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From: "James M. Atkinson" <jm..._at_tscm.com>
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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
C. EXCESSIVE USE OF INTRUSIVE TECHNIQUES
MAJOR FINDING
The intelligence community has employed
surreptitious collection techniques -- mail
opening, surreptitious entries, informants, and
"traditional'' and highly sophisticated forms of
electronic surveillance -- to achieve its overly
broad intelligence targeting and collection
objectives. Although there are circumstances
where these techniques, if properly controlled,
are legal and appropriate, the Committee finds
that their very 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 inherent in the use of these
techniques have been compounded by the lack of
adequate standards limiting their use and by the
absence of review by neutral authorities outside
the intelligence agencies. As a consequence,
these techniques have collected enormous amounts
of personal and political information serving no
legitimate governmental interest.
Subfindings
(a) Given the highly intrusive nature of these
techniques, the legal standards and procedures
regulating their use 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 surveillance;
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 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 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.
(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.
Elaboration of Findings
The preceding section described how the absence
of rigorous standards for opening, controlling,
and terminating investigations subjected many
diverse elements of this society to scrutiny by
intelligence agencies, without their being
suspected of violating any law. Once an
investigation was opened, almost any item of
information about a target's personal behavior or
political views was considered worth collecting.
Extremely intrusive techniques -- such as those
listed above -- have 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
Wiretaps and microphones have also been a
significant means of gathering intelligence.
Until 1972, the FBI directed these electronic
techniques against scores of American citizens
and domestic organizations during investigations
of such matters as domestic "subversive"
activities and leaks of classified information.
The Bureau continues to use these techniques
against foreign targets in the United States.
The most extensive use of electronic surveillance
has been by the National Security Agency. NSA has
electronically monitored (without wiretapping in
the traditional sense) international
communication links since its inception in 1952;
because of its sophisticated technology, it is
capable of intercepting and recording an enormous
number of communications between the United States and foreign countries. 4
All mail opening programs have now been
terminated, but a total of twelve such operations
were conducted by the CIA and the FBI in ten
American cities between 1940 and 1973. 5 Four of
these were operated by the CIA, whose most
massive project involved the opening of more than
215,000 letters between the United States and the
Soviet Union over a twenty-year period. The, FBI
conducted eight mail opening programs, three of
which included opening mail sent between two
points in the United States. The longest FBI mail
opening program lasted, with one period of
suspension, for approximately twenty-six years.
The FBI has also cunducted hundreds of
warrantless surreptitious entries -- break-ins --
during the past twenty-five years. Often these
entries were conducted to install electronic
listening devices, at other times they involved
physical searches for information. The widespread
use of warrantless surreptitious entries against
both foreign and domestic targets was terminated
by the Bureau in 1966 but the FBI has
occasionally made such entries against foreign targets in more recent years.
All of these techniques have been turned against
American citizens its well as against certain
foreign targets. On the theory that the
executive's responsibility in the area of
"national security" and "foreign intelligence"
justified their use without the need of judicial
supervision, the intelligence community believed
it was free to direct these techniques against
individuals and organizations whom it believed
threatened the country's security. The standards
governing the use of these techniques have been
imprecise and susceptible to expansive
interpretation and in the absence of any judicial
check on the application of these vague standards
to particular cases. it was relatively easy for
intelligence agencies and their superiors to
extend them to many cases where they were clearly
inappropriate. Lax internal controls on the use
of some of these techniques compounded the problem.
These intrusive techniques by their very nature
invaded the private communications and activities
both of the individuals they were directed
against and of the persons, with whom the targets
communicated or associated. Consequently. they
provided the means by which all types of
information -- including personal and political
information totally unrelated to any legitimate
governmental objective -- were collected and in
some cases disseminated to the highest levels of the government.
Subfinding (a)
Given the highly intrusive nature of these
techniques, the legal standards and procedures
regulating their use 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 surveillance;
and the legal prohibitions against warrantless
mail opening and surreptitious entries have been ignored.
1. The Absense of Statutory Restraints on the Use of Information
There are no statutes or published regulations
governing the use of informants.,, Consequently,
the FBI is free to use informants, guided only by
its own internal directives which can be changed
at any time by FBI officials without approval from outside the Bureau. 7
Apart from court decisions precluding the use of
informants to entrap persons into criminal
activity, there are few judicial opinions dealing
with informants and most of those concern
criminal rather than intelligence informants. 8
The United States Supreme Court has never ruled
on whether the use of intelligence informants in
the contexts revealed by the Committee's
investigation offend First Amendment rights of
freedom of expression and association. 9
In the absence of regulation through statute,
published regulation, or court, decision, the FBI
has used informants to report on virtually every
aspect of a targeted group or individual's
activity, including lawful political expression,
political meetings, the identities of group
members and their associates, the "thoughts and
feelings, intentions and ambitions," of members,
10 and personal matters irrelevant to any
legitimate governmental interest. Informants have
also been used by the FBI to obtain the
confidential records and documents of a group. 11
Informants could be used in any intelligence
investigation. FBI directives have not limited
informant reporting to actual or likely violence
or other violations of law. 12 Nor has any
determination been made concerning whether the
substantial intrusion represented by informant
coverage is justified by the government's
interest in obtaining information, or whether
less intrusive means would adequately serve the
government's interest. There has also been no
requirement that the decisions of FBI officials
to use informants be reviewed by anyone outside
the FBI. In short, intelligence informant
coverage has not been subject to the standards
which govern the use of other intrusive
techniques such as electronic surveillance, even
though informants can produce a far broader range of information.
2. Gaps and Exceptions in the Law of Electronic Surveillance
Congress and the Supreme Court have both
addressed the legal issues raised by electronic
surveillance, but the law has been riddled with
gaps and exceptions. The Executive branch has
been able to apply vague standards for the use of
this technique to particular cases as it has seen
fit, and, in the case of NSA monitoring, the
standards and procedures for the use of
electronic surveillance were not applied at all.
When the Supreme Court first considered
wiretapping, it held that the warrantless use of
this technique was constitutional because the
Fourth Amendment's warrant requirement applied
only to physical trespass and did not extend to
the seizure of conversation. This decision, the
1928 case of Olmstead v. United States, involved
a criminal prosecution, and left federal agencies
free to engage in the unrestricted use of
wiretaps in both criminal and intelligence investigations. 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 divulge or publish the contents of
wire and radio communications. The Supreme Court
subsequently construed this section to apply to
federal agents as well as to ordinary citizens,
and held that evidence obtained directly or
indirectly from the interception of wire and
radio communications was not admissible in court.
14 But Congress acquiesed in the Justice
Department's position that these cases prohibited
only the divulgence of contents of wire
communications outside the executive branch, 15
and Government 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
approve wiretaps on "persons suspected of
subversive activities against the Government of
the United States, including suspected spies." 16
In the absence of any guidance from Congress or
the Court for another quarter century, the
executive branch first broadened this standard in
1946 to permit wiretapping in "cases vitally
affecting the domestic security or where human
life is in jeopardy," 17 and then modified it in
1965 to allow wiretapping in "investigations
related to the national security." 18 Internal
Justice Department policy required the prior
approval of the Attorney General before the FBI
could institute wiretaps in particular cases, 19
but until the mid-1960's there was no requirement
of periodic reapproval by the Attorney General.
20 In the absence of any instruction to
terminate, them, some wiretaps remained in effect for years. 21
In 1967, the Supreme Court reversed its holding
in the Olmstead case and decided that the Fourth
Amendment's warrant requirement did apply to
electronic surveillances. 22 It expressly
declined, however, to extend this holding to
cases involving the "national security." 22a
Congress followed suit the next year in the
Omnibus Crime Control Act of 1968, which
established a warrant procedure for electronic
surveillance in criminal cases but included a
provision that neither it nor the Federal
Communications Act of 1934 "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 served 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 Nation against actual or
potential attack or other hostile acts of a foreign power;
(2) to obtain foreign intelligence information
deemed essential to the security of the United States; and
(3) to protect the national security information
against foreign intelligence activities.
The last two categories dealt with domestic intelligence interests:
(4) to protect the United States against
overthrow of the government by force or other unlawful means, or
(5) against any other 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 Court, 23a that the
President did not have the constitutional power
to authorize warrantless electronic surveillances
to protect the nation from domestic threats. 24
The Court pointedly refrained, however, from any
"judgment on the scope of the Presidents'
surveillance power with respect to the activities
of foreign powers, within or without this
country." 25 Only "the domestic aspects of
national security" came within the ambit of the Court's decision. 26
To conform with the holding in this case, the
Justice Department thereafter limited warrantless
wiretapping to cases involving a "significant
connection with a foreign power, its agents or agencies." 27
At no time, however, were the Justice
Department's standards and procedures ever
applied to NSA'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
communications intercepted by the Agency,
transcribed, and frequently disseminated to other
agencies for intelligence purposes. 29
The Americans on this list, many of whom were
active in the antiwar and civil 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
between 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 Watch List, again
without warrant or the approval of the Attorney General. 30
The legal standards and procedures regulating the
use of microphone surveillance have traditionally
been even more lax than those regulating the use
of wiretapping. The first major Supreme Court
decision on microphone surveillance was Goldman
v. United States, 316 U.S. 129 (1942), which held
that such surveillance in a criminal case was
constitutional when the installation did not
involve a trespass. Citing this case, Attorney
General McGrath prohibited the trespassory use of
this technique by the FBI in 1952. 31 But two
years later -- a few weeks after the Supreme
Court denounced the use of a microphone
installation in a criminal defendant's bedroom 32
-- Attorney General Brownell 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 would not be burdened
with the necessity of a formal request to the Attorney General.
The vague "national interest" standards
established by Brownell, and the policy of not
requiring the Attorney General's prior approval
for microphone installations, continued until
1965, when the Justice Department began to apply
the same criteria and procedures to both
microphone and telephone surveillance.
3. Ignoring the Prohibitions Against Warrantless
Mail Opening and Surreptitious Entries
Warrantless mail opening and surreptitious
entries, unlike the use of informants and
electronic surveillance, have been clearly
prohibited by both statutory and constitutional
law. In violation of these prohibitions, the FBI
and the CIA decided on their own when and how
these techniques should be used. 35
Sections 1701 through 1973 of Title 18 of the
United 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 and
imprisonment for not more than five years. The
Supreme Court has also held that both First
Amendment and Fourth Amendment restrictions apply to mail opening.
The Fourth Amendment concerns were articulated as
early as 1878, when the Court wrote:
The constitutional guaranty of the right of the
people to be secure in their papers against
unreasonable searches and seizures extends to
their papers, thus closed against inspection,
wherever they may be. Whilst in the mail, they
can only be opened and examined under like
warrant . . . as is required when papers are
subjected to search 'it one's own household. 36
This principle was reaffirmed as recently as 1970
in United States v. Van Leeuwen, 396 U.S. 249
(1970). The infringement of citizens' First
Amendment rights resulting from warrantless mail
opening was first recognized by Justice Holmes in
1921. "The use of the mails," he wrote in a
dissent now embraced by prevailing legal opinion,
"is almost as much a part of free speech as the
right to use our tongues." 37 This principle,
too, has been affirmed in recent years. 38
Breaking and entering is a common law felony as
well as a violation of state and federal
statutes. When committed by Government agents, it
has long been recognized as "the chief evil
against which the wording of the Fourth Amendment is directed." 39
In the one judicial decision concerning the
legality of warrantless "national security"
break-ins for physical search purposes, United
States District Court Judge Gerhard Gesell held
such entries unconstitutional. This case, United
States v. Ehrlichman, 40 involved an entry into
the office of a Los Angeles psychiatrist, Dr.
Lewis Fielding, to obtain the medical records of
his client Daniel Ellsberg, who was then under
federal indictment for revealing classified
documents. The entry was approved by two
Presidential assistants, John Ehrlichman and
Charles Colson, who argued that it had been
justified "in the national interest." Ruling on
the defendants' discovery motions, Judge Gesell
found that because no search warrant was obtained:
The search of Dr. Fielding's office was clearly
illegal under the unambiguous mandate of the
Fourth Amendment. . . [T]he Government must
comply with the strict constitutional and
statutory limitations on trespassory searches and
arrests even when known foreign agents are
involved.... To hold otherwise, except under the
most exigent circumstances, would be to abandon
the Fourth Amendment to the whim of the Executive
in total disregard of the Amendment's history and purpose. 41
In the appeal of this decision, the Justice
Department has taken the position that a physical
search may be authorized by the Attorney General
without a warrant for "foreign intelligence"
proposes. 42 The warrantless mail opening
programs and surreptitious entries by the FBI and
CIA did not even conform to the "foreign
intelligence" standard, however, nor were they
specifically approved in each case by the
Attorney General. Domestic "subversives" and
"extremists" were targeted for mail opening; and
domestic "subversives" and "White Hate groups"
were among those targeted for surreptitious
entries. Until the Justice Department's recent
statement in the Ehrlichman case, moreover, no
legal justification had ever been advanced
publicly for violating the statutory or
constitutional prohibitions against physical
searches or opening mail without a judicial
warrant, and none has ever been officially
advanced by any Administration to justify warrantless mail openings.
Subfinding (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 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 Intrusive Nature of the Intelligence Informant Technique
The FBI employs two types of informants: (1)
"intelligence informants" who are used to report
on groups and individuals in the course of
intelligence investigations, and (2) "criminal
informants," who are used in connection with
investigations 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 administrative 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
investigation centered 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 sometimes
played a key role in the enforcement of the
criminal law. The Committee examined a number of
such cases, 44 and in public hearings on the use
of FBI intelligence informants included the
testimony of a former informant in the Ku Klux
Klan whose reporting and court room testimony was
essential to the arrest and conviction of the
murderers of Mrs. Viola Liuzzo, a civil rights
worker killed in 1965. 45 Former Attorney General
Katzenbach testified that informants were vital
to the solution of the murders of three civil
rights workers killed in Mississippi in 1964. 46
FBI informant coverage of the Women's Liberation
Movement resulted in intensive reporting on the
identities and opinions of women who attended WLM
meetings. For example, the FBI's New York Field
Office summarized one informant's report in a memorandum to FBI Headquarters:
Informant advised that a WLM meeting was held on
_________________________ 47 Each woman at this
meeting stated why she had come to the meeting
and how she felt oppressed, sexually or otherwise.
According to this informant, these women are
mostly concerned with liberating women from this
"oppressive society." They are mostly against
marriage, children, and other states of
oppression caused by men. Few of them, according
to the informant, have had political backgrounds. 48
Individual women who attended WLM meetings at
midwestern universities were identified by FBI
intelligence informants. A report by the Kansas City FBI Field Office stated:
Informant indicates members of Women's Liberation
campus group who are now enrolled as students at
University of Missouri, Kansas City, are ______,
________, _________, ________, __________. 49
Informant noted that ______ and _______ 50 not
currently students on the UMKC campus are
reportedly roommates at __________. 51
Informants were instructed to report "everything"
they knew about a group to the FBI.
. . . to go to meetings, write up reports . . .
on what happened, who was there . . . to try to
totally identify the background of every person
there, what their relationships were, who they
were living with, who they were 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
Even where intelligence informants are used to
infiltrate groups where some members are
suspected of violent activity, the nature of the
intelligence mission results in governmental
intrusion into matters irrelevant to that
inquiry. The FBI Special Agents who 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 knew them, of other members
of the Klan, both the rank and file and the leadership. 54
Intelligence informants also report on other
groups -- not the subject of intelligence
investigations -- which merely associate with, or
are even opposed to, the targeted group. For
example, an FBI informant in the VVAW had the
following exchange with a member of the Committee:
Senator HART (Mich.). . . . did you report also
on groups and individuals outside the [VVAW],
such as other peace groups or individuals who
were opposed to the war whom you came in contact
with because they were cooperating with the
[VVAW] in connection with protest demonstrations and petitions?
Ms. Cook. . . . I ended up reporting on groups
like the United Church of Christ, American Civil
Liberties Union, the National Lawyers Guild,
liberal church organizations [which] quite often
went into coalition with the VVAW. 55
This informant reported the identities of an
estimated 1,000 individuals to the FBI, although
the local chapter to which she was assigned had
only 55 regular members. 56 Similarly, an FBI
informant in the Ku Klux Klan reported on the
activities of civil rights and black groups that
he observed in the course of his work in the Klan. 57
In short, the intelligence informant technique is
not a precise instrument. By its nature, it
extends far beyond the sphere of proper
governmental interest and risks governmental
monitoring of the private lives and the
constitutionally-protected activity of Americans.
Nor is the intelligence informant technique used
infrequently. As reflected in the statistics
described above, FBI intelligence investigations
are in large part conducted through the use of
informants; and FBI agents are instructed to
"develop reliable informants at all levels and in
all segments" of groups under investigation. 58
b. Other Dangers in the Intelligence Informant Technique
In the absence of clear guidelines for informant
conduct, FBI paid and directed intelligence
informants have participated in violence and
other illegal activities and have taken
membership lists and other private documents.
1. Participation in Violence and Other Illegal Activity
The Committee's investigation has revealed 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 have
sometimes played essential roles in the
enforcement of the criminal law. At the same
time, however, the Committee has found that the
intelligence informant technique carries with 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 collect evidence for use in
prosecutions. Consequently, intelligence
informants must participate in the activity of
the group they penetrate to preserve their cover
for extended periods. Where the group is involved
in violence or illegal activity, there is a
substantial risk that the informant must also
become involved in this activity. As an FBI
Special Agent who handled an intelligence
informant in the Ku Klux Klan testified: "[you]
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 have informants who have gotten involved
in the violation of the law, and we have
immediately converted their status from an
informant to the subject, and have prosecuted, I
would say, offhand ... around 20 informants. 60
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 provisions governing informant
conduct. While FBI employee conduct regulations
prohibit an FBI agent from directing informants
to engage in violent or other illegal activity,
informants themselves are not governed by these
regulations since the FBI does not consider them as FBI employees.
In the absence of clear and precise written
provisions directly applicable to informants, FBI
intelligence informants have engaged in violent
and other illegal activity. For example, an FBI
intelligence informant who penetrated the Ku Klux
Klan and reported on its activities for over five
years testified that on a number of occasions he
and other Klansmen had "beaten people severely,
had boarded buses and kicked people off; had went
in restaurants and beaten them with blackjacks,
chains, pistols." 61 This informant described how
he had taken part in Klan attacks on Freedom
Riders at the Birmingham, Alabama, bus depot,
where "baseball bats, clubs, chains and pistols" were used in beatings. 62
Although the FBI Special Agents who directed this
informant instructed him that he was not to
engage in violence, it was recognized that there
was a substantial risk that he would become a participant in violent activity.
As one of the Agents testified:
... it is kind of difficult to tell him that we
would like you to be there on deck, observing, be
able to give us information and still keep
yourself detached and uninvolved and clean, and
that was 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 Army Organization." The informant
reported on the activities of these "right wing"
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 admittedly participated
in firebombing of an automobile and was present,
conducting a "surveillance" of a professor at San
Diego State University, when his associate and
subordinate in the SAO took out a gun and fired
into the home of the professor, wounding a young woman. 64
An FBI intelligence informant in a group of
antiwar protesters planning to break into a draft
board claimed to have provided technical
instruction and materials that were essential to
the illegal breaktestified to the committee:
Everything they learned about breaking into a
building or climbing a wall or cutting glass or
destroying lockers, I taught them. I got sample
equipment, the type of windows that we would go
through, I picked up off the job and taught them
how to cut the glass, how to drill holes in the
glass so you cannot bear it and stuff like that,
and the FBI supplied me with the equipment
needed. The stuff I did not have, the [the FBI] got off their own agents. 65
The Committee finds that where informants are
paid and directed by a government agency, the
government has a responsibility to impose clear
restrictions on their conduct. Unwritten practice
or general provisions aimed at persons other than
the informants themselves are not sufficient. In
the investigation of violence or illegal
activity, it is essential that the government not
be implicated in such activity.
2. Membership Lists and Other Private Documents
Obtained by the Government Through Intelligence Informants
The Committee finds that there are inadequate
guidelines to regulate the conduct of
intelligence informants with respect to private
and confidential documents, such as membership
lists, mailing lists and papers relating to legal
matters. The Fourth Amendment provides that
citizens shall be "secure in their ... papers and
effects, against unreasonable searches and
seizures" and requires probable cause to believe
there has been a violation of law before a search
warrant may issue. Moreover the Supreme Court, in
NAACP v. Alabama, 66 held that the First
Amendment's protections of speech, assembly and
group association did not permit a state to
compel the production of the membership list of a
group engaged in lawful activity. The Court
distinguished the case where a state was able to
demonstrate a "controlling justification" for
such lists by showing a group's activities
involved "acts of unlawful intimidation and violence." 66a
There are no provisions in the FBI Manual which
preclude the FBI from obtaining private and
confidential documents through intelligence
informants. The Manual does prohibit informant
reporting of "any information pertaining to
defense plans or strategy," but the FBI
interprets this as applying only to privileged
communications between an attorney and client in
connection with a specific court proceeding. 67
The Committee's investigation has shown that, the
FBI, through its intelligence informants and
sources, has sought to obtain membership lists
and other confidential documents of groups and
individuals. 68 For example, one FBI Special Agent testified:
I remember one evening . . . [an informant]
called my home and said I will meet you in a half
an hour ... I have a complete list of everybody
that I have just taken out of the files, but i
have to have it back within such a length of time.
Well, naturally I left home and met him and had
the list duplicated forthwith, and back in his
possession and back in the files with nobody suspecting." 69
Similarly, the FBI Special Agent who handled an
intelligence informant in an antiwar group
testified that he obtained confidential papers of
the group which related to legal defense matters:
"She brought back several things . . . various
position papers taken by various legal defense
groups, general statements of . . . the VVAW,
legal thoughts on various trials, the Gainesville
(Florida) 8 . . . the Camden (New Jersey) 9 . . .
various documents from all of these groups." 70
This informant also testified that she took the
confidential mailing list of the group she had
penetrated and gave it to the FBI. 71
She also gave the FBI a legal manual prepared by
the group's attorneys to guide lawyers in
defending the group's members should they be
arrested in connection with antiwar
demonstrations or other political activity. 72
Since this document was prepared as a general
legal reference manual rather than in connection
with a specific trial the FBI considered it
outside the attorney-client privilege and not
barred by the FBI Manual provision with respect
to legal defense and strategy matters.
For the government to obtain membership lists and
other private documents pertaining to lawful and
protected activities covertly through
intelligence 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. Electronic Surveillance
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 by NSA have been used to
collect too much information about too many people.
1. Wiretapping and Bugging
Wiretaps and bugs are considered by FBI officials
to be one of the most valuable techniques for the
collection of information relevant to the
Bureau's legitimate foreign counterintelligence
mandate. W. Raymond Wannall, the former Assistant
Director in charge of the FBI's Intelligence
Division, stated that electronic surveillance
assisted 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
subvert or utilize in the United States, so
certainly it is a valuable technique." 73
Despite its stated value in foreign
counterintelligence cases, however, the dangers
inherent in its use imply a clear need 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 conversations. Since wiretaps
are placed on particular telephones, anyone who
uses a tapped phone -- including members of the
target's family -- can be overheard. So, too, can
everyone with whom the target (or anyone else
using the target's telephone) communicates. 74
Microphones planted in the target's room or
office inevitably intercept all conversations in
a particular area: anyone confessing in the room
or office, not just the target, is overheard.
The intrusiveness of these techniques has a
second aspect as well. It is extremely difficult,
if not impossible, to limit the interception to
conversations that are relevant to the purposes
for which the surveillance is placed. Virtually
all conversations are overheard, no matter how
trivial, personal, or political they might be.
When the electronic surveillance 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 Brownell gave the FBI
sweeping authority to engage in microphone
surveillances for intelligence purposes in 1954,
he expressly permitted the Bureau to plant
microphones in such locations if, in the sole
discretion of the FBI, the facts warranted the
installation. 75 Acting under this general
authority, for example, the Bureau installed no
fewer than twelve bugs in hotel rooms occupied by
Dr. Martin Luther King, Jr. 76
The King surveillances which occurred between
January 1964 and October 1965, 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 subsequently provided the
basis for the dissemination of personal
information about Dr. King throughout the Federal
establishment. 76a 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 about the target,
his family, and his friends, is easily obtained
from wiretaps as well as microphones. This fact
is clearly illustrated by the warrantless
electronic surveillance of an American citizen
who was suspected of leaking classified data to
the press. A wiretap on this individual produced
no evidence that he had in fact leaked any
stories or documents, but among the items of
information that the FBI did obtain from the tap
(and delivered in utmost secrecy to the 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 heap
he was building; and that during a telephone
conversation between the target's wife and a
friend the "matters discussed were milk bills,
hair, soap operas, and church." 78
The so-called "seventeen" wiretaps on journalists
and government employees, which collectively
lasted from May 1969 to February 1971, also
illustrate the intrusiveness of electronic
surveillance. According to former President
Nixon, these taps produced "just gobs of
material: gossip and bull." 79 FBI summaries of
information obtained from the wiretaps and
disseminated to the White House suggest that the
former President's private evaluation of them was
correct. This wiretapping program did not reveal
the source of any leaks of classified data, which
was its ostensible purpose, but it did generate a
wealth of information about the personal lives of
the targets -- their social contacts, their
vacation plans, their employment satisfactions
and dissatisfaction, their marital problems,
their drinking habits, and even their sex lives. 80
Among those who were incidentally overheard on
one of these wiretaps was a currently sitting
Associate Justice of the Supreme Court of the
United States, who made plans to review a
manuscript written by one of the targets. 81 Vast
amounts of political information were also obtained from these wiretaps. 82
The "seventeen" wiretaps also exemplify the
particularly acute problems of wiretapping when
the targeted individuals are involved in the
domestic political process. These wiretaps
produced vast amounts of purely political
information, 82 much of which was obtained from
the home telephones of two consultants to Senator
Edmund Muskie and other Democratic politicians.
The incidental collection of political
information from electronic surveillance is also
shown by a series of telephone and microphone
surveillances conducted during the Kennedy
administration. In an investigation of the
possibly unlawful attempts of representatives of
a foreign country to influence congressional
deliberations about sugar quota legislation in
the early 1960s, Attorney General Robert Kennedy
authorized a total of twelve warrantless wiretaps
on foreign and domestic targets. Among the
wiretaps of American citizens were two on
American lobbyists, three on executive branch
officials, and two on a staff member of a House
of Representatives' Committee. 83 A bug was also
planted in the hotel room of a United States
Congressman, the Chairman of the House
Agriculture Committee, Harold D. Cooley. 84
Although this investigation was apparently
initiated because of the Government's concern
about future relations with the foreign country
involved and the possibility of bribery, 85 it is
clear that the Kennedy administration was
politically interested in the outcome of the
sugar quota legislation as well. 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. 87
The highly intrusive 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. 90 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. 91 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 toward
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.
2. NSA Monitoring
The National Security Agency (NSA) has the
capability to monitor almost any electronic
communication which travels through the air. This
means that NSA 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,
NSA'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.
NSA has never turned its monitoring apparatus
upon entirely domestic communications, but from
the early 1960s until 1973, it did intercept the
international communications of American
citizens, without a warrant, at the request of other federal agencies.
Under current practice, NSA does not target any
American citizen or firm for the purpose of
intercepting their 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. 93
As a practical matter, most of the communications
of American citizens or firms acquired by NSA as
incidental to its foreign intelligencegathering
process are destroyed upon recognition as a
communication to or from an American citizen. But
other such communications, which bear upon NSA's
foreign intelligence requirements, are processed,
and information obtained from them are used in
NSA's reports to other intelligence agencies.
Current practice precludes NSA from identifying
American citizens and firms by name in such
reports. Nonetheless, the practice does result in
NSA's disseminating information derived from the
international communications of American citizens
and firms to the intelligence agencies and
policymakers in the federal government.
In his dissent in Olmstead v. United States, 94
which held that the Fourth Amendment warrant
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 invading
privacy have become available to the government
... (and) the progress of science in furnishing
the Government with means of espionage is not
likely to stop with wiretapping. Ways may some
day be developed by which the Government, without
removing papers from secret drawers, can
reproduce them in court, and by which it will 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 Justice Brandeis applies
with obvious force to the technological
developments that allow NSA to monitor an
enormous number of communications each year. His
fears were firmly based, for in fact no warrant
was ever obtained for the inclusion of 1200
American citizens on NSA's "Watch List" between
the early 1960s and 1973, and none is obtained
today for the dissemination within the
intelligence community of information derived
from the international communications of American
citizens and firms. In the face of this new
technology, it is well to remember the answer
Justice Brandeis gave to his own question.
Quoting from Boyd v. United States, 116 U.S. 616, he wrote:
It is not the breaking of his doors, and the
rummaging of his drawers that constitutes the
essense of the offense; but it is the invasion of
his indefeasible right of personal security,
personal liberty, and private property . . . 94a
D. Mail Opening
By ignoring the legal prohibitions against
warrantless mail opening, the CIA and the FBI
were able to obtain access to the written
communications of hundreds of thousands of
individuals, a large proportion of whom were
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
Several of the FBI programs utilized as selection
criteria certain "indicators" 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 to the
identification of three foreign spies. 98 But
even by the Bureau's own accounting, it is clear
that the mail of hundreds of innocent American
citizens was opened and read for every successful
counterintelligence 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 less 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. 100 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. 101
E. Surreptitious Entries
Surreptitious entries, conducted in violation of
the law, have also permitted intelligence
agencies to gather a wide range of information
about American citizens and domestic organization
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 most private documents are rendered
vulnerable 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 mailing
lists of these organizations. 104
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" job, we obtained the
records in the possession of three high-ranking
officials of a Klan organization. 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 Ehrlichman
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 for the subsequent
adoption of the Fourth Amendment in 1791, 107 and
this technique is certainly no less intrusive today.
Subfinding (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 who were
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
J. 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 Roosevelt.
110 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 [his] 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 investigation
reveals no evidence indicating that the target
herself represented any threat to the "domestic
security." Similarly, while the FBI may properly
have been 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 surveillances of Congressman
Cooley and Dr. King under the "national interest"
standard established by Attorney General Brownell
in 1954 also reveal the relative ease with which
electronic bugging devices could be used against
American citizens who 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 General Robert Kennedy
approved "technical coverage (electronic
surveillance)" of a black 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. 112
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 various civil rights organizations" and
stated that some of its leaders had "made public
appearances with leaders of communist-front
organizations" and had "subversive 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 John Mitchell approved a series of three
wiretaps on organizations involved in planning
the antiwar "March on Washington." The FBI's
request for coverage of the first group made no
claim that its members engaged or were likely to
engage in violent 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" was 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 campus" 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
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
either 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 wiretaps" 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. 119
Wiretaps for this purpose had, in fact, been
authorized under the Kennedy and Johnson
administrations. President Nixon learned of these
and 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 1961 to '63 there were wiretaps on news
organizations, on news people, on civil rights
leaders and on other people. And I think they
were perfectly justified and I'm sure that
President Kennedy and his brother, Robert
Kennedy, would never have authorized them, unless
he thought they were in the national interest.
(Presidential News Conference, 8/22/73.)
Thus, questionable electronic surveillances by
earlier administrations were put forward as a
defense for improper surveillances exposed in
1973. In fact, however, two of these wiretaps
were placed on domestic affairs advisers at the
White House who had no foreign affairs
responsibilities and apparently no access to
classified foreign policy materialis. 121 A third
target was a White House speech writer who had
been overheard on an existing tap agreeing to
provide a reporter with background information on
a Presidential speech concerning domestic revenue
sharing and welfare reform. 122 The reinstatement
of another wiretap in this series was requested
by H. R. Haldeman simply because "they may have a
bad apple and have to get him out of the basket."
123 The last four requests in this series that
were sent to the Attorney General (including the
requests for a tap on the "bad apple") did not
mention any national security justification at
all. As former Deputy Attorney General William Ruckelshaus has testified:
I think some of the individuals who were tapped,
at least to the extent I have reviewed 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 "[t]he 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
Similarly, 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 "Watch List"
of names of persons and organizations whose mail
was 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 reasonably have been
expected to lead to genuine foreign intelligence
or counterintelligence information. But as the
project developed, the Watch List grew and its
focus changed. By the late 1960s there were
approximately 600 names on the list, many of them
American citizens and organizations who were
engaged in purely lawful and constitutionally
protected forms of protest against governmental
policies. Among the domestic organizations on the
Watch List, which was supplemented by submissions
from the FBI, were: Clergy and Laymen Concerned
about Vietnam, the National Mobilization
Committee to End the War in Vietnam, Ramparts,
the Student Non-Violent Coordinating Committee,
the Center for the Study of Public Policy, and
the American Friends Service Committee. 127
The FBI levied more general requirements on the
CIA's project as well. The focus of the original
categories of correspondence in which the FBI
expressed an interest was clearly foreign
counterespionage, but subsequent requirements
became progressively more domestic in their focus
and progressively broader in their scope. The
requirements that were levied by the FBI in 1972,
one year before the termination of the project, included the following:
". . . [p]ersons on the Watch List; known
communists, New Left activists, extremists, and other subversives . . .
Communist party and front organizations ...
extremist and New Left organizations.
Protest and peace organizations, such as People's
Coalition for Peace and Justice, National Peace
Action Committee, and Women's Strike for Peace.
Communists, Trotskyites and members of other
Marxist-Leninist, subversive and extremist
groups, such as the Black Nationalists and
Liberation groups ... Students for a Democratic
Society ... and other New Left groups.
Traffic to and from Puerto Rico and the Virgin
Islands showing anti-U.S. or subversive sympathies." 128
This final set of requirements evidently
reflected the domestic turmoil of the late 1960s
and early 1970s. The mail opening program that
began as a means of collecting foreign
intelligence information and discovering Soviet
intelligence efforts in the United States had
expanded to encompass detection of the activities
of domestic dissidents of all types.
In the absence of effective outside control,
highly intrusive techniques have been used to
gather vast amounts of information about the
entirely lawful activities -- and privately held
beliefs -- of large numbers of American citizens.
The very intrusiveness of these techniques
demands the utmost circumspection in their use.
But with vague or non-existent standards to guide
them, and with labels such as "national security"
and "foreign intelligence" to shield them,
executive branch officials have been all too
willing to unleash these techniques against
American citizens with little or no legitimate justification.
Footnotes:
1 The techniques noted here do not constitute an
exhaustive list of the surreptitious means by
which intelligence agencies have collected
information. The FBI, for example, has obtained a
great deal of financial information about
American citizens from tax returns filed with the
Internal Revenue Service. (See IRS Report: Sec.
I, "IRS Disclosures to FBI and CIA.") This
section, however, is limited to problems raised
by electronic surveillance, mail opening,
surreptitious entries informants and electronic surveillances.
1a Report to the House Committee on the
Judiciary, by the Comptroller General of the
United States, "FBI Domestic Intelligence
Operations -- Their purpose and scope: Issues
that Need to be Resolved," 2/24/76, p. 96.
2 FBI memorandum to the Select Committee, 11/28/75.
3 Memorandum, FBI Overall Intelligence Program FY
1977 Compared to FY 1976 undated. The cost of the
intelligence informant program comprises payments
to informants for services and expense as well as
the costs of FBI personnel. support and overhead.
4 See NSA Report: Sec. I, "Introduction and Summary."
5 See Mail Opening Reports: Sec. I, "Summary and Principal Conclusions."
6 Title 28 of the United States Code provides
only that appropriations for the Department of
Justice are available for payment of informants. 28 U.S.C. ยง 524.
7 The Attorney General has announced that he will
issue guidelines on the use of informants in the
near future, and our recommendations provide
standards for informant control and prohibitions
on informant activity. (See pp. 328.) In
addition, the Attorney General's recently
promulgated guidelines on "Domestic Security
Investigations" limit the use of informants at
the early stages of such inquiries and provide
for review by the Justice Department of the
initiation of "full investigations" in which new informants may be recruited.
8 In a criminal case involving charges of jury
bribery, United States v. Hoffa, 385 U.S. 293
(1966), the Supreme Court ruled that an
informant's testimony concerning conversations of
a defendant could not be considered the product
of a warrantless search in violation of the
Fourth Amendment on the ground the defendant had
consented to the presence of the informant. In
another criminal case, Lewis v. United States,
385 U.S. 206 (1966), the Court stated that "in
the detection of many types of crimes, the
Government is entitled to use decoys and to
conceal the identity of its agents."
9 In a more recent case, the California Supreme
Court held that secret surveillance of classes
and group meetings at a university through the
use of undercover agents was "likely to pose a
substantial restraint upon the exercise of First
Amendment rights." White v. Davis, 533 Pac. Rep.
2d, 223 (1975) Citing a number of U.S. Supreme
Court opinions, the California Supreme Court stated in its unanimous decision:
"In view of this significant potential chilling
effect, the challenged surveillance activities
can only be sustained if [the Government] can
demonstrate a 'compelling' state interest which
justifies the resultant deterrence of First
Amendment rights and which cannot be served by
alternative means less intrusive on fundamental
rights." 533 Pac. Rep. 2d, at 232
10 Gary Rowe testimony, 12/2/75 Hearings, Vol. 6, pp. 111, 118.
11 Cook, 12/2/75, Hearings, Vol. 6, p. 111.
12 The FBI Manual of Instructions proscribes only
reporting of privileged communications between an
attorney and client, legal "defense plans or
strategy," "employer-employee relationships"
(where an informant is connected with a labor
union), and "legitimate institution or campus
activities" at schools. (FBI Manual Section 107.)
13 Olmstead v. United States, 277 U.S. 438 (1928).
14 Nardone v. United States, 302 U.S. 397 (1937) ; 308 U.S. 338 (1939).
15 For example, letter from Attorney General
Jackson to Rep. Hatton Summers, 3/19/41; See
Electronic Surveillance Report: Sec. II.
16 Memorandum from President Roosevelt to the Attorney General 5/21/40.
17 Letter from Attorney General Tom C. Clark to President Truman, 7/17/46.
18 Directive from President Johnson to Heads of Agencies, 6/30/65.
19 President Roosevelt's 1940 order directed the
Attorney General to approve wiretaps "after
investigation of the need in each ease."
(Memorandum from President Roosevelt to Attorney
General Jackson, 5/21/40.) However, Attorney
General Francis Biddle recalled that Attorney
General Jackson "turned it over 'to Edgar Hoover
without himself passing on each case" in 1940 and
1941, Biddle's practice beginning in 1941
conformed to the President's order. (Francis
Biddle, In Brief Authority (Garden City: Doubleday, 1962), p. 167.)
Since 1965, explicit written authorization has
been required. (Directive of President Johnson
6/30/65.) This requirement however, has often
been disregarded. In violation of this
requirement, for example, no written
authorizations were obtained from the Attorney
General -- or from any one else -- for a series
of four wiretaps implemented in 1971 and 1972 on
Yeoman Charles Radford, two of his friends, and
his father-in-law. See Electronics Surveillance
Report; Sec. VI. The first and third of these
taps were implemented at the oral instruction of
Attorney General John Mitchell. (Memorandum from
T. J. Smith E. S. Miller 2/26/73.) The remaining
taps were implemented at the oral request of
David Young, an assistant to John Ehrlichman at
the White House, who merely informed the Bureau
that the requests originated with Ehrlichman and
had the Attorney General's concurrence.
(Memorandum from T. J. Smith to E. S. Miller, 6/14/73.
20 Attorney General Nicholas Katzenbach
instituted this requirement in March 1965.
(Memorandum from J. Edgar Hoover to the Attorney General, 3/3/65.)
21 The FBI maintained one wiretap on an official
of the Nation of Islam that had originally been
authorized by Attorney General Brownell in 1957
for seven years until 1964 without any subsequent
re-authorization. (Memorandum 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 Il." (Nicholas Katzenbach testimony, 11/12/75, p. 87.)
22 Katz v. United States, 389 U.S. 347 (1967).
22a The Court wrote: "Whether safeguards other
than prior authorization by a magistrate would
satisfy the Fourth Amendment in a situation
involving the national security is a question not
presented by this case." 389 U.S. at 358 n. 23
23 18 U.S. C. 2511 (3).
23a 407 U.S. 297 (1972)
24 At the same time, the Court recognized that
"domestic security surveillance" may involve
different policy and practical considerations
apart from the surveillance of 'ordinary crime,'
407 U.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 U.S. at 321.) The Court noted:
"Given the potential distinctions between Title
III criminal surveillances and those involving
the domestic security, Congress may wish to
consider protective standards for the latter
which differ from those already prescribed for
specified crime in Title III. Different standards
may be compatible with the Fourth Amendment." (407 U.S. at 321.)
25 407 U.S. at 307.
26 407 U.S. at 320. United States v. United
States District Court remains the only Supreme
Court case dealing with the issue of warrantless
electronic surveillance for intelligence
purposes. Three federal circuit courts have
considered this issue since 1972, however. The
Third Circuit and the Fifth Circuit both held
that the President may constitutionally authorize
warrantless electronic surveillance for foreign
counterespionage and foreign intelligence
purposes. [United States v. Butenko, 494 F.2d 593
(3d Cir. 1974), cert. denied sub nom. Ivanov v.
United States, 419 U.S. 881 (1974) ; and United
States v. Brown, 484 F.2d 418 (5th Cir., 1973),
cert. denied 415 U.S. 960 (1974).] The District
of Columbia Circuit held unconstitutional the
warrantless electronic surveillance of the Jewish
Defense League, a domestic organization whose
activities allegedly affected U.S. Soviet
relations but which was neither the agent of nor
in collaboration with a foreign power. [Zweibon
v. Mitchell, 516 F.2d 594 (D.C. Cir., 1975) (en banc).]
27 Testimony of Deputy Assistant Attorney General
Kevin Maroney, Hearings before the Senate
Subcommittee on Administrative Practice and
Procedures, 6/29/72, p. 10. This language
paralleled that of the Court in United States v.
United States District Court, 407 U.S. at 309 it. 8.
28 Although Attorney General John Mitchell and
Justice Department officials on the Intelligence
Evaluation Committee apparently learned that NSA
was making a contribution to domestic
intelligence in 1971, there is no indication that
the FBI told them of its submission of names of
Americans for inclusion on a NSA "watch list."
When Assistant Attorney General Henry Petersen
learned of these practices in 1973, Attorney
General Elliott Richardson ordered that they be
terminated. (See Report on NSA: Sec. I, "Introduction and Summary.")
29 See NSA Report: Sec. I, "Introduction and Summary."
30 Memorandum from Iredell to Gayler, 4/10/70;
See NSA Report: Sec. I. Introduction and Summary.
BNDD originally requested NSA 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.)
31 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.
34 omitted in original.
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 Ramsey Clark turned down a
surreptitious entry request. There is no
indication that the legal questions were
considered in any depth in 1970 or 1971 at the
time of the "Huston Plan" and its aftermath. See
Huston Plan Report: See. III, Who, What, When and Where.
36 Ex Parte Jackson, 96, U.S. 727, 733 (1878).
37 Milwaukee Pub. Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissent).
38 See Lamont v. Postmaster General, 381 U.S. 301
(1965) ; Procunier v. Martinez, 416 U.S. 396 (1975).
39 United States v. United States District Court, 407 US 297, 313 (1972).
40 376 F. Supp. 29, (D.D.C. 1974).
41 376 F. Supp. at 33.
42 Letter from Acting Assistant Attorney General
John C. Keeny to Hugh E. Kline. Clerk of the U.S.
Court of Appeals for the District of Columbia, 5/9/75.
43 The Supreme Court's decision in United States
v. United States District Court. 407 U.S. 297
(1972), clearly established the principle that
such warrantless invasions of the privacy of Americans are unconstitutional.
44 In one case, an FBI informant involved in an
intelligence investigation 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
fifty sticks of dynamite available to the Black
Panther Party which likely resulted in the saving
of lives and the prevention of property damage.
(Joseph Deegan testimony, 2/13/76, p. 54)
45 Rowe, 12/2/75, Hearings, Vol. 6, p, 115.
46 Katzenbach testified that the case "could not
have been solved without acquiring informants who
were highly placed members of the Klan."
(Katzenbach, 12/3/75, Hearings, Vol. 6, p. 215.)
47 Date and address deleted at FBI request so as
not to reveal informant's identity.
48 Memorandum from New York Field Office to FBI
Headquarters, re: Women's Liberation Movement, 5/28/69, p. 2.
49 Names deleted for security reasons.
50 Names deleted for security reasons.
51 Names and addresses deleted for security reasons.
52 Cook, 12/2/75, Hearings, Vol. 6, P. Ill.
53 Rowe, 12/2/75, Hearings, Vol. 6, p. 116.
54 Special Agent, 11/21/75, p. 7.
55 Cook, 12/2/75, Hearings, Vol. 6, pp. 119,120.
56 Cook, 12/2/75, Hearings, Vol. 6, p. 120.
57 Rowe, 12/2/75, Hearings, Vol. 6, p. 116.
58 FBI Manual, Section 10T c (3).
59 Special Agent, 11/21/75, p. 12.
60 Adams, 12/2/75, Hearings, Vol. 6, p. 150.
61 Rowe deposition, 10/17/75, p. 12.
62 Rowe, 12/2/75, Hearings, Vol. 6. p. 118.
63 Special Agent, 11/21/75. pp. 16-17.
64 Memorandum from the FBI to Senate Select
Committee, 2/26/76, with enclosures.
65 Hardy, 9/29/75, pp. 16-17.
66 357 U.S. 449 (1958). Similarly, in Bates v.
City of Little Rock, 361 U.S. 516 (1960), the
Supreme Court held compulsory disclosure of group
membership lists was an unjustified interference
with members' freedom of association.
66a 361 U.S. at 465.
67 FBI Manual of Instructions, Section 107.
68 Surreptitious entry has also provided a means
for the obtaining of such lists and other confidential documents.
69 Special Agent, 11/19/75, pp. 10-11.
70 Special Agent, 11/20/75, pp. 15-16,
71 Cook, 12/2/75, Hearings, Vol. 6, p.112.
72 Cook deposition, 10/14/75, p. 36.
73 W. Raymond Wannall testimony, 10/21/75, p.21.
74 Under the Justice Department's procedures for
Title III (court-ordered) wiretaps, however, the
monitoring agent is obligated to turn off the
recording equipment when certain privileged
communications begin. Manual for conduct of
Electronic Surveillance under Title III of Public Law 90--351, Sec. 8.1.
75 Memorandum from the Attorney General to the Director, FBI, 5/20/54.
76 Three additional bugs were planted in Dr.
King's hotel rooms in 1965 after the standards
for wiretapping and microphone surveillance
became identical. According to FBI memoranda,
apparently initiated by Katzenbach, Attorney
General Nicholas Katzenbach was given after the
fact notification that these three surveillances
of Dr. King had occurred. See p. 273, and the
King Report, Sec. IV. for further details.
76a Memorandum from F. J. Baumgardener to W. C. Sullivan, 3/26/64.
77 For example, memorandum from Baumgardner to W. C. Sullivan, 2/4/64.
78 FBI memoranda. Identifying details are being
withheld by the Select Committee because of
privacy considerations. Even the FBI realized
that this type of information was unrelated to
criminal activity or national security: for the
last four months of this surveillance, most of
the summaries that were disseminated to the White
House began, "The following is a summary of
nonpertinent information concerning captioned individual as of . . ."
79 Transcript of Presidential Tapes, 2/28/73
(House Judiciary Committee Statement of
Information, Book VII, Part 4, p. 1754).
80 For example, letters from Hoover to the
Attorney General, 7/25/69, and 7/31/69: letters
from Hoover to H. R. Haldeman, 6/25/70.
Letter from Hoover to Haldeman. 6/25/70.
Examples of such information are listed in the
finding on Political Abuse, "The '17' wiretaps."
83 Memorandum from J. Edgar Hoover to the
Attorney General, 2/14/61: Memorandum from J.
Edgar Hoover to the Attorney General, 2/16/61:
Memorandum from J. Edgar Hoover to the Attorney
General, 6/26/62; Memorandum from Wannall to W. C. Sullivan. 12/22/66.
84 Memorandum from D. E. Moore to A. H. Belmont, 2/16/61.
85 Memorandum from W. R. Wannall to W. C.
Sullivan, 12/22/66; Memorandum from A. H. Belmont
to Mr. Parsons, 2/14/61. This investigation did
discover that representatives of a foreign nation
were attempting to influence Congressional
deliberations, but it did not reveal that money
was being passed to any member of Congress or Congressional staff aide.
86 Memorandum from Wannall to W. C. Sullivan, 12/22/66.
87 See Finding on Political Abuse, p. 233.
88 Electronic Surveillance Report: See. II,
"Presidential and Attorney General Authorization."
89 omitted in original.
90 Memorandum from J. Edgar Hoover to the Attorney General, 6/26/62.
91 Memorandum from J. Edgar Hoover to the
Attorney General 6/29/61; memorandum from J.
Edgar Hoover to the Attorney General 7/31/62;
memorandum from J. Edgar Hoover to the Attorney
General 4/19/65; memorandum from J. Edgar 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.
92 omitted in original.
93 NSA has long asserted that it had the
authority to do this so long as one of the
parties to such communication was located in a foreign country.
94 277 U.S. 438, 473-474 (1928).
94a 277 U.S. at 474-475.
95 CIA Officer" testimony, 9/30/75, p. 15.
96 Staff summary of "Master index." review, 9/5/75.
97 James Angelton testimony, 9/17/75, p. 28.
98 Wannall, 10/21/75, p. 5.
99 In one of the programs based on "indicators" a
participating agent testified that he opened 30
to 00 letters each day. (FBI agent statement,
9/10/75, p. 23.) In a second such program, a
total of 1,011 letters were opened in one of the
six cities In which it operated; statistics on
the number of letters opened in the other live
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. Branigan to W. C. Sullivan, 8/31/61;
Memorandum from Mr. Branigan 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 Opening Report, Sec. IV.
101 Memorandum from S. B. Donohoe to A. H.
Belmont, 2/23/61: Memorandum 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.
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 entries 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 member
was also apparently broken into. (Sixth
Supplementary Response to Requests for Production
of Documents of Defendant, Director 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 Memorandum from Tom Huston to H. R. Haldeman, 7/70, p. 3.
104 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).
107 See e.g., Olmstead v. United States, 277 U.S. 438, (1928).
108 Memorandum from Francis Biddle to Mr. Hoover, 11/19/41.
109 Ibid.
110 Unaddressed Memorandum from J. Edgar Hoover,
11/15/45, found in Director Hoover's "Official and Confidential" files.
111 Ibid.
112 Memorandum from J. Edgar Hoover to the Attorney General, 4/1/64.
113 Memorandum from J. Edgar Hoover to the Attorney General, 6/15/65.
114 Memorandum from J. Edgar Hoover to the Attorney General, 11/5/69.
115 Memorandum from J. Edgar Hoover to Attorney General Mitchell. 11/7/69.
116 Memorandum from J. Edgar Hoover to the
Attorney General, 3/16/70. The strongest evidence
that this group's conduct was inimical to the
national security was reported as follows:
"The [group) is dominated and controlled by the
pro-Chinese Marxist Leninist (excised) ....
"In carrying out the Marxist-Leninist ideology of
the (excised) members have repeatedly sought to
become involved in labor disputes on the side of
labor, join picket lines and engage in disruptive
and sometimes violent tactics against industry
recruiters on college campuses....
"This faction is currently very active in many of
the major demonstrations and student violence on
college campuses (Memorandum from J. Edgar Hoover
to the Attorney General, 3/16/70. The excised
words have been deleted by the FBI.)
117 Memorandum from J. Edgar Hoover to the
Attorney General, 6/16/70. The only other results
noted by Hoover related to the fact that the
wiretap had "obtained information concerning the
activities of the national headquarters of [the
group and] plans for [the group's] support and
participation in demonstrations supporting
antiwar groups and the (excised)." It was also
noted that the wiretap "revealed ... contacts with Canadian student elements".
118 Memorandum from J. Edgar Hoover to the
Attorney General, 9/16/70. The only other results
noted by Hoover again related to obtaining
information about the "plans and activities" of
the group. Specifically mentioned were the "plans
for the National Interim Committee (ruling body
of [excised]) meeting which took place in New
York and Chicago", and the plans "for
demonstrations at San Francisco, Detroit, Salt
Lake City, Minneapolis, and Chicago." There was
no Indication that these demonstrations were
expected to be violent. (The excised words have been deleted by the FBI).
119 Public statement of President Nixon, 5/22/73.
120 omitted in original.
121 Memorandum from J. Edgar Hoover to the
Attorney General 7/23/69; memorandum from J.
Edgar Hoover to the Attorney General 12/14/70.
122 Memorandum from W. C. Sullivan to C. D. DeLoach, 8/1/69.
123 Memorandum from J. Edgar Hoover to Messrs.
Tolson, Sullivan and D. C. Brennan, 10/15/70.
124 Ruckelshaus testimony before the Senate
Subcommittee on Administrative Practice and Procedure, 5/9/74, pp. 311-12.
125 Transcript of the Presidential Tapes, 2/28/73
(House Judiciary Committee Statement of
Information Book VII, Part W, p. 1754.)
126 The term "national security" was also used by
John Ehrlichman and Charles Colson to justify
their roles in the break in of Dr. Fielding's
office in 1971. A March 21, 1973 tape recording
of a meeting between President Nixon, John Dean,
and H. R. Haldeman suggests, however, that the
national security "justification" may have been
developed long after the event for the purpose of
obscuring its impropriety. When the President
asked what could be done if the break-in was
revealed publicly, John Dean suggested, "You
might put it on a national security grounds
basis." Later in the conversation. President
Nixon stated "With the bombing thing coming out
and everything coming out, the whole thing was
national security," and Dean said, "I think we
could get by on that." (Transcript of Presidential tapes, 3/21/73.)
127 Staff summary of Watch List review, 9/5/75.
128 Routing slip from J. Edgar Hoover to James Angelton (attachment), 3/10/72.
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