INTELLIGENCE ACTIVITIES AND THE
RIGHTS OF AMERICANS
_______
BOOK II
_______
FINAL REPORT
OF THE
SELECT COMMITTEE
TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO
INTELLIGENCE ACTIVITIES
UNITED STATES SENATE
TOGETHER WITH
ADDITIONAL, SUPPLEMENTAL, AND SEPARATE
VIEWS
APRIL 26 (legislative day, April 14), 1976
A. VIOLATING AND IGNORING THE LAW
MAJOR FINDING
The Committee finds that the domestic activities of the intelligence
community at times violated specific statutory prohibitions and
infringed the constitutional rights of American citizens. 1 The legal
questions involved in intelligence programs were often not
considered. On other occasions, they were intentionally disregarded
in the belief that because the programs served the "national
security" the law did not apply. While intelligence officers on
occasion failed to disclose to their superiors programs which were
illegal or of questionable legality, the Committee finds that the
most serious breaches of duty were those of senior officials, who
were responsible for controlling intelligence activities and
generally failed to assure compliance with the law.
Subfindings
(a) In its attempt to implement instructions to protect the security
of the United States, the intelligence community engaged in some
activities which violated statutory law and the constitutional rights
of American citizens.
(b) Legal issues were often overlooked by many of the intelligence
officers who directed these operations. Some held a pragmatic view of
intelligence activities that did not regularly attach sufficient
significance to questions of legality. The question raised was
usually not whether a particular program was legal or ethical, but
whether it worked.
(c) On some occasions when agency officials did assume, or were told,
that a program was illegal, they still permitted it to continue. They
justified their conduct in some cases on the ground that the failure
of "the enemy" to play by the rules granted them the right to do
likewise, and in other cases on the ground that the "national
security" permitted programs that would otherwise be illegal.
(d) Internal recognition of the illegality or the questionable
legality of many of these activities frequently led to a tightening
of security rather than to their termination. Partly to avoid
exposure and a public "flap," knowledge of these programs was tightly
held within the agencies, special filing procedures were used, and
"cover stories" were devised.
(e) On occasion, intelligence agencies failed to disclose candidly
their programs and practices to their own General Counsels, and to
Attorneys General, Presidents, and Congress.
(f) The internal inspection mechanisms of the CIA and the FBI did not
keep -- and, in the case of the FBI, were not designed to keep -- the
activities of those agencies within legal bounds. Their primary
concern was efficiency, not legality or propriety.
(g) When senior administration officials with a duty to control
domestic intelligence activities knew, or had a basis for suspecting,
that questionable activities had occurred, they often responded with
silence or approval. In certain cases, they were presented with a
partial description of a program but did not ask for details, thereby
abdicating their responsibility. In other cases, they were fully
aware of the nature of the practice and implicitly or explicitly approved it.
Elaboration of findings
The elaboration which follows details the general finding of the
Committee that inattention to -- and disregard of -- legal issues was
an all too common occurrence in the intelligence community. While
this section focuses on the actions and attitudes of intelligence
officials and certain high policy officials, the Committee recognizes
that a pattern of lawless activity does not result from the deeds of
a single stratum of the government or of a few individuals alone. The
implementation and continuation of illegal and questionable programs
would not have been possible without the cooperation or tacit
approval of people at all levels within and above the intelligence
community, through many successive administrations.
The agents in the field, for their part, rarely questioned the orders
they received. Their often uncertain knowledge of the law, coupled
with the natural desire to please one's superiors and with simple
bureaucratic momentum, clearly contributed to their willingness to
participate in illegal and questionable programs. The absence of any
prosecutions for law violations by intelligence agents inevitably
affected their attitudes as well. Under pressure from above to
accomplish their assigned tasks, and without the realistic threat of
prosecution to remind them of their legal obligations, it is
understandable that these agents frequently acted without concern for
issues of law and at times assumed that normal legal restraints and
prohibitions did not apply to their activities.
Significantly, those officials at the highest levels of government,
who had a duty to control the activities of the intelligence
community, sometimes set in motion the very forces that permitted
lawlessness to occur -- even if every act committed by intelligence
agencies was not known to them. By demanding results without
carefully limiting the means by which the results were achieved; by
over-emphasizing the threats to national security without ensuring
sensitivity to the rights of American citizens; and by propounding
concepts such as the right of the "sovereign" to break the law,
ultimate responsibility for the consequent climate of permissiveness
should be placed at their door. 2
Subfinding (a)
In its attempt to implement instructions to protect the security of
the United States, the intelligence community engaged in some
activities which violated statutory law and the constitutional rights
of American citizens.
From 1940 to 1973, the CIA and the FBI engaged in twelve covert mail
opening programs in violation of Sections 1701-1703 of Title 18 of
the United States Code which prohibit the obstruction, interception,
or opening of mail. Both of these agencies also engaged in
warrantless "surreptitious entries" -- break-ins -- against American
citizens within the United States in apparent violation of state laws
prohibiting trespass and burglary. Section 605 of the Federal
Communications Act of 1934 was violated by NSA's program for
obtaining millions of telegrams of Americans unrelated to foreign
targets and by the Army Security Agency's interception of domestic
radio communications.
All of these activities, as well as the FBI's use of electronic
surveillance without a substantial national security predicate, also
infringed the rights of countless Americans under the Fourth
Amendment protection "against unreasonable searches and seizures."
The abusive techniques used by the FBI in COINTELPRO from 1956 to
1971 included violations of both federal and state statutes
prohibiting mail fraud, wire fraud, incitement to violence, sending
obscene material through the mail, and extortion. More fundamentally,
the harassment of innocent citizens engaged in lawful forms of
political expression did serious injury to the First Amendment
guarantee of freedom of speech and the right of the people to
assemble peaceably and to petition the government for a redress of
grievances. The Bureau's maintenance of the Security Index, which
targeted thousands of American citizens for detention in the event of
national emergency, clearly overstepped the permissible bounds
established by Congress in the Emergency Detention Act of 1950 and
represented, in contravention of the Act, a potential general
suspension of the privilege of the writ of habeas corpus secured by
Article 1, Section 9, of the Constitution.
A distressing number of the programs and techniques developed by the
intelligence community involved transgressions against human decency
that were no less serious than any technical violations of law. Some
of the most fundamental values of this society were threatened by
activities such as the smear campaign against Dr. Martin Luther King,
Jr., the testing of dangerous drugs on unsuspecting American
citizens, the dissemination of information about the sex lives,
drinking habits, and marital problems of electronic surveillance
targets, and the COINTELPRO attempts to turn dissident organizations
against one another and to destroy marriages.
Subfinding (b)
Legal issues were often overlooked by many of the intelligence
officers who directed these operations. Some held a pragmatic view of
intelligence activities that did not regularly attach sufficient
significance to questions of legality. The question raised was
usually not whether a particular program was legal or ethical, but
whether it worked.
Legal issues were clearly not a primary consideration -- if they were
a consideration at all -- in many of the programs and techniques of
the intelligence community. When the former head of the FBI's Racial
Intelligence Section was asked whether anybody in the FBI at any time
during the 15-year course of COINTELPRO discussed its
constitutionality or legal authority for example, he replied: "No, we
never gave it a thought." 3 This attitude is echoed by other Bureau
officials in connection with other programs. The former Section Chief
of one of the FBI's Counterintelligence sections, and the former
Assistant Director of the Bureau's Domestic Intelligence Division
both testified that legal considerations were simply not raised in
policy decisions concerning the FBI's mail opening programs. 4
Similarly, when the FBI was presented with the opportunity to assume
responsibility for the CIA's New York mail opening operation, legal
factors played no role in the Bureau's refusal; rather, the
opportunity was declined simply because of the attendant expense,
manpower requirements, and security problems. 5
One of the most abusive of all FBI programs was its attempt to
discredit Dr. Martin Luther King, Jr. Yet former FBI Assistant
Director William C. Sullivan testified that he "never heard anyone
raise the question of legality or constitutionality, never." 6
Former Director of Central Intelligence Richard Helms testified
publicly that he never seriously questioned the legal status of the
twenty-year CIA New York mail opening project because he assumed his
predecessor, Allen Dulles, had "made his legal peace with [it]." 17
"... [F]rom time to time," he said, "the Agency got useful
information out of it," 8 so he permitted it to continue throughout
his sevenyear tenure as Director.
The Huston Plan that was prepared for President Richard Nixon in June
1970 constituted a virtual charter for the use of intrusive and
illegal techniques against American dissidents as well as foreign
agents. Its principal author has testified, however, that during the
drafting sessions with representatives of the FBI, CIA, NSA, and
Defense Intelligence Agency, no one ever objected to any of the
recommendations on the grounds that they involved illegal acts, nor
was the legality or constitutionality of any of the recommendations
ever discussed. 9
William C. Sullivan, who participated in the drafting of the Huston
Plan and served on the United States Intelligence Board and as FBI
Assistant Director for Intelligence for 10 years, stated that in his
entire experience in the intelligence community he never heard legal
issues raised at all:
We never gave any thought to this realm of reasoning, because we were
just naturally pragmatists. The one thing we were concerned about was
this: Will this course of action work, will it get us what we want,
will we reach the objective that we desire to reach? As far as
legality is concerned, morals, or ethics, [it] was never raised by
myself or anybody else ... I think this suggests really in government
that we are amoral. In government -- I am not speaking for everybody
-- the general atmosphere is one of amorality. 10
Subfinding (c)
On some occasions when agency officials did assume, or were told,
that a program was illegal, they still permitted it to continue. They
justified their conduct in some cases on the ground that the failure
of "the enemy" to play by the rules granted them the right to do
likewise, and in other cases on the ground that the "national
security" permitted programs that would otherwise be illegal.
Even when agency officials recognized certain programs or techniques
to be illegal, they sometimes advocated their implementation or
permitted them to continue nonetheless.
This point is illustrated by a passage in a 1954 memorandum from an
FBI Assistant Director to J. Edgar Hoover, which recommended that an
electronic listening device be planted in the hotel room of a
suspected Communist sympathizer: "Although such an installation will
not be legal, it is believed that the intelligence information to be
obtained will make such an installation necessary and desirable." 11
Hoover approved the installation. 12
More than a decade later, a memorandum was sent to Director Hoover
which described the current FBI policy and procedures for "black bag
jobs" (warrantless break-ins for purposes other than microphone
installation). This memorandum read in part:
Such a technique involves trespass and is clearly illegal; therefore,
it would be impossible to obtain any legal sanction for it. Despite
this, "black bag" jobs have been used because they represent an
invaluable technique in combatting subversive activities . . . aimed
directly at undermining and destroying our nation. 13
In other words, breaking the law was seen as useful in combating
those who threatened the legal fabric of society. Although Hoover
terminated the general use of "black bag jobs" in July 1966, they
were employed on a large scale before that time and have been used in
isolated instances since then.
Another example of disregard for the law is found in a 1969
memorandum from William C. Sullivan to Director Hoover. In June of
that year, Sullivan was requested by the Director, apparently at the
urging of White House officials to travel to France for the purpose
of electronically monitoring the conversations of journalist Joseph
Kraft. 14 With the cooperation of local authorities, Sullivan was
able to have a microphone installed in Kraft's hotel room, and
informed Hoover of his success. "Parenthetically," he wrote in his
letter to the Director, "I might add that such a cover is regarded as
illegal." 15
The attitude that legal standards and issues of privacy can be
overridden by other factors is further reflected in a memorandum
written by Richard Helms in connection with the testing of dangerous
drugs on unsuspecting American citizens in 1963. Mr. Helms wrote the
Deputy Director of Central Intelligence:
While I share your uneasiness and distaste for any program which
tends to intrude on an individual's private and legal prerogatives, I
believe it is necessary that the Agency maintain a central role in
this activity, keep current on enemy capabilities in the manipulation
of human behavior, and maintain an offensive capability. I,
therefore, recommend your approval for continuation of this testimony
program . . . 15a
The history of the CIA's New York mail opening program is replete
with examples of conscious contravention of the law. The original
proposal for large-scale mail opening in 1955, for instance,
explicitly recognized that "[t]here is no overt, authorized or legal
censorship or monitoring of first class mails which enter, depart or
transit the United States at the present time." 16 A 1962 memorandum
on the project noted that its exposure could "give rise to grave
charges of criminal misuse of the mails by Government agencies" and
that "existing Federal statutes preclude the concoction of any legal
excuse for the violation . . . 17 And again in 1963, a CIA officer
wrote: "There is no legal basis for monitoring postal communications
in the United States except during time of war or national emergency . . ." 18
Both the former Chief of the Counterintelligence Staff and the former
Director of Security -- who were in charge of the New York project --
testified that they believed it to be illegal. 19 One Inspector
General who reviewed the project in 1969 also flatly stated: "[O]f
course, we knew that this was illegal. [E]verybody knew that it was
[illegal] ..." 20
In spite of the general recognition of its illegality, the New York
mail opening project continued for a total of 20 years and was not
terminated until 1973, when the Watergate-created political climate
had increased the risks of exposure. 21
With the full knowledge of J. Edgar Hoover, moreover, the FBI
continued to receive the fruits of this project for three years after
the FBI Director informed the President of the United States that
"the FBI is opposed to implementing any covert mail coverage because
it is clearly illegal ..." 22 The Bureau's own mail opening programs
had been terminated in 1966, but it continued intentionally and
knowingly to benefit from the illegal acts of the CIA until 1973.
The Huston Plan is another disturbing reminder of the fact that
intelligence programs and techniques may be advocated and authorized
with the knowledge that they are illegal. At least two of the options
that were presented to President Nixon were described as unlawful on
the face of the Report. Of "covert mail coverage" (mail opening) it
was written that "[t]his coverage, not having the sanction of law,
runs the risk of any illicit act magnified by the involvement of a
Government agency." 23 The Report also noted that surreptitious entry
"involves illegal entry and trespass." 24 Thus, the intelligence
community presented the nation's highest executive official with the
option of approving courses of action described as illegal. The fact
that President Nixon did authorize them, even if only for five days,
is more disquieting still. 25
When President Nixon eventually revoked his approval of the Huston
Plan, the intelligence community nevertheless proceded to initiate
some programs suggested in the Plan. Intelligence agencies also
continued to employ techniques recommended in the Plan, such as mail
opening which had been used previously without presidential approval. 26
The recent history of Army intelligence provides an additional
example of continuing an activity described as illegal. Beginning in
1967, the Army Security Agency monitored the radio communications of
amateur radio operators in this country to determine if dissident
elements planned disruptive activity at particular demonstrations and
events. Because Army officials questioned whether such monitoring was
legal under Section 605 of the Federal Communications Act of 1934,
they requested a legal opinion from the Federal Communications
Commission. At a meeting held in August 1968, the FCC advised the
Army that such monitoring was illegal under the Act. FCC
representatives also stated that the matter had been raised with
Attorney General Ramsey Clark and that he had disapproved the
program. 27 The FCC agreed, however, to submit a written reply to the
Army, stating only that it could not "Provide a positive answer to
the Army's proposal." 28
Despite having been told that their monitoring activity was illegal,
and that the Attorney General himself disapproved it, the Army
Security Agency continued to monitor the radio communications of
American citizens for another two years. 29
Several factors may explain the intelligence community's frequent
disregard of legal issues.
Some intelligence officials expressed the view that the legal and
ethical restraints that applied to the rest of society simply did not
apply to intelligence activities. This concept is reflected in a 1959
memorandum on the Army's covert drug testing program: "In
intelligence, the stakes involved and the interest of national
security may permit a more tolerant interpretation of moral-ethical
values . . ." 30
As William C. Sullivan also pointed out, many intelligence officers
had been imbued with a "war psychology." "Legality was not
questioned," he said. "it was not an issue." 31 In war, one simply
did what was "expected to do as a soldier." 32 "It was my
assumption," said one FBI official connected with the Bureau's mail
opening programs, "that what we were doing was justified by what we
had to do." 33 Since the "enemy" did not play by the rules, moreover,
intelligence officials often believed they could not afford to do so
either. 34
One FBI intelligence officer appeared to attribute the disregard of
the law in the Bureau's C0INTELPRO operations to simple restlessness
on the part of "action-oriented" FBI agents. George C. Moore, the
Racial Intelligence Section Chief, testified that:
... the FBI's counterintelligence program came up because if you have
anything in the FBI, you have an action oriented group of people who
see something happening and want to do something to take its place. 36
Others in the intelligence community have contended that questionable
and illegal acts were justified by a law higher than the United
States Code or the Constitution. An FBI Counterintelligence Section
Chief, for example, stated the following reason for believing in the
necessity of techniques such as mail opening:
The greater good, the national security, this is correct. This is
what I believed in. Why I thought these programs were good, it was
that the national security required this, this is correct. 37
Similarly, when intelligence officials secured the cooperation of
telegraph company executives for Project SHAMROCK, in which NSA
received millions of copies of international telegraph messages
without the sender's knowledge, they assured the executives that they
would not be subjected to criminal liability because the project was
"in the highest interests of the nation." 38
Perhaps the most novel reason for advocating illegal action was
proffered by Tom Charles Huston. Huston explained that he believed
the real threat to internal security was potential repression by
right-wing forces within the United States. He argued that the "New
Left" was capable of producing a climate of fear that would bring
forth every repressive demagogue in the country. Huston believed that
the intelligence professionals, if given the chance, could protect
the people from the latent forces of repression by monitoring the New
Left, including by illegal means. 39 Illegal action directed against
the New Left, in other words, should be used by the Government to
forestall potential repression by the Right.
In attempting to explain why illegal activities were advocated and
defended, the impact of the attitudes and actions of government
officials in supervisory positions -- Presidents, Cabinet officers,
and Congressmen -- should not be discounted. Their occasional
endorsement of such activities, as well as the atmosphere of
permissiveness created by their emphasis on national security and
their demands for results, clearly contributed to the notion that
strict adherence to the law was unimportant. So, too, did the
concept, propounded by some senior officials, that a "sovereign"
president may authorize violations of the law.
Whatever the reasons, however, it is clear that a number of
intelligence officers acted in knowing contravention of the law.
Subfinding (d)
Internal recognition of the illegality or questionable legality of
many of these activities frequently led to a tightening of security
rather than to their termination. Partly to avoid exposure and a
public "flap," knowledge of these programs was tightly held within
the agencies, special filing procedures were used, and "cover
stories" were devised.
When intelligence agencies realized that certain programs and
techniques were of questionable legality, they frequently took
special security precautions to avoid public exposure, criticism, and
embarrassment. The CIA's study of student unrest throughout the world
in the late 1960s, for example, included a section on student dissent
in the United States, an area that was clearly outside the Agency's
statutory charter. DCI's Richard Helms urged the President's national
security advisor, Henry Kissinger, to treat it with extreme sensivity
in light of the acknowledged jurisdictional violation:
"Herewith is a survey of student dissidence world-wide as requested
by the President. 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." 40
Concern for the FBI's public image prompted security measures which
Protected numerous questionable activities. For example, in approving
or denying COINTELPRO proposals, many of which were clearly illegal,
a main consideration was preventing "embarrassment to the Bureau. 41
A characteristic caution to FBI agents appears in the letter which
initiated the COINTELPRO against "Black Nationalists":
You are also cautioned that the nature of this new endeavor is such
that under no circumstances should the existence of the program be
made known outside the Bureau and appropriate within-office security
should be afforded to sensitive operations and techniques considered
under the program.
Examples of attention to such security are that anonymous letters had
to be written on commercially purchased stationery; newsmen had to be
so completely trustworthy that they were guaranteed not to reveal the
Bureau's interest; and inquiries of law enforcement officials had to
be made under the pretext of a criminal investigation. A similar
preoccupation with security measures for improper activities affected
both the NSA and the Army Security Agency.
NSA's guidelines for its watch list activity provided that NSA's name
should not be on any of the disseminated watch list material
involving Americans. The aim was to "restrict the knowledge that such
information is being collected and processed" by NSA. 43
The Army Security Agency's radio monitoring activity, which continued
even after the Army was told that the FCC and the Attorney General
regarded it as illegal, also had to be conducted in secrecy if a
public outcry was to be avoided. When Army officials decided to
permit radio monitoring in connection with the military's Civil
Disturbance Collection Plan, their instruction provided that all ASA
personnel had to be "disguised" either in civilian clothes or as
members of regular military Units. 44
The perceived illegality -- and consequent "flap potential" -- of the
CIA's New York mail opening project led Agency officials to formulate
a drastic strategy to follow in the event of public exposure. A
review of the project by the Inspector General's Office in the early
1960s concluded that it would be desirable to fabricate a "cover
story." A formal recommendation was therefore made that "[a]n
emergency plan and cover story be prepared for the possibility that
the operation might be blown." 45 In response to this recommendation,
the Deputy Chief of the Counterintelligence Staff agreed that "a
'flap' will put us 'out of business' immediately and may give rise to
grave charges of criminal misuse of the mails by government
agencies," but he argued:
Since no good purpose can be served by an official admission of the
violation, and existing Federal statutes preclude the concoction of
any legal excuse for the violation, it must be recognized that no
cover story is available to any Government Agency. Therefore, it is
important that all Federal law enforcement and US Intelligence
Agencies vigorously deny any association, direct or indirect, with
any such activity as charged.... Unless the charge is supported by
the presentation of interior items from the Project, it should be
relatively easy to "hush up" the entire affair, or to explain that it
consists of legal mail cover activities conducted by the Post Office
at the request of authorized Federal agencies. Under the most
unfavorable circumstances ... it might be necessary after the matter
has cooled off during an extended period of investigation, to find a
scapegoat to blame for unauthorized tampering with the mails. Such
cases by their very nature do not have much appeal to the imagination
of the public, and this would he an effective way to resolve the
initial charge of censorship of the mails. 46
This strategy of complete denial and transferring blame to a
scapegoat was approved by the Director of Security in February 1962. 47
Another extreme example of a security measure that was adopted
because of the threat that illegal activity might be exposed was the
outright destruction of files.
The FBI developed a special filing system -- or, more accurately, a
destruction system -- for memoranda written about illegal techniques,
such as break-ins, 48 and highly questionable operations, such as the
microphone surveillance of Joseph Kraft. 49 Under this system --
which was referred to as the "DO NOT FILE" procedure -- authorizing
documents and other memoranda were filed in special safes at
headquarters and field offices until the next annual inspection by
the Inspection Division, at which time they were to be systematically
destroyed. 50
Subfinding (e)
On occasion, intelligence agencies failed to disclose candidly
programs and practices to their own General Counsels, and to Attorney
Generals, Presidents, and Congress.
(i) Concealment from Executive Branch Officials
Intelligence officers frequently concealed or misrepresented illegal
activities to their own General Counsel and superiors within and
outside the agencies in order to protect these activities from exposure.
For example, during the entire 20-year history of the CIA's mail
opening project, the Agency's General Counsel was never informed of
its existence. According to one Agency official, this knowledge was
purposefully kept from him. Former Inspector General Gordon Stewart testified:
Well, I am sure that it was held back from [the General Counsel] on
purpose. An operation of this sort in the CIA is run -- if it is
closely held, it is run by those people immediately concerned, and to
the extent that it is really possible, according to the practices
that we had in the fifties and sixties, those persons not immediately
concerned were supposed to be ignorant of it. 51
The evidence also indicates that two Directors of Central
Intelligence under whom the New York mail operations continued --
John McCone and Admiral Raborn-- were never informed of its
existence. 52 In 1954, Postmaster General Arthur Summerfield was
informed that the CIA operated a mail cover project in New York, but
be was not told that the Agency opened or intended to open any mail.
53 In 1965, the CIA briefly considered informing Postmaster General
John A. Gronouski about the project when its existence was felt to be
jeopardized by a congressional subcommittee that was investigating
the use of mail covers and other investigative techniques by federal
agencies. According to an internal memorandum, however, the idea was
quickly rejected "in view of various statements by Gronouski before
this subcommittee." 54 Since Gronouski had agreed with the
subcommittee that tighter administrative controls on mail covers were
necessary and generally supported the principle of the sanctity of
the mail, it is reasonable to infer that CIA officials assumed he
would not be sympathetic to the technique of mail opening. 55
The only claim that any President may have known about the project
was made by Richard Helms, who testified that "there was a
possibility" that he "mentioned" it to President Lyndon Johnson in
1967 or 1968. 56 No documentary evidence is available that either
supports or refutes this statement. During the preparation of the
Huston Plan, neither CIA nor FBI representatives informed Tom Charles
Huston, President Nixon's representative, that the mail opening
project existed. The final interagency report on the Huston Plan
signed by Richard Helms and J. Edgar Hoover, was sent to the
President with the statement, contrary to fact, that all mail opening
programs by federal agencies had been discontinued. 57
In connection with another CIA mail opening Project, middle-level
Agency officials apparently did not even tell their own superiors
within the CIA that they intended to open mail, as opposed to merely
inspecting envelope exteriors. The ranking officials testified that
they approved the project believing it to be a mail cover program
only. 58 No Cabinet officials or President knew of this project and
the approval of the Deputy Chief Postal Inspector (for what he also
believed to be a mail cover operation) was secured through conscious
deception. 59
A pattern of concealment was repeated by the FBI in their mail
opening programs. There is no claim by the Bureau that any Postmaster
General, Attorney General, or President was ever advised of the true
nature and scope of its mail projects. One FBI official testified
that it was an unofficial Bureau policy not to inform postal
officials with whom they dealt of the actual intention of FBI agents
in receiving the mail, and there is no indication that this policy
was ever violated. 60 At one point in 1965, Assistant Director Alan
Belmont and Inspector Donald Moore apparently informed Attorney
General Nicholas deB. Katzenbach that FBI agents received custody of
the mail in connection with espionage cases on some occasions. 61 But
Moore testified that the Attorney General was not told that mail was
actually opened. When asked if he felt any need to hold back from
Katzenbach the fact of mail openings as opposed to the fact that
Bureau agents received direct access to the mail, Moore replied:
It is perhaps difficult to answer. Perhaps I could liken it to ... a
defector in place in the KGB. You don't want to tell anybody his
name, the location, the title, or anything like that. Not that you
don't trust them completely, but the fact is that any time one
additional person becomes aware of it, there is a potential for the
information to . . . go further. 62
Another Bureau agent speculated that the Attorney General was not
told because, mail opening "was not legal, as far as I knew." 63
Similarly, there is no indication that the FBI ever informed any
Attorney General about its use of "black bag jobs" (illegal break-ins
for purposes other than microphone installations) ; the full scope of
its activities in COINTELPRO ; or its submission of names for
inclusion on either the CIA's "Watch List" for mail opening or,
before 1973, on the NSA's "Watch List" for electronic monitoring of
international communications. 64
After J. Edgar Hoover disregarded Attorney General Biddle's 1943
order to terminate the Custodial Detention List by merely changing
its name to the Security Index moreover, Bureau headquarters
instructed the field officers that the new list should be kept
"strictly confidential" and that it should never be mentioned in FBI
reports or "discussed with agencies or individuals outside the
Bureau" except for military intelligence agencies. For several years
thereafter, the Attorney General and the Justice Department were not
informed of the FBI's decision. 65
An incident which occurred in 1967 in connection with the Bureau's
COINTELPRO operations is particularly illustrative of the lengths to
which intelligence agencies would go to protect illegal programs from
scrutiny by executive branch officers outside the intelligence
community. As one phase of its disruption of the United Klans of
America, the Bureau sent a letter to Klan officers purportedly
prepared by the highly secret "National Intelligence Committee" (NIC)
of the Klan. 66 The fake letter purported to fire the North Carolina
Grand Dragon for personal misconduct and misfeasance in office, and
to suspend Imperial Wizard Robert Shelton for his failure to remove
the Grand Dragon. Shelton complained to the FBI and the Post Office
about this apparent violation of the mail fraud statutes -- without
realizing that the Bureau had in fact sent the letter. 67 The Bureau,
after solemnly assuring Shelton that his complaint was not within the
FBI's jurisdiction, approached the Chief Postal Inspector's office in
Washington to determine what action the Post Office planned to take
regarding Shelton's allegation. The FBI was advised that the matter
had been referred to the Justice Department's Criminal Division. 68
At no time did the Bureau inform either the Post Office or the
Justice Department that FBI agents had authored the letter. When no
investigation was deemed to be warranted by the Criminal Division,
FBI Headquarters directed the Bureau's Charlotte, North Carolina
office to prepare a second phony NIC letter to send to Klan
officials. 69 This letter was not mailed, however, because, the
Charlotte office proposed and implemented a different idea -- the
formation of an FBI-controlled alternative Klan organization, which
eventually attracted 250 members. 70
The Huston Plan itself was prepared without the knowledge of the
Attorney General. Neither the Attorney General nor anyone in his
office was invited to the drafting sessions at Langley or consulted
during the proceedings. Huston testified that it never occurred to
him to confer with the Attorney General before making the
recommendations in the Report, in part because the plan was seen as
an intelligence matter to be handled by the intelligence agency directors. 71
Similarly, the CIA's General Counsel was not included or consulted in
the formulation of the Huston Plan. As James Angleton testified, "the
custom and usage was not to deal with the General Counsel, as a rule,
until there were some troubles. He was not a part of the process of
project approval." 73
(ii) Concealment from Congress
At times, knowledge of illegal programs and techniques has been
concealed from Congress as well as executive branch officials. On two
occasions, for example, officials of the Army Security Agency ordered
its units -- in apparent violation of that Agency's jurisdiction --
to conduct general searches of the radio spectrum without regard to
the source or subject matter of the transmissions. ASA did not report
these incidents to ranking Army officials, even when specifically
asked to do so as part of the Army's preparation for the hearings of
the Senate Subcommittee on Constitutional Rights in 1971. 74
Events surrounding the 1965 and 1966 investigation by Senator Edward
Long of Missouri into federal agencies' use of mail covers and other
investigative techniques clearly showed the desire on the part of CIA
and FBI officials to protect their programs from congressional
review. 75 Fearing that the New York mail opening program might be
discovered by this subcommittee, the CIA considered suspending the,
operation until the investigation had been completed. An internal CIA
memorandum dated April 23, 1965, reads in part:
Mr. Karamessines [Assistant Deputy Director for Plans] felt that the
dangers inherent in Long's subcommittee activities to the security of
the Project's operations in New York should be thoroughly studied in
order that a determination can be made as to whether these operations
should be partially or fully suspended until the subcommittee's
investigations are completed. 76
When it was learned that Chief Postal Inspector Henry Montague had
been contacted about the Long investigation and believed that it
would "soon cool off", however, it was decided to continue the
operation without suspension. 77
The FBI was also concerned that the subcommittee might expose its
mail opening programs. Bureau memoranda indicate that the FBI
intended to "warn the Long Committee away from those areas which
would be injurious to the national defense." 78 J. Edgar Hoover
personally contacted the Chairman of the Senate Judiciary Committee,
and urged him "to see Long not later than Wednesday morning to
caution him that [the Chief Counsel] must not go into the kind of
question he made of Chief Inspector Montague of the Post Office
Department" 80 -- questioning that had threatened to reveal the FBI's
mail project the Previous week. 81
When the Long subcommittee began to investigate electronic
surveillance practices several months later, Bureau officials
convinced Senator Edward Long that there was no need to pursue such
an investigation since, they said, the FBI's operations were tightly
controlled and properly implemented. 82 According to Bureau
documents, FBI agents wrote a press release for the Senator from
Missouri, with his approval, that stated his subcommittee had
conducted exhaustive research into the activities, procedures, and
techniques of this agency [and] based upon careful study ... we are
fully satisfied that the FBI has not participated in highhanded or
uncontrolled usage of wiretaps, microphones, or other electronic equipment. 83
Not only was this release written by the FBI itself, it was
misleading. The "exhaustive research" apparently consisted of a
ninety-minute briefing by FBI officials describing their electronic
surveillance practices; neither the Senator nor the public learned of
the instances of improper electronic surveillances that had been
conducted by the FBI.84 When Senator Edward Long later asked certain
FBI officials to testify about the Bureau's electronic surveillance
policy before the Subcommittee, they refused, arguing: ". . . to put
an FBI witness on the stand would be an attempt to open a Pandora's
box, insofar as our enemies in the press were concerned ...." 85
After the press release had been delivered to Senator Long and the
refusal to testify had been accepted, one FBI official wrote to the
Associate Director that while some problems still existed, "we have
neutralized the threat of being embarrassed by the Long Subcommittee ..." 86
Subfinding (f)
The internal inspection mechanisms of the CIA and the FBI did not
keep -- and, in the case of the FBI, were not designed to keep -- the
activities of those agencies within legal bounds. Their primary
concern was efficiency, not legality or propriety.
The internal inspection mechanisms of the CIA and the FBI were
ineffective in ensuring that the activities of these agencies were
kept within legal bounds. This failure was sometimes due to
structural deficiencies which kept knowledge of questionable programs
tightly compartmented and shielded from those who could evaluate
their legality.
As noted above, for example, the CIA's General Counsel was not
informed about either the New York mail opening project or CIA's
participation in the Huston Plan deliberations. The role of the CIA's
General Counsel was essentially a passive one; he did not initiate
inquiries but responded to requests from other Agency components. As
James Angleton stated, the General Counsel was not a part of the
normal project approval process and generally was not consulted until
"something was going wrong." 87
When the General Counsel was consulted, he often exerted a positive
influence on the conduct of CIA activities. For example, the CIA
stopped monitoring telephone calls to and from Latin America after
the General Counsel issued an opinion describing the telephone
intercepts as illegal. 88 But internal CIA regulations have never
required employees who know of illegal, improper, or questionable
activities to report them to the General Counsel; rather, employes
with such knowledge are instructed to inform either the Director of
Central Intelligence or, the Inspector General. The Director and the
Inspector General may refer the matter to the General Counsel but
until recently they were not obligated to do so. 88a As Richard Helms
stated, "Somtimes we did [consult the General Counsel]; sometimes we
did not. I think the record on that is rather spotty, quite frankly." 89
Indeed, the record suggests that those programs that were most
questionable -- such as the New York mail opening project and Project
CHAOS -- were ]lot referred to the General Counsel because they were
considered extremely sensitive. 90 Even when questionable activities
re called to the attention of the General Counsel, moreover, the
internal Agency regulations did not guarantee him unrestricted access
all relevant information. Thus, the General Counsel was not in a
position to conduct a complete evaluation of the propriety of
particular programs.
Part of the failure of internal inspection to terminate improper
programs and practices may be attributed to the fact that the primary
focus of the CIA's Office of the Inspector General and the FBI's
Inspection Division has been on efficiency and effectiveness rather
than on propriety.
The CIA's Inspector General is charged with the responsibility, among
other matters, of investigating activities which might be construed
as "illegal, improper, and outside the CIA's legislative charter." 91
In at least one case, the Inspector General did force the suspension
of a suspect activity: the surreptitious administration of LSD to
unwitting, non-volunteer, human subjects which was suspended in 1963.
92 An earlier Inspector General's review of the larger, more general
program for the testing of behavorial control agents, however, had
labeled that program "unethical and illegal" and it nonetheless
continued for another seven years. 93 In general, as the Rockefeller
Commission pointed out, "the focus of the Inspector General component
reviews was on operational effectiveness. Examination of the legality
or propriety of CIA activities was not normally a primary concern."
94 Two separate reviews of the New York mail opening projects by the
Inspector General's office, for example, considered issues of
administration and security at length but did riot even mention legal
considerations. 95
Internal inspection at the FBI has traditionally not encompassed
legal or ethical questions at all. According to W. Mark Felt, the
Assistant FBI Director in charge of the Inspection Division from 1964
to 1971, his job was to ensure that Bureau programs were being
operated efficiently, not constitutionally: "There was no instruction
to me," he stated, "nor do I believe there is any instruction in the
Inspector's manuals, that inspectors should be on the alert to see
that constitutional values are being protected." 96 He could not
recall any program which was terminated because it might have been
violating someone's civil rights. 97
A number of questionable FBI programs were apparently never
inspected. Felt could recall no inspection, for instance, of either
the FBI mail opening programs or the Bureau's participation in the
CIA's New York mail opening project. 98 Even when improper programs
were inspected, the Inspection Division did not attempt to exercise
oversight in the sense of looking for wrongdoing. Its responsibility
was simply to ensure that FBI policy, as defined by J. Edgar Hoover
was effectively implemented and not to question the propriety of the
policy. 99 Thus, Felt testified that if, in the course of an
inspection of a field office, he discovered a microphone surveillance
on Martin Luther King, Jr., the only questions he would ask were
whether it had been approved by the Director and whether the
procedures had been properly followed. 100
When Felt was asked whether the Inspection Division conducted any
investigation into the propriety of COINTELPRO, the following exchange ensued:
Mr. FELT. Not into the propriety.
Q. So in the case of COINTELPRO, as in the case of NSA interceptions,
your job as Inspector was to determine whether the program was being
pursued effectively as opposed to whether it was proper?
Mr. FELT. Right, with this exception, that in any of these
situations, Counterintelligence Program or whatever, it very
frequently happened that the inspectors, in reviewing the files,
would direct that a certain investigation be discontinued, that it
was not productive, or that there was some reason that it be discontinued.
But I don't recall any cases being discontinued in the
Counterintelligence program. 101
As a result of this role definition, the Inspection Division became
an active participant in some of the most questionable FBI programs
For example, it was responsible for reviewing on an annual basis all
memoranda relating to illegal break-ins prior to their destruction
under the "DO NOT FILE" procedure.
Improper programs and techniques in the FBI were protected not only
by the Inspection Division's perception of its function, but also by
the maxim that FBI agents should never "embarrass the Bureau." This
standard, which served as a shield to outside scrutiny, was
explicitly reflected in the FBI Manual:
Any investigation necessary to develop complete essential facts
regarding any allegation against Bureau employees must be instituted
promptly, and every logical lead which will establish the true facts
should be completely run out unless such action would embarrass the
Bureau ... in which event the Bureau will weigh the facts, along with
the recommendations of the division head. [Emphasis added.] 102
Such an instruction, coupled with the Inspection Division's
inattention to the law, could only inhibit or prevent the termination
and exposure of illegal practices.
Subfinding (g)
When senior administration officials with a duty to control domestic
intelligence activities knew, or had a basis for suspecting, that
questionable activities had occurred, they often responded with
silence or approval. In certain cases, they were presented with a
partial description of a program but did not ask for details, thereby
abdicating their responsibility. In other cases, they were fully
aware of the nature of the practice and implicitly or explicitly approved it.
On several occasions, senior administration officials with a duty to
control domestic intelligence activities were supplied with partial
details about questionable or illegal programs but they did not ask
for additional information and the programs continued.
Sometimes the failure to probe further stemmed from the
administration official's assumption that an intelligence agency
would not engage in lawless conduct. Former Chief Postal Inspector
Henry Montague, for example, was aware that the FBI received custody
of the mail in connection with several of its mail opening programs
-- indeed, he had approved such custody in one case -- but he
testified that he believed these were mail cover operations only. 103
Montague stated that he did not ask FBI officials if the Bureau
opened mail because he
never thought that would be necessary .... I trusted them the same as
I would another [Postal] Inspector. I would never feel that I would
have to tell a Postal person that you cannot open mail. By the same
token, I would not consider it necessary to emphasize it to any great
degree with the FBI. 104
A former FBI official has also testified, as noted above, that he
informed Attorney General Katzenbach about selected aspects of the
FBI mail opening programs. This official did not tell Katzenbach that
mail was actually opened, but he testified that he "pointed out [to
the Attorney General] that we do receive mail from the Post Office in
certain sensitive areas." 105 While Katzenbach stated that he never
knew mail was opened or that the FBI gained access to mail on a
regular basis in large-scale operations, 106 the former Attorney
General acknowledged that he did learn that "in some cases the
outside of mail might have been examined or even photographed by
persons other than Post Office employees". 107 However, neither at
this time nor at any other time did the Justice Department make any
inquiry to determine the full scope of the FBI mail operations.
Similarly, former Attorneys General Nicholas Katzenbach and Ramsey
Clark testified that they were familiar with the FBI's efforts to
disrupt the Ku Klux Klan through regular investigative techniques but
said they were unaware of the offensive tactics that occurred in
COINTELPRO. Katzenbach said he did not believe it necessary to
explore possible irregularities since "[i]t never occurred to me that
the Bureau would engage in the sort of sustained improper activity
which it apparently did." 108
Both Robert Kennedy and Nicholas Katzenbach were also aware of some
aspects of the FBI's investigation of Dr. Martin Luther King, Jr.,
yet neither ascertained the full details of the Bureau's campaign to
discredit the civil rights leader. Kennedy intensified the original
"communist influence" investigation in October 1963 by authorizing
wiretaps on King's home and office telephones. 109 Kennedy requested
that an evaluation of the results be submitted to him in thirty days
in order to determine whether or not to maintain the taps, but the
evaluation was never delivered to him and he did not insist on it.
110 Since he never ordered the termination of the wiretap, the Bureau
could, and did, install additional wiretaps on King by invoking the
original authorization. 111 According to Bureau memoranda apparently
initialled by Attorney General Katzenbach, Katzenbach received after
the fact notification in 1965 that three bugs had been planted in Dr.
King's hotel rooms. 112 A transmittal memorandum written by
Katzenbach also indicates that he may have instructed the FBI to be
"very cautious" in conducting these surveillances. 113 There is no
indication, however, that, he requested further details about any of
them or prohibited the FBI from future use of this technique against Dr. King.
While there is no evidence that the full extent of the FBI's campaign
to discredit Dr. King was authorized by or known to anyone outside of
the Bureau, there is evidence that officials responsible for
supervising the FBI received indications that some such efforts were
being undertaken. For example, former Attorney General Katzenbach and
former Assistant Attorney General Burke Marshall both testified that
in late 1964 they learned that the Bureau had offered tape recordings
of Dr. King to certain newsmen in Washington, D.C. They further
stated that they informed President Johnson of the FBI's offers. 114
The Committee has discovered no evidence, however, that the President
or Justice Department officials made any further effort to halt the
discrediting campaign at this time or at any other time; indeed, the
Bureau's campaign continued for several years after this incident.
On some occasions, administration officials did not request further
details about intelligence programs because they simply did not want
to know. Former Postmaster General J. Edward Day testified that when
Allen Dulles and Richard Helms spoke to him about a CIA project in
1961, he interrupted them before they could tell him the purpose of
their visit (which Helms said was to say mail was being opened). Day stated:
... Mr. Dulles, after some preliminary visiting and so on, said that
he wanted to tell me something very secret, and I said, "Do I have to
know about it?" And he said, "No."
I said, "My experience is that where there is something that is very
secret, it is likely to leak out, and anybody that knew about it is
likely to be suspected of having been part of leaking it out, so I
would rather not know anything about it."
What additional things were said in connection with him building up
to that, I don't know. But I am sure ... that I was not told anything
about opening mail." 115
By his own account, therefore, Mr. Day did not learn the true nature
of this project because he "would rather not know anything about it."
Although rarely expressed in such unequivocal terms, this attitude
appears to have been all too common among senior government officials.
Even when administration officials were fully apprised of the illegal
or questionable nature of certain programs and techniques, they
sometimes permitted them to continue. An example of acquiescence is
presented in the case of William Cotter, a former Chief Postal
Inspector who knew that the CIA opened mail in connection with its
New York project but took no direct action to terminate the project
for a period of four years. 116 Cotter had learned of this project in
his capacity as a CIA official in the mid-1950's and he knew that it
was continuing when he was sworn in as Chief Postal Inspector in
April 1969. 117 Because the primary responsibility of his position
was to insure the sanctity of the mails, he was understandably "very,
very uncomfortable with [knowledge of the New York] project," 118 but
he felt constrained by the letter and spirit of the secrecy oath
which he had signed when he left the CIA in 1969 "attesting to the
fact that I would not divulge secret information that came into my
possession during the time that I was with the CIA." 119 Cotter
stated: "After coming from eighteen years in the CIA, I was
hypersensitive, perhaps, to the protection of what I believed to be a
most sensitive project . . ." 120 For several years, he placed the
dictate of the secrecy oath above that of the law he was charged with
enforcing.
Former White House adviser John Ehrlichman also stated that he
learned of a program of intercepting mail between the United States
and Communist countries "because I had seen reports that cited those
kinds of sources in connection with this, the bombings, the dissident
activities." 121 Yet he cannot recall any White House inquiry that
was made into such a program nor can he recall raising the matter
with the President. 122
When President Nixon learned of the illegal techniques that were
recommended in the Huston Plan, he initially endorsed, rather than
disavowed them. The former President stated that "[t]o the extent
that I reviewed the Special Report of Interagency Committee on
Intelligence, I would have been informed that certain recommendations
or decisions set forth in that report were, or might be construed to
be, illegal." 123 He nonetheless approved them, in part because they
represented an efficient method of intelligence collection. As
President Nixon explained, "[M]y approval was based largely on the
fact that the procedures were consistent with those employed by prior
administrations and had been found to be effective by the
intelligence agencies." 124
Mr. Nixon also apparently relied on the theory that a "sovereign"
President can authorize the violation of criminal laws in the name of
"national security" when the President, in his sole discretion, deems
it appropriate. He recently stated:
It is quite obvious that there are certain inherently governmental
actions which if undertaken by the sovereign in protection of the
interest of the nation's security are lawful but which if undertaken
by private persons are not. . . .
... [I]t is naive to attempt to categorize activities a President
might authorize as "legal" or "illegal" without reference to the
circumstances under which he concludes that the activity is necessary. . . .
In short, there have been -- and will be in the future --
circumstances in which Presidents may lawfully authorize actions in
the interests of the security of this country, which if undertaken by
other persons, or even by the President under different
circumstances, would be illegal. 125
As the former President described this doctrine, it could apply not
only to actions taken openly, which are subject to later challenge by
Congress and the courts, but also to actions such as those
recommended in the Huston Plan, which are covertly endorsed and
implemented. The dangers inherent in this theory are clear, for it
permits a President to create exceptions to normal legal restraints
and prohibitions, without review by a neutral authority and without
objective standards to guide him. 126 The Huston Plan itself serves
as a reminder of these dangers.
Significantly, President Nixon's revocation of approval for the
Huston Plan was based on the possibility of "media criticism" if the
use of these techniques was revealed. The former President stated:
Mr. Mitchell informed me that it was Director Hoover's opinion that
initiating a program which would permit several government
intelligence agencies to utilize the investigative techniques
outlined in the Committee's report would significantly increase the
possibility of their public disclosure. Mr. Mitchell explained to me
that Mr. Hoover believed that although each of the intelligence
gathering methods outlined in the Committee's recommendations had
been utilized by one or more previous Administrations, their
sensitivity would likely generate media criticism if they were
employed. Mr. Mitchell further informed me that it was his opinion
that the risk of disclosure of the possible illegal actions, such as
unauthorized entry into foreign embassies to install a microphone
transmitter, was greater than the possible benefit to be derived.
Based upon this conversation with Attorney General Mitchell, I
decided to revoke the approval originally extended to the Committee's
recommendations. 127
In more than one instance, administration officials outside the
intelligence community have specifically requested intelligence
agencies to undertake questionable actions. NSA's program of
monitoring telephonic communications between New York City and a city
in South America, for example, was undertaken at the specific request
of the Bureau of Narcotics and Dangerous Drugs, a law enforcement agency.
BNDD officials had been concerned about drug deals that were
apparently arranged in calls from public telephones in New York to
South America, but they felt that they could not legally wiretap
these telephone booths. 128 In order to avoid tapping a limited
number of phones in New York, BNDD submitted the names of 450
American citizens for inclusion in NSA's Watch List, and requested
NSA to monitor a communications link between New York and South
America which necessitated the interception of thousands of
international telephone calls. 129
The legal limitations on domestic wiretapping apparently did not
concern certain officials in the White House or Attorneys General who
requested the FBI to do their bidding. In some instances, they
specifically requested the FBI to institute wiretaps on American
citizens with no substantial national security predicate for doing so. 130
On occasion, Attorneys General have also encouraged the FBI to
circumvent the will of both Congress and the Supreme Court. As noted
above, after Congress passed the Emergency Detention Act of 1950 to
regulate the FBI program for listing people to be detained in case of
war or other emergency, Justice Department officials concluded that
its procedural safeguards and substantive standards were
"unworkable". Attorney General J. Howard McGrath instructed the FBI
to disregard the statute and "proceed with the [Security Index]
program as previously outlined." 131 Two subsequent Attorneys General
-- James McGranery and Herbert Brownell endorsed the decision to
ignore the Emergency Detention Act. 132
In 1954, the Supreme Court denounced the use of microphone
surveillances by local police in criminal cases; 133 the fact that a
microphone had been installed in a defendant's bedroom particularly
outraged the court. Within weeks of this decision, however, Attorney
General Herbert Brownell reversed the existing Justice Department
policy prohibiting trespassory microphone installations by the FBI,
and gave the Bureau sweeping new authority to engage in bugging for
intelligence purposes -- even when it meant planting microphones in
bedrooms. 134 Brownell wrote J. Edgar Hoover:
Obviously, the installation of a microphone in a bedroom or in some
comparably intimate location should be avoided whenever possible. It
may appear, however, that important intelligence or evidence relating
to matters connected with the national security can only be obtained
by the installation of a microphone in such a location. . . .
... I recognize that for the FBI to fulfill its important
intelligence function, considerations of internal security and the
national safety are paramount and, therefore, may compel the
unrestricted use of this technique in the national interest. 135
Brownell did not even require the Bureau to seek the Attorney
General's prior approval for microphone installations in particular
cases. 136 In the face of the Irvine decision, therefore, he gave the
FBI authority to bug whomever it wished wherever it wished in cases
that the Bureau -- and not the Attorney General -- determined were
"in the national interest."
In short, disregard of the law by intelligence officers was seldom
corrected, and sometimes encouraged or facilitated, by officials
outside the agencies. Whether by inaction or direct participation,
these administration officials contributed to the perception that
legal restraints did not apply to intelligence activities.
Footnotes:
1 This section discusses the legal issues raised by particular
programs and activities only; a discussion of the aggregate effect
upon constitutional rights of all domestic surveillance practices is
at p. 290 of the Conclusions section.
2 The accountability of senior administration officials is noted here
to place the details which follow in their proper context, and is
developed at greater length in Finding G, p. 265.
3 George C. Moore testimony, 11/3/75, p. 83.
4 Branigan testimony, 10/9/75, pp. 13, 139, 140; Wannall testimony,
10/24/75, Hearings, Vol. 4, p. 149.
5 Branigan, 10/9/75, p. 89.
6 William C. Sullivan testimony, 11/1/75, pp. 49,50.
7 Richard Helms, 10/22/75, Hearings, Vol. 4, p. 94. This testimony is
partially contradicted, however, by the fact that in 1970 Helms
signed the Huston Report. in which "covert mail coverage" -- deflned
as mail opening-was specifically described as illegal. (Special
Report, June 1970, p. 30.)
8 Helms, 10/22/75, Hearings, Vol. 4, p. 103.
9 Huston, 9/23/75, Hearings, Vol. 2, p. 21.
10 Sullivan, 11/1/75, pp. 92, 93.
11 Memorandum from Mr. Boardman to the Director, FBI, 4/30/54.
12 Ibid.
13 Memorandum from W. C. Sullivan to C.D. Deloach, 7/19/66.
14 Report of the House Judiciary Committee, 8/20/74, p. 150.
15 Memorandum from William C. Sullivan to J. Edgar Hoover, 6/30/69.
15a Memorandum from Richard Helms to the Deputy Director of Central
Intelligence, 12/17/63.
16 Blind memorandum, 11/7/55.
17 Memorandurn from Deputy Chief, Counterintelligence Staff, to
Director, Offlee of Security, 2/1/62.
18 Memorandum from Chief, CI/Project to Chief, Division, 9/26/63.
19 Angleton, 9/24/75, Hearings, Vol. 2, p. 61; Howard Osborn,
deposition, 8/28/75, p. 90.
20 Gordon Stewart, 9/30/75, p. 28.
21 See e.g., Howard Osborn deposition, 8/28/75. p. 89.
22 Special Report, June 1970, p. 31.
23 Special Report, June 1970, p. 30.
24 Special Report, June 1970, p. 32.
25 President Nixon stated that he approved these activities in part
because they "had been found to be effective." (Response of Richard
M. Nixon to Senate Select Committee Interrogatory 19, 3/9/76, p. 13.)
26 For a description of the techniques which continued or were
subsequently instituted, see pp. 115-116.
A memorandum from John Dean to John Mitchell suggests that, after
President Nixon's revocation of approval for the Huston Plan, the
White House itself supported the continued pursuit of some of the
objectives of the Huston Plan, through an interagency unit known as
the Intelligence Evaluation Committee. (Memorandum from John Dean to
the Attorney General, 9/18/70.) In this memorandum, Dean suggested
the creation of such a unit for "both operational and evaluation
purposes." He wrote in part:
"[T]he unit can serve to make appropriate recommendations for the
type of intelligence that should be immediately pursued by the
various agencies. In regard to this . . . point, I believe we agreed
that it would be inappropriate to have any blanket removal of
restrictions; rather, the most appropriate procedure would be to
decide on the type of intelligence we need, based on an assessment of
the recommendations of this unit, and then to proceed to remove the
restraints as necessary to obtain such intelligence." (Dean
memorandum, 9/18/70.)
27 Memorandum for the record by Army Assistant Chief of Staff for
Intelligence, 8/16/68, Staff summary of Sol Lindenbaum (former
Executive Assistant to the Attorney General) interview, 5/8/75.
28 Memorandurn for the record by Army Assistant Chief of Staff for
Intelligence. 8/16/68.
29 The Army's general domestic surveillance program provides an
example of evasion of a departmental order which had been issued out
of concern with legal issues. The practice of collecting vast amounts
of information on American citizens was terminated in 1971, when new
Department of Defense restrictions came into effect calling for the
destruction of all files on "unaffiliated" persons, and
organizations. Rather than destroying the files, however, several
Army intelligence units simply turned their intelligence files an
dissident individuals and groups over to local police authorities;
and one Air Force counterintelligence unit in San Diego began to
create new files the next year. (Hearings before Subcommittee on
Constitutional Rights, Committee on the Judiciary, U.S. Senate. 92nd
Congress, 1st session, 1971, p. 1297; "Ex-FBI Aid Accused in Police
Spy Hearings'' Chicago Tribune, 6/21/75. p. 3.)
30 USAINTC Staff Study: Material Testing Program EA 1729. 10/15/59.
31 Sullivan attributes much of this attitude to the molding influence
of World War II upon young intelligence agents who later rose to
positions of influence in the intelligence community. (Sullivan,
11/1/75, pp. 94-95.) Disregard of the "niceties of law," he stated,
continued after the war had ended:
"Along came the Cold War. We pursued the same course in the Korean
War, and the Cold War continued, then the Vietnam War. We never freed
ourselves from that psychology that we were indoctrinated with, right
after Pearl Harbor, you see. I think this accounts for the fact that
nobody seemed to be concerned about raising the question is this
lawful, is this legal, is this ethical? It was just like a soldier in
the battlefield. When he shot down an enemy he did not ask himself is
this legal or lawful, is it ethical? It is what he was expected to do
as a soldier."
"We did what we were expected to do. It became part of our thinking,
a part of our personality." (Sullivan. 11/1/75. pp. 95,96.)
Unfortunately, it made too little difference whether the "enemy" was
a foreign spy, a civil rights leader, or a Vietnam protester.
32 Sullivan, 11/1/75, P. 96.
33 Branigan. 10/9/75, p. 41.
34 Staff summary of William C. Sullivan interview, 6/10/75.
35 omitted in original.
36 Moore deposition, 11/3/75, p. 79.
37 Branagan deposition, 1/9/75, p. 41. Richard Helms referred to
another kind of "greater good" when asked to speculate about the
possible motivation of a CIA scientist who did not heed President
Nixon's directive to destroy all biological and chemical toxins.
Noting that the scientist might have "had thoughts about immunization
... or treatment of disease where [the toxin he had developed might
be useful," Helms said that the retention of this biological agent
could be explained as "yielding to that human impulse of the greater
good." (Richard Helm- testimony, 9/15/75, p. 96.)
38 Robert Andrews testimony 9/23/75, p. 34; See NSA Report:
"SHAMROCK." By cooperating with the Government in SHAMROCK,
executives of three companies chose to ignore the advice of their
respective legal counsels who had recommended against participation
because they considered the program to be in violation of the law and
FCC regulations. (Memorandum for the record, Armed Forces Security
Agency, Subject: SHAMROCK Operation, 8/25/50.)
39 Tom Charles Huston deposition, 5/22/75, p. 43; Staff Summary of
Toni Charles Huston interview, 5/22/75.
40 Letter from Richard Helms to Henry Kissinger, 2/18/69.
41 See COINTELPRO Report: See. V, "Outside the Bureau" memorandum;
from FBI Headquarters to all SAC's, 8/25/67.
42 omitted in original.
43 Buffham, 9/12/75, p. 20; MINARET Charter, 7/1/69.
At other times, however, NSA's special security measures were applied
to Protect documents which concerned far more than NSA. Thus, at
Richard Helms suggestion, Huston Plan working papers and documents
were all stamped with legends designed to protect NSA's lawful
communications activity, although only a small portion of the
documents actually concerned NSA. (Unaddressed memorandum, Subject:
"Interagency Committee on Intelligence, Working Subcommittee, Minutes
of the First Meeting," 6/10/70.)
44 Department of Army Message to Subordinate Commands, 3/31/68.
45 CIA memorandum, Subject: Inspector General's Survey of the Office
of Security, Annex II, undated.
46 Memorandum from Deputy Chief, CI Staff, to Director Office of
Security, 2/1/62.
47 Memorandum from Sheffield Edwards, Director of Security, to Deputy
Director for Support, 2/21/62.
48 Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66. The same
document that describes the application of the "DO NOT FILE"
procedure to "black bag jobs" also notes that before a break-in could
be approved within the FBI, the Special Agent in Charge of the field
office had to assure headquarters that it could be accomplished
without "embarrassment to the Bureau." (Sullivan memorandum, 7/19/66.)
An isolated instance of file destruction apparently occurred in the
Los Angeles office of the Internal Revenue Service in December 1974,
at a time when Congressional investigation of the intelligence
agencies was imminent. This office had collected large amounts of
essentially political information regarding black militants and
political activists. In violation of internal document destruction
procedures the files were destroyed prior to their proposed review by
IRS authorities. See IRS Report; Sec. IV. "The Information Gathering
and Retrieval System"; Staff Summary of interview with Chief, IRS
Division, Los Angeles, 8/1/75.
49 For example, letters from W. C. Sullivan to J. Edgar Hoover,
6/30/69, 7/2/69, 7 3/69, 7/7/69. These letters were sent to Hoover
from Paris, where Sullivan coordinated the Kraft surveillance. All of
them bear the notation "DO NOT FILE."
50 Memorandum from W. C. Sullivan to C. D. DeLoach, 7/19/66.
51 Gordon Stewart, 9/30/75, p. 29.
52 McCone, 10/9/75, pp. 3-4; Angleton, 9/17/75, p. 20; Osborn,
10/21/75; Hearings, Vol. 4, p. 38.
53 Memorandum from Richard Helms to Director of Security, 5/17/74;
Helms, 10/22/75, Hearings, Vol. 4, p. 84. By the CIA's own account,
moreover, at most only three Cabinet-level officials may have been
told about the mail opening aspects of this project. Each of these
three -- Postmasters General J. Edward Day and Winton M. Blount, and
Attorney General John Mitchell -- dispute the Agency's claim. (Day,
10/22/75, Hearings, Vol. 4, p. 45; Blount, 10/22/75, Hearings, Vol.
4, p. 47; Mitchell, 10/2/75, pp. 13-14.)
54 Blind memorandum from "CIA Officer," 4/23/65.
55 Ibid. Mr. Gronouski testified as follows about the CIA's
successful attempt to keep knowledge of the New York project from him:
"When this news [about CIA mail opening) broke [in 19751, I thought
it was incredible that a person in a top position of responsibility
in Government in an agency should have something of this sort that is
very illegal going on within his own agency and did not know about
it. It is not that I did not try to know about these things. I think
it is incumbent upon anybody at the top office to try to know
everything that goes on in his organization." (Gronouski, 10/22/75,
Hearings, Vol. 4 p. 44.)
56 Helms, 10/23/75, pp. 28,30-31.
57 Special Report, p. 29. Richard Helms testified as follows about
this inaccurate statement:
". . . the only explanation I have for it was that this applied
entirely to the FBI and had nothing to do with the CIA, that we never
advertised to this Committee or told this Committee that this mail
operation was going on, and there was no intention of attesting to a
lie. . . ."
"And if I signed this thing, then maybe I didn't read it carefully enough."
"There was no intention to mislead or lie to the President." (Helms,
10/22/75, Hearings Vol. 4, p. 95).
58 Howard Osborn, 8/28/75, pp. 58, 59; Thomas Karamessines, 10/8/75,
p. 12; Richard Helms, 9/10/75, p. 127.
59 For example, Chief, Security Support Division memorandum,
12/24/74; Memorandum from C/TSD/CCG/CRB to the file, 3/26/60;
memorandum from C/TSD/CCG/CRB to the file, 9/15/69.
60 Donald E. Moore, 10/1/75, p. 79.
61 Moore, 10/1/75, p. 31; Katzenbach, 12/3/75, Hearings, vol. 6, pp. 204, 205.
62 Moore 10/1/75, p. 48. See Mail Report: see. IV, "Nature and Value
of the Product Received."
63 FBI agent testimony, 10/10/75, p. 30.
64 See NSA Report: See. II, "Summary of NSA Watch List Activity."
65 Memorandum from J. Edgar Hoover to FBI Field Offices, 8/14/43.
66 Memorandum from Atlanta Field Office to FBI Headquarters, 6/7/67.
67 Memorandum from Birmingham Field Office to FBI Headquarters, 6/14/67.
68 Postal officials told Bureau liaison that since Shelton's
allegations "appear to involve an internal struggle for control of Ku
Klux Klan activities in North Carolina and since the evidence of mail
fraud was somewhat tenuous in nature, the Post Office did not
contemplate any investigation." (Memorandum from Special Agent to D.
J. Brennan, 7/11/67.) Had the FBI informed the Post Office that
Bureau agents had written the letter, it would have been apparent
that Shelton's allegations were not based on an "internal struggle"
within the KKK.
69 Memorandum from FBI Headquarters to Charlotte Field Office, 8/21/67.
70 Memorandum from Charlotte Field Office to FBI Headquarters 8/22/67.
71 Huston, 9/23/75, Hearings, Val. 2, p. 24.
When J. Edgar Hoover informed Attorney General John Mitchell about
the Report on July 27, 1970, Mitchell objected to its proposals and
influenced the President to withdraw his original approval.
According to John 'Mitchell, he believed that the proposals "were
inimical to the best interests of the country and certainly should
not be something that the President of the United States should be
approving." (John Mitchell testimony, 10/24/75, Hearings, Vol. 4, p. 23.)
73 James Angleton, 9/24/75, Hearings, Vol. 2, p. 77.
74 See Military Surveillance Report: Sec. 1, "Improper Surveillance
of Private Citizens by the Military"; Inspector General Report,
Department of the Army, 1/3/72.
75 The Johnson Administration itself attempted to restrict the Long
Subcommittee's investigation into national security matters, although
there is no indication that this attempt was motivated by a desire to
protect illegal activities. (E.g., Memorandum from A. H. Belmont to
Mr. Tolson, 2/27/65; memorandum from J. Edgar Hoover to Messrs.
Tolson, Belmont, Gale, Rosen, Sullivan, and DeLoach, 3/2/65.)
76 Blind memorandum from "CIA Officer," 4/23/65.
77 Ibid.
78 Memorandum from A. H. Belmont to Mr. Tolson, 2/27/65.
79 Memorandum from J. Edgar Hoover to Messrs. Tolson, Belmont, Gale,
Rosen, Sullivan, and DeLoach, 3/1/65.
80 Memorandum from J. Edgar Hoover to Messrs. Tolson, Belmont, Gale,
Rosen, Sullivan, and DeLoach 3/1/65.
81 Mail Report Part IV, See. VII, "Concern with Exposure." At the
time of his testimony before the Long Subcommittee, Chief Postal
Inspector Montague knew of ongoing FBI projects in which Bureau
agents received custody of the mail, but he was apparently unaware
that these projects involved mail openings.
82 For example, Memorandum from C. D. DeLoach to Mr. Tolson, 1/10/66.
83 Memorandum from M. A. Jones to Mr. Wick, Attachment, 1/11/66.
84 See pp. 62--65, 105, 205-206 for a description of some of these
improper surveillances.
85 Memorandum from C. D. DeLoach to Mr. Tolson, 1/21/66.
86 DeLoach memorandum, 1/21/66. This incident also illustrates that
Congress has at times permitted itself to be "neutralized." The
general reluctance of Congress to discharge its responsibilities
toward intelligence agencies is discussed at pp. 277-281.
87 James Angleton; 9/17/75. p. 48
88 Memorandum from Lawrence Houston to Acting Chief, Division D, 1/29/73.
89 Proposed regulations drafted in response to Executive Order 11905
(March 1976) require the Inspector General to refer "all legal
matters" to the Office of General Counsel. (Draft Reg. HR 1-3.)
89 Helms deposition, 9/10/75, P. 59.
90 Gordon Stewart deposition, 4/30/75, p. 29; Rockefeller Commission
Report, p. 146; Report on the Offices of the General Counsel and
Inspector General: The General Counsel's Responsibilities, 9/30/75, p. 29.
91 Regulation HR 7-1a (6).
92 Memorandum for the Record by J. S. Earman, Inspector General,
11/29/63; Memorandum from Helms to DCI, 11/9/64.
93 1957 I.G. Inspection of the Technical Services Division.
94 Rockefeller Commission Report, 6/6/75, p. 89.
Memorandum from L. K. White, Deputy Director for Support, to Acting
Inspector General, Attachment, 3/9/62; blind memorandum, undated
(1969). The Inspector General under whose auspices the second review
was conducted stated "[0]f course we knew that this was illegal," but
he believed that it was "unnecessary" to raise the matter of its
illegality with Director Helms "since everybody knew that it was
[illegal] and it didn't seem ... that I would be telling Mr. Helms
anything that he didn't know." (Gordon Stewart, 9/30/75, p. 32.)
96 W. Mark Felt testimony, 2/3/75, p. 65. 97 Felt, 2/3/75, p. 57.
98 Felt, 2/3/75, pp. 54, 55.
99 Felt, 2/3/75, pp. 59-60.
100 Felt, 2/3/75, p. 60.
101 Felt, 2/3/75, pp. 56, 57.
102 When asked about this Manual provision, Attorney General Edward
Levi stated:
"I do believe ... some further explanation is in order. First, the
Bureau informs me that the provision has not been interpreted to mean
that an investigation should not take place and that any
interpretation that an investigation would not be instituted because
of the possibility of embarrassment to the Bureau was never intended
and, in fact, has never been the policy of this Bureau.' I am told
that 'what was intended to be conveyed was that in such eventuality
FBI Headquarters desired to be advised of the matter before
investigation is instituted so that Headquarters would be on notice
and could direct the inquiry, if necessary."'
"Second, the manual provision dates back to March 30, 1955."
"Third, I am informed by the Bureau that 'immediate steps are being
taken to remove that phraseology from our Manual of Rules and Regulations.'"
(Letter from Attorney General Levi to Senator Richard Schweiker, 11/10/75.)
103 Henry Montague testimony, 10/2/75, pp. 55, 71.
104 Henry Montague, 10/2/75, pp. 15-16.
105 Donald Moore, 10/1/75, p. 31.
106 Nicholas Katzenbach, 10/11/75, p. 35.
107 Katzenbach statement, 12/3/75, Hearings, Vol. 6, p. 205.
108 Katzenbach testimony, 12/3/75, Hearings, Vol. 6, p. 207; Ramsey
Clark, 12/3/75; Hearings, Vol. 6 p. 235; Katzenbach's and Clark's
knowledge of disruptive operations is discussed at greater length in
Finding G: "Deficiences in Control and Accountability" p. 265.
109 Memorandum from J. Edgar Hoover to the Attorney General, 10/7/63;
memorandum from J. Edgar Hoover to the Attorney General, 16/18/63.
110 Memorandum from C. A. Evans to Mr. Belmont 10/21/63.
In May 1961, Robert Kennedy also became aware of the CIA's use of
organized crime figures in connection with "clandestine efforts"
against the Cuban government. (Memorandum from J. Edgar Hoover to the
Attorney General, 5/22/61.) But he did not instruct the CIA to
terminate its involvement with underworld figures either at that time
or in May 1962, when he learned at a briefing by CIA officials that
an assassination attempt had occurred. According to the CIA's General
Counsel, who participated in the 1962 briefing, Kennedy only said if
we were going to get involved with Mafia personnel again he wanted to
be informed first." (Lawrence Houston deposition, 6/2/75, p. 14.)
The CIA's use of underworld figures clearly posed problems for the
FBI's ongoing investigation of organized crime in the United States,
which had in large part been initiated by Attorney General Kennedy
himself. (Senate Select Committee, "Alleged Assassination Plots
Involving Foreign Leaders," pp. 125-129.)
111 The FBI instituted additional wiretaps on King on four separate
occasions between 1964 and 1965. Since Justice Department policy
before March 1965 imposed no limit on the duration of wiretaps and
they were approved by the Attorney General, the Bureau claimed that
the King taps were justified as a continuation of the tap originally
authorized by Kennedy in October 1963. (For example, memorandum from
FBI Headquarters to Atlanta Field Office, 4/19/65; Martin Luther King
Report: Sec. IC, "Wiretap Surveillance of Dr. King and the SCLC."
112 Katzenbach's initials appear on memoranda addressed to the
Attorney General advising him of these bugs, but he cannot recall
seeing or initialing them. (Memoranda from J. Edgar Hoover to the
Attorney General, 5/17/65, 10/19/65, 12/1/65; Katzenbach, 12/1/75.
Hearings, Vol. 6, p. 211, p. 46.) He stated, however, that if he had
read these documents, he would have "done something about it."
(Katzenbach, Hearings, Vol. 6, p. 230.)
113 A transmittal slip, which the FBI claims had been attached to the
12/1/65 memorandum, notes that "these are particularly delicate
surveillances" and that "we should be very cautious in terms of the
non-FBI people who may from time to time necessarily be involved in
some aspect of installation.'' (Memorandum from Nicholas Katzenbach
to J. Edgar Hoover, 12/10/65.) This message is signed by Katzenbach,
but he testified that he is unsure it related to the King
surveillances. (Katzenbach, 12/3/75, Hearings, Vol. 6, p. 229.)
114 Katzenbach, 12/3/75, Hearings, Vol. 6, p. 210; Burke Marshall
testimony, 3/3/76, pp. 3943.
115 J. Edward Day testimony, 10/22/75, Hearings, Vol. 4. p. 45.
116 In 1973, however, Mr. Cotter was instrumental in effecting the
termination of the CIA's New York project. (Cotter, 8/7/75, p. 45.)
117 Cotter, 8/7/75, p. 45.
118 Ibid.
119 Cotter 10/22/75, Hearings, Vol. 4, p. 74.
120 Ibid.
121 John Erlichman testimony, President's Commission on CIA
Activities Within the United States, 4/17/75, p. 98.
122 Erlichman testimony, President's Commission on CIA Activities
Within the United States, 4/17/75, p. 98.
123 Answer of Richard M. Nixon to Senate Select Committee
Interrogatory 23, 3/9/76, p. 13.
124 Answer of Richard M. Nixon to Senate Select Committee
Interrogatory 19, 3/9/76, p. 13.
125 Answer of Richard M. Nixon to Senate Select Committee
Interrogatory 34, 3/9/76, pp. 16-17.
126 President Ford has recently rejected this doctrine of Presidential power.
127 Answer of Richard M. Nixon to Senate Select Committee
Interrogatory 17, 8/9/76, pp. 11-12.
128 Milton Iredell, 9/18/75, p. 99.
129 Memorandum from Ingersoll to Gayler, 4/10/70.
130 See Findings, "Political Abuse" and "Intrusive Techniques" for examples.
131 Memorandum from A. H. Belmont to D. M. Ladd, 10/15/52.
132 Memorandum from Attorney General James McGranery to I. Edgar
Hoover, 11/25/52; memorandum from Attorney General Herbert Brownell
to J. Edgar Hoover, 4/27/53.
133 Irvine v. California, 347 U.S. 128 (1954).
134 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
135 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
136 Ibid.
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