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Overview
The author draws on his experience both as principal consultant for the Police Foundation's research on FBI intelligence operations and as head of the Church committee's congressional staff task force on domestic intelligence. He examines the changes made in the structure and policy framework for FBI intelligence operations, including issues not fully resolved by reorganization and new guidelines. He also covers the standards and procedures for dealing with misconduct by FBI personnel.
Dr. Elliff concludes that the present restrictions on FBI activities are necessary and that close supervision and control by the Attorney General will allow the Bureau to operate effectively without depriving law-abiding persons of their privacy or their freedom.
Originally published in 1979.
The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.
Product Details
| ISBN-13: | 9780691637822 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 04/19/2016 |
| Series: | Princeton Legacy Library , #1228 |
| Pages: | 262 |
| Product dimensions: | 6.30(w) x 9.30(h) x 1.10(d) |
Read an Excerpt
The Reform of FBI Intelligence Operations
By John T. Elliff
PRINCETON UNIVERSITY PRESS
Copyright © 1979 Princeton University PressAll rights reserved.
ISBN: 978-0-691-07607-2
CHAPTER 1
Introduction: The Reform of FBI Intelligence
The Federal Bureau of Investigation underwent significant change during the 1970s. After Director J. Edgar Hoover's death in 1972 and the constitutional crisis of Watergate, revelations of abuses of power tarnished its public image. For the first time in fifty years there were credible allegations of illegality in the FBI. While these painful disclosures took place, Director Clarence M. Kelley began reconsidering the Bureau's traditional investigative priorities and administrative practices. Congressional committees and the Attorney General looked into the FBI's secret past and sought ways to hold it accountable in the future. These efforts focused, to a great extent, on the Bureau's role as an intelligence agency. Some of the most highly publicized abuses and alleged violations of the law had occurred as part of FBI operations to protect the nation's security. In response, there were major reforms to ensure that privacy and freedom would be protected and legitimate public interests served by FBI intelligence programs.
This study of FBI intelligence operations describes how these reforms emerged, and what their impact was. The general aim is to contribute to a more systematic understanding of the FBI's domestic security and foreign counterintelligence functions, and how they may be carried out in a manner consistent with constitutional requirements.
The Problems
FBI intelligence operations pose difficult problems for a nation committed to constitutional government and the rule of law. We live in a world where acts of terrorist violence and foreign espionage are considered serious present dangers to the security of the United States. Yet post-Watergate disclosures demonstrated the great risks in giving an agency such as the FBI unlimited authority to conduct intelligence activities against terrorists and spies.
Charges that the White House misused the FBI and other U.S. intelligence agencies played a central part in the events leading to President Nixon's resignation in 1974. The House Judiciary Committee's second article of impeachment cited as abuses of presidential power certain FBI wiretaps and other investigations authorized by the President and his aides, the concealment of wiretap records, the attempt to have the CIA curtail the FBI's investigation of the Watergate break-in, and the use of intelligence resources against the President's partisan opponents. After serving as special prosecutor, Archibald Cox attributed many of the events leading to the Watergate scandal to "a neurotic passion for spying as a means of ensuring loyalty and coping with supposed threats to domestic security." A prime example was the so-called "Huston plan" developed in 1970 for the use of illegal surveillance techniques against Americans.
Similar activities had occurred under previous administrations. Army intelligence surveillance of civilian political activity grew dramatically in the last years of the Johnson Administration, although it was cut back after public exposure in the early 1970s. Later, as a byproduct of the Watergate investigations, reports surfaced that the FBI had committed burglaries before 1966, that journalists were wiretapped during the Kennedy Administration, and that President Johnson ordered an FBI check of vice-presidential candidate Spiro Agnew's phone records during the 1968 campaign. Following President Nixon's resignation, Attorney General William Saxbe issued a report on a 15-year FBI domestic counterintelligence program labeled COINTELPRO, carried out at least until 1971, to disrupt dissident groups and discredit Americans using tactics Saxbe described as "abhorrent in a free society." Shortly thereafter, major newspapers reported that the CIA had conducted surveillance of Americans in the United States, in violation of its charter, and that the FBI had spied upon political activities at the 1964 Democratic National Convention for the Johnson White House.
Watergate unleashed a torrent of revelations about questionable FBI intelligence activities, going far beyond abuses tied to the Nixon Administration. In his first appearance before a congressional committee after taking office in 1975, Attorney General Edward H. Levi confirmed the existence of previously undisclosed files maintained by former Director J. Edgar Hoover and containing derogatory information on public figures. Levi also presented the results of an inquiry by outgoing Deputy Attorney General Laurence Silberman and the FBI Inspection Division into misuse of the Bureau to gather political intelligence for administrations of both parties and to discredit the FBI's critics.
In reaction to these disclosures, Congress and the legal profession began looking more closely at the FBI, particularly at its internal security operations. Select Committees of the House and Senate included FBI abuses in their investigations of intelligence activities, and the House Judiciary Committee asked the General Accounting Office (GAO) to review FBI domestic intelligence policies and procedures. The American Bar Association set up a Special Committee to Study Federal Law Enforcement Agencies. Within the Justice Department, Attorney General Levi established a committee to draw up guidelines for FBI investigations.
The FBI, under Director Clarence M. Kelley, worked with the Attorney General and with congressional investigators to assess what had gone wrong in the past and what should be done in the future. The new revelations were sometimes shocking, especially the details of FBI efforts to "neutralize" Dr. Martin Luther King, Jr., as an effective civil rights leader during the 1960s. Former top officials of the FBI and CIA had acted on the assumption that they could disregard the normal legal rights of domestic groups because their work was so important to the national security that they were not governed by legal and constitutional standards applying to the rest of the law enforcement community. They made this claim in defense of opening mail, breaking into homes and offices without a warrant, and using what the Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities (the Church committee) found to be "dangerous and degrading tactics" to disrupt and discredit lawful domestic political activities of Americans.
Even after the congressional committees issued their reports and Attorney General Levi adopted his first FBI guidelines in 1976, Director Kelley discovered that some of his subordinates had "deceived" him by not revealing FBI break-ins that had taken place in 1972-1973. This information triggered still another inquiry — a criminal investigation by the Justice Department leading to indictments of former FBI officials in 1977-1978. Director Kelley summed up the problems in a landmark address at Westminster College in May 1976. Admitting that some FBI activities had been "clearly wrong and quite indefensible," he declared that the Bureau should never again occupy the "unique position that permitted improper activity without accountability."
The Reforms
Accountability was the key to the efforts to bring FBI intelligence activities within the rule of law. Briefly, what happened was that FBI internal security operations were subjected to formal guidelines, procedures were established for regular oversight by the Attorney General, the foreign and domestic sides of the Bureau's intelligence work were sharply divided, and FBI agents discovered that their use of illegal methods risked criminal prosecution.
Before the Attorney General's guidelines were issued, the source of the Bureau's legal authority was obscure, and the legal restrictions applying to intelligence operations were unclear. J. Edgar Hoover assumed he had broad authority from the President, going back to directives from Franklin D. Roosevelt in the 1930s, for conducting intelligence operations against "subversive activities" in the United States. The scope of that authority was never adequately defined, the practical meaning of "subversion" varied according to the political climate of the times, and the Attorney General's role in supervising the FBI was uncertain because the FBI director's mandate came directly from the President. As for legal restraints on intelligence techniques, neither Congress nor the courts had fully addressed the issues; the interpretations by successive Attorneys General were incomplete and often contradictory.
Attorney General Levi did not have to start from scratch in clarifying the legal standards for FBI intelligence. The Supreme Court already had laid down some basic principles in the pioneering Keith case in 1972, which ruled unconstitutional the use of electronic surveillance without a judicial warrant in a "domestic security" investigation of persons suspected of sabotaging a CIA office in Ann Arbor, Michigan, to protest the Vietnam War.
The first principle was that the Constitution and the law applied to intelligence activities. FBI officials had believed for many years that legal standards did not govern collecting intelligence if the information was not used in a criminal prosecution. The operating premise was that, so long as the government was not gathering evidence for prosecution, its intelligence techniques need not adhere to constitutional requirements. The Supreme Court clearly rejected this distinction: "Official surveillance whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy and speech." There was no exception to basic constitutional standards for intelligence activities.
The second principle set forth in the Keith opinion was that domestic security investigations might differ in some significant respects from investigations of "ordinary crime." The Court said that, because intelligence gathering about domestic violence emphasizes "the prevention of unlawful activity," its focus "may be less precise than that directed against more conventional types of crime." The Court went so far as to suggest that Congress could adopt more flexible standards for judicial warrants in domestic security cases than for regular criminal investigations, and that Fourth Amendment standards could vary, so long as they were "reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens."
The third principle suggested in Keith was that, while domestic security investigations must satisfy such requirements as a prior judicial warrant for electronic surveillance, the Constitution might allow other procedures where foreign powers or their agents are involved. The Court specifically refused to express an opinion on whether a warrant was required in cases "where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers." It noted, however, that lower federal courts and the American Bar Association held the view that such warrantless surveillance "may be constitutional." Thus, in the area of foreign counterintelligence, the Supreme Court clarified very little. It did not resolve the question of whether the President had the constitutional power, as several lower courts have held, to authorize warrantless electronic surveillance of foreign agents. Nor did it say where to draw the line between foreign and domestic intelligence. These became the most troublesome issues for Attorney General Levi and his successor, Attorney General Griffin B. Bell.
The fourth and final principle was a warning expressed throughout the Court's opinion that intelligence operations conducted in the name of national security need careful control because of their proven danger to the rights of Americans: National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. ... History abundantly documents the tendency of Government — however benevolent and benign its motives — to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. ... The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.
The Supreme Court's interpretation of the legal principles applying to intelligence activities supported FBI reforms. It supplied not only constitutional standards for the development of FBI domestic security guidelines, but also a legal basis for the criminal investigation of possible civil rights violations by FBI officials in connection with warrantless searches for domestic security purposes. The investigation of FBI breakins made clear that FBI officials could no longer disregard legality, except at the risk of prosecution under the federal civil rights statutes.
As for the Attorney General's guidelines, in accordance with the Keith principles they treated FBI domestic security investigations separately from FBI foreign intelligence collection and foreign counterintelligence investigations. Domestic security investigations (not involving foreign powers or their agents) were linked closely to law enforcement standards. Subsequently, this separation took a tangible form when Director Kelley shifted supervision of domestic security cases from the FBI Intelligence Division to the Criminal Investigative Division in mid-1976.
Clarifying the sources of the FBI's intelligence authority was more difficult because the best solution, a new legislative charter, could not be enacted overnight. By basing domestic security investigations on the likelihood of federal law violations, the Attorney General could invoke his broad statutory authority to appoint officials "to detect and prosecute crimes against the United States." However, Director Kelley told the Senate Intelligence Committee that the guidelines did not "in any manner diminish the need for legislation" defining FBI jurisdiction in the domestic security and intelligence fields.
FBI foreign counterintelligence investigations posed a different problem, because they were not as closely tied to criminal activity. In theory, such investigations could rely on a statutory provision authorizing "such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General." But Congress nowhere defined these official matters, and the legislative history of the provision was obscure, if not completely unintelligible.
To resolve this problem, legal authority for FBI foreign counterintelligence was specifically included in Executive Orders on U.S. foreign intelligence activities. President Ford's Executive Order 11905 issued in 1976 asserted an inherent presidential authority under the Constitution; it directed the FBI to prevent as well as detect certain activities of foreign powers; and it retained the traditional catch-all term "subversion" as one of those activities. The greatest advantage of the new Executive Order over the old presidential directives going back to Roosevelt was that it required the FBI to operate "under the supervision of the Attorney General and pursuant to such regulations as the Attorney General may establish." The Attorney General was specifically ordered to "issue guidelines relating to the activities of the Federal Bureau of Investigation in the areas of foreign intelligence and counterintelligence." President Carter's superseding order in 1978 gave the Attorney General "sole authority to issue and revise procedures" for FBI foreign intelligence and counterintelligence activities. The Carter order dropped the term "subversion," substituting instead a counterintelligence mandate "to protect against espionage and other clandestine intelligence activities ... conducted for or on behalf of foreign powers, organizations or persons."
(Continues...)
Excerpted from The Reform of FBI Intelligence Operations by John T. Elliff. Copyright © 1979 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- Frontmatter, pg. i
- Contents, pg. v
- Preface, pg. ix
- CHAPTER I Introduction: The Reform of FBI Intelligence, pg. 1
- CHAPTER II The Policy Debate, pg. 14
- CHAPTER III Development of the Attorney General's Guidelines, pg. 37
- CHAPTER IV Reorganization of FBI Domestic Security Operations, pg. 77
- CHAPTER V Domestic Security and Terrorism Investigations, pg. 103
- CHAPTER VI Foreign Counterintelligence Investigations, pg. 133
- CHAPTER VII Professional Responsibility, pg. 160
- CHAPTER VIII Conclusion, pg. 189
- APPENDIX I Attorney General's Guidelines for FBI Domestic Security Investigations, March 10, 1976, pg. 196
- APPENDIX II Attorney General's Guidelines for FBI Reporting on Civil Disorders and Demonstrations Involving a Federal Interest, March 10, 1976, pg. 203
- APPENDIX III Draft Attorney General's Guidelines for FBI White House Personnel Security and Background Investigations, March 10, 1976, pg. 210
- APPENDIX IV Attorney General's Guidelines for FBI Use of Informants in Domestic Security, Organized Crime, and Other Criminal Investigations, December 15, 1976, pg. 215
- Abbreviations, pg. 221
- Notes, pg. 223
- Selected Bibliography, pg. 235
- Index of Names, pg. 241
- General Index, pg. 243