back ,,,ithin such a length of time.
",Vell, naturally I left llOnw and met him and had th\' list
duplicated forth\vith, and back in his possession and back in
thr files with nobody suspecting." 69
Similarly, the FBI Special Agent ,vllo handled an intelligence
informant in an antiwar group testified that he obtained confidential
papers of the group ,,-hie]} rrlatpd to legal defense matters:
"She brought back sewral things ... various position papers,
taken by yal'ious lpgal ddenst' groups, general statements
of ... the YVA",V, legal thoughts on yarious trials. the
"" 357 r.s. +Hl (11).'58). Similarly. in Rates Y. City of Little Rock, 361 CS.
516 (l(J60) , the Snllreme Court h"ld comllul~or~' di~('losur" of groull member~hill
lists was an unjustified interference with members' freedom of association.
""" 361 U. S. at 46;";.
07 FBI )Ianual of Instructions, Section 107.
6S Surreptitious E'ntry has also proYided a mean~ for the obtaining of such lists
and other confidE'ntial documE'nts. .
.. Special Agent, 11/19/75, llP. 10-11.
198
Gainesyille (Florida) 8 ... the Camden (~ew .Jersey)
9 ... yariOllS documents from all of these groups.~~ ;0
This informant also testified that she took the confidential mailing
list of the group she had penetrated and gan~ it to the FBI.;t
She also ga ye the FBI a legal manual preparecl by the group's
attorneys to guide lln"yers in elefending the gl'Oup's members should
they be arrested in connection with antiwar demonstrations or other
political activity.;2 Since this elocument \\'as prepared as a general
legal reference manual rather than in connection \"ith a specific trial
the FBI considered it outside the attorney-client privilege anel not
barred by the FBI ~Ianual prm'ision with respect to legal defense and
strategy matters.
For the goyernment to obtain membership lists and other private
documents pertaining to lawful and protected activities covertly
through intel1igence informants risks infringing rights guaranteed by
the Constitution. The Committee ,finds that there is a need for new
guidelines for informant conduct with respect to the private papers of
groups and individuals.
c. ElcctJ'onic Survcilla11Cc
In the absence of judicial warrant. both the "traditional" forms of
electronic surveillance practiced by the FBI-wiretapping and bugging-
and the highly sophisticated form of electronic monitoring practiced
bv NSA haye been used to collect too much information about
too mallY people.
1. lVir'etapping and Bugging
'Wiretaps and hugs are considered by FBI officials to be one of the
most \'aluable terhniques for the collection of information relevant to
the Bureau's legitimate foreign counterintelligence mandate. ,,~. Raymond
1VannalL the former Assistant Director in charge of the FBI's
Intelligence Division. stated that electronic surveillance as"isted Bureau
officials in making "decisions" as to operations against foreigners
engaged in espionage. "It gives us leads as to persons ... hostile intelligence
services are trying to Rubyert or utilize in the United States, so
certainly it is a valuable technique." n
DeRpite its stated value in foreign counterintel1igence cases, however.
the dangers inherent in its use imply a clear nE'ed for rigorous
controls. By their nature. wiretaps and bugs are incapable of a surgical
precision that would permit intelligence agencies to overhear
only the target's conrersations. Since wiretaps are placed on particular
telephones. anyone who uses a tapped phone-including members of
tIlE' target's family-can be onrheard. So. too. can enryone with
whom the target (or am'one rIse using the target's telephone) communicates.
a Microphones planted in the target's room or office inevitably
intE'rcept all cOll\Tersations in a partirular area: anyone conferring in
the room or office, not just the target, is overheard.
70 Special Agent. 11/20/75, pp. 15-16.
71 Cook, 12/2/75, Hearing-~. Vol. 6, p. 112.
"" rook rlppo~ition, 10/14/75, p. 36.
7'1V. Raymonrl Wannall te~timony. 10/21/7". p. 21.
74 Unrler the Justice Dppartment's procpdurps for Titlp III (conrt-ordpred)
wiretaps. however, thp monitoring- ag-pnt is ohlig-ated to turn off the recordingeCluipmpnt
when certain privileg-ed commnnications begin. Manual for conduct
of Electronic Surveillance under Title III of Public Law 90-351, Sec. 8.1.
199
The intrusiveness of these techniques has a second aspect as well. It
is extremely difficult, if not impossible, to limit the interception to
cOIl\'ersations that are relevant to the purposes for which the sUlTeillance
is placed. Virtually all conversations are overheard, no matter
how trivial, personal, or political they might be. ",Yhen the electronic
sUlTeillance target is a political figure who is likely to discuss political
affairs, or a lawyer. who confers with his clients, the possibilities for
abuse are obviously heightened.
The dangers of indiscriminate interception are perhaps most acute
in the case of microphones planted in locations such as bedrooms.
'When Attorney General Herbert Browne]] gave the FBI sweeping authority
to engage in microphone surveillances for intelligence purposes
in 1054. he expressly permitted the BllI'eau to plant microphones
in such locations if. in the sole discretion of the FBI. the facts warranted
the installation." Acting under this general authority, for example.
the Bureau installed no fewer than twelve bugs in hotel rooms
occupied by Dr. ~fartin Luther King, J 1'.76
The King suneillances which occurred between January 1064 and
October 11")65, were ostensibly approved within the FBI for internal
security reasons, but they produced vast amounts of personal information
that were totally unrelated to any legitimate governmental
interest; indeed, a single hotel room bug alone yielded twenty reels
of tape that subse'luently provided the basis for the dissemination
of personal information about Dr. King throughout the Federal establishment.'''
· Significantly, FBI internal memoranda with respect to
some of the installations make clear that they were planted in Dr.
King's hotel rooms for the express purpose of obtaining personal information
about him.77
Extremely personal information ahout the target. his family, and
his friends. is easily obtained from ,viretaps as well as microphones.
This fact is clearly illustrated by the ,varrantless electronic surveillancr
of an American citizen ,vho 'YaS suspected of leaking classified
data to the press. A wiretap on this individual produced no evidence
that 11(' had in fact leaked any storii's or documents. but among the
items of information that thr FBI did obtain from the tap (and deJinred
in utmost sC'crrcy to thi' 'White House) were the following: that
"meat was ordered [by the target's family] from a grocer;" that the
target's daughter had a toothache: that the target needed grass clippings
for a compost h('ap he was building: and that during a telephone
conwrsation hehwen the target's wife and a friend the "matters discussed
were milk bills. hair, soap operas, and church." 78
75 :\fpnlOranr]um from the AttorTIf'Y Gpneral tc, the Director. FBI. 5/20/154.
76 Thrf'c additional bugs werf' planted in Dr. King's hotf'l rooms in 10015 after
thp standards for "irptapping and microphonf' !'urYeillancp hecame idpntical.
According- to FBI memorancla. apparently initiatf'(] h~' Katzf'nhach. Attornf'Y
General Xicholas Katzenbach was given after the fact notification that these
thref' survPillanN's of Dr. King- had occurred. See p. 273. and the King Report.
Sec. IV. for further details.
7"' :\If'morandum from F..T. Baumgardener to W. C. Sullivan. 3/26/64.
77 For f'xamplp. IllPllloramlum frolll Baumgardner to 'V. r'. Sullivan. 2/4/f4.
"FBI IllPllloranda. Identifying dptails are hping ,,·ithllPld hy thp Sf']pct COIllmitt!'!'
hecans(' of prh'ncy consic]l'ration~. EVf'n tllP FBI r!'alilwd that this type of
informntion ,,'n~ \lIlrp]atl'd to criminnl neth·ity or nntional s\'curity: for the last
four month~ of this survpillancp. most of the summarips that ,,"pre disseminatpd
to Ow "'hit\' fIo11.'\' !wgan. "Th\' follmying i~ a summar.v of nonpf'rtin!'nt information
conc\'rning captioned individual as of ..."
200
The so-called "sennteen" "iretaps on joul11alists and gowrnment
employees. \\hi('h collecti vely lastp(l from ~Iay 1060 to February 1971,
also illustratE' the intl'usiwnE'ss of electronic sUl'willance. According
to fonner Presidcnt Xixon. these taps produccrl "just gobs of matE'rial:
gossip and bull." 79 FBI summaries of information obtained from the
"iretaps and disscminated to the 'Yhitc House. suggest that the former
PresidE'nt's pl'iYate eyaluation of them \YtlS correct. This "irE'tapping
program did not renal the source of any leaks of classified data. "hich
"as its ostensible purpose. but it did genE'rate a 'walth of information
about the personal liYes of the targets-their social contacts. their
vacation plans. thE'ir employment satisfactions and dissatisfaction,
their marital problems. their drinking habits. and e,en their sex lives.86
"\mong those "ho ,wre incidentall)' m'E'rheanl on one of these wiretaps
was a currently sitting Associate .rustice of the Supreme ('ourt
of the "LnitE'd States. who made plans to rE'vie,Y a manuscript written
by one of the targets.S
! Vast amounts of political information were also
obtained from these "iretaps.82
The "seventeen" wiretaps also exemplify the particularly acute
problems of wiretapping when the targeted individuals are involved
in the domestic political process. These "iretaps produced vast amounts
of purely political information.82 much of "hich ,vas obtained from
the home telephones of h,o consultants to Senator Edmund Muskie
and other Democratic politicians.
The incidental collection of political information from electronic
surveillance is also shown bv a series of telej1hone and microphone
surveillances conducted durillg the Kennedy administration. In an inYestigation
of the possibly unla,dul attempts of representatives of a
foreign country to influence congressional deliberations about sugar
quota legislation in the early 1060s. Attorney Gel1E'ral Robert Kennedy
authorized a total of twelYe warrantless wiretaps on foreign and domestic
targets. Among the "iretaps of American citizens ,\pre h,o on
American lobbyists. three. on executi"e branch officials. and two on a
staff member of a House of Representatiws' Committee.83 A bug was
also planted in the hotel room of a Fnited States C(Jngressman, the.
Chairman of the House Agricultnre ('ommittee, Harold D. Cooley.84
Although this imestigation ,yas apparently initiated because of the
Gowrnment's concern about future relations with the forei.!!n countr:,
im-olwd and the possibility of bribery,85 it is clear that the KE'n-
7l> Trans('ript of Pre;:;idential Tapes. 2/21'/73 (House Judiciary Committee Statement
of Information. Book VII. Pa rt 4. p. 1754).
EO For pxamplp. lpttprs from Hoonr to thp Attornpy Gpnpral. 7/25/69, and
7jR1/6!): If'ttpr~ from Hoowr to H. R. Halopman. 6/2;)/70.
III Letter from HooYerto Haldeman. 6/25/70.
82 Examplps of such information arp listpd in the finding on Politi('al Abuse, "The
'17' wirptaps."
83 Memorandum from J. Edgar Hoonr to the Attorney General. 2/14/61;
Memorandum from .T. Edgar Hooypr to thp Attorney General. 2/16/61: Memorandum
from .T. Eflgar HooYer to tIl(' Attornpy General, 6/26/62; l\lemorandum
from Wannall to W. C. SulliYan. 12/22/66.
.. Memorandum from D. E. ::\Ioorp to A. H. Belmont. 2/16/61.
85 Memorandum from W. R. "'anna11 to W. 0. Sulliyan. 12/22/66: Memorandum
from A. H. Belmont to Mr. Parsons. 2/14/61. This inwstigation did discoyer
that. rpprpspn'tatiyes of a forpign nation \yprp attpmpting to inflnpnN' ('ongrpssional
delihprations. but it did not rewal that money was being passed to any
member of Congress or Congressional staff aide.
201
nedy administration was politically interested in the outcome of the
sugar quota legislation as wel1.86 Given the nature of the techniques
used and of the targets they were directed against, it is not surprising
that a great deal of potentially useful political information was generated
from these "Sugar Lobby" surveillances.S
'
The highly intrusi"e nature of electronic surveillance also raises
special problems when the targets are lawyers and journalists. Over
the past two decades there have been a number of wiretaps placed on
the office telephones of lawyers.88 In the Sugar Lobby investigation,
for example, Robert Kennedy authorized wiretaps on ten telephone
lines of a single law firm.9o All of these lines were apparently used by
the one lawyer who was a target and presumably by other attorneys in
the firm as well. Such wiretaps represent a serious threat to the attorney-
client privilege, because once they are instituted they are capable
of detecting all conversations between a lawyer and his clients, even
those relating to pending criminal cases.
Since 1960, at least six American journalists and newsmen have also
been the targets of warrantless wiretaps or bugs.B1 These surveillances
were all rationalized as necessary to discover the source of leaks of
classified information, but, since wiretaps and bugs are indiscriminate
in the types of information collected, some of these taps revealed the
attitudes of various newsmen to'ward certain politicians and supplied
advance notice of forthcoming newspaper and magazine articles dealing
with administration policies. The collection of information such
as this, and the precedent set by wiretapping of newsmen, generally,
inevitably tends to undermine the constitutional guarantee of a free
and independent press.
92. NSA Jfonitoring
The Xational Security Agency (NSA) has the capability to monitor
almost any electronic communication which travels through the air.
This means that XSA is capable of intercepting a telephone call or
even a telegram, if such call or telegram is transmitted at least partially
through the air. Radio transmissions, a fortiori, are also within
NSA's reach.
Since most communications today-to an increasing extent even
domestic communications-are, at some point, transmitted through the
air, XSA's potential to violate the privacy of American citizens is unmatched
by any other intelligence agency. Furthermore, since the interception
of electronic signals entails neither the installation of electronic
surveillance devices nor the cooperation of private communications
companies, the possibility that such interceptions will be undetected
is enhanced.
XSA has never turned its monitoring apparatus upon entirely domestic
communications, but from the early 1960s until 1973, it did inter-
86 Memorandum from Wannall to W. C. Sullivan, 12/22/66.
87 See Finding- on Political Abuse, p. 233.
8ll Ell'ctronic Surveillance Report: Sec. II, "Presidential and Attorney General
Authorization."
00 :\Iemorannum from J. Edgar Hoover to the Attorney General, 6/26/62.
•, :\Iemorandum from J. Edgar Hoover to the Attorney General 6/29/61; memo·
randum from .J. Edgar Hoover to the Attorney General i /31/62; memorandum
from J. Edg-ar Hoover to the Attorney General 4/19/65; memorandum from J. Ed·
g-ar Hoover to the Attorney General 6/4/69; memorandum from J. Edgar Hoover
to the Attorney General 9/10/69 ; letter from W. C. Sullivan to J. Edgar Hoover
7/2/69.
202
cept the international communications of American citizens, without a
,varrant, at the rrquest of othrr fedrral agencirs.
Under current practice. XSA does not target an.v American citizen
or firm for the purpose of intC'rcepting- tlwir foreign communications.
As a result of monitoring international links of communication, however,
it does acquire an enormous number of communications to, from,
or about American citizens and firms. ns
As a practical matter, most of the commnnications of American citizens
or firms acquired by XSA as incidental to its foreign intellig-cncegathering
process are destroyed upon recognition as a communication
to or from an American citizen. But other such communications. which
bear upon XSA's foreign intelligencc requirements. are processed. and
information obtained from them are used in NSA's reports to other
intelligence agencies. Current practice precludes XSA from identifying
American citizens and firms by name in such reports. Xonetheless,
thr practice (lacs result in XS"\'s disseminating information derind
from the international communications of American citizens and firms
to the intelligence agencies and policymakers in the federal
government.
In his dissent in Olrnstea,d v. United 8tates,94 which held that the
Fourth Amendment ,varrant requirement did not apply to the seizure
of conversations by means of wiretapping. .Justice Louis D. Brandeis
expressed grave concern that new technologies might outstrip the
ability of the Constitution to protect American citizens. He wrote:
Subtler and more far-reaching means of im-ading privacy
have become ayailable to the gOYernment ... (and) the progress
of science in furnishing the Gon~Tnment ,vith means of
espionage is not likely to stop with wiretapping. 'Ways may
some day be deyeloped by ",hich the GOyeTnment, without
removing papers from secret drawers. can reproduce them in
court. and by which it ,..ill be enabled to expose to a jury the
most intimate occurrences of the home .... Can it be that the
Constitution affords no protection against such invasions of
individual security?
The question posed by .Tustice Brandeis applies with obyious force to
the technological deYelopments that allow NSA to monitor an enormous
number of communications each year. His fears were firmly
based, for in fact no ,.-arrant ,..as eYer obtained for the inclusion o'f
1200 American citizens on NSA.'s "1Yatch List" between the early
1960s and Hl73, and none is obtained today for the dissemination ,..ithin
the intelligence community of information deriYed from the international
comlnunications of American citizens and firms. In the face
of this new technology, it is ,Yell to remember the ans,..er .Tustice
Brandeis gave to his own question. Quoting from Boyd v. United
State8.116 17'.8.616. he wrote:
It is not the breaking of his doors. and the rummaging of his
draweI'S that constitutes the essrnse of the offense: but it is
the im-asion of his indefrasible right of personal security, personalliherty,
and priyate property ...94a
93 XSA has long as~erted that it had the authority to do this so long as one of
the pnrtie~ 'ro ~lleh eOffiffillnkntion ,,-as loeated in a foreign eonntry.
04 277 U.S. 438, 473-474 (1928).
04a 277 U.S. at 474-475.
203
D. Jfail Opening
By ignoring the legal prohibitions against warrantless mail opening,
the CIA and the FBI were able to obtain access to the ,nitten communications
of hundreds of thousands of individuals, a large proportion
of whom "ere American citizens. The intercepted letters were
presumably sealed with the expectation that they would only be
opened by the party to whom they were addressed, but intelligence
agents in ten cities throughout the United States surreptitiously
opened the seal and photographed the entire contents for inclusion in
their intelligence files.
Mail opening is an imprecise technique. In addition to relying on
a "'Watch List" of names, the CIA opened vast numbers of letters on
an entirely random basis; as one agent who opened mail in the CIA's
.New York project testified, "You never knew what you would hit." 95
Given the imprecision of the technique and the large quantity of correspondence
that was opened, it is perhaps not surprising that during
the twenty year course of the Agency's New York project, the mail
that was randomly opened included that of at least three United
States Senators and a Congressman, one Presidential Candidate, and
numerous educational, business, and civil rights leaders.96
Seyeral of the FBI programs utilized as selection criteria certain
"indioators" on the outside of envelopes that suggested that the communication
might be to or from a foreign espionage agent. These
"indicators" were more refined than the "shotgun approach" 97 which
characterized the CIA's New York projeCt, and they did lead toO the
identificatJion of three foreign spies.98 But even by the Bureau's own
!lccountling, it is clear that the mail of hundreds of innocent American
eltizens was opened and read for every successful counterintelligenee
lead that was obtained by means of "indicators." 99
Large volumes of mail were also intercepted and opened in other
FBI mail programs that were based not on indicators but on far lesg
precise criteria. Two programs that involved the opening of mail to
and from an Asian country, for example, used "letters to or from a
university, scientific, or technical facility" as one selection criterion.loo
According to FBI memoranda. an average of 50 to 100 letters per day
was opened and photographed during the ten years in which one of
these two programs operated.lol
.. "CIA Officer" testimony, 9/30/75, p.15.
.. Staff summary of "Master Index." review, 9/5/75.
"'James Angelton testimony, 9/17/75, p. 28.
.. Wannall. 10/21/75, p. 5.
.. In one of the prog-rams based on "indicators" a participating ag-ent testified
that he opened 30 to 60 lett~rs each day. (FBI agent statement, 9/10/75, p. 23.) In
a second such prag-ram, a total of 1,011 letters were opened in one of the six cities
in which it operatE'd; statistics on the number of letters opened in the other
five cities cannot be reconstructed. (W. Raymond Wannall testimony, 10/21/75,
p. 5.) In a third such project. 2.350 letters were opened in one city and statistics
for the other two cities in which it operated are unavailable. (Memorandum from
W. A. Branilmn to ,V. C. Sullivan. 8/31/61; :\[t>morandum from :\[r. Branig-an
to Mr. Sullivan, 12/21/61; memorandum from New York Field Office to FBI
Headquarters, 3/5/62.)
100 Letter from the FBI to the Senate Select Committee. 10/29/75. Six other
criteria were used in these programs. See Mail OpeningReport.Sec.IV.
101 :\1emornndnm from S. B. Donohoe to A. H. Belmont. 2/23/61 : :\1emorandum
from San Francisco Field Office to FBI Headquarters, 3/11/60. Statistics relating
to the number of letters opened in the other program which used this criterion
cannot be reconstructed.
204
E. Surreptitiou8 Entrie8
Surreptitious entrties~ conduded in violation of the law~ have also
permitted intelligence agencies to gatther 'a wide range of information
about Amrrican ci:tizens and domestic organiz'at,ion as well as foreign
targets.102 By definition this technique involves a physical entry into
the private premises of individuals and groups. Once intelligence
agents are inside, no "papers or effects" are secure. As the Huston
Plan recommendations stated in 1970, "It amounts to burglary." 103
The moot private documents n,re rendered vulnf'rable by the use of
surreptitious entries. According to a 1966 internal FBI memorandum,
which discusses the use of this technique against domestic
organizations:
[The FBI has] on numerous occasions been able to obtain
material held highly secret and closely guarded by subversive
groups and organizations which consisted of membership
lists and maiiling lists of these organizations.lo,
A specific example cited in this memorandum also reveals the types
of information that this technique can collect and the uses to which
the information thus collected may be put:
Through :a "black bag" jab, we obtained the records in the
possession of three high-ranking officials of a Klan organi~aNon....
These records gave us the complete membership
and financial information concerning the Klan's operation
which we have been using most effectively to disrupt the
organization and, in fact, to bring about its near
disintegration. 105
Unlike techniques such as electronic surveillance, government
entries into private premises were familiar to the Founding Fathers.
"Indeed," Judge Gesell wrote in the Ehrl1chrnan case, "the American
Revolution was sparked in part by the complaints of the colonists
against the issuance of writs of assistance, pursuant to which the King's
revenue officers conducted unrestricted, indiscriminate searches of
persons and homes to uncover contraband." 106 Recognition of the
intrusiveness of government break-ins was one of the primary reasons
102 According to the FBI, "there were at least 239 surreptitious entries (for
purposes other than microphone installation) conducted against at least fifteen
domestic subversive targets from 1942 to April 1968.... In addition, at least
three domestic subversive targets were the subject of numerous f'ntries from
October 1952 to .June 1966." (FBI memorandum to the Senate Select Committee,
10/13/76.) One target, the Socialist Workers Party, was the subject of possibly
as many as 92 break-ins by the FBI, between 1960 and 1966 alone. The home of
at least one SWP mpmber was also apparently broken into. (Sixth Supplementary
Response to Requests for Production of Documents of Defendant, Dirpctor of
the FBI, Socialist Workers Party v. Attorney General, 73 Civ. 3160, (SDNY),
3/24/76.) An entry against one "white hate group" was also reported by the
FBI. (Memorandum from FBI Headquarters to the Senate Select Committee,
10/13/75.)
103 Mpmorandum from Tom Huston to H. R. Haldpman, 7/70, p. 3.
1~ Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66.
105 Ibid.
106 United States v. Ehrlichman, 376 F. Supp. 29, 32 (D.D.C. 1974).
205
for the subsequent adoption of the Fourth Amendment in 1791,101 and
this technique is certainly no less intrusive today.
Subfunding (c)
The imprecision and manipulation of labels such as "national security,:'
"domestic security," "subversive activities" and "foreign intelligence"
have led to unjustified use of these techniques.
Using labels such as "national security" and "foreign intelligence",
intelligence agencies have directed these highly intrusive techniques
against individuals and organizations "'ho ,Yen~ suspected of no
criminal activity and who posed no genuine threat to the national
security. In the absence of precise standards and effective outside
control, the selection of American citizens as targets has at times been
predicated on grounds no more substantial than their lawful protests
or their non-conformist philosophies. Almost any connection with any
perceived danger to the country has sufficed.
The application of the "national security" rationale to cases lacking
a substantial national security basis has been most apparent in the
area of warrantless electronic surveillance. Indeed, the unjustified use
of wiretaps and bugs under this and related labels has a long history.
Among the wiretaps approved by Attorney General Francis Biddle
under the standard of "persons suspected of subversive activities," for
example, was one on the Los Angeles Chamber of Commerce in 1941.108
This was approved in spite of his comment to .r. Edgar Hoover that the
target organization had "no record of espionage at this time." 109
In 1945, Attorney General Tom Clark authorized a wiretap on a
former aide to President RooseveltYo According to a memorandum
by J. Edgar Hoover, Clark stated that President Truman wanted "a
very thorough investigation" of the activities of the former official so
that "steps might be taken, if possible, to see that [hisJ activities did
not interfere with the proper administration of government." 111
The memorandum makes no reference to "subversive activities" or
any other national security considerations.
The "Sugar Lobby" and Martin Luther King, Jr., wiretaps in the
early 1960s both show the elasticity of the "domestic security" standard
which supplemented President Roosevelt's "subversive activities"
formulation. Among those wiretapped in the Sugar Lobby investigation,
as noted above, was a Congressional staff aide. Yet the documentary
record of this inyestigation reveals no evidence indicating that
the target herself represented any threat to the "domestic security."
Similarly, while the FBI may properly han~ bern concerned with the
activities of certain advisors to Dr. King, the direct wiretapping of
Dr. King shows that the "domestic security" standard could be
stretched to unjustified lengths.
The microphone slln'eillances of Congressman Cooley and Dr. King
under the "national interrsf' standard rstablished by Attorney Genrral
Brownell in IDf)1 also reveal the relative easr ~vith ",hi~h electronic
bugging devices could be usrd against American citizens who
10'1 Rpp, p.g., Olm.qtead v. United Sltate8. 277 U.S. 4~8, (lfl28).
108 )fpmorandum from Francis Biddle to Mr. Hoover, 11/19/41.
100 Ibid.
110 Unaddre~sed Mpmorandum from .T. Edgar Hoover, 11/15/45, found in
Director Hoover's "Official and Confidential" files.
III Ibid,
206
posed no genuine "national security" threat. Neither of these targets
advocated or engaged in any conduct that was damaging to the
security of the United States.
.In April, 1964, Attorney GC'neral RobC'rt Kennedy approved "techmcal
coverage (electronic surveillance)" of a hlack nationalist leader
after the FBI advised Kennedy that he was "forming a new group"
which would be "more aggressive" and would "participate in racial
demonstrations and civil rights activities." The only indication of
possible danger noted in the FBI's request for the wiretaps, however,
was that this leader had "recommended the possession of firearms by
members for their self-protection.l12
One year later, Attorney General Nicholas Katzenbach approved a
wiretap on the offices of the Student Non-Violent Coordinating Committee
on the basis of potential communist infiltration into that organization.
The request which was sent to the Attorney General noted that
"confidential informants" described SNCC as "the principal target
for Communist Party infiltration among the 1'arious civil rights
organizations" and stated that some of its leaders had "made public
appearances with leaders of communist-front organizations" and had
"sub1'ersive backgrounds." 113 The FBI presented no substantial evidence
however, that SNCC was in fact infiltrated by communists-only
that the organization was apparently a target for such infiltration in
the future.
After the Justice Department adopted new criteria for the institution
of warrantless electronic surveillance in 1968. the unjustified use
of wiretaps continued. In November 1969, Attorney General ,Tohn
Mitchell approved a "cries of three wiretaps on organizations involved
in planning the antiwar "March on 'Vashington.'· The FBI's request
for cO\'erage of the first group made no claim that its members engaged
or were likely to engage in 1'iolent activity: the request was
simply based on the statement that the anticipated size of the demonstration
was cause for "concern should violence of any type break
out." 114
The only additional justification given for the wiretap on one of the
other groups. the Vietnam Moratorium Committee, was that it "has
recently endorsed fully the activities of the [first group] concerning
the upcoming antiwar demonstrations." 115
In 1970, approval for a wiretap on a "New Left oriented campus
group" ,,,as granted by Attorney General Mitchell on the basis of an
FBI request which included, among other factors deemed relevant to
the necessity for the wiretap. evidence that the group was attempting
"to develop strong ties with the cafeteria, maintenance and other
workers on rampus" and wanted to "go into industry and factories
and ... take the radical politics they learned on the campus and spread
them among factory workers." 116
112 ME'morandum from .T. Edgar Hoover to the Attorney General, 4/1/64.
113 :\Iemorandum from J. Edgar Hoover to the Attorney General. 6/Hi/6n.
114 :\Iemorandum from .T. Edgar Hoover to the Attorney Gpneral. 11/n/6f!.
115 :\Ipmorandllm from .T. Edgar Hoover to Attornf>Y General Mitchell. 11/7/69.
116 :\If'morandum from ,T. Edgar Hoover to the Attorney General. 3/16/70. The
fltrongpst evidence that this group's conduct was inimical to the national security
was reported as follows:
"The [lrroup] is dominated and controlled hy the pro-Chinese Marxist Leninist
(excisf'dL ...
"In carrying out the Marxist-Leninist id('ology of the (excised) memhers have
repeatedly sought to become involved in labor disputes on the side of labor, join
207
This approval was renewed three months later despite the fact that
the request for renewal made no mention of violent or illegal activity
by the group. The value of the wiretap was shown, according to the
FBI. by such results as obtaining "the identities of over 600 persons
eitlwr in touch with the national headquarters or associated with" it
during the preceding three months,117 Six months after the original
authorization the number of persons so identified had increased to
1,428: and approval was granted for a third three-month period." 118
The "seventeen ,viretaps" also show how the term "national security"
as a justification for wiretapping can obscure improper use of
this technique. Shortly after these wiretaps were revealed publicly,
President Nixon stated they had been justified by the need to prevent
leaks of classified information harmful to the national security.ll9
'Yiretaps for this purpose had, in fact, been authorized under the
Kennedv and .Johnson administrations. President Nixon learned of
these alld other prior taps and, at a news conference, sought to justify
the taps he had authorized by referring to past precedent. He stated
that in the:
period of 1£)61 to '63 there were wiretaps on news organizations.
on ne,,-s people, on civil rights leaders and on other
people. And I think they ,,-ere perfectly justified and I'm
sure that President Kennedy and his brother, Roberl Kennedy,
would never han authorized them, unless he thought
they were in the national intf'rcst. (Presidential News Conference,
8/22/73.)
Thus, questionable electronic surveillances by earlier administrations
,,-ere put forward as a defense for improper sunreillances exposrd
in 1~73. In fact. howe\'(>r. two of these ,viretaps ,vere placed on
domestic affairs advisers at the ,Yhite House who had no foreign
affairs rcsponsibilitips and apparently no access to cla:osified foreign
policy materials.12l A third target was a ,,,rhitr House speech writer
,,-110 had '!wen onrheard on an existing tap agreeing to provide a reporter
with background information on a Presidential speech conpicket
lines and engage in disrupti,e and sometimes violent tactics against industry
recruiters on college campuses....
"This faction is currently ,ery acti,e in many of the major demonstrations and
studpnt violence on collpgp campnses...." (Mpmorandum from ,J. Edgar Hoover
to the Attorney General, 3/16/70. The excised words have been deleted by the
FBI.)
117 "Iemorandum from .T. Edgar Hoo,er to the Attorney General, 6/16/70. Tho
only other results noted hy Hoo,er related to the fact that the wiretap had
"ohtained information concerning the activities of the national headquarters of
[the group and] plans for [the group's] support and participation in demonstra
tions supporting antiwar groups and the (excised)." It was also noted that
the wiretap "re,ealed ... contacts with Canadian student elements".
113 "Iemorandum from .T. Edgar Hoover to the Attorney General, 9/16/70. The
only other results noted hy Hom-er again related to obtaining information about
the "plans and activities" of the group. Specifically mentioned were the "plans
fol' the Xationnl Intpl'im Committee (ruling hody of [excispd]) met'ting which
took place in Np,,- York and Chicago". and the plans "for dt'monstrations at
San Fl'ancisco. Detroit, Salt Lake City, Minneapolis. and Chicago." There was no
indication that these demonstrations were expected to be violent. (The excised
\\'01'(1.' ha"p hpen delett'd hy the FBI).
110 Public statpment of Presidpnt Xixon, ))/22/73.
1.21 ~remorandl1m from .T. Edgar Hoover to the Attorney General 7/23/69;
memorandum from J. Edgar Hoover to the Attorney General 12/14/70.
208
cerning domestic revenue sharing and welfare reform.122 The
reinstatrment of another ,Yirrtap in this serirs was reqnested by H. R.
Haldeman simply because "they may ha\'e a bad apple and han:, to
lYet him out of the basket." 121 The last four requests in this series
that were sent to the AHorney Genem1 (incl ueling the requests for a
tap on the "bad apple") did not mention any national srcurity justification
at all. As former Deputy Attorney General ,Villiam Ruckelshaus
has testified:
I think some of the individuals who were tapped, at least to
the extent I have revim,ed the record. had very little, if any,
relationship to any claim of national security ... I think
that as the program proceeded and it became clear to those
who could sign off on taps how easy it was to institute a wiretap
under the present procedure that these kinds of considerations
[i.e., genuine national security justifications] were considerably
relaxed as the program went on.124
None of the "seventeen" wiretaps was ever reauthorized by the
Attorney General, although 10 of them remained in operation for
periods longer than 90 days and although President Nixon himself
stated privately that "[tJhe tapping was a very, very unproductive
thing ... it's never been useful to any operation I've conducted ..." 125
In short, warrantless electronic surveillance has been defended on the
ground that it was essential for the national security, but the history
of the use of this technique clearly shows that the imprecision and
manipulation of this and similar labels, coupled with the absence of
any outside scrutiny, has led to its improper use against American
citizens who posed no criminal or national security threat to the
country.126
Sim{larly, the terms "foreign intelligence" and "counterespionage"
were used by the CIA and the FBI to justify their cooperation in the
CIA's New York mail opening project, but this project was also used to
target entirely innocent American citizens.
As noted above. the CIA compiled a ",Vatch List" of names of pereons
and organizations whose mail ,vas to be opened if it passed through
the New York facility. In the early days of the project. the names
on this list-which then numbered fewer than twenty-':'-'might reason-
122l\ft'morandum from W. C. Sullivan to C. D. DeLoach. 8/1/69.
123 Memorandum from J. Edgar Hoover to Messrs. Tolson, Sullivan and D. C.
Brpnnan, 10/15/70.
1Jl4 Ruckel~haus te~timony before the Senate Subcommittee on Administrative
Prnctice and Procedure. 5/9/74, pp. 311-12.
1$ Transcript of the Presidential Tapes, 2/21'/73 (House .Tudicinry Committee
Stntement of Information Book YIl, Part W, p. 17M.)
1>6 The term "national security" ,,'as also used by John Ehrlichman and Charles
Colson to justify their roles in the break-in of Dr. Fil'lding's office in 1971. A
March 21, 1973 tapp recording of a meeting bl'tween Prpsidpnt Nixon..Tohn Dpan.
and H. R. Haldeman su,gogests. however, that the national security "justification"
may have hepn developed long aftpr the evpnt for the purpose of ohscuring its impropril'ty.
Whl'n the Prpsident asked what could be done if the hreak-in was
reveall'd publicly, .Tohn Dean suggl'sted. "You might put it on a national security
grounds basis." Latl'r in the conversation. Prl'sirlent Nixon statpd ""rUh the
homhing- thing- coming- out and e'l'l'rything- coming out. thl' whole thing waR
nation:)l st'curity," and Dean said, "I think we could get hy on that." (Transcript
of Presidential tapes, 3/21/73.)
209
ably have been expected to lead to genuine foreign intelligence or
counterintelligence information. But as the project developed, the
'Vatch List grew and its focus changed. By the late 1060s there were
approximately 600 names on the list. many of them American citizens
and organizations who ,yere engaged in purely lawful and constitutionally
protected forms of protest against governmental policies.
Among the domestic organizations on the 'Vatch List, which was
supplemrnte(] by submissions from tJw FBI. were: Clergy and Laymen
Concernrd about Vietnam. tl1(' Xational "Mobilization Committee to
End thr 'Varin Vietnam. Ramparts, thr Studpnt Xon-Violent Coonlinating
Committer. tlw Center for thp Stndy of Pnblic Policy, and the
American Friends Service Committee.127
The FBI lpvied more general requirements on the CIA's project as
well. The focus of the original categorips of correspondence in which
the FBI expressed an interest was clearly foreign counterespionage,
but subsequent requirements became progressively more domestic in
their foens and progressively broader in thrir scope. The reqnirementE
t.hat were lcyird bv the FBI in 1972. one veal' before the termination of
the project. inclmled the following: .
" ... [plersons on the 'Vatch List: known communists, New
Left activists, extremists. and other subversives ...
Communist part)' and front organizations ... extremist and
New Left organizations.
Protest and peace organizations. such as People's Coalition
for Peace and ,rustice. Xational Peace Action Committee. and
vVomen's Strike for Peace.
Communists. Trotskvites and meml1Crs of other :MarxistLeninist,
snbversive arid extremist groups, such as the Black
Nationalists and Liberation gronps ... Students for a Democratic
Society ... and oth0r Xew Left groups.
Traffic to and from Pnerto Rico and the Virgin Islands
showing anti-U.S. or subversive sympathies." 128
This final sd of requiremrnts eyidrntly reflected the domestic turmoil
of the late 1960s and rarly 1£)70s. Themail op0ning program that began
as a means of collecting foreign intelligence information and discovering
Soyiet intelligence efforts in the rnited States had expanded
to encompass detection of the aetiyities of domestic dissidents of all
types.
In the absence of effectiYe ontside control. highly intrnsive techniques
haYe been used to gather vast amounts of information about the
entirely lawful actiyities-and priyately held beliefs-of large numbers
of American citizens. The nr)' intrnsi,'elwss of these techniqnes
demands the utmost circumspection in thcir use. But with yague or
non-rxistent standards to gnide them. and ,yith labels such as "national
security" and "foreign intelligence" to shipld them. execntiye branch
officials han> been all too willing' to nnleash these trchniques against
American citizens with littlr or no legitimate justification.
121 Staff ~ummary of Watch Li~t rpview, 9/5/75.
128 Routing slip from J. Edgar Hom-er to .Tames Angelton (attachment), 3/10/72.
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