FEDERAL BUREAU OF INVESTIGATION FOIKPA DELETED PAGE INFORMATION SHEET 1387588?0 Tetal Deleted Pageis} 4 Page 12 Duplicate; Page 29 ReferralKConsult; Page 30 ReferralXCeneult; Page 31 Peferralf?eneult; Deleted Page{e) Ne Duplication Fee Fer this Page FEDERAL BUREAU OF INVESTIGATION FOIKPA DELETED PAGE INFORMATION SHEET 1259878?0 Tetal Deleted Pageis} 4 Page 12 Duplicate; Page 29 ReferralKConsult; Page 30 ReferralXCeneult; Page 31 Peferralf?eneult; Deleted Page{e) Ne Duplication Fee Fer this Page 3 File-Serial Charge Out awn-524154 GPO run?5 (Rev. 6?17-3?0] 6 .- File ?g Date Class. Case No. Lust Serial Par-ding [1 Quad be? Serial No. Dmip?an of Serial ?1 4.4. Lew; {343/76 lac-Mi a?m?lab J-E?-J?fmh4' 4 MW 4% I: Sat. Employee RECHARGE Du" To Fran: ?a "3i *3 a .5 Date Churgad location RRSTO Rn HITEL 5?2-75 ESE TO ALL. SASS DIRECTOR (62*116595) PERSORRL ATTENTION SEHSTUDY 75' CAPTIONED RETIRE PERTOIRS TO RONOLIRO 0F REOUESTS ROOSE SELECT TO STUDY GOVERNMENTAL PERRTIONS TH RESPECT TO IRTELLIOERCE OCTIUITIES. IR TION WITH BK OF THESE COMHITTEES, STAFF MEMBERS WAY SEEK TO INTERUIE CURRENT AND FORMER FBI EMPLOYEES. RECENTLY, THE SENATE SELECT COMHETEE (SSE) STAFF HAS 3 IRIERTIEREO THAT MANY RI THE.FB AND ME WISH TORER ET THE DO HAVE AN METHODS END i HAS PLEDGED FULL SEVERAL FORMER EMPLOYEES.AMD IT Is ANTECIPATED SUCH PERSORREL SILL SE CORTACTEO. COOPERATION MITH THE CORRITEE TO OSSIST AND FRQILITRIE ANY IRRESTISOIIORS ORDER- CORRITTEE RITE RESPECT TO THE RSI. ROREUER, RS IRLICETIOR To IRSORE THAT SENSITIVE SOURCES AND ONGOING SENSITEUE INVESTIGATIONS ARE FULLY - (i ENCIPHERED REE EOE 211935 [?31 HAVEN . . .9 PAGE EEO PROTECTED. EEOOLO AUT POREER EMPLOYEE OOETAOT TOUR OFFICE AND HAUE ARE OUEETIOR REGARDING HIS OBLIGATION DIUULGE -EATTOE BY UIRTUE 0F PET EMPLOYMENT, EE SHOULD BE TEETRUOTEE TO OOETAOT LEGAL CQUNSEL, PETRA, BY OOLLEOT YOUR UITR FORMER EMPLOYEES MUST BE IN UITR OUR PLEOAE. EIT IS EELTEUEO SUCH A PROCEDURE UOULO IUEURE PROPER PROTECTION AND ALSO FACILITATE THE MORE OF THE 350. THE ABUUE ALSO APPLIES TO OURRERT EMPLOYEES OF YOUR OEPIOE. OOETAOT RITE THE LEGAL COUNSEL SHOULD BE HAROLEO THE SAO. EEO FBI NH OLR PER THREE IELS ETS in I 1/4990. NRESS RA CODE 556PN URGENT 5-2?75 DER TO ALEXANDRIA BALTIMORE: RED ORR FROM DIRECTOR (OE-116595) PERSORALIATTEOTIOD CAPTIORED MATTER PERTAIRC TO HANDLING OF REOOESTS FROM SENATE ADD ROOSE RELECT.CORRITTEES TO STUDY DITH RESPECT TO INTELLIGENCE ACTIDITIER. IR CORRECTION RITE DORE OF THESE COMMITTEES, STARE MEMBERS MAY CDRRERT ADO FORMER FBI EMPLOYEES. THE SENATE SELECT CORRITTED (SSE) STARE RAO ALREADY TRTEROIEREO SOME FORMER ERPLOYEEQ. RERARR TELETYPE APRIL 5C LAST RDCA DEMOCRATIC PARTY RORIRATIDR CORYERTIOD, ATLANTIC CITY, RED REPORTED ADVICE FROM FORMER SPECIAL JOHN P. DEULIN THAT HE HAD BEEN ENGIPHERED TELET-YPE . -. '0 '9 PAGE, THU 1 PEET 1E ET ETLEETTO CITY, 22-2 1934., SET OB BELOE EEB LEST OE FBRNER BOBEEO TO SPEOTEL ET ETLEETIO EEOUST, 196E. EEOH OF THESE IS TO BE 1OOETEOTEO EEO ELEBTEO THET THET MIGHT BE EPPBOEOHEO BY THE SSO LTEFF. THEE EOT, TO BE EOETSEE OF THE EBEE EHIOE MAY BE TE EET TETEBEIEE OE THEE BY THE THET SHOULD, . BE TOLD THET IE TEE TEET EBE EEO OOHTEE .TBE EE EOEETTOES EBE ESEEO EHIOH BELETE TO OPEHETIOEE, THEY OEE BEOOEST THET EE FBI EOEET BE PRESENT. OOETEOTS ETEH THESE EOEETS TO BE HEEOLEO PEBSOEELLT BY SEO OE ESEOE 1E THE THIS NOT FEESTBLE EOH JUST OEOBE, TO BE HEEOLEO BE SEETOB SUPEEUISOB. . EETEB OOETEOT, RESULTS SHOULD BE EOEETSHEB BY EBOUE OEPTIOE. IF E-EOBEEB EOEET EO TE TOOE TEBHITOET OB TEEHOBEBTLT SET OUT LEEO TO.OTHEH ETTH COPY TO EBTEO. EITH DEULIN EOH PURPOSE i. PQGE THREE . INDICATED ABOUE AND ALSO FURNISH BUPEAU ANY INFORMATION DEULIM MAY HAVE FURNISHED YOUR OFFICE IN ADDITION TO THAT IN YOUR TELETYPE. HAROLD P. LEIMBAUGH, 1645 NORTH unm Donn, ALEXEHDRIE. BALTIMOREE nownLD e. [8 CHEVY CHASE Haw HOBSON H. ancocx, 65 GLENBRDOK ROAD, STAMFORD, 5 . NEWARK: JOHN PETRICK DEULIN, 59 BENNINETON JERSEY. OMAHA: END Transmit the following in Fri-36 (Rev. 5-22-54} . . FBI Date: 5/5/75 (Type in plaintem or code} TELETYPE URGENT (Priority) TO. BUREAU FROM: NEW HAVEN SENSTUDY 75 5/2/7?5 . FORMER SA HOBSON H. ADCOCK WAS CONTACTED THIS DATE BY THE SAC. ADCOCK WAS FURNISHED INFORMATION AS SPECIFIED IN RETEL: ADCOCK ADVISED THAT HE HAD NOT AS YET BEEN BY ANY REPRESENTATIVE OF CAPTIONED GROUP. (1) Wk IE a. $1qu :317 I 1 a1 Approved; TL) Sent Per ?g 1 Special Agent in Charge '5 {sees 1.113-111 (Mount Clipping in Space 'Belaw) La 0 1. is tee Uiairi' 3. 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Seas ate Watergate I'J'he's: frustrated that Congress Elias 11111111 -'to33"1ass- =1?I615111s 'id prevent mere- use {if the 111111311111 fer 1111111111113 1111111111111 the 1113131 bureaucracy 1.111s 11.11111. sass-111113111131 111' Water- :11in 3111111111 mates {it? 111111111 @115: g?iire gavemmant assumes 11133.3 ?Tiie: 1111131' way is 1111111111111 1511' 1111:5111 is 11111111: 111111" eessresienai. 3111111111111 committees? that c511 1111111161.. 'J?s 11111111111: '65'111111123'. '-1.iaise assaeies receive, 'W?icker 11.111111111111111 arevrespeasibie 1111 11131 1311 11111111111.- a 411111111111 {111: 111565 1111311le1113 11111 1111131111 111. 111-11111 assesses-3 rsi'g?is etii'iimitiees Ease "see-'11- Beggar's 111111111 i'er po'Iit'ieal sea?31 Eengress messages fare-ass." 11111 16' sitbsiriize- ?re' eehii'si. campaigns 31111111111111 ranges. 11311111 11111111111131.1111 11311131-. .ta1's' easiest-1.113111311111113. 1511111. 11 1.11111 the? 01131151165111 ad' ad. Hes 311311.31'31'11111'11111: 33. ?Ninetii-J?t mi: 3 that gs?gress has 311113 resumes a?d' administration 11111111113111.1111 per- sessi 111111111111 11111 assesses guaranteed as: 11111111111111111113r Iatemal 'erse service .. Weieker' SHWE sail: "111111st Cehgres's 311111111111111'31511111111 t'1'1 setegnsar ises 111111111 111111111; thought 1111113 11111111 _hssesi CC gm assess 111' Watergate .111111111- 1113' 311111" 111' 1111111113 sears. They-- 'aeqiiri'erl"ih'1ire ?gmgersmeiit iie?aid?. . 1'1 -- .1.- ?This 13331.33 1116311- 110111111: 16' tire. EMINE- 11331133111311; 311111 liaire 11111111. 111111111 11'1- 1111111. 11111111611 :everDesneeratte campaign 11131141 ihe. he. .- .1. {Indicate page. name of newspaper, ally and state.) _{2265'3 422a Asa-111219711X ?eas-76?. M511) ?eufs/ ?es/[mar Date: 5" 92' :75 Edition: Author: Bauer: 3587? Title: 3. Character: or Classi?cation Submitting Ci?ice 1?1/Ea) AQUEFU Being Investigated 331-: if T?Tsse 1111s: 11111 1'2 195 FBI 4sz . PRESS HA CODE 4:55Pm HITEL s?za~75 Paw TU ALL sacs FROM (63*116395} PaasduaL ATTENTIBH sansrunv may 2, 1975. In connacrlon WORK OF THE saunra awn HOUSE SELECT ITS REPRESENTATIVES HAY CGHTAGT YDUR OFFICE FOR It} (NEE REESE-1T IHSTAHGE, A REPRESEHTQTIUE OF THE SEHATE SELECT TELEPHDHICALLY AS IDENTITY {31" SEC a PARTICULAR OFFICE DURIHG If} HMEIJLIIEG BUSH ESTABLISHIEG 30153315 FIDES 3F BY OF 0H PERSOHQL TELEPHQNIG CDETAGT, BY TELEPHOHIEE BACK TD COMMITTEE. HIELESS 13 0F 9: PUBLIC IMTURE, A5 IE1 THE IIJSTAHCE CITED ABOVE, FBIHEE CLEAHAHGE PRIGR TD SUFPLYIEG ANY IIEFURHATIOIL FBIHQ BE BDUISED OF IIEFURHQTIOE FUHEIISHED- EIJD SEAABHED LEE- 3531mm ?3 i375 rm?wzw HMIEN I . 2., . I .h?wz? v?II?n?nl 1. .. . 1 '1 ?*th IW- .l 0? OFFICE OF THE DIRECTOR 1-7 5 UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF INVESTIGATION WASHINGTON, 11.0. 20535 May 23, 1975 MEMORANDUM TO ALL EMPLOYEES RE: INTERVIEWS OF FBI EMPLOYEES All employees are advised that Congress is conducting an inquiry into activities of the Federal Bureau of Investigation. Congressional staff members are conducting interviews of former and current FBI employees. This Bureau has pledged its cooperation with the Congress. You are reminded of the FBI Employment Agreement (copy attached) with which you agreed to comply during your employment in the FBI and following termination of such employment. Also, you are reminded of Title 28, Code of Federal Regulations, Section 16.22 (copy attached), which reads as follows: "No employee or former employee of the of Justice shall, in response to a demand of a court or other authority, produce any material contained in the files of the Department or disclose any information relating to material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without prior approval of the appropriate Department official or the Attorney General in accordance with Section 16. 24. Also, you are reminded of Department of Justice Order Number 116-56, dated May 15, 1956, (copy attached) which, among other things, requires an employee upon the completion of his testimony to prepare a memorandum outlining his testimony. Our cooperative efforts, of course, must be consistent with the above cited authority. Therefore, if you are contacted for purpose of interview or testimony you are to request approval as required by the Employment Agreement and await authorisation before furnishing information, testimony, or record material. Enclosures (3) 62/ . RC- .wdsotrt . ?ugh/a? 9-1 414D Clarence M. Kelleng?l?th% 133:5.? I Dlrector rel insulin-wan . I I seas-1 1-1-4334 . . AGREEMENT As consideration for employment in the Federal Bureau of Investigation (FBI), United States Department of Justice, and as a condition for continued employment, I hereby declare that I intend to be governed by and I will comply with the following provisions: (1) That I am hereby advised and I understand that Federal law such as Title 18, United States Code, Sections 7'93, '794, and Order of the President of the United States {Executive Order 11652); and regulations issued by the Attorney General of the United States (28 Code of Federal Regulations, Sections 16.21 through 16.26} prohibit loss, misuse, or un- authorized disclosure or production of national security information, other classified information and other nonclassified information in the files of the (2) I understand that unauthorised disclosure of information in the files of the FBI or information I may acquire as an employee of the FBI could result in impairment of national security, place human life in jeopardy, or result in the denial of due process to a person or persons who are subjects of an FBI investigation, or prevent the FBI from effectively discharging its responsibilities. I understand the need for this secrecy agreement; there- fore, as consideration for employment I agree that I will never divulge, publish, or reveal either by word or conduct, or by other means disclose to any unauthorized recipient without official written authorization by the Director of the FBI or his delegate, any information from the investigatory files of the FBI or any information relating to material contained in the files, or disclose any information or produce any material acquired as a part of the performance of my official duties or because of my official status. The burden is on me to determine, prior to disclosure, whether information may be disclosed and in this regard I agree to request approval of the Director of the FBI in each such instance by presenting the full text of my proposed disclosure in writing to the Director of the FBI at least thirty (30) days prior to disclosure. I understand that this agreement is not intended to apply to information which has been placed in the public domain or to prevent me from writing or speaking about the FBI but it is intended to prevent disclosure of information where disclosure would be contrary to law, regulation or public policy. I agree the Director of the FBI is in a better position than I to make that determination; (3) I agree that all information acquired by me in connection with my official duties with the FBI and all official material to which I have access remains the property of the United States of America, and I will surrender upon demand by the Director of the FBI or his delegate, or upon separation from the FBI, any material relating to such information or property in my possession; (4) That I understand unauthorised disclosure may be a violation of Federal law and prosecuted as a criminal offense and in addition to this agreement may be enforced by means of an injunction or other civil remedy. I accept the above provisions as conditions for my employment and continued employment in the FBI. I agree to comply with these provisions both during my employment in the FBI and following termination of such employment. {Signature} (Type or print name} Witnessed and accepted in behalf of the Director, FBI, on 1:19?er {Signature} 6 (Itffirr cf the Attorney (trans! (Li. 21.15311 January 18, 1973 ORDER NO . SUI-T3 RULES AND REGULATIONS Title ADMINISTRATIUN Chapter I?Depurlment of Justice [Order till?ta} PART DR SURE OR INFORMA- TION Suhport BmProduction or Disclosure in Response to Subpenns or De? mands of Courts or Other Authori- ties This order delegates to certain De- partment of Justice of?cials the author- ity to approve the production or dis- closure of material or Information con- tained in Department ?les, or informa? tion or material acquired by a person while employed by the Department. It appliea where a subpena, order or other demand of a court or other authority. such as an administrative agency. is is- sued for the production or disclosure of such information. By virtue of the authority vested in me by as 11.3.0. 509. 510. and 5 U313. 301. Subpart of Part 16 of Chapter 1 of Title 23. Code of Federal Regulations, is revised, and its provisions renumbered, to read as follows: Sui-sport B?Protluction or Disclosure in Response to Subpenos or Demands of Courts or Other Authorities Sec. IGEI Purpose and scope. - 16.22 Production or disclosure prohibited unless approved by appropriate De- partment o?icial. 16.23 Procedure in the event of a demand for production. or disclosure. 16.24 Final action by the appropriate De- partment official or the Attorney General. .625 Procedure where a Department deci-- sion concerning a demand is not made prior to the time a response to the demand is required. 3.26 Procedure in the event or an adverse ruling. 23 115.0. 509, 510 and 5 H.343. iubport B-?-Procluction or Disclosure in Response to Subpenns or De- mands of Courts or Other Authori- ties i 16.2] Purpose and scope. (at This subpart sets forth the pro- :edures to be followed when a subperia. order. or other demand (hereinafter re- ferred to as a "demand?l of a court or other authority is issued for the produc- tion or disclosure of are!r material contained in the ?les of the Department. (2) any information relating to material contained in the ?les of the Department. or (3) any information or material acquired by any person while such per- son was an employee of the Department as a part of the performance of his of- ?cial duties or because of his of?cial status. For purposes of this support, the term ?employee of the Department? in- cludes all of?cers and employees of the United States appointed by, or subject to the supervision, jurisdiction, or control of, the attorney General of the United States, including 113. attorneys. US. marshals, and members of the staifs of those of?cials. 16.22 Production or disclosure prohib- ited unless approved by appropriate Depart of?cial. No employee or former employee of the Department of Justice shall, in response to a demand of a court or other au- thority. produce scar material contained in the ?les of the Dapartment or disclose any information relating to material con- tained in the ?les of the Department, or disclose any information or produce any material acquired as part of the per- formance oi his of?cial duties or because of his of?cial status without prior ap- proval of the appropriate Department of - ficial or the Attorney General in accord? ance with 16.24. 16.23 Procedure in the event of a dc- mand for production or disclosure. is.) Whenever a demand is made upon an employee or former employee of the Department for the production of ma- terial or the disclosure of information described in ltdiial, he shall im- mediately notify the 13.3. attorney for the district where the issuing authority is located. The 11.3. attorney shall im- mediately request instructions from the appropriate Department desig- nated in paragraph of this section. The Department of?cials author- ized to approve production or disclosure under this subpart are: ill In the event that the case or other matter which gave rise to the demanded material or information is or, it closed. was within the cognizance of a division of the Department. the assistant at- torney General in charge of that divi- sion. This authority may be redeleeated to Deputy Assistant Attorneys General. (2) In instances of demands that are not covered by paragraph (hi of this section: {il The Director of the Federal Bu? reau of Investigation. if the demand is one made on an employee or former em- ployee of that Bureau for infonnation or if the demand calls for the production of material from the ?les of that Bu- reau. and (ii) The Director of the Bureau of Prisons, if the demand is one made on an employee or former employee of that Bureau for information or it the de- mand calls for the production of ma- terial from the ?les of that Bureau. (3) In instances of demands that are not covered by paragraph or of this section. the Deputy Attorney General. 11 oral testimony is sought by the demand, an .a?idayit, or. if that is not feasible. a statement by the party seek- ing the testimony or his attorney, setting forth a summary of the testimony de- sired. must be furnished for submission by the 13.3. attornei.r to the appropriate Department of?cial. a 16.24 Final action at the appropriate oilicisl or the Attorney GeneraL If the appropriate Department of? ?cial. as designated in ap? proves a demand for the production of material or disclosure of information. he shall so notify the 13.3. attorney and such other persons as circumstances may warrant. {is} If the appropriate Department of?cial. as designated in i lesson. decides not to approve a demand for the production oi material or disclosure of information. he shall immediately refer the demand to the Attorney General for decision. Upon such referral. the Attor- nay General shall make the ?nal decision and give notice thereof to the us. attor- ney and such other persons as circum? stances may warrant. 16.25 Procedure where a Department decision concerning a demand is not made prior to the time a response to the demand is required. If response to the demand is required before the instructions from the appro- priate Department of?cial or the Attor- ney General are received. the us. attor? ney or other Department attorney des- ignated for the purpose shall appear with the employee or iormer employee of the Department upon whom the demand has been made. and shall furnish the court or other authoritsr with a copy of the regulations contained in this $1113th and inform the court or other authority that the demand has been, or is being, as the case may he. referred for the prompt consideration or the appropriate Department of?cial and shall respects fully request the court or authority to stay the demand pending receipt of the requested instructions. 16.26 Procedure in the event of an ml- verse ruling. If the court or other authority declines to stay the sheet of the demand in re- sponse to a request made in accordance with 16.25 pending receipt of instruc- tions. or if the court or other authority rules that the demand must be com- plied with irrespective of instructions not to produce the material or disclose the information sought, in accordance with a 13.24, the employee or former em- ployee upon whom the demand has been made shall respectfully decline to comply with the demand. ?United States ex rel Touhy v. Regen." 340 13.3. slit. Dated: January 11, 1913. Bronson G. Enumeration attorney General. Deena-loll Filed em] omen or one sorcerer snared wasmarow, n. 0. Mar 15. 1955 cases no. 116-56 It is the policy of the Department of Justice to extend the fullest possible cooperation to congressional committees requesting information from departmental files, interviews with department employees, testimony of depart- ment personnel, or testimony of Federal.prisoners. The following procedures are prescribed in.order to effectuate this policy on a basis which will be mutually satisfactory to the congressional committees and to the Department. {This order supersedes the Deputy Attorney General's memorandum.?o. 5, dated March 23, 1953, and his Memorandum.No. 97, dated August 5, l95h. It formal- izes the Attorney General?s press release of November 5, 1953, establishing procedures to permit committees of the Congress and their authorized repre- sentatives to interview and to take sworn testimony from Federal prisoners. It supplements Order-No. 3229 (Revised) dated January 13, 1953, and.0rder No. 3h6h, Supplement No. (Revised) dated.Jenuary 13, 1953 (with Memorandum of "Authorisation Under Order no. 3h6h Supplement we. (Revised)? dated January 13, 1953), insofar as said orders have reference to procedures to be followed in the Department's relations with congressional committees. In support of this order, reference should.he had to the President's letter dated May 17, 195h, addressed to the Secretary of Defense, and to the Attorney General's Memorandum which accompanied it.] A. REQUESTS FOR EROM.DEPARTMENT FILES 1. Congressional committee requests for the examination of files or other confidential information should.be reduced to writing, signed.by the chairman of the committee, and addressed to the Deputy Attorney General, who is responsible for the coordination of our liaison with Congress and congressional committees. The request shall state the specific information sought as well as the specific objective for which it is sought. The Deputy Attorney General will forward the request to the appropriate division where a reply will be prepared and returned for the Deputy Attorney General's signa- ture and dispatch to the chairman of the committee. 2. If the request concerns a closed.case, i. one in which there is no litigation or administrative action pending or contemplated, the file may be made available for review in the Department, in the presence of the official or employee having custody-thereof. The following procedure shall be followed in such cases: a. The reply letter will advise the committee that the file is arailable for examination.and set forth the name, telephone extension number, and room number of the person who will have custody of the file to be reviewed; Ann-It - 2 - h. Before making the file available to the committee representative all reports and memoranda from the FBI as well as investigative reports from any other agency, will be removed from.the file and not be made available for examination; provided however that if the committee representative states that it is essential that information _from.the FBI reports and.memoranda he made available, he will be advised.that the request will be considered by the Department. Thereafter a summary of the contents of the FBI reports and.memoranda involved will he prepared which will not disclose investigative tech: niques, the identity of confidential informants, or other.matters which might jeopardize the investigative operations of the FBI. This summary will be forwarded by the division to the FBI with a request for advice as to whether the FBI has any objection to examination of such summary by the committee representative; The file will not be physically relinquished from.the custody of the Bepartment. If the committee representative desires to'enamine investigative reports from other government agencies, contained in the files of the Department, he will he advised to direct his request to the agency whose reports are concerned. 3. If the request concerns an open case, i. one which liti- gation or administrative action is pending or contemplated, the file may not be made available for examination.by the committee's representative. The following procedure shall he followed: a. The reply letter should advise the committee that its request concerns a case in which litigation or administrative action is pending or contemplated, and state that the file cannot be made available until the case is completed; and h. Should briefly set forth the status of the case in as much detail as is practicable and prudent without Jeopardizing the pending contemplated litigation or administrative action. B. REQUESTS FOR INTERVIEWS HITH DEPARTMENTAL PERSONNEL 1. Requests for interviews with departmental personnel regarding any official matters within.the Department should.be reduced to writing, signed by the chairman.of the committee, and addressed to the Deputy Attorney General. when the approval of the Deputy Attorney General is given, the employee is expected to discuss such.matters freely and cooperatively with the representative, subject to the limitations prescribed in A respecting open cases and data in investigative reports; l. 0 -3.- 2. Upon the of the interview with the committee repre- sentative the employee will prepare a summary of it for the file, with a copy routed to his division head and a copy routed to the Deputy Attorney General. 0. EMPLOYEES TESTIFYING BEFORE CONGRESSIONAL COMMITTEES 1. then an employee is requested.to testify before a congressional committee regarding official matters within the Department the Deputy Attorney General shall be informed. when the Deputy Attorney General?s approv- al is given the employee is expected.to testify freely subject to limitations prescribed in a respecting open cases and data in investigative reports; 2. An employee subpoenaed to testify'before a.congressiona1 committee on official matters within the Department shall notify the Deputy Attorney General. In general he shall be guided in.testifying by Order 3229 (Revised) and the President's letter of ray 17, 1951;, cited at the beginning of this Order. 3. Upon the completion of his testimony the employee will prepare a memorandum outlining his testimony with a copy routed to his division head and a copy routed.to the Deputy Attorney General. D. REQUESTS OF CONGRESSIONAL COMMITTEES FOR THE TESTIMDEY OF FEDERAL PRISOEEBS Because of the custodial hazards involved and the extent to_which their public testimony may affect the discipline and.wellnheing of the institu- tion, it is the policy of the Department not to deliver Federal prisoners out- side the penal institution in which they are incarcerated for the purpose of being interviewed or examined under oath by congressional committees. However, when it appears that no pending investigation or legal proceeding will be adversely affected thereby and that the public interest will not be otherwise adversely affected, Federal prisoners may be interviewed or examined under oath by congressional committees in.the institution in.which they are incarcerated under the following procedures, and with the specific advance approval of the Deputy Attorney General. l. arrangements for interviewing and taking of sworn testimony from a Federal prisoner by a committee of the Congress or the authorized representatives or such a committee shall be made in the form of a written request by the chairman of the committee to the Deputy Attorney General. 2. Such written request shall he made at least ten {10) days prior to the requested data for the interview and the taking of testimony and shall be accompanied by written evidence that authorization for the interview or the taking of sworn testimony was approved.by vote of the come mittee. Such reqpest shall contain a statement of the purpose and the sub- Jects upon which the prisoner will be interrogated as well as the names of all persons other than the representatives of the Department of Justice who will be present. 3. a member of the interested committee of the Congress shall be present during the entire time of the interrogation. a a he The warden of the penal institution in.which.the Federal prisoner is incarcerated shall, at least fertyeeight (AB) hours prior to the time at which the interview takes place, advise the Federal prisoner concerned of the proposed interview or taking of sworn testimony; and shall further advise that he is under the same, but no greater obligation to answer than any other witness who is not a Prisoner. 5. The warden of the penal institution shall have complete authority in conformity with the requirements of security and the mainte- nance of discipline to limit the number of persons who will be present at the interview and taking of testimony. 6. The warden or his authorized representative shall be present at the interview and at the taking_of testimony and the Department of Justice shall have the right to have one of its representatives present throughout the interview and taking of testimony. The committee shall arrange to have a stenographic transcript made of the entire proceedings at committee expense and shall furnish a copy of the transcript to the Department of Justice. E. OBSERVERS IN ATTENDANCE AT COMMETTEE HEARINGS In order that the Department may he kept currently advised in matters within its responsibility, and in order that the Deputy Attorney General may properly coordinate the Department's liaison with Congress and its committees, each division.that has an observer in attendance at a hearing, will have the observer prepare a written.summary of the proceeding which should he sent to the division head and a copy routed to the Deputy Attorney'General. Herbert Brownell, Jr. Attorney General . RR?az RR stigma - 7 6-13-?5 VLJ TO ALL 590% FROM l: PERSU HAL QFTENTIO <3 :sar HDUSTUDY 15, . Ge. may 2. 23, 19?5, "samsrunv 75." RURILR 62-116464 AND CODE NAME 75" DESBENATED FOR ALL MRTTERS RELATING TO HOUSE SELECT COMMITTEE TO STUDY OPERATIONS RITR RESPECT TO INTELLIGENCE ACTIVITIES AND HANDLING OF MATTERS THERETD. USE THIS FILE AND CAPTIGN FOR MATTERS RELATING TO HDUSE RORRITIRR $3 SEPARATE FROM SENSTUDY 75 FOR MATTERS RELATING TO SERRIR CORRITLRE. END . 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T211. 11131 5122112 112611 22"?11- 2'23. 1212211112211. 1112 1331111211 T1222211121115 T2322 122 12115121- 1112221151 2?1 211222 111112221513 22212 1 .. 1111513115132 111111211 ?13322 32251512111151' 51121222251215? '.21121'1'125' 12211 T15. 211122 112-.' 1133113111" 12:11. ?3?51 ER CODE NITEL JULY 29, 1975 EST TO ELL 1- FROH DIRECTOF . PERSOEQL . In, ATIORHEY REQUEST RE TEQEITIUE IHUESTIGRTIUE TECHHIQUES. I - +ii ATTERTEY GEHERAL, HOTIHE THE BIPARTLEHI IS REUIEWIEG ICTIUITIES 02HDUCTED UHDEP PHESIDEETIAL AUTHORITY FOE USE OF SHRVEILLAHCE FOR FOREIGH IHTELLIGTECE, ENCLUDIHG CDUHTERIHTELLIGENCE PURPOSES, HEQQESTED REUEEH OF FLL OTHER ACTIUITIES ARE on CAN BE BY THE BUREAU InudLUIna [1 UPON REAL OE HDHELECTROHEC ERUESDROPPIHG M. UPOH COHUEESQTIOHS THUUGHT BY THE PARTICIPANTS TO BE r" IETERCEPTIOH RECEIPT HOT AUTHORIZED BY THE SEHDER on RECEIUER OF THE COHTEHTS 0F HIRE, RADIO OR WEITTEE commuwlcaTIoms; any ALL OTHER 09 nor ELECTR $10 SHRUEILLAHCE UR PHYSICAL THAT MIGHT BE 03 snouLD BE 91 PAGE THU THE OTTUREEY a OESOEIPTIOE OF THE TYPES OF SUCH EOE SEIEO CONDUCTED BY THE BUREAU, SEE ALSO EST OHIOH THE BUREAU OOESIOEES ITSELE TO IE A REPORT OE SET ET THE TO FUR TYPES OF OCTZUETIES IE YUJR OTFTEE AND EOTE IE ORGANIZED I GENERAL FRINIMEL, FOEEISO IETELLISEEOE, OE DOMESTIC INVESTIGATIOES. BY CEDED EEO APPROPRIATELY OLESSITIEO-EITEL, ETTEETIOO ALL LEGATS ADVISED SEPARATELY. LE FBI SEE HE VET: a - FIE-36 {Flew 5?22-64} FBI Date: . . CODE Transmit the follewmg in (Type in plaintexc a, code) TELETYPE NITEL Norm} T0: DIRECTOR, FBI ATTN: INTELLIGENCE DIVISION FROM: SAC, NEW HAVEN ATTORNEY REQUEST RE SENSITIVE INVESTIGATION TECHNIQUES. ALL AVAILABLE PERSONNEL NEW HAVEN DIVISION CANVASSEE 7/31/75 RE CAPTIONES MATTER NITH NEGATIVE RESULTS. No SUCH ACTIVITIES HEESENTLV BEING CONDUCTED NOR PREVIOUSLY CONDUCTED IN THIS DIVISION IN PAST TEN YEARS. .5. 1? VIA ENCIPHERED TELETYPE b5 par-let? (1) IN Lu?; 1.2'Ii 353;: I I: I 9' - Approved: 1 Sent MM Per I Special Agent in Charge U.S.Gnverm'nent Office: 1912 455-574 an] MEMORANDUM 3 5-7 5 UNITED STATES DEPARTMENT OF JUSTICE omen emu-mm 9 . PERSONAL AT'rsanon FEDERAL BUREAU OF INVESTIGATION machine-ton. no. 20535 August 12, 1975 MEMORANDUM TO ALL SPECIAL AGENTS IN CHARGE: (A) INTERVIEWS 0F FBI EMPLOYEES BY CONGRESSIONAL STAFF MEMBERS -- In accordance with a recently adopted suggestion, you are to insure that all new employees who enter on duty in your field office are fully apprised of the contents of the Memorandum to All Employees, dated May 23, 19'? 5, dealing with captioned matter. This should be done at the time they execute the FBI Employment Agreement, regarding the unauthorized disclosure of information. This practice can, of course, be discontinued upon the completion of the inquiry that Congress has instituted. 3?15-75 MEMORANDUM 35-75 . s. 1 SA TELETYPES, AIRTELS, 0R LETTERS ORIGIN as, -- Effective immediately, field offic 1 air? initiate an ?rift?r 3, -. teletype, airtel, or letter, pro personally approTr'eIsth?eH; unication. A copy - - .- ?Eh communica- tion must be furnished to . subsequw eyiew by the sub- stantive division. Appropriate manna - isions to follow. 5 Clarence M. Kelley . c? Direc tor 311$ - 3.954? t3? 3 sarcasm 8-12-75 f? consortium?1:131 MEMORANDUM 35-75 AUG 1a 1975 FBI NEW *1 a? i and? FBI-36 (Flew. 5-22-64] . in CD {Type in plaintexl. or code! Uh: URGENT TELETYPE I I I I I I Date: 933-1175(62-118395) FRBM: HAVEN SENSTUBY '35 REBUTEL 3/15x75. FBRMER SA JAMES T. CONTACTED 3/16/75, BY sac AT HIS RESIDENCE, wasrpaar. cauu. HAUERTY HAS ALREABY BEEN CENTACIEB BY SELECT CBMNITTEE (sec) AIBE HAUERTY IS 16 MEET AIBES IN 50.21551; HE HILL ARRIVE BC LATE IN THE OF THAT BAY AND GO BIRECTLY THE 0F LEGAL CBUNSEL FEIR BISCUSSIQN REGARDING HIS MEETING WITH SSC I WEE. (r 46. 25%: SAC WA Approved: Sent ?rm Per Special (gent in Charge cm: 1m 0 - aha-#35 *1 (I 1P1. uv? J- NRETSES ER 80 DE EXOHTE HITEL TO ALL sacs FROM OTREOT 62*116595) PERSONAL ATTENTION SE NSTUDY 7'5 REEOTEL MAY 2, 1915. PURPOSES OR IRSTROT TELETTPE ARE TO THAT FBI HRS FULL COOPERATION OITH THE SENATE SELECT OORRITTEE AND HISHEE TO ASSIST AND FACILITHTE ANY IOOESTTOOTTOOS UHOERTRHEE BY THE RITE RESPECT TO THE EEO (2) SET FORTH HER PROCEDURE RELATING TO 553 OTHER THTERHTEOS OF CURRENT EEO FORMER FBI ERPLOTEES. FOR INFORMATION OF THOSE OFFICES RHTOH HAVE NOT PREVIOUSLY HRD CURRENT OR FORMER EMPLOYEES. IN ITS TERRITOY INTERVIENED BY THE 558, THE BUREAU FREQUENTLY LEARNS FROM THE 536 OR OTHERNISE THAT FORMER EMPLOYEES ARE BEING CONSIDERED FOR INTERVIEW REY TRE SSG STAFF. INSTRUCTIONS ARE ISSUED FOR THE FIELD OFFICE TO CONTACT TRE FORMER TD ELERT HIM AS TO POSSIBLE INTERVIER, REFUND HIM OF HIS CONFIDENTIALITY AGREENENT WITH THE BUIRERU AND SUGGEST THAT IF HE NTACTED FOR I?m. i 5% . (jig; TE- :1 an: . PAGE IHTHHUTEH, COLLECT CHE As THAT HE CHNNOT PRO HE HAT THE LEGAL COUNSEL BY .L FOR FURTHER THE HSHAL UNFOLD, THE FORMER EMPLOYEE IS TOLDCI) A RIGHT To LEHAL couHsHL, BUT THAT THE BHHEAU (2) THAT THE BUREAU HA3 HATHHD THE CONFIDENTIFLITY AGREEMENT FOR THE INTERVIEH WITHIN SPECIFIED AND (5) THAT THERE ARE FOUR PRIVILEGED AREAS IN HH 15 HOT T0 AHSAEH QUESTION. THESE AHEAs ARE HHLATT To HAT (A) IDENTIFY REUEAL SENSITIVE (C) REUEAL IDENTITIES OF THIRD AGENCIES, INCLUDING FOREIGN INTELLIGENCE INFORMATION FROM SUCH AND (D) ADUERSELY AFFECT ONE PHIUTLEHES HEAHBT, AL NIGHT cows 0F THTEHHT AS A LEGAL EFFEC TAG HUHHAH INVESTIGATIONS. BUREAU HAS OFFERED A SUPEHHTSOH HOHLD BE AHATLABLH THOUGH HAT ACTUALLY AT THTEHHTEH, so HLT HITH HTH SHOULD ARISE As To PARAMETERS HH 0H PHTUTLEGED AREAS. THE comsuLTAHT DID HOT ACT ADHISDH. FIVE BUREAU WILL NO LONGER PROVIDE . 9 PAGE THREE ON-TNE-SCENE PERSONNEL FUR CONSELTNTION PURPOSES TO DSSIST I ETTEER CURRENT 0F FORMER EMPLOYEES. PROSPECTIVE INTERNIENEES SHOULD BE TOLD THEE, IF THEY DESIRE OP THIS DORTNC AN TNTERUIEN, THEY NNY CONTACT EITHER PERSONALLY (IF TNTERUTEN IN HASHINGTUN, D. C.) OR BY COLLECT CALL, THE OF THE INTELLIGENCE DIVISION, NE. E. R. IN HIS ABSENCE, SECTION CHIEF N. O. CRECNR. TETC.CNENCE 1N PROCEDURE NOT BE as LESEENINO TEE NE DRE To CURRENT END . FORMER EMPLOYEES. POR YONR ADDITIONAL THE TN TO ERRENCE LEONE REPRESENTNTION, EOE CURRENT END FORMER EMPLOYEES NTTHOOT EXPENSE TO TEEN. YON NILE DE KEPT OF DEUELOPNENTE IN THIE RECNRD. END . 0 MROOS RR GHS T0 REL sacs FROM BIRECTGJ BY MEMO RMOOM TO ALL EMPLOYEES ORIEO MAY 23, 1915, UAPTIB NED TERUIEWS OF FBI EMPLOYEES ALL HERE MPH TTEES ROUISEO 0F MEOESSIIY OF HERDOORRIERS PEJOR I0 T0 IRIEROIEOS BY REPRESENTATIVES OE OOR- GRESSIORAL IRE HECESSIIY OE SECURIRR THIS RP- PROVAL Is BY THE EMPLOYMERI ROREEMEMI RLL EMPLOYEES HAVE SIOJEO. I I Y?li JERJE RORIEEO THRT CGRERESSIDNAL STAFF MEREERs MERE INTERVIEOE OE FORMER EMPLOYEES RRO IRAT.TRJE RORERO ROD PLEDGED ITS COOPERATIOR MITR COR- GRESS. OF MOST BE OORSISTEMI RITE ME RROE HMO RITEMPTS BY OORORESEIOMRL OOMMIITEE MEMBERS T0 IRIEROIEM- CURRENT EMPLOYEES MIRRORT J, PRIOR COMIROI WITH FBI YOU ARE REOIR EMINDED BF. ?74; 3% ?15. I OERROREO 1 In?; 5, ca-? 05 ii g' 0 . 9 PAGE mo THAT REPRESENTATIVE OF A CONGRESSIONAL SHOULD A EupEAu EMPLOYEE, THAT EHDELE DECLINE TO EEspoEn T0 PGSED To HIE AEE ADVISE TEE SIGNAL 0E THE NECESSITY RECEIVING FBI BEFDRE RESPONDINE T0 END I PLEASE AGE HOLD FBR nun- -n -1- ?ml?w- I I, Reeling Slip {Copies to ?es Qh?gicod} I (Rev. 124743} . TU: SAC: I [3 Nearly? [3 l-iouston [3 Oklahoma City Albuquerque Indianapolis Omaha Em] Alexandria Cl Jackson Philadelphia Bonn Ej Anchorage Jacksonville Phoenix a magma Baltimore [3 Knoxville Portland :3 Caracas :3 Birmingham Les Vegas Richmond I: Hong Kong Boston Little Rock Sacramento London l: Buffalo Lee Angolan St. Louis Madrid Butte Louisville Ci Salt Lake City Manila [3 Charlotte [3 Memphis San Antonio Mexico City Cl Chicago Miami San Diego I: Ottawa I: Cincinnati Milwaukee San FranciSeo Paris Cleveland, Minneapolis CI San Juan Home Columbia CI Mobile Savannah Singapore Dallas [:j?biewark Seattle Tel Aviv Denver New Haven Spring?eld Tokyo Detroit New Orleans Tampa El Pose New York Cit}r Washington Field El Honolulu Norfolk Quantiee Dme 11/21/75 RE: SENATE SELECT COMMITTEE ON INTELLIGENCE ACTIVITIES- Rotention For appropriate For information :3 optional :3 action Saree, by The enclosed is for your ini'onnation. Ii'nsed in a future report, conceal all sources, [2 paraphrase contents. Enclosed one oorIECted pages from reporter SA tinted . Remark 5: Enclosed for your information is a copy of an article by Mr. William Safire entitled "Mr. Church's Cover-Up" that appeared in the November 20, 19?5, issue of "The New York Times.? a; 3cmgran?n. Em" 3; We Hume FBIHHETJ Haven Uriile I . By?William Satire WASHINGON, Nov. ill?On Dot. ill, 19d3, the then-Attorney General of the United States put his personal signa- lure_on a document that launched and legitimatised one of the most horren- dous abuses of Federal police bower in this century. in Senator Frank Church?s subcom- mittee hearing room this week, the authorized wiretapping and subse- quent unauthorised bugging and" at- tempted blackmailing of Martin Luther- King Jr. is being gingerly examined, with the "investigation?_ conducted in such a way as not to unduly em- barrass officials of the Kennedy or Johnson Administrations. lrilith great care. the committee has focused on the Yesterday, when? the committee counsel first set forth the result of shuffling through press clips, it seemed as if no Justice De-l partment had existed in 1952; today,? an EBJ. witness pointed out that it was Robert Kennedy who authorized the wiretap of Dr. King, and that ?the President of the United States and the Attorney General specifically discuased their conc?ern of Communist influence with Dr. King.? But the Church committee showed no zest for getting further to the lien- nedy root of this precedent to Water- gate eavesdropping. lf Senator Church - were willing to let the chips fall where they may. he would call some knowlu edgeable witnesses into the glare of the camera lights and ask them some questions that have gone unasked for thirteen years. For example, he could call Nicholas Kataenbach, Attorney General Ken- nedy?s deputy and successor. and ask 2 what he knows of the Kennedy de- cision to wloetap Dr. King. Who at - Justice concurred in the recommenda- 3 tion? How does the F.B.I. know that President was consulted or informed? After Mr. Katzenbach assumed of? Iice, and the wiretapping continued, he was told by angry newsman that the EM. was leaking scurrilotls in- formation about Dr. King. Why did he wait for four months, and for a thou- sand tclephonic interceptions, to dis.? continue the officially approved tap? Of course, this sort of testimony would erode Senator Church's political base. That is why we do not see tori mer Assistant director Carlha (Duke) Deloach, Lyndon Johnson?s personal contact with the F.li.l. in the witness chair, What did President Johnson know about the characterv assassination plot and when did he lnow it? What conversations took place between Mr. Deloach and Fresh dent Johnson on the tapping of Dr. iting, or about the use of the in my other intrusions into the lives of ical. .ligures? Illn- -ing up. 41-41. on Mr. Church?wcovernyi; The committee is not asking embar- rassing questions even when answers are readily available. a couple of weeks ago, at an open hearing, an . lit-3.1. man inadvertently started to blurt out an episode about newsman who were in 1962 wit .the apparent knowledge of Attorne i General Kennedy. The too-willing wi ness was shooshed into st" lanes, and told that such informatiol?i would be developed only in executive session. Nobody. raised an eyebrow. That'pattern oi containment by the Church committee is vividly shown by the handling of the buggings at the 1964 Republican and Democratic con- ESSA uni?H ventions which were ordered by Lyn- don Johnson. Such invasions of politi- cal headquarters were worse than the crime committed at Watergate, sin'be they involved the use of the but the investigators seem to be determined not to probe too deeply. If documents say that reports were made to specific Johnson aides, why are those men not given the same opportunity to publicly tell their story so avidly given the next ?Presi- dent's men? If Lyndon Johnson com- mitted this impeach'able high crime of using the RBI. to spy on political opponents, who'can be brought for?l ward to tell us all about it? But that would canse embarrass-. ment to Democrats, and Senator Church wants to embarrass profes- sional employees of investigatory agencies only. A new sense of Cone grassional decorum exists. far from the sense of outrage expressed in the Senate Watergate committee's hears ing room. When it is revealed that the management of NBC News gave? press credentials to spies at the 1964 convention, everybody blushes demure: ly?and nobody demands to know which network executive made what; decision under what pressure. 1 I have been harunguing patient? readers for years about the double standard applied to Democratic and' Republican political crimes1 and had hoped the day would come when the hardball precedents set by the Ken- nedy and Johnson men would be laid before the public in damning detail. Obviously, Democrat Frank Churchit. Hisiowlu slialting indignation is all too selec- tive: the trail of high-level responsi- bility for the crimes committed against Dr. King and others is evidently going In he allowed to noel. Pity. You?d thin}: that after all the nation has [seen through in the pasL few years, our political leads-rs would have learned that the one thing that brings you down is the act at cover- '?Wiin THE NEW YORK TIMES THURSDAY, NOVEMBER 23thpl9?5 PAGE can]. {i ?Romlng Slip ?0-7 ?lav. T?ll?T?l? sources, paraphrase oontenta. [j Enclosed are corrected pages From report of Sn data t1 (Copies to ?92s Checked} . . . ?h .. 1%:5Ao . - 0 [3 Al know1 Houston EH Oklahoma City LEGAT I: Albuquerque Indianapolis Omaha . Born Alexandria I: Jackson Philadelphia El Bonn A Anchorage Jacksonville Phoenix Brasilia [3 Atlanta El Kansas City Bus-nos hires Baltimore Lj Knoxville Portland Caracas Birmingham Les lalleges Richmond. 1: Hong Kong Boston Little Rock Sacramento Landon Buffalo Los Angolan St. Louis Merit-in [3 Butte Louisville Lake Cit? Manila Charlotte Memphis San Antonio CI Mexico city Chicago Miami SEE Diego Ottawa Cincinnati Milwaukee Francisoo Paris [3 Cleveland Minneapolis 1:1 San Juan Home [3 Columbia Mobile _Savannah Tel Aviv Dallas Newark Seattle Tampa Denver New Haven Detroit New'?rleans Tampa El Peso I: New York Elite1 Washington Field a Honolulu Norfolk :3 Quantioo no . . Below; HEW THE . - SELECT COMM EE Retention For appropriate For information optional action Sump. by The encloses is for your information. ll? used in a future report, conceal all Rem ark s: For your assistance in responding to local press inquiriesp attached is a copy of unedited excerpted remarks by Assistant to the Director-?Deputy Associate Director James B. Adams while testifying before the Senate Select Committee on 12/2/?5, concerning anti-FBI allegations made by Gary Rowe, former FBI 'informant. Em. Bufile Ur?le Clo .., SEansi?t . 3913;" . DEC . Lt?.iw.ox . it em nun- Lio?5 EXCERRTS OF REMARKS MADE BY ASSISTANT TO THE DIRECTOR -- DEPUTY ASSOCIATE DIRECTOR JAMES B. ADRMS TESTIFYING BEFORE THE SENATE SELECT COMMITTEE RERTAINING TO THE KU KLUX ELAN, GARY ROWE, FORMER FBI INFORMANT, AND PREVIOUS ATTEMPTS OF THE FBI TO PREVENT VIOLENCE DECEMBER 2, 1975 QUESTION MR. ADAMS: do use informants and do instruct them to spread dissention among certain groups that they are informing on, do you not? We did when we had the CDINTEL programs which were discontinued in 1971, and I think the Klan is probably one of the best examples of a situation where the law was ineffective at the time. we heard the term, State's Rights used much more than we hear today. We saw with the Little Rock situation the President of the United States sending in the troops pointing out the necessity to use local law enforcement. We must have local law enforcement use the troops only as a last resort. When you have a situation like this where you do try to preserve the respective roles in law enforcement, you have historical problems. With the Klan coming along, we had situations where the FBI and the Federal Government was almost powerless to act. We had local law enforcement officers in some areas participating in Klan violence. The incidents mentioned by Mr. Rowe~-everyone of those he saw them.from the lowest level--the informant. He didn't see what action was taken with that information as-he pointed out during his testimony. Our files show that this information was reported to the police departments in every instance. we also know that in certain instances the infor- mation upon being received was not being acted upon. We also disseminated simultaneously through letterhead QUESTION: MR. ADAMS: memorandum to the Department of Justice the problem. And here we were-?the a position where we had no authority in the absence of an instruction from the Department of Justice to make an arrest. Section 241 and 242 don't cover it because you don't have evidence of a conspiracy. It ultimately resulted in a situation where the Department called in U. S. marshals who do have authority similar to local law enforcement officials. So historically. in those days. we were just as frustrated as anyone else was, that when we got information from.someone like Mr. Rowe--good information. reliable information-~and it was passed on to those who had the reSponsibility to do something about it, it was not always acted upon as he indicated. A In none of these cases, than, there was adequate evidence of conspiracy to give you jurisdiction to act. The Departmental rules at that timer and still do, require Departmental approval where you have a conspiracy. Under 241, it takes two or more persons acting together. You can have a mob scene and you can have blacks and whites belting each other. but unless you can show that those that initiated the action acted in concert, in a conspiracy, you have no violation. Congress recognized this and it wasn't until 1963 that they came along and added Section 245 to the Civil Rights Statute which added punitive measures against an 2 . QUESTION: MR ADAMS: QUESTION: MR. ADAMS: 0 0 individual. There didn't have to be a conspiracy. This was a problem that the whole country was grappling with-- the President of the United States, Attorneys General-?we were in a situation where we had rank lawlessness taking place. As you know from the memorandum we sent you that we sent to the Attorney General the accomplishments we were able to obtain in preventing violence and in neutralising the Klan and that was one of the reasons. local town meeting on a controversial social issue might result in disruption. It might be by hecklers rather than by those holding the meeting. Does this mean that the Bureau should investigate all groups organising or participating in such meetings because they may result in violent government disruption? no sir, and we Isn't that how you justify spying on almost every aspect of the peace movement? No sir. When we monitor demonstrations, we monitor demonstrations where we have an indication that the demonstration itself is sponsored by a group that we have an investigative interest in, a valid investigative interest in, or where members of one of these groups are participating where there is a potential that they might change the peaceful nature of the demonstration. This is our closest question of trying to draw guidelines to avoid getting into an area of infringing on the 1st Amendment right, yet at the same time, being a . . aware of groups such as we have had in greater numbers in the past than we do at the present time. We have had periods where the demonstrations have been rather severe and the courts have said that the FBI has the right, and indeed the duty, to keep itself informed with respect to the possible commission of crime. It is not obliged to wear blinders until it may be too late for prevention. Now that?s a good statement if applied in a clear-cut case. Our problem is where we have a demonstration and we have to make a judgment call as to whether it is one that clearly fits the criteria of enabling us to monitor the activities. That's where I think most of our disagree? ments fall. QUESTION: In the hows Case, in the Rowe testimony that we just heard, what was the rationale again for not intervening when violence was known about. I know we have asked this several timesu?I'm still having trouble understanding what the rationale, Mr. Wannall, was in not intervening in the Rowe situation when violence was known. MR. WANNALL: Senator Schweiker, Mr. Adams did address himself to that and if you have no objections, I'll ask that he be the one to answer the question. MR. ADAMS: The problem we had at the time, and it is the problem today, we are an investigative agency: we do not have police powers even like the U. S. Marshals do. The Marshals 4 since about 1795 I guess. or some period like that, had authorities that almost border on what a sheriff has. We are the investigative agency of the Department of Justice. and during these times the Department of Justice had us maintain the role of an investigative agency. We were to report on activities. We furnished the information to the local police who had an obligation to act. we furnished it to the Department of Justice in those areas where the local police did not act. It resulted finally in the Attorney General sending 500 U. S. Marshals down to guarantee the safety of people who were trying to march in protest of their civil rights. This was an extraordinary measure because it came at a time of Civil Rights versus Federal Rights and yet'there was a breakdown in law enforcement in certain areas of the country. This doesn't mean to indict all law enforcement agencies in the South at the time eithergbeoause many of them did act upon the information that was furnished to them. But we have no authority to make an arrest on the spot because we would not have had evidence that was a conspiracy available. we could do absolutely nothing in that regard. In Little Rock the decision was made, for instance, that if any arrests need to be made, the Army should make them. And next to the Army, the U. S. Marshals should make them--not the FBI, even though we developed the violations. We have over the years as you know at the QUESTION: MR. RDAMS: QUESTION: MR ADAMS: Time there were many questions raised. Why doesn't the FBI stop this? Why don't you do something about it? Well, we took the other route and effectively destroyed the Klan as far as committing acts of violence and, of course, we exceeded statutory guidelines in that area. What would be wrong, just following up on your point there, Mr. Adams, with setting up a program since it is obvious to me that a lot of our informers are going to have preknowledge of violence of using U. S. Marshals on some kind of longwrange basis to prevent violence? We do. We have them in Boston in connection with the busing incident. We are investigating the violations under the Civil Rights Act, but the Marshals are in Boston. They are in Louisville, I believe, at the same time and this is the approach that the Federal Government finally recognized. On an immediate and fairly contemporary basis that kind of help can be sought instantly as opposed to waiting till it gets to a Boston state. I realize a departure from the past and not saying it isn?t, but it seems to me we need a better remedy than we have. Well, fortunately we are at a time where conditions have subsided in the country even from the 60's and the 50?s, or 50's and 60's. We report to the Department of Justice on potential trouble spots around the country as we learn of them so that the Department will be aware of them. The planning -5- .QUESTION: ADAMS: QUESTION MR. ADMS: for Boston, for instance, took place a year in advance, with state officials, city officials, the Department of Justice and the FBI sitting down together saying "How are we going to protect the situation in Boston?? I think we have learned a lot from the days back in the early 60's. But, the Government had no mechanics which protected people at that-time. Next I would like to ask, back in l965, I guess during the height of the effort to destroy the Klans as you put it a few moments ago, I believe the FBI has released figures that we had something like 2,000 informers of some kind or another infiltrating the Klan out of roughly 10,000 estimated member- ship. That's right. I believe these are FBI figures or estimates. 'That would mean that 1 out of every 5 members of the Klan at that point was an informant paid by the Government and I believe the figure goes on to indicate that 70 percent of the new members in the Klan that year were FBI informants. Isn't that an awful overwhelming quantity of people to put in an effort such as that? I'm not criticizing that we shouldn't have informants in the Klan and know what is going on to revert violence but it just seems to me that the tail is sort of wagging the dog. For example today we supposedly have only 1594 total informants, both domestic informants and potential informants. Yet, here we have 2,000 in just the Klan alone. Well, this number of 2,000 did include all racial matters and informants at that particular time and I think the figures QUESTION: MR. ADAMS: we tried to reconstruct as to the actual number of Klan informants in relaton to Klan members was around 6 percent, I think after we had read some of the testimony on it. Isn't that right, Bill? Now the problem we had on the Klan is the Klan had a group called the Action Group. This was the group if you remember from Mr. Rowe's testimony that he was left out of in the beginning. He attended the open meetings and heard all the hoorahs and this type of information but he never knew what was going on because each one had an Action Group that went out and considered themselves in the missionary field. Theirs was the violence. In order to penetrate those you have to direct as many informants as you possibly can against it. Bear in mind that I think the newspapers, the President, Congress, everyone, was concerned about the murder of the three civil rights workers, the Lemul Penn case, the Violet Liuzzo case, the bombings of the church in Birmingham. We were faced with one tremendous problem at that time. I acknowledge that. Our only approach was through informants. Through the use of informants we solved these cases. The ones that were solved. There were some of the bombing cases we never solved. They're extremely difficult, but, these informants as we told the Attorney General and as we told the President, we moved informants like Mr. Rowe up to the top leadership. He was the bodyguard to the head man. He was in a position where he could see that this could continue forever unless we could QUESTION: MR ADAMS: QUESTION: create enough disruption that these members will realize that if I go out and murder three civil rights, even though the Sheriff and other law enforcement officers are in on it, if that were the case, and in some of that was the case, that I will be caught, and that's what we did, and that's why violence stopped because the Klan was insecure and just like you say 20 percent, they thought 50 percent of their members ultimately were Klan members, and they didn't dare engage in these acts of violence because they knew they couldn't control the conSpiracy any longer. I just have one quick question.' Is it correct that in 19?1 we were using around 6500 informers for a black ghetto situation? I'm not sure if that's the year. we did have a year where we had a number like that of around 6000 and that was the time when the cities were being burned. Detroit, Washington, areas like this, we were given a mandate to know what the situation is, where is violence going to break out next. They weren?t informants like an individual that is penetrating an organization. They were listening posts in the community that would help tell us that we have another group here that is getting ready to start another fire fight or something. Without going into that subject further of course we have had considerable evidence this morning where no attempt was made to prevent crime when you had information that it was going to occur. I am.sure there were instances where you have. MR. ADAMS: QUESTION: MR. ADAMS: QUESTION: MR. ADAMS: QUESTION: MR. ADAMS: QUESTION: MR. ADAMS: QUESTION: MR. ADAMS: QUESTION: we disseminated every single item which he reported to us. To a police department which you knew was an accomplice to the crime. Not necessarily knew. Your informant told you thatr hadn't he? The_informant is on one level. we have other informants. and we have other information. You were aware that he had worked with certain members of the Birmingham.Polioe in That?s right. He furnished many other instances also. So you really weren't doing a whole lot to prevent that incident by telling the people who were already a part of it. We were doing everything we could lawfully do at the time and finally the situation was corrected when the Department agreeing that we had no further jurisdiction, sent the U.S. Marshals down to perform certain law enforcement functions. brings up the point as to what kind of control you can exercise over this kind of informant and to this kind of organisation and to what extent an effort is made to prevent these informants from engaging in the kind of thing that you were supposedly trying to prevent. A good example of this was Mr. Rowe who became active in an Action Group and we told him to get out or we were no longer using him as an informant in spite of the information he had furnished in the past. we have cases. Senator where we have had But you also told him to participate in violent activities -10- I MR. ADAMS: QUESTION: MR4 ADEMS: QUESTION: MR. ADAMS: QUESTION: We did not tell him to participate in violent activities. That's what he said. I know that's what he says, but that's what lawsuits are all about is that there are two sides to issues and our Agent handlers have advised us, and I believe have advised your staff members, that at no time did they advise him to engage in violence. Just to do what was necessary to get the information. I do not think they made any such statement to him along that line either and we have informants who have gotten involved in the violation of a law and we have immediately converted their status from an informant to the subject and have prosecuted I would say off handr I can think of around 20 informants that we have prosecuted for violating the laws once it came to our attention and even to show you our policy of disseminating information on violence in this case during the review of the matter the Agents have told me that they found one case where an Agent had been working 24 hours a day and he was a little late in disseminating the information to the police department. No violence occurred but it showed up in a file review and he was censured for his delay in properly notifying local authorities. So we not only have a policy, I feel that we do follow reasonable safeguards in order to carry it out, including periodic review of all informant files. Mr. Rowe's statement is substantiated to some extent with an acknowledgment by the Agent in Charge that if he were going MR. ADAMS: QUESTION: QUESTION: MR. ADAMS: to be a Klansman and he happened to be with someone and they decided to do something, he couldn't be an angel. These are words of the Agent. And be a good informant. He wouldn't take the lead but the implication is that he would have to go along or would have to be involved if he was going to maintain his liability as a There is no question that an informant at times will have to be present during demonstrations, riots, fistfights that take place but I believe his statement was to the effect that, and I was sitting in the back of the room and I do not recall it exactly, but that some of them were heat with chains and I did not hear whether he said he beat someone with a chain or not but I rather doubt that he did, because it is one thing being present, it is another thing taking-an active part in a criminal action. It's true. He was close enought to get his throat cut apparently. How does the collection of information about an individual's personal life, social, sex life and becoming involved in that sex life or social life is a requirement for law enforcement or crime prevention. Our Agent handlers have advised us on Mr. Rowe that they gave him no such instruction, they had no such knowledge concerning it and I can't see where it would be of any value whatsoever. -12? a QUESTION: MR. ADAMS: You don't know of any such case where these instructions were given to an Agent or an informant? To get involved in sexual activity? No Sir. -13.. File?Serial Charge Out GPO: 1m 0- son-was {Rem File um Class. Case Na. Lust Serial Funding 1: Closed Data Serial NO. Descripiion of Serial Charged 17/9 19/596?: ?u ?9/5/75 9Q Employee RECHARGE Dull To From ?a an '5 3- 5? 5 Dale Charged Employee lm?on .a it of THE olnacroa . . UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF WASHINGTON, Bil-535 STATEMENT 0N TERRORISM BY CLARENCE M. KELLEY DIRECTOR, FBI BEFORE SUBCOIVHMITTEE 0N INTERNAL SECURITY SENATE COMITTEE UN JUDICIARY, NOVEMBER 19, 1975 An explosion rocked historic Fraunces Tavern in New York City this anuarv 24; four innocent persons died . Responsibility was claimed by the Armed Forces of Puerto Rican Liberation or FALN. This group also claimed a coordinated series of bombings against Government buildings and corporate offices in three cities on October 1975 . This is the face of the terrorist in the United States today?~the twisted rationale of the revolutionary and the urban guerrilla, joined to the expertise and will to build and explode bombs . When we speak of terrorism by various self?proclaimed urban guerrillas revolutionaries and extremist nationalists in this country, we are talking about violence. Violence against the Government, against police of?cers, against the "system," as some label our society, violence against innocent victims?-the four in New York--vio1ence intended to demonstrate the power of the terrorist, in an attempt to show that a free society cannot protect itself and preserve its freedom at the same time . The problem of terrorism is of course, worldwide. Arab terrorists make what amounts to war in their battle for the Middle East . (as ?saws: '24 . Kidnappings bombings murders and robberies by urban guerrillas strained the West German judicial system. In Northern Ireland terrorism has become a way of 1ife--and death . Because there are a number of small terrorist groups spread across our large Nation some of them operating in a limited area, we some- times miss the total impact of their activity . How many Americans have heard of the New World Liberation Front? This group has claimed at least fourteen terrorist bombings in California this year alone. What is the Continental Revolutionary Army? This is the name used by those who took credit for three bombings in Denver this year-~51 Government of?ce a bank and the home of a Government official were the targets. Other terrorist groups becauselof their spectacular activities or their longer presence on the scene, are better known. The SLA, or Symbionese Liberation Army received massive publicity after the kidnapping of Patricia Hearst?-mueh more attention with this so-called political kidnapping than with their earlier claim of the murder of the Oakland school superintendent. The Weather Undergron which started with the name Weatherman is still an active terrorist group . claiming the September 5 bombing of the Kenneeott Copper building in Salt Lake City . The Weather Underground which recently described itself as a guerrilla organization of communist women and men underground in the United States claimed four bombings of Government and corporate targets last year. This group makes no secret of its intent to wage war in its words and then to seize power. This Subcommittee performed a valuable public service in publishing its report on the Weather Underground this January . Your report notes the use of guerrilla manuals by the Weather Underground. We have found that most terrorist groups use handbooks such as the "Minimanual of the Urban Guerrilla," that were written abroad,l usuallyr by Marxists . There is yet a third type of political terrorist in this country. Besides the extremist nationalists such as the FALN, and the New Left- type revolutionaries-?the 1Etl'eather Underground and the New World Liberation Front--there are the self-described urban guerrillas of the Black Liberation Army . Known as the BLA this group grew out of the Black Panther Party, after the Panthers split into two factions in 1971. The 1966 formation of the Black Panther Party itself came at the height of the riots that wracked our Nation's cities in the 1960?s . This paralleled the development of the New Left on college campuses and the escalation of campus disorders to acts of terrorism by the hard core of this New Left. As early as 1968, the Panthers proclaimed that they would not dissent from the . . Government, they would overthrow it. The armed Panther invasion of the California legislature gained the group nationwide notoriety. The Panther antipolice slogan "off the pig." became reality when officers were killed in confrontations with Panthers. Police officers have been the primary ?target of the urban guerrilla. Since 195'1, the deaths of 43 officers and the wounding of 152 more have been linked to these terrorists . The very first communique from the BLA boasted that the group had 1?no hangups about dealing with fascist pig cops . Letters to the news media claimed credit for two ambush attacks on police in New York City in May, Two officers were killed and two others Were wounded in these ambushes . Attacks'on police?12 ambushes . 27 snipings, and 50 other shooting confrontationsn-were epidemic in 19?1 . The police killings in New York City were the catalyst of a White House Conference on this emergency. A Presidential order that the FBI render assistance in police- killing cases . if requested by local authorities resulted . At the same time, the FBI was intensively investigating the BLA. At the end of the year, Frank Fields . a BLA member sought for bank robbery fired on FBI Agents seeking to arrest him in Florida. He was fatally wounded in the shoot-out . The investigation of the 1971 police killings by New York City police and the FBI was an excellent example of cooperation between local and Federal authorities in a case that had nationwide ramifications . It resulted in the conviction of three BLA members this April . The FBI response to terrorism has included investigations training of local police and research . Under new bombing; laws enacted by Congress we received authority to investigate terrorist bombings . We operate the FBI Bomb Data Program to correlate all bombing matters reported and then inform local police of tactics and trends in this area. in 1971} the wave of Weather Underground bombings broke . The group claimed the bombings of a military facility in May, of the New York City Police Department headquarters in June of a bank in New York and another military facility in San Francisco, in July. In response to this violence, we set up nationwide law enforce? ment training on bombings in the Fall of 1910; some training sessions were held, attended by thousands of police of?cers. While 1Weatherman?type bombings continued in 191'1, these attacks on property were exceeded in dangerousness by the attacks on the lives of police officers in 1971 and 19'32 . The FBI response to these attacks on police included extensive work on the handling of snipers and nationwide law enforcement training on this subject. In 19?? 3 there was a decline in terrorist?type attacks on police . There was also a slackening in terrorist bombings-~the Weather Underground claimed only three in 1972 and 19?3 together. We have statistics on terrorist activity in the United States which I would like to offer for the record at this time. These show some 634 reported incidents--bombings, fire bombings ambushes, and other shootings of police. and other terrorist?type activityn?'om 1971 through 1914. We knew though that the lull might be only temporary. We continued assistance to police agencies with symposiums at Quantico and law enforcement training around the country??almost 25,000 officers attended the 19% training sessions . We also began disseminating a periodic surrm?larjir of terrorist activity and tactics to police departments. The decline in attacks on police by members of the Black Liberation Army has continued. Most of this group's recent activities have been attempted jailbreaks in an effort to free some of the BLA leaders now behind bars . But bombings by New Left revolutionaries are now on the increase . In 1973, there were 24 bombings claimed by or attributed to terrorist groups . Last year the number of terrorist bombings increased to 45 . The first six months of this year, there were 46 of these bombings 1 more than all of 1974. New terrorist groups have now appeared. This country has experienced its first so-called political kidnapping. The activities of the Symbionese Liberation Army, the self-proclaimed revolutionaries who recruited among prison inmates are well known . Diehard anti-Castro Cuban exiles have, in some cases turned to terrorist-type bombings in Miami, other parts of the country and abroad . These activities increase with reports of normalization of relations with Cuba. Law enforcement faces new challenges in combating terrorism . Terrorists in this country have adopted the cell system to prevent in?ltration. The fanaticism of many of these urban guerrillas and revolutionaries makes intelligence penetration difficult. Many terrorists are expert in the use of false identification. and are able to melt into a whole subculture of communes that extends across the Nation. There is also an element of support for today's terrorists, both moral and material support, from some segments of the American public . This, to me is the most difficult aspect of the problem to understand: the approbation of terrorist activity by otherwise law-abiding citizens given apparently because of the so?called idealism of the terrorists . How does today's terrorism differ from the murderous Ku Klux Klan violence of a decade ago? While the motives of the terrorists may differ, motive is of no moment to a murder victim . Decent Americans were outraged over Klan bombings beatings and killings . Where is that outrage today? In spite of this attitude on the part of some people, I still feel that terrorism. is criminal violence not so-called protest, and must be dealt with as such. Routing} Slip TD: 3 AC: :3 Albany Albunucrnne Alexandria Anchorage Minute ?nllimorc Binningham Boston Buffalo little Charlotte Chicago El Cincinnati Cleveland Columbia :3 Unilos genre: oLrnl Fi? El Post: [3 Honolulu RE: DIRECTOR 3.. APPEARANCE BEFORE SENATE SELECT l?i . 3i: Houston [ndiaumpoils if] Jacksonville Kansas City Knoxville Les Vegas Little Rock Los Ans-ales Louisville Memphis Il'iinmi kee Minneapolis Lil ilo Q?Will?l: New ilgvon New 0 cans New York City i=3 Nor-loll: (Copies lo Offices Checked) 1 I: Oklahoma City, Omaha Philadelphia Phoenix i1 Pitts Portland Richmond Sacramento St. Innis Cl Sell Lake City San Antonio San Diego San Francisco San Juan Savannah Seattle Springfield Tampa . Washington Field [if] Qunn Lioo rmore an LTI Beirut Born Brasilia ?Buenos Aircs Caracas Hong Kong I: London Madrid Manila Mexico City Ottawa {3 Paris Home Singapore, To! Avie Tokyo 1/5/76 ON INTELLIGENCE ACTIVITIES DECEMBER .1 0 [ya/For in ii! ?nation 1975 Retenlion 7""1 options! For appropriate [3 souon Sump. by The enclosed is for your If used in a future report, conceal all sources. contents. L: Enclosed are corrected pages from report of HA (lolmi meEe By routing slip dated i2/30/i5-ena captioned as above, all and Legets were furnished a copy of the transcript of Mr. Kelley's 12/10/75 sppeerencerbefore the senate Select Committee on Intelligence Activities. Although the'dete contained in the transcript may be made eveilable to news media representatives, used in answering questions received from citizens, and other~ wise treated as being of a public-source nature, the transcript itself should not be reproduced Eor, or given to, anyone outside the FBI. Bufilo Loni- i- :e?rs swimsuits-F?- HAVEN or mun 'u?nwm-rwa- - - lungs-u. I H. l. -- qua-Hr- 1 F'Diasd" Fiev. v-io-ssi 1 "i Clin?ll?ln In Sana-In nalnu?l Was I Obj?Cts To ProposaL For Special Spy Prosecutor wasmnoton any. Gen. Edward H. Levi today rc- ii tegrity oi the Justice Depart. merit a proposal. to appoint a special prosecutor to in. vestigate any wrorngdoing by the CIA, and other in: toiligence agencies Levi told the Senate Govern- ment Operatiors Committee the proposal assumes that the ?or- dinary law enforcement mecha- nism cannot be trusted" to in vestigate any suspicious activi- ties by government er'nployem. "It's a most debilitating and destructive view of- the Depart- - meat of Justice and of the govt. ernment," Levi said. ?it I be I lieved that, I would ask myself what [am doing here" The proposal to appoint a special prosecutor was made Thursday by the chairman of the Senate int?lligence com. mittee. Sweeping recommendations approved by the House in- telligence committee would create a permanent House pan- el to keep an on us. spy activities and would outlaw such covert military aid oper- - ations asIthe BIA project in An- :gola. Completing its major recom- mendations Thursday, the House intelligence corninittee also approved a proposal to re- quire a president to report ev- ery covert operation to Con- gross within so hours, much as military action he report- ed under the War Powers Act. The commutes also approved recommendations that would \t iected- "as an attack on them: subject members who leak in- l?ormation to censure or ex- pulsion irorn the House and subject stall aides who leak sea crets to dismissai and criminal prosecution. The recommendation to out? law U5. 1 paramilitary oper- ations like the one in Angola was approved it to 5 and in- cludes a ban on assassination attempts against loreign lead- ers except in time of war. The committee also approved recommendations that would require the President to person- aily certify within 43 hours that a covert operation is needed to protect national security and that would reuuire the CIA div rector to report details on the room's INDEX 44 Pages Action For You Area Towns at AehBeIhH" ??23 Bridge Crossword Death: 23 Doctor Bays 15 Editorial.. 22 Family Heloise 6 Ladders 26 legislative .. Movie Time Table Patterns .15 People In The News . . 1Itl Social Security? 5 30ch World 27-29 Sports ao-ss Sill? Gazer H. HIS Television 33 Theater: 1T-21 Today In History. a Want Ads 3541 nature, purpose and costs of - the operation, risks involved and prospects of success. Committee members rejected a proposal that would have out- lawed all covert operations and rejected a plan to outlaw U.S. arms aid aimed at sustahe ing' or overthrowing foreign govermnents. The proposals witl be sent to the full House for considera- tion. ?Chairman Otis G, Pike, 1} Hilts, scheduled a session for I Tuesday to give all resentmen- dations final approval before the committee goes out of busi ness Wednesday. Meanwhile, State Henry a. Kissinger sup- ported creation of a joint House-Senate watchdog telligence committee, provided Secretary of ire. safeguards could he imposed to prevent leaks Kissinger complained to a Senate panel that? everycovert operation that we have at- . tempted in the past year has leaked to the press within a matter at weeks, perhaps months.? Kissinger opposed any law requiring Congress to be noti- fied ot? all covert operations in advance, saying the President should not be blocked by law from ordering a covert oper- ation without asking Congress first. He accused the House com. 1 mittee of using classi?ed hitor- matioit recklessly and said ?the covert operations the have leaked to the press" have given (Continued 23/ it .- 9r? {Indicate- pclqe, name of newspaper, cily? and astute-J Mee- was Me as! some: Date: Zw?" ?47 Edition: Ap?o?? Author: Editor: Titles as net?! 6191i Ch or: or Closet {inertial-I Submitting CI files: '3 Being Investigated I .41 ?mi- .41" said Justice Oppo ed By Levi [Ca ntinued tram Page 1) a false picture of covert oper atipns' in general Meanwhiie, SeahFrank'. Church, chairman cf' the Senate i intelligence committee, called for appointment of a special prosecute:- to investigate and press charges against these in- vcive? in anyr criminal; action' - attributed to the CIA, FBI and . other intenigence?agencies. In a Sedate speech,_Church? ?tment inves- tigation of abuses uncovered by cengi-essinnal panels ?just will I not we ?#13964 WA PLEIMI EITEL 2911-76 IKE I TD ELL sacs i EEOE DIREGTOR 1 HausE RIGHTS THE GENERAL AND I BEFORE CAPTIQNED LEGISLATIVE POLICIES AND GUIDELINES FEE THE FBI. COPIES OF THE PRESENTED To THE BY THE AEE EE ARE BEING EEILEE TD ALL.0FFICES TODAY. FOR YOUR INFORMATIGM, THERE A accouur 0F EEJEE AREAS OF THE In ME, EITH MY I (1) IE TE EUESIIGES REGARDING-THE IN THE FDR IHE FBI EEIEH ARE CITED IE HIS I STATED THAT 0F Law Is THAT EE GANNOT SDLELY IHE ECEIEE TU DISSENT UNBER OUR FQRM.0F EDELE BE IEHIEG ECIIOE IN W1 TELETYPE - 3 ~29? . n; u? - . HAVEN rm - 113;. W- . PAGE THO EASE THE EATERE AEE EETERT GE THE THREAT IEUELVEE, EAESELT MITH THE ARE REACH A SAEETIEE As To ANY HEBESSARY AED PRUPER ACTIAE TO BE TARER.. REEAREIEE THE EEIDELIEES, EUESTIOES EERE Ev (NY RESPONSE EAE THAT THE FBI HAS A THE AND I REPORTS To TIEE CONCERNING THE THREST 0E THESE AND WHETHER TEE GUIDELINES IR PRESEET FORE ARE Too STRICT 0R LOOSE (HY RESPEESE EAR T-HAT THE EEI IE RAT EITH TEE THAT 1 EAEROT TREE As STRIBI EE THAI THEY ARE . EREER Eur AT THIS POIHI ARE Eat TEA REETREETIEE). E3) 1E TO A To EHETHER TEE EEPARTEEAT EE JUSTICE SUPERVISES THE FBI, 1 STATED THAT I THAT IT ARE THAT I EAE STATE UNEQUIVOCALLY THAT I RAEE A UEET PLEASANT RELATIOEERIE EITH THE ATTORNEY ARE THAT VERY REEL. (THE ATTORNEY AGREED AED PDINIED BUT THAT THE FBI RAE To HAVE THAT THE FBI RESPONSIBILITY IS GREAT, ARE THAT THE PA A THREE HA5 GENERAL OVER THE BUREAU. NOTED THAT THE ATTAEAEY GENERAL NOT RUNNING THE an HE WOULD NDTEHAUE TIME FOR AATTHIEE ELSE AME THAT THERE . IS TEE ATTORAET AEAERAE AND THE FBI . I (4) EA RESPONSE Tu QUESTIONS CONCERNING OUERSIGHI AT THE FBI BY 1 STATED THAT 1975, THE FBI HA3 AGENT DATE AND 2221 DAYS TO PROVIDE ETTA THE TAEEREATIEA THAT IT HAS THAI soEE SOURCES AAE IEFAEAANTE HAVE UAEILLIEA To FURNISH us BECAUSE BE THE DISCLOSURE THE MATERIAL wE HAVE THAT THE EEI DUES EAT OBJECT To THAT EE ARE EILLTEE To HAUE AME GUIDELINES BUT THAT WE EAEI To EEUELAE BALANCE so THAI EE MAINTAIN OUR CAPABILITIES IATACT IO FULLY DISGHARGE AER RESPONSIBILITIES. LEEAIS ADVISED SEPARATELY, EN ALL FDXX OFFICES PLEASE EETUEA TU TALK IRS EA. $1 r-r .. (Rev. Fr 13-? . - Transmit Vin ARTEL .1 in pinion or 1' och .1 4' Priorth I _To: SAC, Albany 1 . i b??Bm: Director, FBI phi OPENING ACTIVITIES Enclosed for your information and guidance is a cepy of the report of the Department of Justice concerning its hivestigation and prosecutorial decisions with respect to the opening of mail to and from foreign countries during the gears 1953 and 1973. Attorney General Levi, in transmitting the report to me, advised that since the report discusses standards concerning current conduct, it would be appropriate to distribute it to FBI officials for their guidance. Enclosure (This {inc for LEFT UAHGINJ '1 - A11 Field Of?ces - Enclosure 1 A11 Legats Enclosure measures ?i FEIIDQJ - C. MI 311mm FOR IMMEDIATE RELEASE AG JANUARY 14, 19?? 202-739-2023 NOTE TO NEWS MEDIA: Attached, for immediate release, is a copy of the report of the Department of Justice concerning its investigation and prosecutorial decisions with respect to CIA.mail-opening activities in the United States. Attachment Report of the Department of Justice Concerning Its Investigation and Prosecutorial Decisions with Respect to Central Intelligence Agency Mail Opening Activities in the United States The Department of Justice has decided, for reasons dis- cussed in this report, not to prosecute any individuals for their part in two programs involving the opening of mail to and from foreign countries during the veers 1953 through 19?3. On June 11, 19?5, the President transmitted to the Attor- ney General the Report of the Commission on CIA Activities within the United States (the Rockefeller Commission). The President asked the Department of Justice to review the materials collected by the Commission, as well as other relevant evidence,'and to take whatever prosecutorial action it found warranted. At the direction of the Attorney General, the Department?s Criminal Division conducted an investigation to determine whether any government officer or employee responsible for CIA programs descrihed in Chapter 9 of the Commission Report, involving the opening of mail taken from United States postal channels, or responsible for related or similar activities of the Federal Bureau of Investigation, had committed prosecutable offenses against the criminal laws of the United States. Such an investi- gation was immediately begun by the staff of the Criminal Division and regular reports on its status were made to the Attorney General. On march 2, 19?6, the Senate Select Committee to'Study Governmental Operations with Respect to Intelligence Activities aceeded to the Department?s request that the Criminal Division be allowed access to the documentary evidence in its possession El concerning the projects. In August 19?6 the Criminal Division submitted to the Attorney General a report summarizing the evidence it had acquired, and analyzing the legal questions that potential prosecutions would present: The report concluded that it was highly unlikely that prosecutions would end in criminal con- victions and recommended that no indictments be sought. Because of the importance of this recommendation and its conclusion that a prosecution would so likely fail, the Attorney General and the Deputy Attorney General asked the Criminal Division to review its analysis and findings, and in addition asked experienced criminal lawyers in the Tax Division to undertake a review. As part of the review process, three experienced United States Attorneys, and two specially appointed consultants, Pro; fessors.Herbert wechsler and Philip B..Kurland, were asked to participate in an evaluation of the recommendations with the Attorney General, the Deputy Attorney General, the Solicitor General, and the Assistant Attorney General for the Criminal Division.l/ l1 In the course of these deliberations, it became clear that no decision to prosecute could responsibly be made on one of the two mail opening projects -- the West Coast Project which is des- cribed on pages 20n21, infra n- within the five year statute of limitations set forth in IE U.S.C. ?3283. In any event, it was the unanimous view that, because the West Coast Project was of relatively brief duration, small in scale, and directed only to incoming mail, any potential prosecution inevitably would focus on the CIA's East Coast mail openings, described on pages These openings ended in early 19?3, and only the last year of the project is within the statute of limitations. This is enough, however, to allow a prosecution to be commenced with respect to these acts and the entire agreement, dating to 1953, to open mail. The Department has now completed its investigation into the mail opening projects and has examined in detail the elements of the crimes that may have been committed, the defenses that might be presented, and the proof that would be required to establish the commission of crimes and refute the expected defenses. Although the Department is of the firm view that activities similar in scope and authorization to those con- ducted by the CIA.hetween 1953 and 19?3 would be unlawful if undertaken today, the Department has concluded that a prosecu- tion of the potential defendants for these activities would be unlikely to succeed because of the unavailability of important evidence g] and because of the state of the law that prevailed, during the course of the mail openings program, i It would be mistaken to suppose that it was always clearly perceived that the particular mail opening programs of the CIA were obviously illegal. The Department believes that this opinion is a-serious misperception of our Nation's recent history, of the way the law has evolved and the factors to which it responded a substitution of what we now believe is and must be the case for what was. It was until recent years by no means clear that g/ Important evidence would be missing because of the great length of time between the commencement of the mail openings and the holding of a potential trial. Many important participants in the process have died, and because some of the events occurred a generation ago, the memories of other witnesses have dimmed. the law and, accordingly, the Department's position, would evolve as they have. a substantial portion of the period in which the conduct in question occurred was marked'by a high degree of public concern over the danger of foreign threats. The view both inside and, to some extent, outside the government was that,in response to exigencies of national security, the President's constitutional power to authorize collection of intelligence was of extremely broad scope. For a variety of reasons judicial decisions touching on these problems were rare and of ambiguous import. Applied to the present case, these circumstances lead to reasonable claims that persons should not be prosecuted when the governing rules of law have changed during and after the conduct that would give rise to the prosecution. They also would support defenses, such as good faith mistake or reliance on the approval of government officials with apparent authority to give approval. Whether these argu- ments would be acceptable legal defenses is not necessarily dis- positive. As Judge Leventhal has reminded us: if Our system is structured to provide intervention points that serve to mitigate the inequitable impact of general laws while avoiding the massive step of reformulating the law's requirements to meet the special facts of one harsh case. Prosea cutors can choose not to prosecute, for they are expected to use their ?good sense. . .conscience 3/ United States v. Barker, No. ?4?1883, decided May 19?6 (dissenting opinion), quoting from_United States v. Dotterweich, 320 U.S. 27?, 235 (1943). ii 0. and circumspection? to ameliorate the hardship of rules of law. Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power. These factors would make difficult a showing of personal guilt. The issue involved in these past programs, in the Department's view, relates less to personal-guilt than to official governmental practices that extended over two decades. In a very real sense, this case involves a general failure of the government, including the Department of Justice itself, over the period of the mail opening programs, ever clearly to address and to resolve for its own internal regulation the constitutional and legal restrictions on the relevant aspects of the exercise of Presidential power. The actions of Presi? dents, their advisors in such affairs, and the Department it? self might have been thought to support the notion that the governmental power, in scope and manner of exercise, was not subject to restrictions that, through.a very recent evolution of the law and the Department's own thinking, are new con? sidered essential. In such circumstances, prosecution takes on an air of hypocrisy and may appear to be the sacrifice of a scapegoat -- whiCh increases yet again the likelihood of acquittal. And in this case, an acquittal would have its own costs it could create the impression that these activities are legal, or that juries are unwilling to apply legal principles rigorously in cases similar to this. Where a prosecution, whether successful or not, raises questions of essential fairness, and if ful could defeat the establishment of rules for the future, the Department's primary concern must be the proper opera" tion of the government for the present and in the future. The Department of Justice has concluded, therefore, that prosecution should be declined. At the same time, however, the need of eliminating legal ambiguities and of guiding future conduct in this field demands a precise public stateu ment of the Department's position on the law namely, that any similar conduct undertaken today or in the future would be considered unlawful. Ordinarily public announcements of reasons for declining prosecution are not made, for they may- invade the privacy of the potential defendants and charge them with misconduct while denying them an opportunity to respond in court.- The circumstances of this case justify an exception to that rule. Publication of the Rockefeller Commission and Senate Select Committee reports, with their extensive descriptions of the mail opening programs, substantially diminishes any harm to the potential defendants? reputations that could be caused by public explanation of the Department's position. The harm is further diminished by the description of the circumstances and the considerations of fairness on which the Department's decision not to prosecute ultimately rests. . . I. SUMMARY DESCRIPTION OF ORIGINS, CONDUCT AND TERMINATION 0F CIA MAIL OPENING ACTIVITIES IN THE UNITED STATES. Investigations conducted by the Rockefeller Commission, the Senate Select Committee, and the Department of Justice dis~ close that between 1953 and 19?3 the CIA engaged in five separate projects involving the opening of mail in United States postal channels. The "East Coast Project" began in 1953 and ended early in 19?3; the ?West Coast Project? was carried out intermittently from 1969 to 19?1. Three remaining projects were of brief duration and ended more than a decade ago; Pro- secution for violations arising out of all but the East Coast Project is barred by the statute of limitations. A. East Coast Mail Project In 1952 the CIA, investigating the possibility of gains ing positive and operational intelligence information from first- class mail to or from the Soviet Union, found that all such mail was sent through postal facilities in the New York City area. Postal inspectors were contacted and, with their cooperation, plans were made for CIA personnel to conduct surveillance of United States?Soviet mail. In February 1953, when the program was implemented, CIA personnel from the Office of Security were permitted to examine and copy (by hand) information from envelope exteriors under the close supervision of a postal inspector, but they were admonished that the mail could not be tampered with or delayed. From the very outset of this operation, however, the CEA planned to convert the project into a mail opening operation. The major obstacle to accomplishing this goal was the constant presence of a postal inspectorl The CIA thought that if it could establish procedures to photograph the ex~ terior of the mail, it could obtain relatively unsupervised access to the mail. Such an expansion of the operation required contact by Director of Central Intelligence Allen Dulles with postal officials. An undated memorandum prepared by the CIA's Director of Security in late 1953 noted that the New York_ mail operation was at that time confined to the inspection of covers only. It recommended that the project be discussed as soon as possible with the President and that a secret White House directive be issued jointly to the Central Intelligence Agency and the Post Office Department requesting those organiza- tions to make a ?study" on the subject of the censorship of foreign mail. The memorandum noted that the CIA could then disclose its desires and requirements to the Post Office De- partment and take steps to implement the program on an expanded scale. This memorandum.was not formally transmitted to Dulles but, on January 4, 1954, the Director of Security forwarded it a memorandum to Dulles which recommended that CIA seek ex- panded access to the mails from the Postmaster General for the purpose of photographing covers; the Director of Security also recommended that the ?oral approval" of the President be obtained. In May 1954 Director Dulles, accompanied by then Chief of Operations Richard Helms, briefed Postmaster General Arthur Summerfield about the CIATs desires for expanded access and means to photograph envelope exteriors. The Chief Postal Inspector agreed to permit such photographing. a_contempor? aneous CIA memorandum of that briefing makes no re?erence to any discussion of mail openings. The Chief Postal Inspector specifically reoalled,in a 19?5 interview, that DCI Dulles. argued that the Soviets opened mail and, therefore, that the CIa's efforts were unfairly circumscribed by American postal practices; However, the Inspector, now deceased, recalled that he had told DCI pulles that any opening of letters would, in his view, he a violation of postal law. Following this briefing, the CIA obtained private rooms at two New York postal facilities. Although some informa- tion suggests that a very few selected openings may have occurred as early as July 1953, available evidence indicates that the selective opening and reading of letters with some regularity began in late 1954. The Department has been unable conclusively to estab- lish whether, as recommended in the January 4, 1954,vmemoran- dum, and as suggested by certain individuals in testimony before the Rockefeller Commission and Congress and in state? ments to Department representatives, the CIA.obtained authorisa- tion from President Eisenhower to open and read mail. There is, however, evidence suggesting-that President Eisenhower had knowledge of and had approved the CIA's East Coast opera? tion. Opinions regarding President Eisenhower's knowledge and approval were expressed by close associates of both President Eisenhower and DCI Dulles. Their judgments are based on experience with government operations, and their own knowledge of the individual characteristics and habits of Eisenhower and Dulles. For example, one high level official stated that no substantial CIA.operation would have been undertaken without at least tacit White House approval. Another expressed the opinion that the CIA.mail operation was the type of operation which would have been cleared with President Eisenhower by Allen Dulles. This same official recounted a Cabinet level discussion with President Eisenhower in which the reading of incoming Soviet mail was raised, but he was uncertain about the context in which the subject was dis- cussed. Still another official in the Eisenhower Adminis- tration said it is "inconceivable" that Allen Dulles would 1-11- .1 have embarked on any program as sensitive as the East Coast mail intercept without first informing the President. Former associates of Allen Dulles stated that Mr. Dulles was most conscientious about keeping President Eisenhower informed of the operations of the A former close associate of Mr. Dulles indicated that in about 1960 he was officially advised by a Dulles assistant that Mr. Dulles had informed President Eisenhower of the CIA's mail intercept project. The absence of any conclusive evidence of presidential authorization should be considered in light of the well" observed, but seldom discussed, practice described as "plausi- ble deniability" or "presidential deniability." Knowledgeable witnesses have noted that there existed in high government circles a long?standing aversion to making written records of presidential authorizations of sensitive intelligence-related 5/ operations." It was thought that the conduct of foreign g/ Foreign intelligence matters were of great interest to President Eisenhower, and he frequently consulted with DCI Allen Dulles and his brother, Secretary of State John Foster Dulles, concerning such matters. g] An example of this practice is the handling of the U-2 matter. According to high level officials, President Eisenhower personally approved all overflights, including the one in which an American pilot was shot down over Soviet territory just before the 1960 Paris summit conference. One . former Eisenhower aide had first-hand knowledge that President Eisenhower made his approvals orally, and that no written records of such authorizations were made. . "12- . affairs frequently required the practice of non-recordation of such presidential authorizations, Covert actions were, by National Security Council definition, designed so that the United States Government could plausibly disclaim any responsibility for them. The concept of plausible or presidential deniability had been extended by interpretation, custom and usage to cover all sensitive intelligence activities. Moreover, the minutes of the President's Foreign Intelligence Advisory Board contain expressions of concern covering the relevant period from 1956 onward. For example, the minutes contain such phrases as ?the President?s shield," and "need to protect the President against public identifi- cation with . . covert activities or intelligence activities," and "for security reasons, every effort would be made to leave no papers with the President." In 1955 responsibility for the East Coast Project was given to the Counterintelligence (CI) Staff of the CIA. An outline of the funding, staffing and other logistical needs of the East Coast Project noted that foreign espionage agents relied upon the United States policy of respecting the sanctity of the mails and that these agents used the mails for espionage purposes to the detriment of the United States. It noted that, although the project did not oontemplatezcensorship, discreet monitoring (opening) would be conducted and that under CI staff management "more letters will be opened," . In 1953 the FEE was advised of the existence and extent of the CIa's ?an? mail project, and the ?le offered to share the project's ?take? with the FBI. FEE Director Hoover tra- gave his approvai, and the FBI provided the ore with the naacs and of persons or organisations in which it had an espionage or counterespionage inte?est. Such lists were used as additional guides by the CIA in making selections from the United St?tes~Soviet mail that passed through the ore checkpcior On February 15, 1961, following the election of President Kennedy, DCI Allen Dulles, Deputy Director of Plans Richard Reins, and another CIA officer met with newly appointee Postmaster General J. Edward Day. According to Dav?s recollection. Dulles said he same to tell him of ?something ?1 secreth reearcing ?he GIA and the mails. Enactlv what Day was told is not clear. A contemporaneous Gis.memorandum of the meeting strongly suggests that Day was told by Dulles of mail openings being made by the CIA. He the oiher hand, in l9?5 Day averted that,while his memory of :he 1961 meeting might be recite, he recalled that Dulles offers: to tell him of a secret Lea mail operation but that he {Dav} declined the invitation to be briefed. Day, however, remains uncertain. Three months later D31 Dulles approved continuation of the project on the basis of its value to the intelligence opera? tions of the ?le. The Department's investigation has not definitively established whether Presidents Kennedy and Johnson were aware of the East Coast Project. President Eisenhower authorized Allen Dulles to brief President?elect Kennedy on all signifi; cant intelligence operations conducted by the CIA and other intelligence agencies. President-elect Kennedy met with Mr. Dulles on several occasions during and after the transi? tion period to discuss such operations, but the Department has not been able to determine whether the East Coast Project was covered during the briefings. In 1965, prompted by hearings held by Senator Edward V. Long concerning possible legislation to abolish mail covers by federal agencies, a high official learned that President Johnson apparently had not been briefed on the East Coast Project and "gave instructions that steps should be taken to arrange to pass (information concerning the project) through McGeorge Bundy to the President after the (Long) Subcommittee has completed its investigation.? Mr. Bundy does not recall being informed of the East Coast Project, and no documentary record that indicates such instructions were carried out has been found. Richard Helms testified that he believes he may have advised President Johnson of the East Coast project in the spring of 1967 at a meeting during which the President requested information concerning sensitive CIA operations. Again, no direct evidence corroborating or refuting Mr. Helms' statements has been located. Interviews with former high level officials within the Kennedy and Johnson Administratons, however, disclose that Presidents Kennedy and Johnson were briefed on a regular basis by CIA officials about sensitive CIA.operations. One former Cabinet official in both the Kennedy and Johnson Admin~ that he was aware that mail openings were being conducted in the United States, although he did not know details of particular projects or their scope. The Cabinet officer stated that he believed Presidents Kennedy and Johnson were generally aware that the CIA was engaging in operations similar to the East Coast Project. Interviews of individuals who served as members of the President's Foreign Intelligence Advisory Board (PFIAB) during the Kennedy and Johnson Administrations indicate that these individuals were aware of domestic mail openings by the CIA and FBI. PFIAB had the responsibility to review and assess the activities of the CIA and other agencies with foreign intelligence responsibilities and to advise the President on such matters. One PFIAB member, who served until 1963, stated that the PFIAB gave detailed briefings to the President; more? over, he stated his belief that the President would ?have to be in a fog? to be unaware of the fact that techniques such as mail openings were being used. Again, however, the practice of ?plausible deniability? was frequently raised by persons knowledgeable of government intelligence practices as a possihle explanation for the absence of any written records of presidential knowledge or authorization for the East Coast Project. With the inception of Operation CHAOS, designed to determine the extent of hostile foreign influence on domestic unrest, the East Coast Project assumed a new intelligence- related purpose. In addition to Operations CHAOS, the project sought to develop positive foreign intelligence, such as information on Soviet crop and living conditions and popu- lation movements. Moreover, operational support intelligence was sought such as information on the postal censorship and secret writing techniques of the USSR, and there was a counter: intelligence purpose to assist the United States in meeting and neutralizing Soviet intelligence activities. In July 1969 the CIA Inspector General?s staff examined the East Coast Project and recommended that, although President Eisenhower apparently had authorized the project, if the CIA were to continue to administer the project, senior officials within the Nixon Administration should be briefed. In l969 William Cotter, a former CIA employee aware of the East Coast Project, was appointed Chief Postal ill a" Inspector. Concerned that other top level postal officials were unaware of the project, in 1970 Cotter informed the CIA that either the Postmaster General would have to be apprised of the East Coast Project or it would have to be discontinued. Cotter pressed his request in January 19?1. This caused a reevaluation of the merits of the East Coast Project. A.CIA memorandum dated March 29, 1971, strongly urged continuation of the project, describing it as ?an irreplaceable tool for the exercise of the Agency's counterintelligence responsibility." The memorandum noted that the counterintelligence information developed by the project was also of assistance to ?the White House, the Attorney General and the The senior officials decided to continue the project. In June 1921, to meet Cotter's concerns, Director of Central Intelligence Helms separately briefed both Attorney General John hitchell and Postmaster General Hinton Blount. There is dispute as to what the briefings encompassed. a contemporaneous CIA memorandum indicates that Mitchell and Blount were informed of the East Coast Project and agreed to its continuation; Helms testified before the Rockefeller Commission that he informed them fully about the nature and scope of the mail opening project. Mitchell and Blount, though they acknowledge that there may have been a general discussion of mail covers, state that they were not informed about the opening of mail. Former President Nixon has stated that he was aware of the CIA's monitoring of mail between the United States and the Soviet Union and the Peoples' Republic of China,' but he disclaims any knowledge of mail openings, and the Department has uncovered no direct evidence which suggests that former President Nixon was ever specifically informed of the mail opening projects. It appears, however, that during the Nixon Administration the White House was receiving intelligence reports that enabled White House officials to determine that mail was being opened. John D. Ehrlichman, a White House official in the Nikon Administration, testi~ fied before the Senate Select Committee that, from his reading of intelligence reports, he was able to determine that mail was being intercepted, presumably by the CIA. With the resignations of Postmaster General Blount in 19?1 and Attorney General Mitchell in 1972, Chief Inspector Cotter again believed himself to be the only senior government official outside the CIA and FBI with knowledge of the East Coast Project. He again informed CIA officials that, unless higher level approval for the project was obtained by February 15, 1973, he would withdraw the Postal Service's cooperation. James Schlesinger, who had succeeded Helms as DCI, decided that the foreign in? telligence and counterintelligence information derived from the project did not outweigh the risk of embarrass? ment and potential public repercussions presented by its continuation. On February 15, 1973, the East Coast Project was suspended and, in effect, terminated. Whether the failure of the Department's investi- gation to uncover any direct evidence, written or oral,. of presidential knowledge or authorization was caused by the noneristence of such knowledge or authorization, by confusion of mail openings with ?mail covers," which were generally viewed as legitimate, or by the passage of time and the ?presidential deniability? concept discussed above, cannot be determined. However, on the existing record, the government could not prove in a criminal prose- cution beyond a reasonable doubt that the East Coast Project was conducted without presidential approval or without presidential knowledge and acquiescence. B. West Coast Project The West Coast Project was proposed in 1969 by CIA officials within the CIA's Plans Directorate for the purpose of obtaining foreign intelligence concerning the Peoples' Republic of China. The CIA was particularly in? terested in censorship techniques used bv'the Peoples? Republic of China, and the project was intended to evaluate such techniques through a survey of mail entering the United States from the Peoples' Republic of China. Initially, it was contemplated that the project would entail only the inspection of envelope exteriors. .Approval of the project by postal officials was secured for a survey of envelope exteriors. The West Coast Project, conducted in or near San Francisco, involved four separate surveys of mail between 1969 and 19?l. The first survey took place in September, 1969 and lasted five days. Approximately 1,600 envelopes of incoming mail were screened during this period. No mail was opened in this initial survey, which apparently was undertaken without approval by top level CIA officials. The lower level officials responsible at that time for the project deemed this initial survey successful and concluded that a broader scale survey of mail should be undertaken in order to evaluate Chinese intelligence techniques. During 1970 and 19?1, three additional surveys were con~ ducted by CIA officials in San Francisco, each lasting two or three weeks. In each of these surveys, only in- coming mail from the Peoples' Republic of China was opened, apparently without the knowledge of the postal officials who cooperated by providing CIA officers with access to the mail. Approximately 550 pieces of mail were opened by the CIA during the course of the project. After the project's 1971 phase, no further West Coast operations were undertaken. 22 II. GROUNDS FOR PROSECUTION, POSSIBLE DEFENSES, AND EQUITABLE CONSIDERATIONS A. Grounds for prosecution. The Department of Justice has considered two statutory bases for prosecution of persons who participated in the East Coast'Project. The first, 18 U.S.C. ?1702, prohibits the unauthorized opening or obstruction of mail in United States postal channels; the second, 18 U.S.C. ?241, prescribes conspiracies to deprive United States citizens of rights guaranteed by the Constitution. Under the.general conspiracy statute, 18 U.S.C. ?371, liability would extend to persons who agreed to take part in violations of sectinn,241 or llOZ, whether by opening the mails, by approving the openings, or by acting in concert with others who opened the mails. A prosecution under section 241 requires proof of'a violation of rights conferred on American citizens by the Constitution or laws of'the United States; with regard to the mail openings, the prosecution would be premised upon a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures. A prosecution cannot be maintained under section 2&1, however, unless it can be established that the defendants acted, or agreed to act, with the purpose of invading rights or interests protected by . -23- . the Constitution or by federal laws and that, at the time the defendants acted, protection of the right or interest violated had been ?made definite by decision or other rule of Weaknesses in the evidence and the difficulty of establishing the absence of presidential authorization suggest that the Department would not be able to meet the burden of establishing, beyond a reasonable doubt, that the defendants acted with the ?specific intent? required by section 241 as interpreted by the Supreme Court. Moreover, it is doubtful that, at the time the defendants acted, the Fourth Amendment forbade their actions with sufficient clarity to be ?definite;? between 1953 and 1973 there was substantial evolution of Fourth Amendment law, as discussed later in this Report. In a prosecution under section 1?02 the Department would not be confronted with similar difficulties. All that is required to establish a prima facie violation of section 1?02 is a showing that the defendant opened mail in postal channels with ?design to obstruct the correspondence, or to pry into the business or secrets of another? and the defendant lacked lawful authority to do so. gr See Screws v. United States, 325 U.S. 91 (1945). See also United States v. Price, 383 ?87, 806 n. 20 (1966); Anderson v. United States, 41? U.S. 211 (1974). 1" 24 Whether the openings of mail in the present case violated section 1?02 depends upon two related points: First, was authorization, from a person empowered to give such authorization, obtained for the East Coast Project?" Second, if some authorization was obtained, was it effective? Resolution of the latter question requires a consideration of whether the Fourth Amendment to the Constitution permits officiahsof the Executive Branch to authorize the opening and reading of international mail and, if so, under what con?- ditions and by what means. We turn to a consideration of those problems. B. The requirement of lawful authorization. Some courts have treated section l?02 as a specific intent statute,which would make prosecution_overwhelming1y difficult. The Department of Justice believes, however, that a better view of the law is taken by the courts,which have treated it as a "general intent" statute,providing that persons shall not open envelopes moving through the mails. Its pro- hibition does not, however, extend to openings that have been lawfully authorized. Thus, other statutes (see, 19 U. S. C. authorize the opening of envelopes under specified cir- cumstances, and acting under its general powersthe Postal Service 7/ Since no statute authorizes the CIA to intercept or open mail in United States postal channels, legal authority for the East Coast Project could be derived only from powers granted to the President by Article II of the ConstitutiOn and delegated by him to the CIA or others. -25- itself opens envelopes when necessary to ascertain the address- of the intended recipient. Indeed, unless there were an "authorized opening? exception, a law enforcement official who opened mail purSuant to a judicial warrant would violate the statute.?/ See United States v. van Leeuwen, 39? U.S. 249 (1970). The Department of Justice that the actions of the CIA in opening mail also would not violate section l?02, if those actions were properly authorized.g/ ?j An 1882 decision interpreting a statutory predecessor to section stated that "one is punishable who wrongfully, without any authority of law, or pretence of authority,? inter- feres with the mail. United States v. McCready, 11 Fed. 225, 236 (W.D. Tenn. 1882). 2/ Neither section l?02 nor any other statu?apurports to take from the President, and the Executive Branch in general, any preexisting power to open and examine mail when necessary to the discharge of the President?s constitutional responsibility for foreign affairs. United States v. Butenko, 494 F.2d. 593 (3rd Ciro.) (en bane), certiorari denied, 4T9 U.S. 881 (1974), which holds that an analogous statute, although containing a broadly stated prohibition, does not affect presidential power to authorize surveillance when the Constitution otherwise permits it. One other statute, 39 U.S.C. ?3623(d), might be considered to do so. That statute forbids the opening of domestic first- class mail without a warrant. Nothing in the legislative history of section 3623(d) indicates that it was designed to affect the power of the President concerning foreign affairs. See, e. ., H.R. Conf. Rep. No. 91?1363, 9lst Cong., 2d Bees. 88 although section 3623(d) originated in the Espionage Act of 191?, 40 Stat. 230, it then contained only a statement that the Act did not affirmatively authorize. the opening of mail. ?breover, it applies only to letters of "domestic origin," and so would not affect the openn ing of mail entering the United States from abroad. Finally, (continued on following page) . - . 2/ Footnote continued from previous page. section 3623(d} does not refer to section l?02 and does not provide criminal penalties for opening mail without a warrant. Nothing in the legislative history of the enactment of section 3623(d) indicates that Congress believed that it was altering the elements of 18 U. S. C. 51702. It would have been extraordinary for the Congress without discussion to have enacted a restriction upon the President? foreign intelligence surveillance power s_o obliquely when, in 1963,1egislating with respect to the much greater in- vasion of privacy constituted by wiretapping, it carefully. disclaimed any intent to affect this area -- partly in response to the concern that it might have no power ?2511(3), which is discussed at length in the Keith case. The Department has not heretofore taken that view of the statute, and to do so for the first time in connection with the present prosecution would -- in addition to reaching only postu19?0 activities raise the difficulties concerning fair? ness, the defense of mistake of law, and jury reaction discussed below in connection with newly imposed requirements regarding the character of presidential authorization. The Department does not wish, however, to make a final deter- mination concerning the future interpretation it will accord section 3623(d) in the distorting context of the present pro? ceed1ng mere any position other than that set forth above would have the flavor of retroactive legislation. If in the future any mail opening, based on express, properly limited Presidential authority, is contemplated, we would regard as a necessary preliminary step to assure its lawfulness the issuance of an advisory opinion by the Attorney General concerning the effect of section 3523(d) upon section 1702. - ,27 we think it clear that the prosecution could not establish beyond a reasonable doubt, as it would be required to do, that the East Coast Project was not authorized by the President, or by someone entitled to act for the President. the effect this would have on the legality of the mail opening program has changed considerably over the last 20 years;.the authorisation (which.the court would be required to assume if the prosecution could not prove lack. of authorization beyond a reasonable doubt) may have been sufficient at the outset to satisfy the requirements of the Fourth Amendment, but the understanding of the requirements of that Amendment has not remained constant. The CIA mail opening program.was initiated and took shape during the 1950s. Later operations were a continuation of this program with changes in emphasis. During the 1950s, and well into the 1970s, the law concerning clandestine- surveillance was quite different, and the requirement of prior judicial authorization was different. Indeed, until 196? respected scholars argued that the judiciary was the wrong branch of government to make authorisation decisions concern- ing any clandestine surveillance; until 1972 courts held that prior judicial scrutiny was unnecessary when the sur? veillance involved national security; and at the present . -,2s - . time the case law indicates that prior judicial scrutiny is not necessary when surveillance of foreign powers or their agents is involved. The Supreme Court indicated long ago 12/ that sealed domestic mail'may not be opened in the absence of a search warrant. This ruling was based upon the expectation of privacy enjoyed with respect to the contents of first-class. mail; that privacy was guaranteed by statute, and courts held that other classes of mail could be opened without judicial authorization. Those who send or receive mail crossing the border of the United States do not enjoy the same expectation of privacy as those sending or receiving domestic first-class mail. Customs Service officers are permitted by law to open all envelopes for-necessary in- spections. ik! Theresmy also be other reasons why inter- national and domestic mail should be treated differently. gg; Ex parte Jackson, 96 U.S. (1877). ll} 19 The expectation of privacy in the contents of international mail therefore cannot easily be equated to the expectation of privacy in domestic mail. No cases have dealt with the surreptitious opening of international mail to gather foreign intelligence or counterintelligence information, hut there is a close analogy in the interception of wire communications. In neither case is property taken; in neither case is a'person delayed or physically inconvenienced. But in both cases private communications are intercepted, and the constitutional question becomes whether this intrusion must be authorized in advance in a specified way. The Supreme Court's first constitutional decision concerning wire interceptions was Olmstead v. United States, 277 U.S. 433, which was handed down in 1928. Olmstead held that telephone conversations could be overheard without prior judicial approval. The Court set out two major rationales for its holding; first, that the interception of wire communications does not "seize? anything within the meaning of the Fourth Amend? ment because there is no physical trespass and it does not prevent the parties from conversing; second, that the Fourth Amendment does not reach beyond the home or office to the whole world into which communications may be sent. Under the standards of Olmstead, which was the law when the CIA . 30 - . mail opening programs began, there was apparently no constitutional need for judicial approval o? a program of covert openings of international mail, so long as the mail was resealed and sent on to_its destination without censorship. The law established by Olmstead did not begin to change until 1961, when the Supreme Court decided in Silverman v. United States 365 U.S. 505, that the Fourth Amendment applied to a listening device or ?bug? placed by physical trespass in the wall of an office, even though the device did not prevent conversations from.taking place. Silverman, however,left the remainder of the Olmstead analysis untouched. During these years there also were serious questions whether the judiciary was empowered under Article of the Constitut?on to issue surveillance orders. Respected I 1 scholarsi?/ and at least one Justice of the Supreme Court-if argued that surveillance orders issued ?g not part of a ?case or controversy? if they were not part of a criminal prosecution, and so judges lacked power to issue them. They argued, as well, that surveillance orders could lg] See, Telford Taylor, Two Studies in Constitutional Interpretation: Search, Seizure, and Surveillance (1969). Osborn v. United States, 385 U.S. 323, 353 (1966) (Douglas, . - . 31 - not be classified as "warrants" under the Fourth Amendment because they were not designed to seize identifiable things and were not ?returned" to the issuing judge in the historical fashion. 0ther.ohjections, too, were raised. Resort to the judiciary, it was said, would diffuse responsibility and accountability for surveillance; responsible executive officials should authorize surveillance when necessary, and the Consti- tution would not forbid this practice.l?/ In 1967, in Eatg v. United States, 389 U.S. 347, the Supreme Court both overruled Olmstead and indicated that judges were empowered to issue surveillance orders in criminal cases. Eatg held that the Fourth Amendment protects people, not places, and that law enforcement officers ordinarily must obtain advance judicial approval before intercepting communications in which there is a legitimate expectation of privacy. I Eatg, however, did not resolve the questiongxf~whether a judicial warrant was available in nonucriminal cases or whether it was necessary when national security was involved. The Supreme Court did not speak to the latter question until June 19, 19?2, when it decided United States v. United States District Court (Keith), 40? U.S. 297. The United States argued in that l?f See, Taylor,supra, at 90. I.. . - 32 a? case that the requirement of prior judicial approval should not apply to surveillance carried out to gather information about domestic security and foreign intelligence -- an argument which would, of course, support the propriety of the CIA mail opening programs as well as of wire interceptions for that purpose. The Supreme Court rejected part of_the argument and held that a warrant is required for electronic surveillance in domestic security investigations. The Court made it clear, however, that it was setting aside a history of contrary practice,l?/ and that it was reserving for decision in the future all questions concerning the procedures required to be used to gather foreign intelligence.l?/ The East Coast Project ended eight_months after Egigh was decided. ??i5h_affected the propriety of warrantiess foreign intelligence surveillance, but it did not decide it. Those courts which have decided the issue have upheld such warrantiess surveillance, and the Department of Justice has consistently taken the position in the courts, before congres- sional committees, and in public statements that the President or the Attorney General may authorize limited electronic surveillance of foreign powers or their agents for foreign intelligence ii! 407 0.3. at 299. 310-311. pg; 407 v.3. at 303-309, 321-322. ?Tr 17! purposes.?_ The CIA mail opening program was not authorized with the care and clarity that current practices and, we believe, the Constitution now require. But these principles have evolved so rapidly during the last two decades that they would have sounded strange to those who initiated the program during the 1950s and continued it during the 19605. s.retroactive application.of newly enunciated Fburth.Amendr ment principles to persons whose conduct took place before the principles were established could, of course, not deter like conduct; and it would be unfair to punish federal employees for doing things which, as the law then appeared, were not illegal. The Supreme Court has held that changes in Fourth Amendment law should not apply retroactively. United States v. Peltier, 422 U.S. 531 (1975). That principle surely applies to criminal prosecutions against those who may have transgressed the Fourth Amendment no less than it does to the application of the 13/ exclusionary rule, which was at issue in Peltier.?? 12/ Compare United States v. Brown, s34 F.2d 418 (5th Cir. 19?3) certiorari denied, 415 U.S. 96G and United States v. Butenko, 494 F.2d 593 (3d Cir.) (an bane), certiorari denied, 519 U.S. 881 with Zweibon_v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) (en banc), certiorari denied, 425 U.S. 944 1? 18/ See also Wood v. Strickland, 420 U.S. 308, 321 which Holds that certain executive officials are liable in damages for a violation of constitutional rights only if they act in "ignorance or disregard of settled, indisputable law The role of authorization and its legality also is affected by changes in the law of border searches. It has long been accepted that things crossing the horder are 19 governed by special rules allowing search."_ These constitutional rules do not allow the government to subject a person to legal disabilities on account of his lawful 20! communications,*? but they allow federal officers to open the mail without warrants to look for contraband and dutiable items, including pornography.z?/ These rules may affect the expectation of privacy surrounding international correspondence. Moreover, the international exchange of ideas, especially with citizens of potentially unfriendly powers, may he on a different footing from the domestic 2; exchange of ideas. 12! -See Cotzhausen v, Nazrq, 10? U.S. 215 (1882); California Bankers Ass'n v. Shultz, EH5 U.S. 21, 62-63 39f Lamont v. Postmaster General, 381 U.S. 301 (1965). 21/ United States v. Thirty~seven Photographs, 402 U.S. 363 United States v. 12 200 ft. Reels of Super 8 mm. Film, U38. 21973j. 32/ Kleindienst v. Mandel, 408 U.S. T53 (1972). .- 0 Until 1973 it was widely thought that the border search rules allowed the inland search of persons and vehicles near the border for contraband and dutiable items.g?/ The large majority of courts uphold the legality of opening envelopes at the border. Six courts of appeals have held that Customs officers may open envelopes without probable cause or search warrants to search for contraband, although-one court of appeals has held to the.contrary.l The Supreme Court may resolve the dispute in the coming months.g?{ The scope of the "border search" exception to the warrant clause of the Fourth Amendment would certainly bear upon the legality of any authorisation to inspect international mail. The discussion so far has traced changes in the law, during and after the time of the mail openings by the CIA, that would affect the lawfulness of a properly authorized surveillance. The law also has evolved in recent years concerning the form an authorization must take and the restrictions that must be observed in exercising any authority delegated to approve the activities. Questions regarding the necessity for express delegations by the President of his constitutional authority and for periodic reexamination of 2g! Almeida-Sanchea v. United States, 413 U.S. 266. The extent to which Almeida-Sanchea?altered existing law is dis- - cussed in United States v. Peltier, supra, 422 U.S. at 539?542. 24/ United States v. Ramsey, certiorari granted October 4, 19?6. No, ?6-167. . 36 - . the activities in light of the need for the information and the intrusiveness of the techniques employed have only recently been addressed. These questions arise, in this case, because the presidential authorization for the East Coast Project -- if there was such authorization may have been presumptive rather than express; that is,it may have been in accord with the well?established principle applied ?in other areas of the law that agency heads are deemed to have been delegated those inherent presidential powers necessary to meet the responsibilities of the agency. Nhreover, the approval for the openings was not limited in time, and responsible officials apparently did not reexamine the program on a regular basis to determine whether it should be continued. Although the President may, consistent with the Constitution, authorize certain forms of surveillance to gather foreign intelligence information without seeking prior approval from the Judicial Branch, the Department believes that the evolving law in this area requires such authorization to be express. The.executive official to whom the power to approve such surveillance has been delegated must take steps to assure himself that the surveillance is reasonable under Fourth Amendment_standards. -..37.. He must consider the nature of the surveillance and the need for the information sought in determining whether to approve the activity,and then he must periodically reexamine the activity to.ensure that it continues to meet constitutional standards. In urging the courts to accept executive authorizations of surveillance, the Department has argued that in each instance the personal approval of the President or his delegate, such as the Attorney General, would be employed to ensure the degree of consideration and control necessary under the Fourth Amendment.g?/ Mr. Justice White, concurring in Kata, indicated that he would accept such executive approval of surveillance, but only if it was explicitly considered by responsible officials and properly delimited. It was only recently, in United States v. Ehrlichman, that a court of appeals concluded that a warrantless foreign intelligence search may be authorized only by the President or Attorney General personally, and that the authorization must 22/ See, e.g. the Brief for the United States in the Keith case. gg/ 389 U.S. at 364. See also the opinions in United States v. Brown, supra, and United States v. Butenko, supra. . I- meet standards of consideration and limitation similar to those the Judicial Branch would impose on itself. 21} The law we have described is of recent vintage. As 'was pointed out earlier, it was far from clear until 196? that the judiciary would become involved in issuing warrants for surveillance even in criminal cases. Not until after_?a?g did courts begin to consider and delineate the requirements of specificity, personal responsibility, and limited duration that today limit the exercise-of Executive Branch powers. It seems fair to conclude that, at the time the East Coast. Project began, it was assumed that the President could, without issuing explicit delegations of power, allow others to speak for him in this field. So far as the Cla.was concerned, the words of anyone who appeared to be authorized to speak for the President had the same legal effect as the President's own words. No. ?4-1882, D.C. Cir., decided May 19?6, slip op. 31. Ehrlichman involved an inexplicit mandate which gave a general instruction to accomplish a particular end but did not discuss the means or techniques to be used to reach that end. Unlike the Ehrlichman case, there was an aura of presidential authority permeating the mail opening program for the two decades in which the technique was used. In addition, the program was not carried out, as the physical search was in Ehrlichman, by ?an amerphous, ad hag unit with no tradition of puEIic service and no clear lines of responsibility,? slip op. at 30, but by the unit of government established by Congress for the conduct of foreign intelligence operations. . . 39 . Although President Eisenhower passed upon many foreign intelligence projects himself, he allowed Allen Dulles to speak for him_on others, and CIA personnel may reasonably have assumed that Dulles did so with regard to the East Coast Project, Presidents Kennedy and Johnson often spoke through their subordinates -- or at least appeared to do so in order to maintain "plausible deniability." .Any CIA personnel who discussed the matter with Attorney General Mitchell might reasonably have assumed that President Nixon acted in this respect through the Attorney General. Until various courts rendered several decisions within the past year, there was little or no indication from the judiciary that Presidents (or their surrogates) were required to act through explicit, time-limited orders; the entire concept of_?plausible deniability" taught the opposite. Indeed, even as late as 19?6 the courts seemedto accept an implied authority in the Attorney General without a written delegation of authority from the President. Ehrlichman, supra. . C. The Defense of Mistake. Suppose, however, that it were concluded that present Fourth Amendment standards equitably could be applied to the East Coast Project, and that under those standards the author- izations -- if any there were would be insufficient to justify the and deeply intrusive program that was actually carried out. The trial court, and the jury, then would be required to determine whether the defendants made a mistake, either of fact or of law, sufficient to make them not culpable for violation of 13 Mistake of fact generally is recognized as a defense in criminal cases; mistake of law is not. The present case would present both kinds of defenses mistake of fact to the extent the defendants reasonably believed there was presidential authorization for the East Coast Project, if in fact there was none; and mistake of law to the extent the defendants reasonably believed that the authorization was legally sufficient, if in law it was not. The mistake of fact defense might not have to be raised by the defendants, since under the circumstances of this case the prosecution would have difficulty establishing that no authorization in fact existed. Because of the age of the evi- dence, the deathsof important participants in the events and the striving for "plausible deniabilitv? that led to an absence of written records, the prosecution would be unable to prove .Fr . 41' . beyond a reasonable doubt that there was no presidential authorization for the East Coast Project. It would therefore, for practical purposes, have to concede that the mail openings were authorised_and to argue that the authorization was ineffective. This would make it unnecessary for the defen- dants to raise a mistake of fact defense; the prosecution simply could not prove beyond a reasonable doubt that there was no authorization. This would then lead to the assertion of a mistake of law defense. Mistake of law generally is recognised as a defense in criminal prosecutions only when a law or an authori- tative legal decision or interpretation misled the defendant reasonably to believe that his conduct was lawful.g?j Criminal convictions in such circumstances would impose criminal sane? tions for conduct which the defendant could not reasonably have known was unlawful.??f In any potential mail opening prosecution, however, the normal foundation for the defense would not be present. No statute or judicial decision ever affirmatively established or announced that the mail opening projects, or conduct closely analogous to them, were and Attorney General Mitchell's possible approval of the projects lacked any indicia of a formal considered opinion gj? See Model Penal Code (P.O.D. 1962). Cf, Bouie v. City of Columbia, 3?8 U.S. 34? (1964); Brief for the United States in Marks v. United States, No. 75-703, argued in the Supreme Conrt, November 1 and 2, 1976. of law that the defense normally would require. Notwithstanding this, the Department believes that the circumstances of the case could very well induce the trial court to instruct the jury on a mistake of law defense broader than that generally recognized, perhaps on the ground that a reasonable belief in lawful anthority would negate the intent that section Indeed, in the recent decision of the District of Columbia Circuit Court in the Barker and Martinez case, the prevailing opinions of two judges concluded that expansive variants of the defense properly were available to defendants who, as private citizens, had assisted a White House official in what purported to be a national security search. Judge Wilkey concluded that the defense properly would ?ll Certain staff documents prepared in the CIA at several points in the East Coast Project's operation expressed the view that, under generally applicable domestic statutes, mail opening was unlawful. These documents, however, were not prepared by attorneys; they were not, in any sense, considered legal judg? ments; they did not conclude that, because of unlawfulness, the project should be terminated. To the contrary, their point appears to have been that the apparent unlawfulness would ser? iously embarrass the Agency if the program.were exposed, perhaps especially because the true purpose and authorization of the project could not be exposed in justification. The Department accordingly does not believe it likely that such documents can be taken as indicating that the defendants subjectively were aware that the project was legally unjustified, or refute their probable defense that they believed it proper in the exercise of presidential power, supervening generally applicable law, to protect the national security. I . apply if the defendants could show facts justifying their reasonable reliance on the White House official's apparent authority and a legal theory justifying their belief that the apparent authority was lawful. Judge Merhige concluded that a defense would be available if the defendants reasonably relied on an apparent interpretation of lawful authority bv the White House official. Even if the trial court did not choose to give an expansive mistake of law instruction, the Department believes that oonsiderationsof fairness would lead the judge to allow the introduction of evidence bearing on the defendants' motives and the circumstances in which they acted w- evidence which would, in the Department?s view,'critically influence the jury?s judgment. D. Problems of Proof. Even if the prosecution could overcome the argument that the East Coast Project was adequately authorized, and even if it could successfully meet the defense of mistake, it still would not follow that the prosecution would be successful. The prosecution must prove its entire case beyond a reasonable doubt. Once a defense going to any of the elements of the offense has been raised, the prosecution must respond by negating that defense beyond a reasonable doubt.?gj g2; See Mullaneg v. Wilbur, ?21 U.S. 684 (1975). .- Problems of proof are difficult whenever the prose- cution seeks to prove a crime that took place long ago. Statutes of limitations -- which for most federal crimes are five years -- are designed to alleviate these problems by creating a policy of repose for offenses not prosecuted within a few years of their Although the statute of limitations applicable to 18 and 3?1 would allow a_conspiracy'prosecution for the entire East Coast Project so long as any overt act of the conspiracv (such as the opening of any envelope) were committed within five years of the date of the filing of the indictment, the technical permissibility of a prosecution could not overcome the enormous problems of proof entailed in establishing, beyond a reasonable doubt, criminal culpability for events that took place as long ago as 1953. The clearest illustration of the difficulty in mounting a successful prosecution is the deaths of persons who were major participants in the events. Presidents Eisenhower, Kennedy and Johnson are dead; they cannot disclose what they knew of the East Coast Project or what theyr mayr have authorized. Allen Dulles, J. Edgar Hoover" Postnasters?General, several directors of the operating divisions of the CIA -- all of them.persons who may have given, sought, or obtained authorization, or controlled the scope or duration of the mail openings are dead. See generally the Brief for the United States in United States v. Lovasco, certiorari granted October 12, 1976, No. T5-1844. 'making a "paper trail? that could be used to reconstruct 1 . - 45 If documentary evidence reliably establishing authorization or lack of authorization existedr or if documentary evidence establishing personal responsibility for the scope or duration of the East Coast Project could be found, it might be possible to prosecute successfully despite the deaths of important persons. But the concept of ?plausible deniability? led the principals to act without their acts. The absence of documentary evidence was intended to frustrate enemies_or potential enemies and to protect Presidents; in practice, at least in this case, it also has the effect of frustrating the Department's ability to prove critical facts beyond a reasonable doubt in court. Whatever use this practice may have had, the understanding of the present state of the law articulated here by the Department of Justice requires that it be eliminated for reasons discussed in part below. The gaps and ambiguities in the evidence available in 1977 also would make it difficult to overcome a defense of mis- taken reliance on what appeared to be proper authorization. In 1953, when the East Coast Project was begun, and for at least a substantial portion of the period of its operation, there was an acute consciousness on the part of the public and the government alike that serious foreign threats an of both overt aggression .- 2- 46 - . and covert subversion required extraordinary vigilance. There was widespread, if unjustified, belief that opposition to government policies, occasionally expressed violently, was generated;-encouraged or supported by potentially hostile foreign powers. These concerns unquestionably affected per~ captions of the government and of presidential power to respond by using covert activities. These attitudes were reflected in the men who authorised and conducted the mail openings program. The reasonableness of their attitudes would influence, in sub~ stantial part, the reasonableness of their beliefs that they were entitled to act as they did. A trial of this case there- fore would open a searching inquiry into the perceptions of a generation of Americans; it would be, as Professor Wechsler put it during the course of his consultation with the Department, to ?indict an era" and would raise fundamental jurisprudential' questions comm the application and use of the criminal law. - The defendants in any mail openings prosecution would be able to present circumstantial evidence to indicate that Director Allen Dulles secured President Eisenhower's approval for the East Coast program; at least, the potential defendants reasonably could,have believed and apparently did_believe, that.he had. The potential defendants, in any event, continued a program already begun -- a program that,by the time Richard.Helms became Director of Central Intelligence, had acquired a bureaucratic momentum of its own. The Agency's highest officials could have had every reason to suppose that, within the government itself, the program was thought fully con- sistent with the government's purposes, responsibilities, and powers. Potential defendants could reasonably have believed that Presidents succeeding President Eisenhower and other high officials of the government's intelligence establishment during this later period,knew at least in a general way of the fact that mail openings were taking place and, in a general way, acquiesced in the practice. Furthermore, certain senior officials of both the Kennedy and Johnson Administrations have stated to the Department that.although they knew neither their nature nor their scope, they personally were aware of the existence of mail openings and were convinced that the Presidents under whom they served must have known as well. in light of such evidence, the Department almost certainly would encounter the gravest difficulties in proving guilt beyond a reason- able doubt. The weaknesses of the evidence, combined with the changes in the law during the course of the East Coast Project, make it unlikely that a prosecution could succeed. An unsuccessful prosecution in a case of this nature would be most undesirable. a It would not establish standards to guide future conduct; to the contrary, an acquittal might be perceived, or wrongly, as an indication that programs such as the East Coast Project are not now illegal an indication that the Depart- ment of Justice believes would be most unfortunate. moreover, either the trial judge or an appellate court, sensing the equities of the case and the possibility that the defendants may have labored under an erroneous, albeit reasonable, belief that they were entitled to act as they did, might expand the availability of a "mistake of law? defense more than the De? partment believes is?warranted. A prosecution in this case would present the courts with the sort of hard facts that lead to bad law. Even to institute a prosecution and to win it might be unfair, If the potential defendants in fact had a reasons able belief that they were acting pursuant to lawful presi- dential authorization, a prosecution so many years later could appear to be a vindictive kind of second-guessing. All the worse to use the criminal sanction in hindsight against in- dividuals when what we now see as wrong was not so much the malign conduct of individuals as a disturbing and dangerous policy of government.- Bringing a criminal prosecution, especially when it would in all likelihood fail, is not the onlyImnreven the best way to establish rules of conduct. The enunciation 0 . of a clear interpretation of the Constitution and the criminal law that stands from this time forward as a barrier against such activity, whether by rogue individual officials or by the creation of an illegal policy, avoids the high risk of failure at trial but assures that the criminal law can justly he brought to bear on any further conduct of this sort. THE DEPARTMENT BELIEVES THAT CONDUCT SIMILAR TO THE EAST COAST PROJECT TODAY WOULD BE CLEARLY ILLEGAL This report has dealt so far with the problems in bringing and winning a prosecution for the mail inter- ception program. The attention to the difficulties in the case should not obscure the most important of the Department's conclusions -- that any program similar to the East Coast Project, if carried out today or in the future, would violate the law. The Department therefore would not hesitate to prosecute any persons, whatever their office, who may become involved in such a program. The East Coast Project arguably was authorized by Presidents and their delegates during a time when the Fourth Amendment was understood to be less rigorous in its require- ments. Such a program conducted today could not meet the rEquirement of authorization. I, a I - 50 With respect to the present situation, Executive_ Order 11905 withdrew any prior authorization for CIA mail opening programs. That order, issued February 18, 1976, prohibits the national security agencies covered by the order from ?[olpening of mail or examination of envelopes of mail in the United States postal channels except in accord? ance with applicable statutes and regulations." No statute or regulation authorizes the CIA to open or read mail. More important, however, the Department of justice believes that the President lacks the authority to authorize a program comparable to the East Coast Project whether or' not Executive Order 11905 continues in effect. This is so for a number of reasons. As this report has discussed above, the Executive Branch may exercise its constitutional authority to engage in certain forms of surveillance without the prior approval of the Judicial Branch only if it determines whether the facts justify the surveillance, renders a formal, written authorization, and places a time limitation upon the sur- veillance. The authorizing officer must act pursuant to an express, written delegation of presidential authority. The_ East Coast Project, and anything similar to it, would not satisfy these standards: much of the program was unreasonably broad in scope, it was not explicitly authorized in writing, and it was not subjected to frequent reexamination to determine whether continuation was appropriate. 1The requirement of a formal, written authorization means that - 51 - . the "plausible deniability" concept may never again be used as an excuse for lack of evidence of lawful authority. The establishment of a program.of surveillance could be justified only by the President's foreign affairs powers. But the existence of such powers does not validate everyl action taken in their name. There must in each case be a sufficient basis? measured in light of the private interests the surveillance invades, for believing that the surveillance is necessary to serve the important end that purportedly - justifies it. It must, in other words, be reasonable in scope and duration, as ?reasonable" has come to be defined by the courts in cases involving wiretapping. No open-ended authori~ ration of the sort involved in the East Coast Project would be sufficient. The Department does not suggest that this means that there must be probable cause to believe that every letter. sought to be opened under such an authority would contain foreign intelligence information, any more than there must be probable cause to believe that every telephone call that might be overheard during a wire interception for criminal investigative purposes will include a discussion of crime.1 But there must, at a minimum,be a determination that the facts justify the surveillance and that it is no more intrusive 52 - than is necessary to that The standards that guide presidential conduct and the conduct of the Department of Justice draw their substance from the evolving principles of Fourth Amendment jurisprudence. Under those standards the East Coast'Project could not now lawfully be approped.??j g5] Cf. United States v. 1L3. ?95 S. Ct. 3074 may be stopped without probable cause or a warrant for a brief scrutiny, so long as the overall pro? 'gram of stopping cars is reasonable and productive); Camera v. municipal Court, 387 U.S. 523 (1967) (warrants to search houses? may be obtained on probable cause to believe that a building code violation has occurred). Building on this and similar supreme Court analyses, the Administration proposed legislation to provide for the issuance of a judicial warrant authorizing the use of electronic sur~ veillance in foreign intelligence and foreign oounterintelligence cases. That legislation would have required proof of probable cause that the target of the surveillance was a foreign power or an agent of a foreign power and a submission of a certification signed by a high level executive official that the information sought was necessary to the foreign intelligence or foreign counterintelligence needs of the federal government. It also required the court's review of procedures to minimize the acqui? sition and retention of extraneous information. 22/ See United States v; Brown, supra; United States v. Butenko, supra; United States v. Ehrlichman, supra. On the constitutional standards for the approval of domestic wiretaps, see Berger v. New York, 388 U.S. 41 Kata v. United States, supra; United States v. Kahn, 415 U.S. 143 (1975); United States v. Scott, 516 F.2d ?51 (D.C. Cir. 1975); certiorari denied, 425 U.S. 9T7 Cf. United States v. Donovan, certiorari granted, 424 U.S. 907 (1976), argued October 13, 19?6. 0 IV. CONCLUSION The East Coast Project would now be illegal, and the Department would not hesitate to prosecute those who participated in.such a program in the future. The applicable law has not always been so clear, however, so that a prose- 'cution brought now for a course of conduct that spanned l953 to l9?3 might be unfair to defendants who believed that the program they were conducting began with presidential authorization and continued with this assumed authority. Finally, because of difficulties of proof that have been brought about by the lack of written documentation, the lapse of time, the fading of memories, and the deathsof key participants, the Department does not believe it could prove beyond a reasonable doubt that the potential defendants are criminally responsible for their participation in the mail opening program. I Questions of the legality of intelligence methods and of the scope and exercise of the national security power did not reach the courts until this decade. The preceding sections of this report have described the development, primarily in the last ten years, of Fourth Amendment law governing the use by the Executive Branch of surveillance that invades privacy, and the principles that the Department believes now govern its scope and exercise. But whatever can be said about the law now, k. 0 -. 54 .. 0 the Department believes at the time the potential defendants acted, there was a substantial basis for thinking that the law was otherwise. What would.make the contemplated prose? cution particularly unfair is the fact that ignorance of. the developing law, and the consequent existence of erroneous assumptions of legality, were in large part the fault of the government, and indeed the Department of Justice itself. The Department's own attitudes toward mail openings as a means of gathering foreign intelligence must have appeared at least. equivocal. Although after 1966 the FBI did not engage in mail opening, it participated in and was the primary beneficiary of the CIA's East Coast Project. On two occasions early in the 1960s the Department considered criminal prosecutions that would have been based in part on evidence derived from FBI mail openings. In each case the Department declined or with- drew prosecution. Whether it did so because it feared that the evidence would be excluded as illegally obtained, or whether it did so to avoid revealing the existence of the mail opening projects, the effect was the same: it allowed the programs to go on as before, and it did not instruct the FBI or the CIA to cease opening mail. What is more, in the mid-19605, in connection with Senate subcommittee hearings on possible govern- mental monitoring of the mails, and again in the early 19705, the available evidence indicates that the then Attorneys General probably were informed generally of the CIA's acti" vities and, in the latter instance, of their possible scope. Again, no steps were taken to determine what the programs encompassed or to question in any way their legality. During the period in which the mail openings took place, there was no clear control to ensure that arguably valuable intelligence techniques would be employed only with careful attention to their legality and their effects on individual rights, The absence of defined control was perhaps in part the result of the necessary secrecy, even within the government, that attends intelligence operations, and of the desire for ?plausible deniability" by the President. What- ever its cause, the failure of officials at the highest levels who were generally aware of these activities (though they did not participate in them) to clarify the law and establish insti- tutional controls, and their apparent contentment to leave the individuals operating in this field to proceed according to their best estimates of legal constraints in a vague and yet vitally important area all this would render a prosecution by the government hypocritical. What really stands indicted as a result of the information which the Departmentfs investigation has disclosed is the operation of the government as an institution: specifically, its failure to provide adequate guidance to its . - subordinate officials, almost consciously leaving them to ?take their chances" in what was an extremely uncertain legal environment. One of the purposes, if indeed not the primary purpose, of the criminal law is not merely to punish past wrongdoing but to prevent wrongdoing in the future. If the present prose- cution were the only way, or even an effective way, of achieving that result, it might be considemnidesirable deepite elements of unfairness and the almost certain lack of success in obtain? ing convictions. It is of course recognized that whether a conviction could be achieved only can be determined by the bringing of a prosecution. The failure to convict, however, would hinder the development of the standards that we believe the law now establishes. ?The Department believes that the objective of preventing repetition of such activity can better be achieved by other means. Substantial institutional changes in order to assure adequate protection for individual rights in the conduct of intelligence operations have already been made. Executive Order 11905 clearly delineates the proper responsibilities of each of the intelligence agencies and establishes a detailed structure of oversight and approval which includes substantial or. participation by the Attorney General. Moreover, this report itself, which is a departure from normal Department practices, is meant to serve the purpose of clearly and publicly describing the Department's view of the current law. It serves as guidance for all federal'cfficials acting in this area, and as fair notice that any failure in the - future to these newly developed but now clearly enunciated standards will result in prosecution. . . . PERSONAL ATTENTION -- . 12?90 11.8. Department of nation: Federal Bureau of Investigation -Wash ingron. D. C. 20535 May 9. 1990 MEMORANDUM TO ALL SPECIAL AGENTS IN CHARGE RE: RESPONDING TO CONGRESSIONAL REQUESTS The following guidelines are to be used when receiving requests for information from congressional sources. When a request for information is received from any congressional sourceI an interim response must immediately be prepared and mailed to the inquirer prior to forwarding the request to FBIHQ. This interim response should only acknowledge .. receipt of the _inquiry .and state that the inquiry is being forwarded to FBIHQ for response A copy of the interim response should be attached to the request when forwarded to FBIHQ and information of sufficient detail must be provided so that an appropriate response may be prepared. The inquiry also should be placed on record and indexed for future reference. Inquiries forwarded to FBIHQ should be directed to the Congressional Affairs Office. In situations where the inquiry can be handled by your office. no interim response is required, provided a final response can be forwarded to the congressional source within three days. A copy of the inquiry and your final response should expeditiously be sent to FBIHQ. Any questions regarding a congressional inquiry should be directed to the Congressional Affairs Office. The contents of this memorandum should be brought to the attention of all employees in your office. I cannot overemphasize the imp_ortance of a prompt_ response to? congressional matters. Appropriate manual changes to follow. . I i an ?1990 FBI new Haw-1N 2 William 3. Sessions 1 Director -9-?90 4/ EMORANDUM 12?90