Transcript of 124-10179-10220.pdf

================================================== Page 1 ================================================== File # l22_#o-ilk315 Serial Scope: Ef 0312 8OSE2 DnaZr TF OF7 Zel JZSi TZSST CSSTSF ZF FTSF 4LL3CZ1Z LLOS EZEELY FFFCUF F Di1lZDZS NW#78j81610 DocId: 32989541 ================================================== Page 2 ================================================== INQUIRY # 1 NW# : 88608 DocId: 32989541 ================================================== Page 3 ================================================== H} Felt Mr. Bcbet Mr, Callaban UNI STATES DEPARTMENT OF USTICE Ms. Cleveland M Conrad Yx. Mctmteldl M: Ger cdt WASHINGTON, D.C 20530 Mr. Hcib M. lonb:3g Mr Marstall MI Milie: 6S. Addreae Rcply to thc July 20, 1973 M: 8 Tc Divizion Indicated B. Tbompson and Refcr to Initials and Number MI 0 675 Tele m Mi. Bcrice 3 M. Barpes Mr. Bowers Nx. Herington Hr. Cmmy MEMORANDUM FOR: Mr _ Clarence M: Kelley Mr. Mi: ; 2 8 ~Director FBI Mrc Eudloz FROM: William D_ Ruckelshaus ( 8 SUBJECT: Substantive _Issues Regarding the Future of the FBI T,#I, Pursuant to our conversation earlier this week, I hereby submit & list of issues that will undoubtedly be coming up from time to time regarding the present and future status of the FBI This list is by no means exhaustive, but is a gcod starting from which to go forward and come to grips with many of the problems that will have to be addressed in the near future in one form or another_ The list, in no particular order, is as follows: 1. Wiretaps. The whole question 0f wiretaps should be 2 1 4 : reviewed with a view toward developing & firm Department-wide ~ policy on the issues involved. 4 1 {~ 2 _ The issue of whether the function Oi intelligence gathering 7 * should be separated from the' law_enforcement function of the_FBL [ This issue should be studied with particular reference to those cquntries which have adopted this division and a clear analysis of 8 the pros and cons developed. From this analysis again should fWow & clear policy _ 3 _ The Statutory basis for the FBIs Intelligence gathering 1 functions Is there axy statutory basis ? Is the whole function based on Presidential and Attorney General directives ? Should a irn374. statutory basis be sought ? REC58 tmusrn Laaca 18 AUG 8 1973 XERQ-Kis document i8 prepdredEin Qazpomse to request and is not fpr dissenir outside %or" Commsttee} Its %8e 1 _Jmmtad to of)eciwt proceedlings by: RUC Iglitc c Cmmittee and the_contentr SLnukhe Disclosed to wnqathorized JMAUG2 nel without the eapiess approval of the FjBI 270 NW# : 88,608 0 'DooIdt3298934Q<- 7- 27 73 ~ Hojon 2 point f 'ExCLOSURE EXl0; "your 249426 "person- ================================================== Page 4 ================================================== 4_ Should the FBI Director be appointed for & term of years ? (All the issues surrcunding the appointment and tenure of the Director should be explored. ) 5_ Should the FBI be an independent agency or continue aS of the Justice Department ? The pros and cons of this recurrent question should be analyzed again with the purpose 0f adopting & firm policy_ 6 _ Assuming the FBI remains a of the Justice Department , what should be the relationship of the Director to the Attorney General ? All the organizational and substantive relationships should be examined Investigative techniques. The whole question of the variety of techniques from clearly legal to clearly illegal should be examined in some detail. In addition, the question of authorization and Congressional oversight should be touched upon in this examination: 8, The whole question of files and their disclosure must be studied with a view toward understanding why files are kept, what categories of files there are 9 what information is contained in the files and whether the purposes for maintaining files are being met under present policy. In the issue of disclosure, when, where, and to whom must also be thoroughly examined. 9_ The question of & Civilian Review Board for the intelligence gathering activities of the FBI should be examined: This i8 & recurrent suggestion which came up at the Princeton conference in addition to other forums_ 10_ What should be the relationship between the FBI and the other Departments and Agencies of the Federal Government ? To what extent should the FBI keep tabs o other Departments and Agencies through the development of sources &nd informants in those Agencies ? 1l_ Should the FBI have fdreign_officers reporting directly to the Director This list is not exhaustive 2 but should uS started toward an indepth examination of some of the problems facing the Bureau in the future. WDR:fhm "2 NW#; 88608 DocId:32989541 part part get ================================================== Page 5 ================================================== INQUIRY # 2 NW# : 88608 DocId: 32989541 ================================================== Page 6 ================================================== 3 Hr_ William D_ Ruckelshaus The Deputy Attorney General Designate August 24, 1973 Director FBI Spcerits Tur'Eduf,0 " 1 7 Mr _ Mintz 1 - Mr . Ea S _ Miller SCOPE QF FBI JURISDICTION 1 ~ Mr . T. J . Smith AND AUTHORITY IN DOMESTIC INTELLIGENCE INVESTIGATIONS Reference is made to my memorandum to the Attorney General August 7 _ 1973 , captioned aS above_ which among other things proposed that an Executive order be issued which would define FBI responsibilities concerning Federal statutes relating to the national security _ memorandum made reference to new guidelines recently issued in manual form and to a study which was prepared in August, 1972 , at the request of Acting Director L. Patrick Gray, II_ On August 15, 1973 2 Mr_ Jack Coldklang Office of Legal Counsel, Department of Justice, called Mr _ Nicholas P_ Callahan 's office and referred to the guidelines &nd study mentioned above . He said that these documents are likely to be pertinent to his analysis of the proposal set forth in my memorandum and he asked that the two documents be made available to him _ For your information, the guidelines referred to are the recently revised Section 87 of our Manual of Instructions concerning Investigations of Subversive Organizations and Individuals_ As you know our Manual of Instructions has not heretofore been disseminated outside the FBI , although this particular Section (87) was Ioaned to the Department for study recently in connection writh a request mader 077Z554 512 of the Department by Senator Edward M. Kennedy QEc-T 1 Assoc. Dir. AUG 28 1973 Asst. Dir-: EX-103 Admin. The study made in August , 1972 _ for tir Gray was Comp. Syst: J Yadeerrt Filcs & Com_ written &nd intenaed purely for in-house use and deliberations ana Gen: Inv. was not prepared for purposes of dissemination or use any agency Ident. Inspcction ojitside the FBly;d ,J> Intell. 4 Loboratory 3 Plan. & Evol. TJS:bjr (6) % SEE NOTE PAGE TWO Spcc. Inv: Training Cogal Soun: 'vis ooiment ia-Fepared ingresponse to "0ZziGical and is not for dicsemiz Corr. & Crm. asior|-outside Aour Comn bee. Its %se % %nat proceellings by Research cyq2ur; bwttee and the coktent ma mut be disclosed to unauthorized persor off: 7 Auc 'Ied ~bathout the express approval of the FBI Tclophono Rm, or MAIL ROOM TELETYPE UNIT Nilio 88608 Docrd:32989541 My 4 by 1 MAILED 1973 27 aug Cong. Prcss ================================================== Page 7 ================================================== Mr _ William D_ Ruckelshaus The Deputy Attorney General La Designate However , we recognize that these two documents may assist the Department in analyzing our proposal concerning the igsuance of an Executive order and therefore I am enclosing a copy Of the two documents requested by Mr Goldklang _ We request that these documents not be disseminated outside the Department of Justice; that the documents not be duplicated Or photographed; and that, if possible, they be returned to the FBI &fter they have served their purpose _ I you, or members of your staff feel that additional infor- mation would clarify our proposal, it is suggested that consideration be given to arranging conferences between members of your staff and the FBI officials in the Intelligence Division and our Legal Counsel's Office who heve conducted considerable research into the matter Enclosures L 2 NOTE: See memo T, J. Smith to Mr E_ 8 _ Miller dated 8/23/73 , captioned as above, prepared by TJS: bjr . NW# : 88608 DocId: 32989541 ================================================== Page 8 ================================================== ISSUE : Should the Intelligence Gathering-Fuction cf the FBI Be Separated From the Lalv Enforccnent Function of the FBI? Note that the issue , as originally raised, referrea to law enforcement and intelligence functions: What was meant intelligence was the missions of internal security ana counterintelligence Criminal' intelligence, e.9 . against organized`" crime was intended to fall within the iaw enforce- ment mission However , the functions of the FBI do not neatly fall Wwithin "intelligence " and "law enforcement" categories Internal security cases are both intelligerce and law enforce- ment operations and counterintelligence sometimes involves arrests and prosecutiona 1.e, / law enforcement To most accurately reflect the diverse missions of the FBI the terms law enforcement , intexnal security, and counterintelligence will be used throughout this paper Preface 1 The Problem: revolves around the question whether the three missions can be accommodated by one agency_ That is, Ere tb?; 22 4istinc+ in n2+"re +h?+ a1 Organizationai wirmo- ture set up to perform one of the missions absolutely cannot perform the others; or can all three Iissions be accommodated but only to the detriment of the others; or can all the missiozs be adequately performed by one agency? 2 _ The Present Policy: is that al1 three missions are per- formed by the FBI The FBI organizational structure is marily a unitary cne , 1.e there is one organization with a multiplicity 0f responsibilities, which can be broken down into three general missions law enforcement internal secu- rity (domestic) and C ~unterintelligence (foreign) The organization S personnel are hired and catalogued into one of three general functional categories 1 agent_ steno and to a lesser degree , clerks 1 without further differentiation basez on mission 1 1.e no employees , with rare exceptions_ { are criminal or counterintelligence specialists , all are gener- alists and are regularly interchanged among the three general missions The adninistration of cases at headquarters and , to a lesser extent , the conduct Qf investigations in the fielc follow the same format in all three general areas of responsi- bility. 1 NW# : 88608 DocId: 32989541 by Pri- ================================================== Page 9 ================================================== The underlying rationale for and history behind , these concepts is: Personnel the generalist allows for a highly flexible mobile force which can be deployed_ generally solely on the basis of manpower needs 1 1.e _ any agent can do any job in the FBI _ There are some exceptions ; some employees have unique abilities which tend to make them less mobile in the eyes of administrators , e g . Janguage or technical factors in the case of agent depioyment and promotion ; they are more determinative in cases of clerks : special enployees , translators , etc. Administration of cases and conduct of investicetic: these were originally geared to accommodate 2 relatively fem criminal and civil investigative matters and as the responsi- bilities of the organization grew they were modified and ad2ztez, within the unitary structure to accommodate the various missions Thus are quite similar in all three missiors 3 The Issues Raised: a. Are the missions of law enforcement, internal security, and counterintelligence separable? b_ If sO , i8 complete separation pogsible , practical or politically feasible or desirab]e? C_ Can the three missions be accommodatea in one organization? d By doing SO , do any of the missions suffer? If al1 three missions can be accommodated in one agency , is the FBI currently doing it tne best way possible? f_ If not , is it practically or politically feesi- ble or desirable to change the FBI ' s way of ~es- forming the mission? 9 are other Western intelligence services separate from law enforcement agencies? N# : 88608 DocId: 32989541 ' i they Why ================================================== Page 10 ================================================== 4 Options for Future Policy: The missions of law enforcement , internal security, and counterintelligence are separate , distinct and distinguishable functions 1 even though each partakes a little of each other Law enforcement is investigation after a crime has been _committea to identify suspects and build a case for prosecution; counter- intelligence is the identification penetration and neutralization of foreign intelligence activity in the U _ S . ; and internal security is identification and thwarting of home-grown plots to subvert the government and activities within the U S _ in illegal support of foreign causes whether U , S _ citizens of foreigners_ The missions overlap to some degree_ For example_ law enforcemen: requires some intelligence collection , and is intimately concerned with internal security criminal acts , e.9. , foreign related terrorist bombings _ 1 skyjackings gunning , and subversive groups kidnappings, bank robberies bombings , etc_ Counterintelligence sometimes results in criminal prosecution 1 and some internal security groups are funded and act on behalf of 1 foreign intelligence services Internal security is 2 tyb-iz; sk2 -22if fcr itc investigaticn 18 +ha+ an+c no]{+ica]J: motivated are being conmitted in violation of the U S _ criminal law Yet , the investigation maf be a continuing effozt, based on continuing acts threatening the internal security Without actually violating the criminal law and thus the investi- gation is more like a counterintelligence investigation than like the typical lw enforcement closed cycle of crime { investigatid and prosecution While counterintelligence could adequately , and with; more success in some cases be handled by an organization totally separate from one with law enforcement powers internal security work , in many cases , is directly related to crininal prosecution There has been little effort, and lesa success , in most English speaking Western democracies in prosecuting domestic Ii subversives " even those with foreign ties; honever , prosecution is often a principal if not primary , objective in cases involving emigre bombing and harassment of foreign diplomatic establishments_ 1 fund and arms procurement for foreign political groups politically motivated te:rorist acts , e.9 . 1 skyjacking , etc. 3 N#: 88608 DocId: 32989541 by by , ================================================== Page 11 ================================================== An examination of the services of the democracies mentioned above viz Britian , Australia and Canada , reveal that all do distinguish betieen the pure law enforcement function and the counterintelligence/intcrnal security function; however 1 there is not a total separation of the functions For example , the British Security Service (MI-5) handles counterintelligence exclusively with MI-5 case officers , but places it' s internal security investigations in the hands of the Special Branches of the local constabularies (comparable to the intelligence divisions of local U_ S . police departments) The Australian Security Intelligence Organization (ASIo) 1 modeled after MI-5 1 and of recent vintage (post W.W.II) handles all counterintelligence and internal security investi- gation with its Own officers; however it is rivalled to some extent in the internal security field the Intelligence Bureau of the national Commonwealth Police The Royal Canadian Mounted Police 1 a truly national police force , with extensive local and Federal jurisdiction 1 has hranched: off its intelligence division into a ner near autonomous Security Service , with operational procedures more akin to MI-5 and ASIO than to traditional law enforcement_ In short, these countries recognize that the political, social and foreign policy considerations which nist Go into ccuntcrintelligence and internal security investi- gations make them a different animal from "routine criminal investigation; yel , also recognize that the agency Fith internal security jurisdiction must also have an intimate and close working relationship with a law enforcement agency . Complete separation , at least of the internal security function from law enforcement , does not appear to be lpractically feasible MI_5 and ASIO were originated without law enforcement pOwvers and MI-5 candidly admits it would like to become part of a national police force RCME_Security Service case officers would not consider surrendering their police powers Separation of the counterintelligence function would be more practically feasible; howvever the commingling of coun terintelligence ana internal security interests and the threat of a merger of the counterintelligence function with the positive foreign intelligence collection agency especially in the 0, S are both practical and Iticai reasons militating against this course 4 - NW#-: 88608 DocIdi32989541 by they Sensitive intelligENce; GN Forete SourcES po] ================================================== Page 12 ================================================== Separation of the internal security function also presents serious political considerations Internal security or as some say , at least in reference to its "subversive" investigations political intelligence , is the most controversial of government' s intelligence collection activities In the U S this function was originally given to the FBI which had established for itself a reputation for being responsible , competent and most importantly, politically neutral and had the confidence of most Americans It is recognized that this reputation is not etched in stone and that because of the diversity of peoples , political views 1 and activities tolerated in the U_ S . no internal security agency can using human judgement , attempt to fulfill its responsibility without offending someone , sometime 1 someplace It is to the advantage of an internal security agency , which is subjected to such political pressures _ to be somewhat insulated by being part 0f a larger , respected organization whick has a high profile as a competent and fair investigative agency in the less politically complex law enforcement and counterintelligence fields Adding to this insulation is the tradition of FBJ political independence ard iilc JICW Cunyfessiulai COlel wilil keepily tie rzi poiiiiluliy independent While the law enforcement and counterintelligence wings of the FBI dislike the controversies into which its internal security Wings drags the FBI name , separation of internal security into a separate agency would probably subject it to more intense political pressures 1 both from within the administration and without which pressures it might not be capable of withstarding _ Such separation appears politically unfeasible and undesirable Practical conslderations against divestiture 0f the coun terintelligence and internal security fuctions from the FBI are that: basic criminal investigative experience equips men in many areas to be intelligence officers; a pool of trained criminal investigators is available to the intelligence missions to draw from either on an ad hoc emergency basis e.9 seizure of an embassy or political kidnapping or skyjackizg, or as candidates for the position of intelligence officer; a divestiture might result in the loss to the counterintelligence and internal security wings of the effective use of the FBI nare., reputation 1 and contacts and sources built-up over years using the IBI name L 5 - NW# : 88608 DecId:32989541 ================================================== Page 13 ================================================== The RCMP has shown that al1 three missions can be' accommodated in one agency , although the distinctive character of each mission requires internal adjustments of policy, structure 1 administration 1 personnel considerations , and operations _ Implementation of adjustments within the FBI is being considered at this time based on above considerations , the FBI recommends eoasechentlli that three missions of law enforcement , internal security, and counterintelligence remain with the FBI. N#: 88608 DocId: 32989541 ================================================== Page 14 ================================================== Former Attorney General William D . Ruckelshaus ' memorandum 1 7/23/73 , to F . B . I. Director , Clarence M_ 0 Kelley, setting forth the 11 areas Of inquiry. NW# : 88608 DocId: 32989541 ================================================== Page 15 ================================================== 410399-+54 71FTISS 03 E93 10/2/75, jesting, intcz 4112, icb fror Varicg 45p0252 Or t3I trico cf Studie % #FI a% receat rotlons joougly E c5rc Orizinel of 7c;"p 38 Rixclindu? %rnr TverCing *0 cit% 4Cred ZU. 020721 Con} tOr Ycur ruCu-i;. NW# 8,3.608 DeeTd: 32989541 1086 by ================================================== Page 16 ================================================== SSC REQUEST OF 10/2/75 File Copy NW# : 88608 DocId: 32989541 ================================================== Page 17 ================================================== 1 - Mr Baker 1 T Mr . Mintz 1 4 Mr . E_ S _ Miller 1 - Mr. T.J. Smith fr . Willian D_ Ruckelshaus September 20 , 1973 The Deputy Attorney General Designate 1 - Mr . J. F. Miller Director FBI SUBSTANTIVE ISSUES REGARDING June t1Y 6 THE FUTURE OF THE FBI Tchwical Sueve'i llanc~ Genetv( Reference is made to your memorandum of August 20, 1973 , detailing 4 format to be followed in setting forth our responses t0 your memorandum of July 20 , 1973 , captioned "Substantive Issues Regarding the Future of tne FBI _ n Attacbed is an undated study 0f 17 pages with 8 five--page appendix captioned "Electronic Surveillance - " This study was prepared in response to your July 20 , 1973, request, prior to receipt of ycur format menorandum 0f August %0, 1973 _ The responses to most 0f the questions raised in your August 20 , 1973 , merorandum are contained in this study _ Rather than repeat points considered in this gtudy, it i8 attached and it is recommended it be read 1 to the attached paper dated September 1973 , written according to your suggested format. This second paper considers issues raised in your August 20 , 1973 , memorandum not discussed in our first study , e.g., "Options for Future Policy MI Attached to the September 14, 1973 , paper i8 a copy of 2 petition for rehearing in U.8 . V _ Ivanov ond a July 11, 1973 , memorandum concerning the Ivanov case to that date Thege attach- ments pertain to 2 discussion of foreign national security electronic surveillance in the September 14, 1973 , paper rnt+2s Irzy aiN RECZ c6 - 8/6 0 .3543 8 CAUTION: THE APPENDIX TO YEBUNDATS PAPER CAPTIONEE EuEG TRONC SURVEILLANCE 7 AND THE JULY 11, 1973 , MEMORANDUM ARE CLASSIFIED "SECRET , NO FOREIGN DISSEMINATIONINO DISSEMINATION ABROAD_ m SENT D. TIMB ERO}@: Xn C. Dir. EncloskEglosbed DATE 9-24-13 Dit : BY nt1- F^ Inin.- heAffait; JFM: SECRET MATERHE ATTAGHED 50 0$ & Com. (8) Inv_ NATIONAT-SECURITY nf ectisn NOTE: 3 Unauthotized Disclogure 024'cE "gK T12 Kubject to' Criminal Sanctions Poro 'tory n. & Evol The /above memorandum and enclosures are in response to the In Attorney General Ruckelshaus' memoranda 0f ,7/20 and 8/20/73 concern- ACoon FEBgubstornee Issues Regarding the Future of the FBI." These materials are 'pkono iruEe;8ngeto iSSHfypPU-er_one "Wiretaps . " 01 ctor Soc" "Ni#E88608 {bocrd: 32989541 T, 3133 i4, prior 8 Wvl 9 ilcjU 3918R19einbnx 43 3373 ================================================== Page 18 ================================================== ELECTRONIC SURVEILLANCE This docimeni is prepored in response to your-request and is not for "dissemi-: nition_outside %our . Commi tee_ 'Its use" i3 limited to officiat proceedings by. nur Committee and tiie conter: mal "iut be disclosed to' wnauthorized person: "adk-rzthout the `express approval of the FBI SECRET MATERIAL ATTACHED NW#: 88608 DocId: 329895 ENALOSUBE 66_ 8160_35/3 ================================================== Page 19 ================================================== TABLE OF CONTENTS Page I, Authorization 0f Consensual, Title III, and National Security Electronic Surveillances A, Consensual B, Title III C, National Security. II Background of Federal Electronic Surveillance Law III. National Security Electronic Surveillance_ A_ Domestic 1. The Keith Decision 2, Guidelines and Procedures Currently Used by the FBI and the Department of Justice in Determining Whether a Proposed National Security Electronic Surveillance Falls Within/Without the Keith Decision 3, Status 11 Bo Foreign _ 11 IV_ Value of National Security Electronic Surveillances 13 Domestic II Internal Security" Electronic Surveil- lance: Alternatives to Keith Prohibition 14 Appendix ~NW#+8-8608 DocId:32989541 V. ================================================== Page 20 ================================================== I AUTHORIZATION OF CONSENSUAL _ 1 TITLE III, AND NATIONAL SECURITY ELECTRONIC SURVEILLANCES The legal foundation for each of the above types of electronic surveillance differs and in part as a con- sequence of that, the administrative procedure for securing authorization to use each type differs_ 4 Consensual _ The current law is that as long as one party to a conversation whether over the telephone or in person , consents to 2 monitoring of that conversation by another or a recording of that conversation by another or by himself such a monitoring or recording is legal_ 1 and may be introduced into evidence in a legal proceeding. At present , the monitoring or recording of telephone conversations by the FBI with the consent of one of the parties , e.g. , via 3 device attached to the consenting party' s telephone or a monitoring via use of an extension telephone_ is authorized internally within the FBI by either a Special Agent in Charge I Or , if the case is "sensitive , by a Headquarters official generally the Director. On the other hand the present policy with regard to consensual monitoring of nontelephone conversations , e.g. , body or hidden recorders or transmitters is that the Attorney General must approve these in advance except in an emergency 1 at which time the Director (or someone designated by him) can approve then and then promptly notify the Attorney General The methoa of requesting Attorney General approval or Of notifying the Attorney General of the exercise of the emergency authorization is a memorandum to the Attorney General setting forth the identity .of the target, the background of the case, and the reason for the request or authorization Bo Title III These electronic surveillances are permitted: by act of Congress for the purpose of gathering evidence of enumerated crimes A requirement for the submission of an affidavit to a court Showing probable cause that a crime is being comitted and that evidence not obtainable otherwise can be obtained via the electronic surveillance is set NW# : 88608 DocId:32989541 ================================================== Page 21 ================================================== forth in the statute_ Current procedure is to submit to the Attorney General a copy of the affidavit the FBI proposes to submit to the court, with a cover memorandum setting forth the background of the case The affidavit has been workea out between FBI field personnel and the local United States or Strike Force attorney, and between FBI Headquarters personnel and Department of Justice attorneys before submission to the Attorney General_ The Attorney General either approves or disapproves proceeding With the application for court approval via a memorandum to the Director National_Security The continuous position of the Department of Justice and several Presidents has been that the President has the constitutional power to authorize warrantless electronic surveillances in the exercise of his Articles II and IV responsibilities conduct foreign affairs" and II to protect the States against invasion I This power has generally been exercised the Attorney General for the President. While not specifically approving this interpre- tation or intending to grant or restrict any powers along these Iines but rather as a declaration of noninterference Congress when it passed Title III, stated in 18 U,S.C . 2511(3) that nothing in Chapter 119 Title 18 0 of the U.S.C . or in Sectioz 605 0f the Federal Communications Act of 1934 limited the con- stitutional powers of the President (whatever they might be) to authorize electronic surveillance: (1) to protect the Nation against actual or potential attack or other hostile acts of 2 foreign power; (2) to obtain foreign intelligence information deemed essential to the security of the United States ; (3) to protect national security information against foreign intelligence activities; (4) to protect the United States against the over- throw of the Government by force or other unlawful means ; (5) (to protect) against any other clear and present danger to the structure or existence of the Government. In United States versus U.S . District Court for the Eastern District of Michigan (407 U.S. 297) I commonly called the Keith case after Judge Damon Keith, the Supreme Court hela that the President did not have the power to authorize warrant- less electronic surveillance directed against purely donestic organizations (and their members) The Court stated that the issue in Keith fell within the language of categories 4 and '2 NW#+88608- DocId:32989541 "to by ================================================== Page 22 ================================================== 5 , as above , of 18 U.S.C. 2511(3) ana that it was not deciding On cases_ involving individuals or organizations that had a 4 "significant connection with a foreign power Consequently, since Keith_ the only requests for national security warrantless electronic surveillance referred to the Attorney General for approval involve individuals or M organizations with a "significant connection with a foreign power The procedure for submitting these requests is uniform_ The Director submits to the Attorney General a memorandum reguesting approval for initiation or continuation of an electronic surveillance on a particular individual or organizaticz; an attachment which is a summary of background information and the circumstances on which the request is based ; and 3 memoranaur from the Attorney General to the Director approving the electronic surveillance based on , and in the language of one or more Of categories 1 L 3 of 18 U.S.C . 2511(3) If the Attorney General approves the electronic surveillance , he signs and returns this latter memorandum and keeps for his records a copy of the Director 1 S memorandum to him and a copy of the attached summary 3 - NW# : 88608 DocId: 32989541 ================================================== Page 23 ================================================== II, BACKGROUND OF FEDERAL ELECTRONIC SURVEILLANCE LAW The term electronic surveillance encompasses both wiretapping (tap) , i.e_ the interception of a telephone conversation by a third party , and microphone surveillance (bug) i.e_ the interception of a nontelephone conversation means of a microphone which can lead either to 2 recorder or merely transmit the conversation to a third party, or both_ Both wiretapping and microphone surveillance can be conducted with or without the knowledge and consent of the parties to the conversation Consensual monitoring , i.e., tapping or bugging with the consent of one of the parties to the conversation , has generally been held to be legal , and is not considered in the following qiscussion_ The separate development of the law pertaining to wiretapping and microphone surveillance is , since passage of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Keith decision , apparently 0f historical interest only. Prior to Title III and Keith, the law that developed around electronic surveillances concerned itself primarily with the admissibility of evidence obtained from electronic surveillances rather than with the basic issue of the "legality I1 of electronic surveillance itself Evidence , or evidence obtained from leads_ 1 gathered via Wiretapping was excluded from any criminal prosecution on the basis that pre- sentation of such evidence was a "disclosure I prohibited by Section 605 of the Federal Communications Act; and evidence , or evidence obtained from leads gathered via a microphore surveil- lance or a wiretap was excluded if it was determined the instal- T lation required a "trespass and was thus an unlawful search ana seizure_ (These decisions often turned on technicalities such as minimal physical penetration by 3 "1 'spike mike_ ") Title III established the Congressional intention that electronic surveillance, under specific conditions is to be lawful and the evidence obtained therefrom admissible. Title III also , while not conferring any statutory authority on the President , indirectly recognized that he was authorizing warrantless electronic surveillances in matters ~4 - NW#+88608- ~Doc Td+ 329895.41 ~ by ================================================== Page 24 ================================================== affecting national security, and stated that Title III or Section 605 of the Federal Communications Act did not affect any such powers. he might have . Title III did not distinguish between wiretaps and microphone surveillances, and court decisions since Title III involving both criminal and national security matters seem to be drifting away from the artificial bases that distinguished these electronic surveillances in the past and are looking at the real issue of governmental powvers versus Fourth Amendment rights and the right to privacy. The requirement of prior judicial review the element on which Keith turned , is a new factor in judicial consideration of electronic surveillances , introduced by Title III 5 NW#:88608_ DocId:32989541_ ================================================== Page 25 ================================================== III. NATIONAL SECURITY ELECTRONIC SURVEILLANCE Domestic The Keith Decision The case originated as U.S _ versus Plamondon et al_ 7 and involved Federal prosecution of defendants accused of bombing the CIA office in Ann Arbor , Michigan in September 1968 _ Pursuant to 3 defense motion 1 Federal Government electronic surveillance records were checked and revealed Plamondon had been intercepted via a national security wiretap on the Black Panther Party office in Oakland; California Under current court procedure regarding national security electronic surveillances_ the Government is required to disclose to the court all interceptions; the judge then deternines whether the interception was legal or illegal If he finds it to be illegal he orders the prosecution to make available to the defense all the logs ana tapes pertaining to the interception so that the defense can deternine if any of the case against it is based on illegally obtained electronic surveillance evidence The trial Judge Damon Keith hela that the President had no power to authorize electronic surveillance of the Black Panther Party without prior judicial approval_ 1 i.e_ a warrant, that therefore the wiretap was illegal , and the prosecution had to turn the logs and tapes of the conversation over to the defense_ The Government appealed this decision to the Supreme Court, thus the case at that level was titled U.S _ versus U.S _ District Court for the Eastern District of Michigan , commonly called the Keith case. On June 19 _ 1972 , the Supreme Court affirmed Keith' s decision and hela that the President has no warrantless national security power to authorize electronic surveillance of domestic organizations (or their members) The Supreme Court defined a domestic organization as one having no "significant connection" with a foreign power, its agents or agencies _ NW# : 88608 DocId:32989541 ================================================== Page 26 ================================================== The Justice Department , in the words of Deputy Assistant Attorney General Kevin J . Maroney before the Senate Subcommittee on Administrative Practice and Procedure on June 29 , 1972 1 stated that it understands "significant connection " to mean that the domestic organization must be substantially financed bY , or in active collaboration with a foreign power for the purpose of committing unlawful activities against the United States Government _ 2 Guidelines and Procedures Currently Used by the FBI and the Department of Justice in Determining Nhether a Proposed National Security Electronic Surveillance Falls Within/Without the Keith Decision The Keith decision applies solely to a domestic organization (and its members "with no significant connection with a foreign power 0 The issues are what n constitute a "domestic organization and "significant W connection The Department of Justice has issued the FBI no formal oral or any written guidelines on these issues The reason is that the standard to be applied is a "facts and circumstances" test in each case in the light of the Supreme Court S language in the Keith case and the Department 0f Justice 1 s position as stated by Mr . Maroney before the Subcommittee_ The Supreme Court in Keith said that while it was "attempt (ing) no precise definition m the scope of its decision was limited to a "domestic organization composed of citizens of the United States which has no. significant connection with a foreign power it agents or agencies "1 The Court also recognized the difficulty in distinguishing "between 'domestic and foreign unlawful activities directed against the Government of the United States where there is collabora- tion in varying degrees between domestic groups or organizations and agents or agencies of a foreign power 4 The Subcommittee askea the Department of Justice what level of foreign dominance and control of 3 domestic group would be considered sufficient to bring the group into the area of foreign activities on which the Court has not ruled_ Maroney replied: NW#+-8-8608 DocId:32989541 yet ================================================== Page 27 ================================================== "The Keith decision has suggested 2 standard of 'significant connection with a foreign power , its agents or agencies _ We do not interpret this as meaning casual unrelated contacts and communications with foreign governments or agencies thereof. We woula not try to apply this standard without the presence of such factors as substantial financing' control by or active collaboration with a foreign government and agencies thereof in unlawful activities directed against the Government of the United States Obviously, such factors will be present in a very minimum number of situations (Emphasis added. ) "I wish to assure the (sub) Committee on behalf Of the Attorney General, that the Department of Justice accepts both the letter ana the spirit of the Court S ruling in the Keith case It is the intention of the Executive Branch to utilize electronic surveillance in present ana future national security matters in full and ungrudging application of the rationale of the decision_ Ji (Emphasis added. ) The FBI carried on an informal dialogue with the Department of Justice after the Keith decision in an attempt to establish some general guidelines in the abstract, but the discussions eventually came back to the above language , ana the conclusion that each case requires a facts and circum- stances test, ana an exercise of the independent judgment of the: Attorney General on the facts presented As a result, the FBI submitted some borderline cases , which it recognized as such , to the Attorney General in order to get a3 feeling of how he and the Department of Justice applied the above standard to specific fact situa- tions Some were approved_ some refused _ As a result the FBI feels it has a fairly clear idea of the outer limits , beyond which no electronic surveillance will be approvea. The lack of formal guidelines beyond the Court's language ana Maroney' s testimony presents no practical or administrative difficulty within the FBI _ As Maroney noted , the factors he related woula be present in a very minimum number of cases That is true_ Prior to Keith domestic national security electronic surveillances conducted by the FBI had been winding down for some time_ At the time of the Keith decision only six, four telephone and tio microphone , were in 8 - NW#: 88608- DocId:32989541 ================================================== Page 28 ================================================== effect_ The few cases in which are present some of the factors noted by Maroney are subjected to joint scrutiny by , and discussion between , FBI field and Headquarters supervisory personnel, and only after these feel the FBI may have a case does the field initiate the request, which must be personally approved by the field supervisor and the Special Agent in Charge Upon receipt, the Headquarters supervisor drafts a memorandum to the Attorney General, setting forth all pertinent facts , including those showing foreign involvement , on which the request is believed justified. He must also be able to justify the request in the language of one or more of the first three categories of 18 U.S.C. 2511(3) The' request is presented through channels (i.e Headquarters unit chief section chief , branch chief Assistant Director of the Intelligence Division { Associate Director, and Director) to the Attorney General who must make an independent judgment There are arguments pro and con that the lack of formal written guidelines pose an added threat to the Fourth Amendment rights or right to privacy of a domestic organization or individual The argument that it does pose an added threat Woxid seem to be based on the supposition that formal guidelines Ioula be exclusive and binding in all instances_ Any guidelines issued would probably be more illustrative of the above standard than definitive_ Formal written guidelines made available to the public might curtail criticism that we are operating without a definitive standard, however , they might also trigger criticism that they are too vague 1 not inter- pretive of the Court' s intent, etc. ; and should a case arise that does not fit squarely Within the guidelines but could possibly be justified on a broader standard , reasonably within the Court S language , we coula be criticized for not adhering to our Own guidelines Both career professionals in the FBI and Department of Justice attorneys review the electronic surveillance request for need 1 sufficiency, and legality. The Department of Justice_ has committed itself { and the FBI , to 'abiding bY the letter spirit, and rationale of the Keith decision (and has expanded upon the decision to the extent of Maroney s testimony) If legal action ensues whether criminal or civil, the courts in looking at the legality of a national security electronic surveillance are bound only by the Keith decision regardless f any Department of Justice guidelines In summary then , the procedure is: the FBI does not submit a request to the Attorney General for approval of an electronic surveillance upon a domestic organization composed of NW#88608 Doedd-32989541 ================================================== Page 29 ================================================== United States citizens unless it has a "significant connection" with a foreign power, its agents or agencies ; "significant connection Ti the FBI and the Department of Justice understana that the domestic organization must be substantially financed controlled by , or in active collaboration with such foreign power for the purposes of committing unlawful activities against the United States Government_ The FBI presents its request to tra Attorney General with all the facts and circumstances on which #22 request is_based, and he must exercise an independent judgment as to whether the request falls within this standard and the letter, spirit, and rationale of the Keith decision *****s**** Senator Kennedy has expressed concern in the past that a political appointee , the Attorney General rather than career professionals is the final authority on these matters _ This is a two-edged sword_ If the ultimate authority were non - public career professionals , there would be less response from them than from the appointee of an elected official to public pressure criticizing procedures and decisions On the other hand , the Attorney General' s decision could possibly be based more on personal political attitudes and motivation than on his interpretation of the law The present procedure attempts to meet both short- comings _ The Attorney General 'does not recommend or initiate electronic surveillance requests ; they are initiated and processed through several levels of career professionals who 22 each step judge whether the request falls within the standard The request is then sent to the Attorney General 1 Fho refers it to the Internal Security Section 1 Criminal Division , of the Department for its independent judgment before he makes the' ultimate decision Thus 1 any electronic surveillance request , i2 it makes it to the Attorney General, has already been approvea by the career professionals It is arguable that a career professional might be more cautious if he and his agency , bore the final authority an responsibility rather than passing both on to another agency There is no airtight response to this; it is a guestion of human motivation , sense of obligation and responsiblity_ The impulse to be less than diligent is countered by an employee 5 professionalism and career considerations #**#****** 10 NW#-88608 De ~Deetd3329895 by by ' by auty ================================================== Page 30 ================================================== 3. Status The President has n0 warrantless power to authorize purely domestic national security electronic surveillances He may have the power to subject domestic targets to electronic surveillance , but these electronic surveillances must be subjected to prior judicial review 1.e_ 1 a warrant, before installation Admissibility 0f evidence obtained from such electronic surveillances is a correlative question , not yet" directly considered_ Presumably, such evidence would be admissible_ B, Foreign The legality and admissibility of evidence issues have not yet been directly considered by the Supreme Court_ #1 The issue of "legali based on whether prior judicial review is required (key issue in Keith) was resolved in the Govern- ment' s favor by the United States District Court District of New Jersey , in United States versus Ivanov_ Following an ex parte in camera inspection of the surveillance logs the district court and argurent on the legality issue by the parties , the court sustained the authority of the Attorney General to acquire_foreign intelligence information warrantless electronic surveillance The United States Court of Appeals for the Third Circuit reversed and reranded , assuming arguendo , that the President did have such authority and that therefore any electrc:iz surveillances in the case were legal_ Further , the Appellate II Court felt it had to assure "in the present posture of the case, that the case was in fact built on electronic surveillance evidence_ Consequently , the Appellate Court held that since the case arose prior to Passage of Title III Section 605 0f the Federal Communications Act of 1934 applied_ and it prohibitea "divulging II 0f electronic surveillance results as evidence in court_ The issue of tke legality of foreign national security electronic surveillances is also currently under advisenent the United States Court 22 Appeals for the District 0f Colubia Circuit in the case of Cited States versus Enten In Keith the Supreme Court specizcally noted that two lower courts Ttke Fifth Circuit Court of Aepeals in United States versus Clay, 11 NW#-.88608 DocId:32989541 ty, by by by ================================================== Page 31 ================================================== 430 F.2a 165 (1970) and the United States District Court, Central District Of California in United States versus Smith 321 F _ Supp: 424 (1971) ) have held that "warrantless surveillance_ may be constitutional where foreign powers are involved It The argument that even foreign related electronic surveillances should be subject to initial judicial review is based on the argument that this is the only guaranteed method of protecting the Fourth Amendment rights and right to privacy of aliens 1 and United States citizens who might be involved _ The argument on the other side is that the nature and objective of the activity, viz. , foreign intelligence gathering 1 the needs of security, the many nonprosecutive factors to be considered 1 ana often the time element , do not lend themselves to effective or efficient initial judicial review; consequently, the Govern - ment must be granted a measure of confidence to utilize this technique on its own authority, with the safeguards of protectioz from conviction or the remedies of a civil action available to any target of an electronic surveillance 1 if the Government abuses this authority. This area is stiil in limbo , the same condition as prior to Title III ana Keith Until Ivanov and Enten or more iikely until a post Section 2511 (3) espionage case actually built on electronic surveillance evidence, are decided by the Supreme Court, the Government, to be safe must be willing to sacrifice a criminal prosecution to obtain electronic surveil- lance intelligence_ 12 Y NW# :88608- Decrd;32989541 ================================================== Page 32 ================================================== #' IV. VALUE OF NATIONAL SECURITY ELECTRONIC SURVEILLANCES (See classified Appendix) 13 _ NW#:88608 Doctd+32989541 ================================================== Page 33 ================================================== DOMESTIC 11 INTERNAL SECURITY" ELECTRONIC SURVEILLANCE : ALTERNATIVES TO KEITH PROHIBITION There are several elements within United States society which pose a threat to the safety and tranquility of segments of that society, e.9 . police officers _ 1 symbols of the "Establishment , " etc_ Whiie some of these elements claim to be "revolutionary" and claim as an ultimate objective the overthrow of the United States Government , there is no respon- Sible opinion that feels any of these elements have any chance of success in toppling the Covernment_ Yet, they do pose a significant threat of inflicting serious 1 and sometimes ex- tensive, damage on individuals and property. In combatting these elements , law enforcement i5 confronted with' the opposite 0f its usual task Ordinarily , law enforcement is confronted with a completed crime and investigates to identify suspects and to prove guilt; in these cases it has the suspects_ 1 e_ g . , individuals or groups have said they intend tc murder police officers bomb buildings etc_ So law enforcement' s job is then to thwart commission of the crime_ This is an intel- iigence_investigation It is conducted prior to a threatened criminal act, not after the act, and as such ranges wider and looks into more famcets of the suspect S behavior Yet, it is not a "fishing expedition " ; it is based on some solid indication that the suspect intends to, and has the capability of ,. commi tting some crime Because of the exaggerated rhetoric of many of these elements which never do actually commit a crime { the difficulties in identifying specific individuals as suspects 1 in showving a cause-effect relationship between the urgings and claims of group leaders and the act of the actual triggerman or bomber 1 and in showing suspected imminence of the criminal act, it is almost impossible to make a probable cause showing ( as we understand that term today to support a warrant for restricted types of investigation_ Essentially what law enforcement has , or dependirs on your emphasis _ all that la enforcement has is a suspicion 1 based on stated criminal objectives of these elements claims 0f criminal accomplishments and indications from behavior and attitudes that these elenents may engage in destructive criminal behavior sometime in the future. 14 Du NW# .88608 DocId:32989541 ================================================== Page 34 ================================================== Because these elements threaten and commit crimes in furtherance of their stated goal f overthrowing the United States Government 0 investigation of them has often proceeded on a "national security" basis; and because there is no practical immediate prospect of their accomplishing this goal the "nationai security" foundation for investigation of them has in many quarters 1 not been taken seriously and is often suspect because of the latitude that has been allowed in "national security" investigations as opposed to simple criminal investigations _ The difficulty is that these domestic "internal securit; cases lie somewhere between what is generally accepted as "natiora" security I matters and plain, simple criminal violations _ If one interprets national security to mean only matters which threaten the stability of the Government , either from within or without , then these cases are not national security matters ; yet, they pose a threat to the safety and tranquility of the community beyond individual incidents of crime, or even random sprees of criminal acts by an individual or group_ These cases also have some effect on national and international attitudes towards U,S . standards 1 morale government , law enforcement { and the elements involved , e.g. , "Why can t law enforcement protect society, and itself, against attacks" ; or "These people are victims of a repressive system and attack is their only effective avenue of M protest for change_ Consequently, law enforcement is confronted with a situation wherein it is threatened with criminal acts in further- ance of a claimed political goal_ 1 the mere condition of being So threatened often having an impact beyond a completed routine criminal act (although many of these threats are eventually carried out) ; yet, this condition is generally insufficient to show probable cause to justify a warrant for an electronic surveillance. Assuming that there is valuable intelligence to be obtained from electronic surveillance in these matters to be used in attempting to thwart these crimes 1 how can we fill the void createa by Keith? Title III has very limited value in this area Its stated purpose is to gather evidence of crimes that we have probable cause to believe are being or are about to committez. It iS doubtiul whether the threats of these elenents or even evidence of past attacks , would be sufficient probabie cause to support a continuing electronic surveillance with no specific criza 15 N#: 88608 DocId: 32989541 be , ================================================== Page 35 ================================================== in imediate view _ Title III could perhaps be used in some of thesa cases where the investigation has developed to a point where Fe co have probable cause for a specific crime but the probable cause would be momentary and would expire after the act or probability of the act. Title III also has limited value for continuing intelligence purposes because of its applicability only to specified crimes; the short time period (30 days per request) ; the reguirement that the target even tually be given notice and the results of the electronic surveillance (this can be postooned but not indefinitely) ; ana the number of people who could becone involved with and thus aware of a recurring monthly application to a court_ After the Keith decision , there Was extensive debate within the FBI and between the FBI and the Department of Justice on its effect, and how we could proceed , within the Keith restriction in cases where we felt there was a clear "internal security" (which went undefined) threat where electronic surveil- lance would be valuable It was accepted that Title III would be of minimal value because of the problems noted above Within the FBI it was also argued and finally accepted, that FRCrP 41, might be utilized to obtain a routine search warrant to install an electronic surveillance where Title III was inapplicable_ Assistant Attorney General Olson and Deputy Assistant Attorney General Maroney disagreed , feeling that Title III was intended to preempt all other methods of securing electronic surveillances , besides Presidentially approved surveillances The argument is largely theoretical_ FRCrP 41, like Title III, requires a showing of probable cause, So it like- wise is available only when specified criminal acts are believed to be going on or are imminent_ FRCrP 41 warrants must also be executed forthwith, and notice must be given to the target and he must be served with an inventory of the items seized Given a case which falls within both Title III and FRCrP 41, Title III procedures are preferable because they are less restrictive an more clear cut since they deal exclusively with electronic surveillances _ Title III is fairly broad in specifying the crimes for which electronic surveillances can be authorized under its sectiozs It is difficult to think of a threat to the internal security so significant that acts in furtherance 0f the threat would not involve criminal violations specified in Title III. Of course, the FBI Would be limited to basing its requests for electronic surveillances on Federal crimes enumerated in Title III 1 ana the 16 NW#,88608 DesId;32989541 7rto , k ================================================== Page 36 ================================================== threatened destructive acts might involve solely local offenses , e.g. murders of policemen _ Title III provides for local authorities to use electronic surveillances in such cases Even assuming that there was a case falling outside 0f Title III 1 but within FRCrP 41, the FBI is still limited to using search warrants obtained thereunder to seize evidence of Federal crimes ; if the threatened act is a local violation only FRCrP 41 is of no value to the FBI_ Without a showing of probable cause of an ongoing or imminent crime it is doubtful if either Title III or' FRCrP 41 could be used to secure an electronic surveillance It is belierez an ongoing intelligence-gathering electronic surveillance based on indications but not probable cause, that the target might engage in purely domestic criminal activity, for the purpose 0f thwarting that activity, no matter how potentially destructive , ~Will require enabling legislation_ Mr _ Maroney in his testimony before the Senate Subcomnittee on Administrative Practice ana Procedure stated that the Department 0f Justice was not requestizg such legislation at that time , but that if it became evident tha: a void clearly detrimental to United States security interests had been created Keith the Department of Justice will seek new legislation _ Chance for passage of such legislation at this time is probably nil< 17 N#: 88608 DocId: 32989541 by ================================================== Page 37 ================================================== SECRET NO , FOREIGN SSEMINATION/NO DISSEMIN ON ABROAD APPENDIX IV _ VALUE OF NATIONAL SECURITY ELECTRONIC SURVEILLANCES Aa Foreign Electronic surveillances provide positive intelligence regarding the positions and activities of foreign nations and thus are of value to United States Government policymakers and diplomats ana also provide information of assistance in our counterintelligence efforts against foreign intelligence services operating against the United States 1.. Positive Intelligence Examples of positive intelligence obtained via electronic surveillances not directly related to our counter- intelligence responsibility, are as follows : At 7:40 p . m. on August 20 , 1968 _ the New York Office N called Headquarters to inform that our wiretap on the Soviet Migsion to the United Nations was intercepting an inordinate amount of traffic approximately 40 intercepts in the preceding 30 minutes_ The Soviets were calling representatives of many of the delegations to the United Nations stating they had a message which they desired to deliver urgently , and woula meet the representatives anywhere , even on a street corner The Headquarters duty supervisor thought this activity might relate to a recentIy completed full plenum of the Suprene Soviet on the Czechoslovakian question , reported on the UPI ticker- He relayed this information to Mr Hoover , the White House Situation Room , and the State Department_ Classified by E. S . Miller Exempt from GDS , Category 2 , 3 Date of Declassification Indefinite SECRET NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD NATIONAL SECURITY INFORMATION 1 ~ Unauthorized Disclosure Subject to Criminal Sanctions NW4+-88608 eagrtty Deeld+329895,41 Sensitive Fereige intellicence operation ================================================== Page 38 ================================================== # SECRET NO FOREIGN SEMINATION/NO DISSEMINA 2N ABROAD 0 Later in the evening State. Department informed uS that Soviet Ambassador Dobrynin had visited the President that evening , left, and State was now urgently attempting to locate him. Via our wiretap on the Romanian Embassy we were able to inform State that Dobrynin was with the Romanian Ambassador at that time The first indicator the CIA received of abnormal activity regarding the Czechoslovakian question was a telephone call from Ehe White House Situation Room at 9 :30 P.I. , August 20 , 1968 _ The Soviet invasion of Czechoslovakia occurred August 20 , 1968 _ There was a great deal of intercept activity during the days following the invasion , which reflected on various governments positions and reactions This raw material was relayed as fast as it came in to the State Department and the White House Situation Room _ This example indicates the potential value of such intercepts in extreme national security emergencies directly affecting the United States , e.9. , by indicating withdrawal of Official and diplomatic personnel from the United States, movement 0f foreign nationals to certain areas of the country , or hostile intentions against the United States Such infor mation is a priority requirement of the United States Intelligence Board. During the Arab-Israeli Six War and the India- Pakistan War , our intercepts on various missions to the United Nations and enbassies in the United States provided Many indicators as to the intercepted parties relative positions and sympathies and consequently assisted State Department and the White House in its_dealings with these nations on that issue _ Via an electronic surveillance we obtained information concerning the location of Soviet ships removing missiles from Cuba in 1962 SECRET NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD ii NW#-88608 DecId-32989541 Perrtto8 Freige Sensitive Gence (NtelC' itive SeNs _ Day Freign genCE NtelliE operations ================================================== Page 39 ================================================== SECRET NO FOREIGN ISSEMINATION/NO DISSEMINZ ON ABROAD 2 Counterintelligence Electronic surveillances assist our coun terintelligencz efforts by providing personality data and information regarding the contacts and activities of known and suspected foreign intelligence officers_ This information assists in planning counterintelligence activity, assessing defection potential, analyzing routines and patterns 1 conserving manpower , ana in airecting sources against these officers seNsitive FoREi Gn intelligence infdrMATDN There are currently 165 known and 10 suspected Soviet intelligence officers 1 and 72 known and 43suspectea Soviet- bloc intelligence officers in the United States Examples of information obtained via electronic surveillance of value to our counterintelligence responsibility are as follows: An individual was detected in contact with a hostile intelligence service in September , 1972 _ He expressed 3 desire to defect and to offer information regarding United States naval intelligence to which he had access _ Although the interception dia not give uS his name , it provided sufficient infornation to conduct an investigation which established his identity 1 con- firmed that he had been engaged in very sensitive naval communications intelligence 1 and disclosed that he was a fugitive, wanted on local charges_ He was arrestea on November 1972_ In one case, electronic surveillance furnished infor- mation , within four days of its installation 1 of a contact between an official of the Soviet Illegal Support Branch and an individual who appears to be 3 Soviet illegal agent . Electronic surveillance furnished information con - cerning an attempt in 1969 by 3 United States serviceman to defect to the Soviets. An example of the value of electronic surveillance coverage in foreign terrorist matters involved an Al Fatah leadez formerly in the United States In the Summer of 1972 he departed this country for a visit to. the Middle Fast He later applied for a reentry permit which was denied _ In late November _ 1 1972 , a telephone surveillance disclosed a contact an individual suspected to be the Al Fatah leader. An SECRET NO FOREIGN DISSEMINA TION/NO DISSEMINATION ABROAD iii NW#+88.608 DocId;32989541 23 , by ================================================== Page 40 ================================================== SECRET NO FOREIGN SEMINATION/NO DISSEMINA ABROAD investigation was initiated and a second electronic surveillance revealed the Al Fatah leader had reentered the United States using 2 variation of his family name_ This information enabled his arrest by the Immigration and Naturalization Service B Domestic The . primary value derived from intelligence gathering as opposed to evidentiary, electronic surveillances in this area is in obtaining plans for carrying out threatenea criminal acts , evidence of foreign influence or financing , and information which assists in planning apprehensions of wanted individuals with less risk to the lives of officers and bystanders Examples: Via electronic surveillance of the Black Panther Party, Cleaver Faction , in New York City; Huey P_ Newton in Oaklana _ { California; and the Los Angeles Black Panther Party , the following information was obtained On November 6 , 1971, plans to kill New York Police Commissioner Murphy were discussed _ On September 14, 1971, use of police radios to monitor New York Police Department activity was discussed _ On April 26 , 1971 electronic surveillance identified Robert Vickers as the assailant of a New York City police officer killed April 19 , 1971. (Although this information was also evidentiary, it identified Vickers as a triggerman for the group Who could be used in the future. ) On December 28 , 1970 , electronic surveillance reported that Newton received s1,400 from a Swedish group _ On September 20 , 1971, electronic surveillance reported a comunication between Newton and the President of Tanzania _ On September 28 , 1971, electronic surveillance reportez Newton' s travel plans to China , ana on October 19 1 1971, it reported details of his visit. SECRET NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD iv NW# :88608 DocId:32989541 City ================================================== Page 41 ================================================== SECRET NO FOREIGN ISSEMINATION/NO DISSEMINI TON ABROAD During July, 1971, a conversation was intercepted_ and when pieced: together with previously monitored conversatios and other background enablea uS to apprehend without injury or incident, two Black Panther Party members wanted for the murder of a policeman Physical surveillance of a meeting to plan the murder of Black Panther Party rivals , the meeting Site having been learned of via electronic surveillance 1 resulted in the apprehension of two fugitives The apprehension caused a gun battle, however , the electronic surveillance information alloxed for advance planning which cut the risk to arresting officers and bystanders _ Electronic surveillance of: the Students for a Democree:c Society Headquarters 1 Chicago, Illinois , provided information 83 plans for the "Days of Rage violent demonstrations in Chicago during October , 1969 This advance information , relayed to Chicago police enabled them to anticipate_ to some aegree 1 destructive activityt ana to concentrate their force where neece:. SECRET: NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD V . NW#r88608 ~ Deeld-32282542 ================================================== Page 42 ================================================== September 14, 1973 ELECTRONIC SURVEILLANCE 1_ The Problem: Use of electronic surveillance falls into three broad areas: criminal } domestic national security 2 and foreign national security _ Little policy consideration need be given to' use in criminal cases _ Such use is prescribed and proscribed in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 _ has been upheld by the courts and has been used to great advantage under the current procedures and policy _ In short, there is no policy problem in this area. Electronic surveillance in both domestic and foreign national security cases is primarily used for intelligence purposes not evidentiary purposes; however , it often produces information of evidentiary value_ The only Congressionally approved electronic surveillance is for the sole purpose of obtaining evidence of stated crimes (Title III) Foreign national security electronic surveillances produce a good deal of positive intelligence value to U.S_ foreign policymakers , a good deal of information necessary for counterintelligence activity_ and , rarely information of evidentiary value _ Domestic national security electronic surveillances produce information valuable to law enforcement in thwarting murders serious injury to persons _ and extensive damage to property , and also, rarely , information of evidentiary value _ Electronic surveillance in domestic national security cases which was previously approved by the Attorney General for the President utilizing his Constitutional powers has been prohibited by the Supreme Court in the Keith case, i.e., held illegal without judicial approval_ to request and is not for dissemi-; This document is prepared i response 83 lmited to official proceedings by nation otside %owr Committee: 7dg %t 'be disclosed to unauthorized yowr Committee and: the content Iav %olrivithout the express approval %f the FBI-= NW# : 88608 DecId: 32989541 prior EM 'your person- ================================================== Page 43 ================================================== The issue of the legality of warrantless Presidentially approved electronic surveillance in foreign national security cases has not yet been decided by the Supreme Court; this issue is now pending in two Circuit Courts of Appeals Thus the specific problems with regard to domestic national security electronic surveillance are that it produces information of value not obtainable by other means; it has been prohibited without judicial approval; there is no mechanism to obtain prior judicial approval. Consequently , we conduct no domestic national security electronic surveil- lances . The specific problems with regard to foreign national security electronic surveillance are that: it produces information of value not obtainable by other means; the legality of the President to authorize its use without judicial review is being challenged; if it is held illegal there probably will also be no mechanism to obtain judicial review; current court procedure requires in camera disclosure of the existence of national security electronic surveillance in criminal triels and if found illegal, disclosure of the content of the intercepts to the. defense, which for overriding security and foreign policy reasons can usually not be made _ 2 _ Present Domestic National Security Cases: We do not conduct electronic surveillance in these cases _ Foreign National Security Cases: Pending Supreme Court consideration of the "legality" of electronic surveillance in these cases . continue to be approved by the Attorney General_ 9 and utilized without warrant _ 3 . The Issues The main issue in both domestic and foreign national security electronic surveillance cases is the right and need of the Government to obtain intelligence information in cases involving (1) U.S . foreign policy considerations; (2) threats to our security as a nation from without; and (3) threats to the tranquility and safety of U.S _ society from within 3 versus 4th Amendment rights and the right to privecy N#: 88608 DocId: 32989541 prior prior prior Policy they ================================================== Page 44 ================================================== The specific issues with regard to domestic cases are: (1) Is the threat to the safety and tranquility of U.S . society posed by certain domestic groups of such magnitude to justify electronic surveillance as an intelligence-gathering device to be used against them? (2) If SO , is the threat of national _ i.e. Federal dimensions or is the threat primarily to Jocal or regional interests? (3) If this coverage is needed , has Keith presented obstacles; and if SO , how can they be overcome? (4) If enabling legislation is the answer to (3) , should the electronic surveil- lance intelligence-gathering authority be given to the: Federal or local government or both as in Title III? What should enabling legislation entail? (5) Is there any option other than enabling legislation? The primary issue with regard to foreign cases is: Is Presidentially approved, warrantless electronic surveillance in cases involving a "significant connection" with a foreign power constitutional or "legal_ m On the resolution of this issue hangs all else in these cases viz_ admissibility of electronic surveillance evidence in court; degree of disclosure to be required in criminal proceedings; and if held illegal the judicial review procedure to be proposed in order to continue such surveillances , if they are deemed of sufficient importance to continue them in the face of additional risks inherent in a judicial review 4 Options for Future The chief issue for future policy consideration will the Department support the argument for the need for intelligence electronic surveillance? In foreign cases? In domestic cases? If SO , then the discussion centers on Department policy regare the means to effect such surveillances , Foreign national security cases: Hopefully the examples of intelligence value set out in the classified appendix of the attached study carried the argument that electronic surveillance in these cases is highly desirable, if not essential _ to our counterintelligence efforts and to our foreign policy considerations_ Even without specific examples of value derived from these surveillances . the bottom line argument is that electronic surveillance of foreign intelli- gence services is at least an inconvenience to them and makes it more difficult for them to carry on their intelligence activities _ NW# : 88608 DecTd: 32989541 Policy iS , ding ================================================== Page 45 ================================================== The present policy is to support the legality of the President's authority to conduct this surveillance without warrant to restrict disclosure of the existence or contents of such surveillances and presumably = to support the argument that any evidence obtained from such surveillance is admissible in a criminal proceeding _ These issues are discussed very well in the Government's petition for rehearing in U.S_ V Ivanov attached . Also attached is a classified memorandum summarizing the case up to the petition for rehearing _ Until these issues are resolved_ consideration of future policy options would be speculative, and may be unnecessary _ Domestic national security cases: The FBI Intelligence Division feels there is something of intelligence value to be gained from electronic surveillance coverage of some domestic groups _ The opinion of former Assistant Attorney General Olson and Deputy Assistant Attorney General Maroney is that there is no need to utilize this type of electronic surveillance and therefore no need to seek enabling legislation at this time but that if a need does appear the Government will seek such legislation The examples set out in the classified appendix to the attached study show the value that can be derived from intelligence coverage of domestic groups _ Is information of" this type worth the financial man- power expenditure (which is considerable) to obtain it? Is it worth the task of trying to write enabling legislation (providing for judicial review to satisfy Keith) to allow intelligence electronic surveillance in domestic cases? Is it worth the fearsome battle such a bill would cause in Congress? Does such a bill have a chance at this time, or in the foreseeable future? Upon reconsideration, the blanket pessimisim on chance for passage of such legislation in the attached `study seems extreme _ It is believed that the Department and the FBI should attempt to write a bill , with as restrictive judiciel control as necessary in order to obtein Con- gressional approval _ to permit intelligence electronic surveillance against domestic groups which threaten death or "extensive damage" (to be either defined or specifically enumerated , e.g . plane hijackings , bombings , N#: 88608 DecId: 32989541 ================================================== Page 46 ================================================== murders of officials or police, etc) _ A restrictive enumeration of specific acts which if threatened _ 9 but not to the extent of producing probable cause , would justify appeal to a court or magistrate for an intelligence electronic surveillance might have some chance for passage _ The judicial review would satisfy the 4th Amendment requirements; and a specific list of acts limited to major contemporary concerns would allow for item deletions and additions as conditions change _ Such a specific section to the bill would allow for not only effective judicial review but also effective Congressional review Such a bill , in our opinion , should avoid mention of contro- versial and difficult to define terms such as "domestic national security," "internal security , II "threats to the existence or structure of the Govern - ment," and all terms with political connotations; and should use terns emphasizing the aim of preventing serious criminal acts which threaten life and limb (without mention of motivation _ whether political or therwise) . In our opinion _ such a bill should make intelligence elec- tronic surveillance available to both local and Federal agencies _ It is envisioned that such a bill would cover purely local groups which, e.g., threaten murder of local police officers and groups national in scope , e.g. Black Liberation Army - As discussed in the attached study , Title III and FRCrP 41 do not seem to offer practical alternatives for this type of coverage _ NW# : 88608 Docd: 32989541 ================================================== Page 47 ================================================== UITZD 874423 COUz?' 0F 4Z22;: FQR Tfz 'IIRC CIRCJIT UiIZzC StC"ZS OF ANZRICA, Appellee, Jo _ 72-1741 ICCE A. IVANOV, Appellent _ PETITION FOR REEARING HERBERT J _ STERET UNTTZD STATES 4TTOREZX {iion ouigide %oureBoredi n esponsd tc request ad;i8: Xfoj; disgeni "otio Coutaideceyoma Cooconient Its %te hlinited to:cfficial proceedimgs b1 nel without the contont may zt 62 disclosed ta udutkoniedpesonty express: approval %f `the FBI On the Bricf: JO;ATKN L. GOLDSTZIN Jo%:} J_ BAPRY Rssistant United States attoziosoaE N#: 88608 DocId: 32989541 your not: ================================================== Page 48 ================================================== { UWITED S24TE5 COUrT OF :722LI FOR Tiz TIRD CIRCUIT U}I?ZJ STA?ZS AZZ1C4, Appellze, FO 72-1741 IGOR IVArOV , Appellene PEIIZZQN &03 RZZEARING Tne Wnited Stetes' tions the Court to Srent & reneering in tnis case end modify it8 ` opinion and decision_ We lirit our recuest to th2t poztion oi the" decision Khich reletes to t2 disclojire to dezendant cf the. logs of electronic aur- vellance initieted iitn the express a1thorization of the Attorrez Gencrzl to obtein foreign intelligence- inforrition _ In our vie;; the decision; insofar as it relates to saia disclosurz; is noj in eccord #ith the Supreina Court' s prior Unaete in thic case end has risapprehendea relevent prececent relating to disclosure in instances Ihere there has been na violation of Zourth Irandment rignts _ Nw#:88608 DocId: 32989541 peti ================================================== Page 49 ================================================== STiTzizZ 8z @z Ci3r" {*3 initisl decisiol in tnis case, tnie Court effi:=W 2p 114n8'8 conviction Or: conspiracy t0 violete, tha espio:cSe S {-2, 18 U.S.c; $ 794(2) end" (c) 384.F.2a 554 (1937}.: Riie eppelles:'s certiori:i petition was pending; 602 Solicitor Ci-eral inforred the `Supreme Court tilat appellent ha& beer electroricelly overbeerd_ Tne Supreme Court considered the effec: 22 s:cl :isclosures in tnis cese and in one ericins Zroz the tenth 'Circtic in A2derzen V . United Stetes, 394 U.8,, '165 (1983} 2nd rezsnded both cases to tne respective District Ccurts: "for 2 nearing, findings 3 and cor- cJustcns (1} on. the question 02 Wretrzr Nith respect to any_petitioner trere was electronic surveilience 1cich vil-leted nis Fourtn Aeengzent_ritnzs, e7n (2) ir inera Is sucni surveiliance with respect to 2ny petitioner, on tne nature end relevence :0 his contiction of =rj conversations which mzy havz bee? overneard througn tht surveillance 394 J,S, 183 (empnasis adaed) Te Sigreme ' Court, ir elaborating 042 its instructions, repeated agzin tnet the. scope of inquiry was to be Confined ~8 possible Fourtn Snendment violations, It ordered that: Te Disirict Court seould conzine the evicenze prasented Q3 both Sides t {nez micn 13 02+22131 to 3.2 (Iue 3i0n 0f.82 poszi:he violation 01 2 Qeti ~ 3073 8 ~o#:cn #CDnt 11273, Zo tne conzent Oi conversations ilTegally overbeerd by surveilleice Mich violated those risnts 2nd to tnc relevance of 'SUch conversetions to the petitioner' s subszerent canviction Tna District Coure Xill neke such findirs: 0f r&ct on thoe Questions 2s ray be eppropriate NW# : 88608 DocId.329895i1 ================================================== Page 50 ================================================== ~2- in liznt of the furtner eviderce &nd 0f tbe entire exict_rg recori. If 0 Diserict Court _decires Or #2_b2314 0r Zd72235 TIT352{ 0he52 &3 222237342C 24Z27T4Z4247233234 to ore Or #ofe petitioners Ou; rJi e@y miulcn violeted ~e Fouzh X9n- neQe, Oi 72) #nat 2fnougn zhare BZS & surveillence in violation of 022 or more of the petitioner'8 Fourtn Amari- tent rizhts_ > the conviction of such petitiorer Ias not tainted by the us2 of evidence So obtained, it Kill entar newl final judzeent: o2 conviceon 02*ed On 3he ezisting record 2s 8uppi23ented, its furtner findings, thereby pre- serving to all effected perties the right .to seek further eppropriete eppellate review _ U,S 186-87 (emphesis edded) On- rerend, the Government conceded_ for Plrpose: oz 023 hearing thzt one set 0f electronic surveillences, conte:-ed 12 logs &esignated 4oOl-S* &nd . 4002-s* viclated eppellent'3 Forz - L Arendzent rignts and volunterily disclosed those loss # hiti (10952) . A taint hearing resulted in 2 finding by &ne Zistric: Court that eppellant' 8 conviction was not tointed, %i0z #.282 IcE? ena tiat finding Ia.s unenimously uphela this Corzt_ {Opini:z Pp. 12, 22) . The Goverrnent further disclosed thet tnere 8xi3te2 2 secora set of designated Governmznt Zxhibits 4-1, 4-2 274 A-3. Tne GGovernment represented thet these 1cg3 were Clz op_ tainad by the Depertment of Justice in #he exercise of :42 P-zz__ dent' s rignt to.obtein foreign intellicerce inforri-ion :c 82-, NW# ; 88608 Docld:32989541 by _ 324 by logs, ================================================== Page 51 ================================================== 2l2:7 certain conversatfons 0f Ivenov %ere orerneard, he 1izS no: :. subject o2 tne electronic surveillance reflected 0r thoze 1o5; (142, 292) . Tiese ` logs wefe submitted to tne Court for 82 in [jzerz incpectit 2long with 8442 effidevit 02 Attorney Cencrel Mitch2ll, designeted Governzent Exhibit B. 4' copy 0i the 2ffide- vit XeS neze aveilable t0 Ivenov. .Upon review Qf' these meteriele, tro Distric: Court mede the following findings: 1 that the surveillances here uder ettack ere exprcsziy eutnorized by the Attorney General Shown in tre_ exhibits; 2. ihat: tney were not mede pursuent to a surveillence of the defendert Ivenov;_ 3. that said surveillences Tiere directed 2gainst cert-in prcrises in which Ivanov had no interest, tne' descripticz end locaticn Of seid prerises being set forth in the exhibits; 4. thet said surveillances were conducted 2nd.nain- tained solely for the purpose of gatherirg foreign intelligence infolrtion; 5. tnet .it was reesonable and necessery to authorize such surveillances in the netionel interest; and' 6 that it 1ould prejudice the netional interest to wekc a disclosure of the particulir facts concerning seid surteilleaces . (202) Besed on these findingz, the Court concluded tnat NW# :88608 Deetd 32989541 0n , ================================================== Page 52 ================================================== disclosure need not be TAcGe beceuse the. sur-feillances were i2w- ful ani not in violetion 0f eny Fourth Amendnent rignts 0f Ivanov (202) Alzhough not dizected to ao so `by the Suprzrz Court's manaate, the Court 2ls0 conciuded tiat iisclosure xas not recuired by reason of the provisions 0f the 'Comnunications Act of 1934, 47.U.8.C. $ 605 beceuse_ that Act Iyas inapplicable tc the situation disclosea by tne withhela reterial (232) _ On ` eppel, this Court re versed the District Court nolc- `in 2 Split' decision (per Aldisert; J.} thet.47 U.S.C. S 605 barred "any"use" of the intercepted meteriel beyond tne conzines of the Executive' branch" (Opinion T 20-21 ), shet, in tne preser: procedura] posture Qf the cese, musz be assumea that tie cciz _ versations of Ivenov overneard on the "miretaps lea to evicence used at; this trial": (Opinion p- 13 therefore thet #ppel- MI lent is entitled disclosure ox an evidentiary hearing (Opiri- Pr"21: In reaching this conclusion, the mejority accepted, for purposes of enclysis, the proposition that tie interception: were 2 laNful exercise of the Presidentiel power vested by Artizle II 0f the Constitution (Opinion P. 15) The mejority did not even consider the question 0f whether Ivanov' s Fourth Amendrent rights might have been iiolatez- In dissent, Judge Aaars concluded both that tne proposition 2c- cepted by the Rajoritz for purposes of analysis #S, in fact, correct 2nd tnat Ivanov' s Fourth Acendecnt rights Kere rot wiolc:- Nw# : 88608 DocId: 32989541 ing_ "it and , "to ================================================== Page 53 ================================================== ~5- s tie prcscntly gtands, #23- ore, 8278 {es *?82 10 decrnineticn of tnz ASsue Thich tne. reze Coe:: {2e-ifL.62 dirccted to be deternined and disclosure 18 being c-u222 2 misaoprehensiox of the legal necessity for such @izz_c= ARGUENT POINT 1 ASSJNTIG TIE ` COPRECTSESS QF 2.CQURI & COMSTRUCTIO: 03 47 U.S-C. $ 635: 4PZL24_ 2 IS NOT EizIzzZD T TEE DISCLCS k 03 :3 SURVEILLAECB ZOGS OR TO_ AB EVIZSXZI4RI HEARTRZ WITE RESZECT TFERETO In remanding this case the Unitad States Vza-2 Cas: Mas very cereful and' very specific as #0 the scope cf 1+5 czese. I% ordered the District Court to determine whazher Or Zcf €*452 has been any electronic surveillance_Fhich Kicletez {#zelle-e = Fourth Anendrent_rizhts; It did not esi tng Distr_ct court 02 coneider Ihether or not there mej: rave bezn 2 vi6li-i-i Or < 385 or eny other federal statiie. Iz 13 in tnis conte; *728 trs Couit S language 28 to alsclosure rust be :understczi :zceuc: 3cazh exists no precedent which requires the United States t? tiie 3.5 the logs Of 2 foreign intelligerce survetllarce: Neze sucn 7; JJence has not violeted eny Fourth Anen_-EE:2igat: 0z 2 'dezezz2_ The necessity for the disclostre 0f the I223-Zs 32' electronic surveillences only arises whera Such disiiczere 13 necessery to-protect 2 defendant' s Fourth 4=2ndze31 74=4t2, Alaezmen V , United Stetcs, 394 U.s. 165, 182-85 (ie-e;; 3iuf2- netti V United 394 U.8. 316, ` 317 (1559); 329 293 :7= 2= curring opinion Of Stewart , in Giorez e v Unite: 3421, 394 U.S. 310 (1957) , tne opinions Qf' Dou-l2s, : Fr6:: 3 NW#--88608 DocId:32989541 S2?- states, Jo $ J. , ================================================== Page 54 ================================================== Icty in He280 V ? 272 U.S, 3k, 30 (1972) 2nc G:< ing from the deniel of 2 petition for certioreri in" t2 ser2 c.? 1oo U.s. 1013 {1972) . As steted by th2 Court in Teslianatti: Nothing in Alderme V , United Siate?, Ivenov Unitei States, or Butenko V , United States; ente P: 165, reguires 2n ecversery pfcceeding &nd Tuii aisclozure for resolution 0f" every iSiue reised an electrc-ic surteillance -On tne cotrary, en edversary proceedins end diselosure 7er8 required in those cases , not fcr leck cr confidence in the integrity cf governue-t counsel or tha trial but cly beceuse t62 ir carera Poceceres at #isge: En2ze 42ula h2v2 c2an 87 ined23ieta Gzn; to 8eze- guezd 2 aerenzntt3 rourtn {endeen ri2nis. 394 0;S , 317 Zipnesiz 2daed) As . stated bx Mr . Justice Stemert in Giordeg: As we Ieie explicit in Alderian, ` Bitenio, ana Ivanov , the requirezent that certein procucts cf ` governrentzl elactronic survaillance bz turned over *0 defense coungel #es emressly linited +Q 81tuetion: where tna suzveil23222 Zeg /iol2zez gne Foutn Znendnanz 334 7.8. 310, 313 (kmprasis edaed) In Aldermans the Court concluded that altnoigh 42 C?58= procedures iere sufficient to vindicate statutory rights, such 23 those uder the' Jencks Act and certain due process rignts; suzh 22 the right to tne disclosure of tne identity o2 an informer (384 %.d et 182-83 _ J f.n..14), such procedures "are unable to provide tne scrutiny wihich the Fourth Anendment exclusionezy rule denanis" 1 those circustances There there exist large volume Of fectuzl mteriels" 384 U.S. 183-84 , Thus , Alderzn cannot be reed to rcquire disclosurz where there has bzen 2o violetion of Fourin *e4tent_#ist:, Indeed, even in czses involving a possible ` violetion of Fourin Eendwant richts flderuzn czn be read 2S nct recuirine ciccl:-: NW#: :88608 Docid.3298-9541 b' at I & ================================================== Page 55 ================================================== Iere #hers, exist conjellins reasons roi noncisclo6i€ +4 t3 factual Gaterials fwolved ar8 neithar woluziiuous ror 7ezuire ccmplex judgcnts _ Vnited 3k425 V ." Lezonakig; F.2d Ko. 71*1745, D.c Ct+ Oz June .29, 1973; PP,.35-44. In tne Ieaen3kiz css2 , the.Cojri; like the recrit? G the Cout in the case at bar, preternitted the constit_tionai igsues involvea in th2 executive euthorizetion 0f foreig? intel_ ligerce gathering geena of electronic surveiilenca 278.heiz, basea Gn its Oln f Genere cxenination of the 1ogs in €32s642, that that Ieteriel contairea therein hed no relevence t3"tne [=- siies or evidence in cepelignt" '5 triel and that beczuse of tze naticnal interest involvea in the reveletion of: loss 3 foress intelligence operations , the logs need rot be reveelez; I. If tne teachings of botn Alderzan &nd Lerjretiz b2 applied to the CE.s8 at bar in its present posture; it {.clezr that the logs in question nesd not be disclosed for &7 reesC==. Firgt, as the Court . hss 2s simed, there has been no Fczzth 4Z==- ment" violgtion. Second; 2s the Court ceq readi1y 2sczrt2in 2_= its Ow ezaninaticn Ci Governzent Exhibits 4-1,,4-2 24 4-3, 63= logs ere not voluinous 2nd tne task 02 evaluating tnaz iS neither burdensone nor colex_ In tnis cornection, i} should be noted that tha 277252_ C52 has not directly 2ddresser the question of whetez :652233 Of loga Qf Zoreiz: #tellisence surveillances i3 r2ce-i United St* V, {0ite: 3+406 Bisitiet Ceurt, 407 €;, 237, T,77T 71572) , i *ich -2 icuf ex3ressLy resertez -eisi22 to tne constiiutios-i issues involved in foreign inte__ezcncz (ccn: ~Ni#:,8-8608 Daela32989541' Ap? b3 yet; 32 ================================================== Page 56 ================================================== ~8- "Iherefore there is no legal justir ation /or' diis_. closirg sensttlve lczs 0i 8 foreign intelligence, curvcillenza 8 spj for 8 oeign po%e} 23 would not only; bz iuccnsi Kith tne rarzowily: &nd .32ecificellyf Gre;m nandate Oi thc Suzrezz Court in tnis cese but would, in eddition; make 2 Jociery of th2 essured conc usion tnis Court tnet t.e surveillance itsel 33 Jemfal, Thelprocedurel question 0i wnether ana undez Ihat circ;=- stences disclosure shouli be nade 18 fully 85 sensitive end cel:zze: 23 the constitutional guestion 0f the presidential; pcwzz to cC.Z=2= L Lt the surveillence, 2nd procedures ought not to be enplojed. whick would erasculate tne constitutional 2oker Sprely the consideretions Nnich conpel the ccnclusior thet the Prelident i5 vested Under Article II Of the Censtiiutic? of the Unitei States to conauct foreign ` intelligence operetiors byr mleens Of electronic surveillance equally_ compel thz corclusic- {coztTa) { Surveillonces , tha Court elso found it "unnecessary 8f [that] tiz: MI M end On tne Zects of [that] case to reexcmine #he besis 2nd th? 4t scope of ths; decisicn in Aldexzan insorar 25 thet Gacisic: releted €0 the disclosure of tne recoris cr- sutveillanze >nere Foirth Acencjert ricnt; hed bzen" violzted: In.denjics 223640273# in ~aso V , B222, 28? U.S, 1013 (1972) 9 tna Ccurt lev 3jand 2 Minzn €ircri? cecizion #nich uzneld 2 1@ c2r2 deterzingtion the "Irial Court tzt ihe reccris of 22 2rgu20_7 foreign iutellf_ gence electronic overneering Gi defendenit S counsel Kere not rele- Vent to " any isSLie in dezendant' s triale Dissent frcn Cenial cz certiorari, Ibid_ See also opinion Fer M . Justice Douglas 3r8:_ 2 szey Oz the Mintn Circut S rling U.8_ 34 L zc, 30 (1972) - NW#T88608 Doctd.3298-9541 by ~ 4ng ================================================== Page 57 ================================================== thet the results Of such surveillance shoula not, be 2z1-lojed. wnere no Feurth Mmendeert_rtehz: of eny incivicual bz;a %zen Violgted because to d0 otherwise #oula reveel inforzz} -i wouli mai:e tne surveillance velueless in tha future, To corclude othertiise would _be to put tne Cc-ernze to 8n untenable election_ It would neve to elect bet;ezz disclosure of 8 vital &nd proper intelligerce operzticz; on tr= One hand, end prosecution of 8 crininl wiho may heve t_x-zerez or even -intruded hinself on the othei: 'Such 2 constr_ce;on WCT even to 2 crininal the poer t0 Prevent his prcse_tzion Bimply teking steps to ensure tnat 2 conversation oz Ka 1s overneerd curing the course of 2 foreign intelligence % veil_ZEZz, POINT II PRIOR JUDICIAL; CONSTRICZIOnS OF U.SaC 0 $ 605 REIRORC? TEE CONCLUSION 'TKAT DISCLOSURZ CF TE SUR VEIZLAECE LOGS IS #OI RZQVIRED IN TiIS CA3E The corectness 0f the conclusicn that ais-_-sure 18 inappropriate in circunstences where there has bezn =oTot= Aendmert violation is further reinforced tne: cons_ieraticrz Ihich underlie prior judiciel constnictions 02 4f" 0,8.-. $ *83. In those cases, courts have Rzde it cleer that Wirete? #vidercz and its fruits are to be suppressed only in those inaz-ces ile the wiretap 1a5 utilized by lew enforccrent dfficers zoper _ to obtain evidence_ NW#.88608 Deefd: 32989541 give 4T( by ================================================== Page 58 ================================================== -Jo- AS stated %j tx2 United States. Court of ippcels for t:e Seeond Circuit in United Stete: V, Gtis. 247 F:22 854 (1957) : Wiretap 2vidence is excluded tne federal courta i crder ~0.discourege persons fron incertaking the prescrieed activities in # effort to obtain evis denee for use in trose courts; Mnere exclusion Iould nat Serve this purpose, the evidence is 2dnitted. If tne Goverrment 128 acting lewfully in conductirg the surveiilerce: there i3 no iiiegel conduct to deter end hence no reason foc applyirg {he reiedy 0z suppression in this case _ If there is no reason for suppressing, there is no reesc_ for eftner disclosure or for en' evidentiary hearing. It i8 cleer beyond cavil, that, in Conatruing $ 605 #0 ber either testimony 8s to the contents Or 3n inter- cepted conversation, or the derivative use 0f 2n intercegiea conversation_ to obtein evidence, the Suprene Court did solelz to deter law .enforcement personnel from utilizing wiretegping as 2 #eens" of obteining evidence Nerdone V, ynited Stzes, 302 U.S. 389 ` (1937) ; #ereone v: United_ Stetes, U.s , (1E2, (@araee_IT). In Nerdone I; the Suprene Court held tnat tne Cozzizce tions Act. af I934 berred testinony by federal &Sents 25 t6.#ne 2-3 of miess2ges intercepted" by wriretaps by egplieatic 6f tre:prircez z 0f stztutory constructiol "that the sovereign is embreced by gencrel words of 2 statute intended to prevent injury &ed wrrozz Il 302 U.S. 2t 384. Tne "injury 2nd Ironc Khich tile Ciur: percez-ie NW#; 88608 DocTd:32989541 850,_ by 80, 308 338 _ ================================================== Page 59 ================================================== ~i1- an; 14 532Zflet2d thet, in enacting : 605, "Congress C13 _ #oiah: i+ e32 irportant that SoR offenfcrs shaula Eo #2?z or justice tcer #hat officers should resort to methozs deeza: :_ consistent i6n personal liberty" IId_ et 383- #ardone II, the Court, tp further the policj ex3322222 ir Mez23e $ reld thet Ihae substential portion 0f tks Z22= egainet, 2 defencant i8 proven hin ta have been ; Geveloped ev "eer 92 illicit wire-tepping, his conviction canot pez=itez to stan:. In 60 nolaing; tre Court rejected the aruuzent #22# 3-605 caly berred testinony as to the content of an intercezted zesseg?. stepirg that: Sich 8 reedinz 6f 5 %ould lergely stultify the Policy which compellzd Okr: decisicn in Nerdona V , Unlted Stet2s, sugra Tiat decision Ta,8 not the" prodict of & merely eticulous reeaing of technicel langunge It Kas the trenslation into practicality ot broed congideretions of torality ahd public well-being Tnis Court founa tnai the logit Caily relevent 2tooz which Conszess_haz cutlewed ,_ outlared beceuse "incorsiatent tiitn etnical standards and destruc- "1 tive of persorel liberty. 302 3.3: 379 , 383" To forbid the direct {s2 of matnois tnus ckaracterized but to, put no curb on their full indirect use woula only invite tke very jathods deeazd "inconsistent with ethical sterderds and destructive of "personel "1 liberty _ 308 'U.S . at 340 " In other words, the linchpin of anelyais in botn jEEz4 secisiozs is the perceived Congressioal rejection of Kiireje?- NW# ;88608 DocIdi32989541 00 - by pa 605 ================================================== Page 60 ================================================== for:tne purioses 04,) 0bt#inig evidence wiretepping Nhich #28 in #e Court' $ vzei: "illicit" Divilgerce Kas held to include use in obtedninz e-idenz? 2r8 {23 cojprehended' by the statuia. solely becalse #e Court determind that such 2 consifuction wes necessary to disccurege cfficers from: Wiretepping to obtein evidence In the cese &€ tne wiretap wes not fof the purposz= 0f obtaining evidence "but rether fof the Rurpose Of onteining foreign intelligerce inforration_ Tne Dr0e, consideretions of morality end,public Well-being' dezmed relevent tQ the forter PX - :pose_ ere no mutatis mutandis trarslateble 10 trie letter purpose.- those considerations erenot S0- trensletable then the exclusicnery rule forged by the Court in faraore II is not.s trangletable- As tne" Court make: clear; the. derivative use 0f intercepted;ressages 1s pronibited rot because of the stetutorz 3/ Jenguage but solely to preclude illicit wiretapping If, 2s tce Court 18 willing to..e25ime; tne Giretap in issic in this 'cs? %es not illicit but IaS >4 insteed; 8 proper exes cise of Presidentiel. Dower purcuant to" Article II of the Constit=- 2/ For this rezso? we urg? the Court %o reconsider those decis_- cited 2t peges 027 o Oir Rziii prief ecd ct peges 22-99 of juize Adans dissenting on #ich kola that 47.U,S.C. S 605 hes rz acplicability to t82 type 0f wireteppins in issue hcre See al33 United Stetes V_ Ze32n2 Suzz2 3& Pp . 35-10 In this recpez? tha ba.sic juctification for th? rule is tk ienTlcthi to in21 iitn res?cct 82 tie Fourih fconceent ezclusiczz: rule T 4 tha ocliar cilat it i3 thb onLy deterrent to PZ Tiscondict_ @2 %_ 041o 392 U,s. 21zc7id"S)i 12 022 v _ Ch42 NW# : 8880353, 6532+4132985gi4tt0 V , Wikzz, 381 U.5 633 ( ~: ber ;_ opini- 3i9 013 , ================================================== Page 61 ================================================== -13~ tnere exists no ratione] purpoae for holding evidectiery heering to deteraine inether the %iretsp ha8 been derivetively 4/ used egcinst Ivgnov: Notle Cf tha c2ses cited by tne mejority are &uthority for the propo3ition that_ such 2 heering is required in cases Tihere %he interception 123 not illicit, Bengnti V, United Stete:: 355 U.S, 96 . (1957) &oes not carry the ebsolutist irlications which the mjority reads into it,_ (Opinion;- P_ 1) Tne Benerti deciszon simply holas that the provision; of $ 605` cannot be superseded by state lel end .that state egents 2s .Fiell 28 federal agents ere included mithin its coverage& In"the ccurze of its opiniong the Court made clezr tnet it ~es deeling Iith the kinz Qi wiretepping, it nad earlier charecterized 45 #illicit" in both Merdene decisions, 1le2, wiretepping fOf the. Purposes 0z obtaining evidence, The opinion does not suggest that 2 aivulgarze Of 2 lalful interception Fyoula' constitute & violation of $ .605. joreover, it expressly refused to reach the.issue reeched .bv tke nejority in this case 3e i Whether both interception end Givulgence ere necessery elements of 2 $ 605 violation. 355 U:S. 2t 100, f.n. 5. Tnus , 2l1 thet Benenti stendg for is the In edvancing €nis contention; Ie Qo not mezn to be" understcc: 2s iplicitly sieting tinzt there in fact , eny such 'derivei--e 11 M1 use nuch Zess that 2 substantiel porticn 0f the czss 352in22 Ivenov Izs tn fruit of the wiretap in issue As. eitrer this Court or *ne Discrict Court czn readily deierire c292rE: t62 wiretcp meterials ere #holly irrelevant t0 tne issues and evidz:e2 in this case, NW#:88608- Docrd:3298-9541 6e2 K2S , in ================================================== Page 62 ================================================== proposition thi: 8605 #pplics unizortly to state and ederzl officers. Indeed; tie very seme the' Court `decided E2n2zii, it alco decidcd in Ztekiii T, Unlted_stete:, 355 U.8. 107 (1967} tnzt not every interception is en "interception 2S Cozzresz intended" tne Trord to be usea" in "7 U.s,c. S" 605:. Stating tret (e)verv statute nust be interpreted in the Iight of reason 2n& Xi comnon understending to reach the results.intended. 355 U.s. at In thet case, over 8 strong dissent , the. Court nelc thet where one perty to 2 telephone convefsation glves the Folics euthority to listen in on en extension; there hes Geen no inter- ception` 2s Congzess intended the_Word to_be_used It . Id. (Eimphasis eadea) See also United Stetes Sugden, 226 F.Za 281 (Gth Cir; 1955), Affd per curie 351 U,8. (1956) (holding it would defeet the policy of S 605 *o bar `testirory es %0 the content of an,intercepted illegal privete broadc2se}. Tnerefore, neither Benanti nor United States W 9 Coplons` 185 F.2a" 629 (2d Cir., 1950) 2 also' relied upon by ti2 Jajority require 2 hearing in this case beceuse neiner czse adaressea the legelity of the wiretaps in guestion "Insteez' 9 25 Judge _ Adens correctly notes Ivith specific reference to Coplz: court nlerely assumed that the surveillance itself #as 1llegai unaer section 605." It Id' Such an assuriion is not proper izez the facts of tiis cese indeed, i8 flatly inconsistent #tn. the' assuzpticn of 'legelity made by tne rjority. NW# :88608' Decld: 32989541 dey 109: V , 916 ithe 2nd; ================================================== Page 63 ================================================== '-15: COECEUEICE 22 ' Ccurt siculd amend its decision t require ais2l03 2 cf #:e sirveillence 1ogs' not bc rede _ Respectrully subzitied, HEPBZRT' J STZRZT UniLed Siates Attorney G. #he Eriez ZCEN4 Z;; GOLISTZIi Jizz} J HRX {ssiste7& United Stetes Attornejs NW# : 88608 Deegi332989541 #228 ================================================== Page 64 ================================================== 07TTT 7611)0 DECILCI Oucu B(C . UNITEDgEFRBEIEO BISSFINATION/NO DISSEMINATION ABROAD Kr. Fclt 1 Mre S_ Miller Sb . Bakrr Memorana 1lt Mr - A Brannigan #cu.zr Tn Mr , J..A Mintz BClrra= S Coz_ Bb. Cabur/ TO Mr , E . S . Miller DATE: 1/11/73 B. Jeries B. Marse4 Sba Ville-2 3. Mr. T. J. Smith Hs; FROM T. J . Smith Mr = J. F _ Miller 3. Tbe=s: M. Raliers Tele: Jb. Beize SUBJECT: U _ S _ VS : JOHN WILLIAM BUTENKO AND Jb- Berjes IGOR A IVANOV 1 IGOR A IVANOV _ 1 - Jb. Bosa > B- Herir-c APPELLANT Bi. Coc=5 Je. Slintz Jt- Ezr ey Ss Hogz> On June 21, 1973 1 the U. S _ Court of Appeals for the Third Circuit reversed the conviction of Ivanov for violations of 18 U.S.C. 794 (a) and (c) and 18 U.S.C. 951, and the court remanded the case for further proceedings _ BACKGROUND Ivanov , an Amtorg Trading Corporation chauffeur, and Butenko , a U. S _ citizen were originally convicted of a violation of 18 U.S.C. 794 (a) and (c) (espionage) and a conspiracy violation of 18 U.S.C. 951 (by causing Butenko to act as an agent of the Soviet Union without prior notification to the U S_ Secretary of State) On appeal the Supreme Court found the electronic surveillance issue in their cases was "nearly identical" to the electronic surveillance issue in Alderman et al V . U. S _ ana considered it in conjunction with that case (394 U.S. 165) (Alderman had been convicted: of conspiracy to transmit murderous threats in interstate comuerce ) In Alderman the Supreme Court, noting that no evidence 1 or evidence obtained from leads which were obtained fron an illegal electronic surveillance i.e one which violatea a 3 defendant " I S 4th Jnendnent -rights could be utilized in a criminal 1 trial disregaraed the Government S contention that a trial court S in camera inspection of electronic surveillance recoras was sufficient 1 and held that the defendant was the only one ] in a position to adequitely knowingly review such records to [ determine if the case against him was built on electronic surveillance_ Consequently the defendant was to be given ] 8 access in 3 discovery hearing to illegal electronic surveil- lance records of interceptions of his conversations 3 Justice Harlan_ 1 concurring in part and dissenting 1 in part, distinguished between routine criminal cases and foreign intelligence-espionage criminal cases arguing that while full disclosure to the defendant was acceptable in the JFM:kaf SECRET CONTINUED OVER (6) No FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD N#: 88608 DocId: 32989541 Ss $ Rocz 01 ================================================== Page 65 ================================================== JCGIET Memorandum to Mr . ES S . Miller Re: U . S _ VS John William Butenko and Igor A_ Ivanov , Igor A_ Ivanov , Appellant former , it was not in the latter and might prejudice on-going intelligence operations vital to the national security. In these cases , he argued on behalf of disclosure to the defendant Of.only those portions which the trial court in camera founa "arguably relevant " to the Government S case against" the defendaz= . The Ivanov ana Butenko cases were` remanded to the District Court 1) to determine whether there was electronic surveillance which violated either defendant' s 4th Amendment rights and 2) if SO , to determine whether any of the interceptez . conversations were relevant to his conviction The Suprene Court stated that if the District Court founa 1) that there was electronic surveillance but it dia not violate the defendant' = 4th Amendment rights _ or 2 ) there was electronic surveillance which dia violate the defendant' s 4th Amendment rights but his conviction was not tainted by evidence obtained from that surveil- lance , the District Court -should enter new judgements of convictic: based on the existing record along with its further findings I thus preserving the defendant 1 S right to further appeal_ On remand in Ivanov the case revolved around two sets of FBI electronic survelllances on which Ivanov was monitored during 1963:' :1) 2 microphones at the homes of Ivanov and Karztszza, a KGB officer and neighbor Of Ivanov (for the sake of arguent , the District Court held them both to be directed at Ivanov) and 2) a wiretap on the Soviet Mission to the Unitea Nations, ana a wiretap and 3 microphone at Amtorg. The residence microphones 1 which at that time Depart- ment procedures dia not require to be authorized by the Attorney General, were conceded by the Government to be illegal, thus falling within the disclosure requirement of Alderman The District Court held tnat the Government , on remand made full disclosure on these microphones_ after sone arguent and ruled that the defendant haa not shown and the Governrent had carried its burden to refute, that Ivanov' s case was built on evidence from these microphones _ The more important issues related to the other set of surveillances_ The Government contended that those surveillances were authorized: under the President's national security SECRET CONTINUED OVER NW#:88608 DocId: 32989541 auly ================================================== Page 66 ================================================== Memorandum to MU E. S _ Miller Re: U_ S VS _ John William Butenko and Igor A_ Iv OV , Igor A Ivanov , Appellant powers to obtain foreign intelligence 1 thus were legal and therefore it was not required to disclose the logs to the defense or to participate in an evidentiary hearing regarding these surveillances _ The District Court, by reference to its finding on remana in Butenko (318 F Supp _ 66) agreed , finding that these surveillances and the Government s use of the from . then did not violate Section 605 of the Communications Act of 1934 or the 4th Amenduent and upheld the Governent S refusal to disclose or participate in' an evidentiary hearing. The District Court in Butenke found that 4th Amencnen: rights are not absolute 1 that there are exceptions to the warra= requirement , and that the President' s responsibility for foreic= affairs and national security do not' preclude hin from authorize=? a warrantless foreign intelligence electronic surveillance It also found that , since Title III of the Omnibus Criie Contzol ana Safe Streets Act of 1968 specifically 18 U.S.C. 2511 (3) clearly showed Congress 1 inclination not to limit or interzere with the President S power of obtaining foreign intelligence b7 electronic surveillance , Section 605 also must not have intencez to limit this power _ OBINION OF THE THIRD CIRCUIT COURT OF APPEALS JUNE 21, 1972. The Court of Appeals makes it clear at the outset ta2 it is not considering Title III since the interceptions in issza occured prior to passage of that Act_ Both the Governnent 2n the appellant agreed that the governing statute at the tire o= the interceptions in issue was Section 605 of the Communicaticzs Act of 1934 The Court of Appeals found no error in the District Court s riling that the Government had given full disclosure on the concededly illegal microphones , and that these dia not taint Ivanov S conviction _ The Court of Appeals cites Alderman for the propositic= that the question of whether or not the Government S evidence was obtained from electronic surveillance could be resolvec by an evidentiary hearing, and because the Governrent #oul= not participate in a hearing on the second set 0f surveillarces the Court of Appeals felt it had to assume "in the preser + posture of this case" that the Government had intercepted coa- SECRET CONTINUED OVER 3 - W#: 88608 DecId: 32989541 logs only ================================================== Page 67 ================================================== Memorandum to Mr. E. S . Miller Re::: U_ S _ VS _ hn Willian Butenko ana Igor A Iva Isor A< Ivanov , Appellant munications ana utilized the results from them in the criminal proceedings against Ivanov (The District Court made an' in camera review of the second set of surveillances but never mace a written finding that none of the Government S case Was based on information from these surveillances; he only found in carerz that they did not violate the 4th Amendment or Section 605 ara II therefore could not properly be considered on the taint issue Ii (342 F Supp . at 931).) (Note that Alderman ruled only on "illegal" electronic surveillances T ana instructed the District Court that if, on remand it found the defendant' s 4th Amendment rights had not been violated it should reimpose judgnent of conviction The Supreme Court did not discuss the effect of Section 605 on the cases before it in Alderman_ ) The Court of .Appeals states that it is not defining the parameters of the President S national security surveillance powers under Section 605 but that the limited issue before it, With respect to the second surveillance is: assuming a constitutional power of the President to have ordered electroniz surveillance of" foreign agents in 1963 was it permissable for the Government ;.under Section 605.1 to utilize the, products-of_ such 'surveillance in a criminal prosecution The Court of Appeals then decides the case on this evidentiary issue and thus avoids the larger 4th Amenanent Issue Of Whether or not the President has the pOlrer to authoriza foreign intelligence warrantless electronic surveillances _ The Court of Appeals recognizes that the President has constitutional powers to defend against foreign intelligerce activities and to obtain foreign intelligence!_ and assues solely for the sake of argument that he had the constitutional power to authorize these surveillances; however , the: Court of Appeals draws the distinction, that was drawn by the Govern- ment for years , between the President' s power to authorize such surveillances ana the power of the Congress ana Court to make an evidentiary rule excluding evidence obtained fron such surveillances in criminal proceedings The Court of Appeals holds that the Suprene Court opinion in U. S _ VS . Nardone (308 U.S. 338) interperting Sectiz= 605 as being a complete bar to the introduction of electronic surveillance results into evidence in a Federal criminal proceeding , was governing- SECRET CONTINUED OVER L ~NW#-,88608 Docd:32989541 ================================================== Page 68 ================================================== SEUMLT. Memorandum to E. S _ Miller Re: U S. VS _ Willian Butenko and Igor A Ivanov , I )- A= Ivanov , Appellant Section 605 states that no person not being authorized by the sender shall intercept any communication and divulge _ the existence contents substance purport effect, or meaning of such intercepted communication to any person 11 The Supreme Court in Nardone held that person " M 0 encompassed federal agents 1 and 'divulge_ to any person barred testimony in court_ This Court accepts the interpretation that what Section 605 prohibits is the interception and divulging i.e.0 that both elements nust be present to incur Ehe prohibition 0f Section 605 Thus the President is not violating Section 605 if he only intercepts the conversation but he is prohibited from also divulging the contents of the interception in court_ Since this Court assumed that intercepted electronic surveillance information was used in the trial and therefore was divulged in violation of Section 605 1 Ivanov' s conviction was reversea ana the case remanded for further proceedings 1 viz _ 01 to conduct an evidentiary hearing to determine if in fact any_of. the Governnent s,case was; built on electronic: surveillance Information_ In further defining "divulging" the Court of Appeals accepts the argument that, the President himself will not conduct the interceptions , but that agents of the Executive Branch acting as his representatives will and that many others within the Executive Branch can also be his representatives to receive the results of such a surveillance and that therefore it is not inconsistent with Section 605 to consider the Executive Branch (or at least all persons within the Executive Branch with a right to such information) as person M So that dis- closure within the Executive Branch does not violate the Section' s prohibition against divulging the contents of such interceptions.} MINORITY OPINION THIRD CIRCUIT COURT OF APPEALS JUNE 27 , 1973 Judge Adams disagrees that Section 605 on its own or as interpreted.by Nardone requires the exclusion 0f eviaence obtained from a Presidentially approved warrantless foreign intelligence electronic surveillance in a Federal criminal proceeding. "SEcRET CONTINUED OVER 5 - NW# : 88608 DocIdi32989541 "no "a ================================================== Page 69 ================================================== Hemorandum to Mr E. S. Miller Re:: U. 'S. VS . n Willion Butenko and Igor A Ivarov , Iezr 1 IvanOv , appellant He argues that Section 605 itself its legislative; history, and subsequent case law do not indicate that Section 605 intended to prohibit the President from utilizing electroic surveillance to gather foreign,intelligence or to use the Information gathered in cases involving a defendant' s foreign intelligence gathering_ He traces the legislative history 0= 22 Communications Act and finds its main purpose was to establish a Communications Comission and that it extended to wire communications almost the identical provisions of Section 27 of the Radio Act of 1927 which was thought neither to 2ppl; to federal officers nor to bar testimony relating to the contents of radio messages intercepted by them. Judge Adans notes there was no Congressional debate over the meaning 0= tra provisions of Section 605 implying that if it had been intendez to limit the President ' s foreign intelligence powers , there probably would have been debate Similarly, Judge Adams finds that in response to the Government S argument in Nardone that construction be given Section 605 which would exclude Federal agents since it is improbable Congress intended to impede the detection JI and_punishment Of crime the Supreme Court concluded "that 'Ehe"guestion is one of policy It Judge Adams argues that where the Supreme Court might, as a matter of policy find that Congress intended to exclude electronic surveiilance evidence in run-of-the-mill domestic criminal cases 1 there is no evicezce it would extend the exclusion to cases involving the gatherizs Of foreign intelligence_ Additionally _ this surveillance was not aimed solely at securing evidence to convict a person cf crime but at gathering foreign intelligence deenea eszentiai to the security Of the U_ S He thus concludes that the %ezzcze interpretation of Section 605 is not applicable to KEZ of case , and argues that in view of the breadth of the President S authority in foreign affairs Section 605 shoula be interpreted to limit that power only if Congress intent to do SO is clearly manifest, which he argues it is not _ Judge Adans then addresses the constitutional question avoided by the majority, viz. , does the 4th Arerczez: allow the President to authorize warrantless electronic srzeiz-. lances in foreign intelligence cases He concludes thaf it does _ He argues that constitutional rights are not absoluze; they must be weighed against competing rights; and the 4th Amendment prohibits unreasonable searches and seizures SECRET CONTINUED OVER 6 2 N#: 88608 pacId:32989541 "a this only ================================================== Page 70 ================================================== OLOTTF Memorandum to Mr S . Miller Re : U _ S . VS John Fii: ?: Butenko and Igor A Ivanov , Igor A. Ivanov , Appellant Judge Adams finds that the constitutional responsi- bility to conduct foreign affairs is vested in the President; that the gathering of foreign intelligence and the protecting against foreign intelligence activities is concerned with the very existence of the nation ; that as a result , the President has great latitude in this area; and that to require a judicial warrant erior to his use of electronic surveillance presues that a warrant coula be denied , thus interjecting the courts into foreign affairs decisions in effect over- ruling the President in a fiela where he has the responsibility and they do not. Thus concluding that the 4th Amendment does not and the courts cannot , prohibit the President from utilizing electronic surveillance in foreign affairs 1 Judge Adams argues that a defendant' s 4th Amenament rights can still be reconciled with the President' s electronic surveillance power by a judiciz_ surveillance review _ If the court finds that the surveil- Posce is related to the conduct of foreign affairs it would ipso facto' be reasonable and therefore not in violation of the Jth Amendment _ If unrelated, it would be unreasonable and its 3 results excluded Erom a criminal trial: SECRET CONTINUED OVER N#: 88608 DocTdi32989541 7 * ================================================== Page 71 ================================================== JJCOTTC 7 Memorandum to M E. S . Miller Re? U S. Vs_ An Milliam Butenko and Igor A Ivanov , Is 35 J_ Ivanov , Appellant ANALYSIS As previously noted Alderman dealt exclusively with illegal electronic surveillances i.e., surveillances in violation of a defendant ' s 4th Anendment rights_ It did not distinguish between II routine 11 criminal cases and foreign intelligence-espionage cases when it required that full disclosure 0f all interceptions of the defendant be made to hin SO that he in an adversary proceeding, might determine if the Government' s case against him was II tainted Ii Justice Harlar , objecting to full disclosure in foreign intelligence-espionage cases and on behalf of disclosure only of portions aeemed "arguably relevant" to the Government S case by the trial court after an in camera review, dia not raise the issue of "legal" vs: U illegal electronic surveillance So presumably he was also talking about and intending to limit disclosure even on surveillances which violated the 4th Amendment The Third Circuit Court of Appeals assumes the Ivanov surveillances in issue were legal but still cites Alderman as requiring an evidentiary hearing, and without that hearing feels it must conclude that Ivanov S conviction was obased on electronic surveillance evidence 1 introduction of which: nust be excluded under Section 605 At the conclusion of Alderman when remanding Ivanov_ the Supreme Court instructed the District Court that If it found the surveillance in question did not violate the defendant' s 4th Amendment rights it should reimpose judgrents of conviction The Suprene Court did not consider the effect of Section 605 on the cases before it in Alderman The case has been remanded for further proceedings apparently an evidentiary hearing on the second set Of surveil- lances_ The Government can opt to save Ivanov 1 s conviction by participating in such a hearing , since none Of his case was actually built on surveillance information; however this would require aisclosure to Ivanov of his intercepted conversa- tion at the Mission and Amtorg a disclosure concession we don ' : want to have to make because of the impact it would have on diplomatic relations 1 ongoing counterintelligence operations , and possibily on future prosecutions Additionally -ke salvaging of Ivanov' S conviction falls far short of the original purpose of continuing the appeals in this case , viz_ 0 / to obtain SECRET CONTINUED OVER ~'8 - N#: 88608 DocTd: 32989541 ================================================== Page 72 ================================================== Memorandum to TZO)E S_ MilIer Re: 0 . S _ VS John William Butenko and Igor A_ Ivl PV , Igor A Ivanov , Appellant a Supreme Court ruling on the legality of Presidential warrantless foreign intelligence electronic surveillances _ Consequently, the Government probably will either ask for dismissal 0f tre case or appeal the Third Circuit S ruling to the Suprene Court. If Ivanov is appealed the Supreme Court will face three possible issues , the 4th Amendment issue of the legality of warrantless foreign intelligence electronic surveillance , the disclosure issue 1 ana the Section 605 evidentiary issue The Court could seize onto the Section 605 evidentiary issue, not considered by it in Alderman to dispose of the case witkcut reaching the 4th Anendnent or aisclosure questions; or it coulz stand on its instructions to the District Court and rule on Ere District Court' s renand finding that the surveillance aid rot violate the 4th Amendnent _ If the Supreme Court found the surveillance illegal, presumably Alderman S requirement of full disclosure would 2pply , and the case would be remanded for an evidentiary hearing to exclude any electronic surveillance evidence, and the Section 605 issue would be avoided_ If the Court found the surveillances legal it coulc: 1) extend Alderman and require full disclosure of ali interceptions even iz Tegal possibly arguing somethirg to ere effect that Congress in Title III has imposed the requirerent of full disclosure in those cases 1 and that a similar safeguazc should be imposed on Presidential surveillances ; 2) allow in camera review and require disclosure linitez to elements J arguably relevant" to the Government ' s case; 3) not require disclosure at all if the Governrent proved in camera that the surveillances were related to foreis? intelligence , possibly arguing that since the defendant' s rights against unreasonable search an seizure were not violated Re has not been injurea the Governnent' s case is not illegallz "tainted II therefore aisclosure is not necessary , and , accisio:- disclosure would be very damaging to national security. Even if the surveillances were founa legal, however , the Section 605 evidentizry issue would remain_ A Hearing or 23 in camera review would have to determine whether any 0f 6he Government S case was built on electronic surveillance , aza, i2 33. the Section 605 evidentiary bar decided with respect to foreis: intelligence-espionage cases Since the Ivanov case is not beiie 2 SSECRET CONTINUED OVER 9 NW# : 88608 DecId: 32989541 ally, ================================================== Page 73 ================================================== Memorandu to E_ S . MillesSEGRET Re: U , S _ VS _ hn William Butenko and A_ Ivz Igor A Ivanov, Appellant electronic surveillance evidence presumably the convictions would be reimposed; however 1 supposedly the: Supreme Court does not know this_ and it woula conclude that if the District Court found electronic surveillance evidence to be involved it woula be bound by the Third Circuit's finding that the Section 605 baz aia apply, and the case would find its way back to the Suprene Court for a final determination on this point_ Thus if the Supreme Court chose to rule on the 4th Amendment issue and fouze the surveillance legal it would- have to rule on two issues immediately, the 4th Amendment issue and the disclosure issue and might eventually have to decide the third issue the Sectic= 605 evidentiary issue; if the Supreme Court affirmed the Court of Appeals, it would have to decide only the Section 605 evidentiary issue_ SECRET CONTINUED Ge OVER 10 NW#: 88608 DocTd: 329895'41 Igor Dv , ================================================== Page 74 ================================================== U 4 Memorandum €o M Ea 5 MITTer Rz ; J S _ VS Jnn William Butenko and Igpr A _ Ivat V , Igor A Ivanov , Appellant CONCLUSION The constitutional issue here is, as was the issue in Nardone, a policy question_ Given today' s climate and public attitude towards electronic surveillances in general , unchecked Presidential (White House) power, the distinction between use 0f electronic surveillance for intelligence purposes VS - use for criminal prosecution ana the Supreme Court S tradition of avoiding constitutional issues 1f it can decide 2 case on lesser issues , I am inclined to think the Court would grasp the "out" of the Section 605 evidentiary issue thus leaving the constitutional issue unresolved and allowing Presidentially approved foreign intelligence electronic surveil- lances to continue for the time being. The practical result of this of course woula be reverse the conviction of one man , Ivanov presently at hore in the Soviet Union. This ruling would not preclude post 1968 prosecutions based on foreign intelligence_ electronic surveil- lance information 1 since 2511 (3) presumably expresses Congress } intent to negate the evidentiary effect of Section 605 with respect to such cases: "The contents of any wire or oral communication intercepted by authority of the President in the exercise of the (powers enumerated in the statute, generzlly relating_to_foreign intelligence and efforts to unlawfully over- throw or endanger the structure 0f the Government) may be received in :evidence in any trial 1 hearing or other proceeding only where such interception was reasonable_ With the Section 605 evidentiary obstacle presumably disposed of by 2511 (3) 1 it woula seem that a post 1968 case on facts similar to Ivanov or preferably one actually built or electronic surveillance information , would be the best vehicle for eventually getting a ruling on the 4th Amendment issue_ ACTION: For information. SECRET 11 NW# : 88608 DocId:32989541 only tq ================================================== Page 75 ================================================== INQUIRY # 3 NW# : 88608 DocId: 32989541 ================================================== Page 76 ================================================== 1 S Mr . Baker 1 ~ Mr . E. S . Miler 1 T Mr . T J . Smith Mr William D_ Ruckelshaus September 17, 1973 The Deputy Attorney General Designate Director FBI 1 - Mr _ Sizoo SUBSTANTTVEISSUES . REGARDING THEYFUTURE OF_ THE FBL F,6,1. Reference is made to your memorandum to me captioned "Substantive Issues Regarding the Future of the FBI" dated July 20, 1973, enunerating issues on which you desired the Bureau's comments _ Concerning Issue Three n your nemorandun . I call your attention to memorandum from ne to the Attorney General captioned "Scope of FBI Jurisdiction ad Authority in Domestic Intelligence Investi- gations _ m dated August 7, 1973, 28 well as my August 24, 1973, memo- randum to you under the same caption . August 7, 1973 _ memorandum proposed an Executive order to define FBI responsiblities concerning Pederal statutes relating to national security . Mr . Jack Goldklang, Office of Legal Coinsel, Depart - ment of Justice pursuant to his analysis of the proposal in my August 7, 1973, memorandum 1 requested a copy Of Section 87 of our Manual 0ot Instructions concerning Investigation of Subversive Organizations &nd Individuals , as well aS 8copy of 2 study prepared in August, 1972 , at the request of former Acting Director L. Patrick Gray , MI, These were furnished with my August 24, 1973 , memorandum - Inasmuch 85 thig Bureau'8 extensive analysis regarding authority for our intelligence gathering was previously furnished for the Department'8 consideration in August 7 and 24, 1973 , memoranda, I assume that your needs to study Issue Three can be met by reference _ t0 those communications without additional submissions _ bz - 4 / ' 2-34 67z Assoe: Dir. REC-52 Asst. Dir:: JMS: rleAke S@i Admin. MAILE0 2 12 SEP 19 1973 Syst. (7) Ext. Affairs Filos & Com. SEP191973 Ennd Gen. Iny. NOTE: Idont. BFBF Inspaction Intell: See memorandum T J . Smith to Mr _ E. S . Miller dated Loboratory Plon. & Eval: 9/13/73, sBtzoned as above, prepared by JMS: rlc. Spoc. Inv. 1 Trolning docutent is response_to %our is not for dissemi Lagal Rfiot [oLtside yoar_ nerecontuuztece Its Fe limited caeerofficial notofeednge Talophone Rm. Ynmittee_and the content mdr disclgsR? to wnathorized per%du Director Soc'y MAIL ROOM TELETHE EwuitTAe lexpress approval of the FBI M ~N#+8860.8 DocId32989641 TR My Comp: WluN; Vns by| Coun. ================================================== Page 77 ================================================== 1 - Mr_ Mintz 1 - Mr _ Baker The Attorney General August 7, 1973 1 - Mr. E_ S , Miller Director FBI 1 - Mr. T_ J . Smith SCOPE QF.FBI JURISDICTION ANDHAUTHORITY INYDOMESTIC Secur hy Jurnedni INTELLIGENCE INVESTIGATIONS During our meeting On July 26, 1978 , you referred to & discussion you had with Senator Charles McC _ Mathias Jr., Of Haryland during your con- firmation hearings a8 to the statutory authority of the FBI and the Department of Justice in the field of domestic intelligence investigations _ You then asked M Wiliam D_ Ruckelshaus to work with the FBI in weighing the pros and cons with regard to statutory authority in this area . I mentioned that research was being periormed on this subject at the present time &nd that we would be in touch with Mr _ Ruckelshaus with regard to tnis matter when we have completed the results Of OuT consideration and findings within the FBI. Actually , & study has been going on in the FBI for more than two years 88 to the scope of FBI jurisdiction and authority in domestic intelligence investigations _ When Mr _ L. Patrick Gray , I, was designated as Acting Director of the FBI, he instructed that & position paper be prepared concern- the jurisdiction and authority of the FBI to conduct domestic intelligence investigations _ A position paper was prepared which in essence stated that authority of the FBI in this field is based on legislative enactments even though we may have publicly relied heavily on Presidential directives 88 the basis for such authority _ Mr Gray ordered an in-depth study made of the position and in August, 1972 , 8 detailed report was furnished to him _ The following is & summary of that report. 62 - 66 727-, 4 Over & period of several months there were & number of public Assoc. Dir. statcments questioning authority and jurisdiction of the FBI to conduct domestic Asst. Dir-: Admin. intelligence-type investigations particularly where there is no clcar-cut Comp: Syst. lezislative authcrity apparent _ One of the most searching inquiries waS con- Files & Com. Gon. Inv. tained in & paper presented by PruicSsor Jcim T~LJil gt 2tw2-8."% conferenc: Idant: Inspection at Princeton University in October_ 1971, sponsored the Comiittee for Publie latoll: Justice. 6 IE: AUG 8 1973 Laboratory 1 Plan. & Evol_ Spec_ Inv_-n pea Ioioncoutside yOwrecomiitteeesponse etdbur Teqvese tnig noi fok dissemi- Training 749 AB8 Eq/4 Jouto Cotaiddeeyona Goercontert Its" "se' s ' limited to' official proceedings b1 Lagol Coun. (8) inel iithout indiene_content Iay nut 6g disclosed to wnonthooiced Scrv . the express bpppo8a}rof the F BI person- Cort. & Crm. Rosoarch #FBT 13 1913 SEE NOTE PAGE EIGHT Nw#"88608 Docid,32989544 ing Hwy REC-29 by YyYoanzt: Cong. ================================================== Page 78 ================================================== The Attorney General A major thrust of Professor Elliff's paper concerned FBI authority derived from legislative enactments 88 opposed to thet derived from Presidentiel directives . beginning with & directive issued by President Roogevelt in September 1939 _ Professor Elliff is of the opinion that the 1939 directive , which was reiterated on three subsequent occasions, wes megnified by the FBI from its original purpoge to definitive Order to conduct intelligence-type Jnvestigations _ Senator Sem J _ Ervin 8s you know had been prcbing into the nature and extent 0f FBI intelligence-type investigations _ Senator Ervin had even announced that he intended to propoge legislation to prohibit the FBI from investigating any person without that individual'8 congent, unless the Government has reason to believe that person ha8 committed & crime Or is about to commit & crime_ Other Congressmen indicated 8 similar interest in FBI investigetive activities Our study revealed that the FBI had declared publicly over & long period of time that its responsibilities in the domestic intelligence field are euthorized under legislative enactments } Presidential dircctives and instructiona Of the Attorney General . The Presidential directives are obviously the 1) directive dated September 6, 1939 , and reiterated January & , 1943; July 24, 1950; and December 15, 1953, &nd 2) Executive Order 10450 dated April 27 1953 (and emended but Tot implemented by Executive Order 11605 dated July 2, 1971) _ In carefully analyzing the language of the first directive, dated September 6, 1939 and considering that the subsequent dircctives are &ll hinged on that one _ we believe that there is & misconception &8 to the extent of jurisdiction Or authority conveyed to the FEI by thege directives _ It eppears that while the 1939 directive fized responsibility on the FBI to handle espionage , sabotage _ and neutrality matters, it did not convey &ny authority or jurigdiction which the FBI did not &rcady have from legislative enactments . It i8 difficult to read into this directive Or in &ny of those which followed any guthority to conduct intelligence-type investigations which would o could not be conducted under &n umbrella of legislative enactments _ 5 2 - NW# : 88608 DocId: 32989541 yet ================================================== Page 79 ================================================== The Attorney General As & matter 0X historical fact , Pregident Roosevelt in August , 1936 , did request former Director J . Edgar Hioover to conduct investigations Of subvergive activitieB in this country_ including communigm and fasciem This request, however was & confidential oral request &nd there i8 doubt that any record of it was made outside the FEI . This request , or Presidential mandate } was based , incidentelly on the fact that the Jew provided that tne FBI could conduet guch investigation8 if the Secretary of State should so request . The study revealed that while the 1939 et 8q. directives did not grant any Bpecial intelligence-gathering Buthority the FBI, Ie were Tespon- sible under these directives t0 collect all intelligenee information furnished by Jocal , state and Fedcral Jaw enforcenent egencies &nd patriotic citizens end t0 sift &nd coordinate all such inormation for indicationg Ot subversive activity covered by Federal statutes _ The study concluded that the FBI has the responsibility to con- duct whatever inveatigationg ere necesgary to determine if stetutes relating to espionege, gabotege, insurrection Or rebellion, gedition, seditious con- spiracy edvocacy Of overthrowing the Government, and other such crimes aficcting the national security have been violated . In this connection we note that in & letter dated Jeptember 14, 1987 , the Department 0f Justice advised tnat the FBI i8 continually alert to the probler 0 recurring riots and is Submitting intelligerce reports to the Department of Justice concern- 1ng such activity . Thig letter enumerated geveral Federal etatutes and stated these could be applicable in' using maxinum availsble resourees , investigative &nd intelligence, to collect and report all facts bearing on the question of gchemes Or conspirecies to plen _ 3 promote or aggravatc riot ectivity _ In other words thc Department was requesting all possible Intellgence-type investigative ectivity based on the_existence_Of_cortain gtatuteg _ We gee thi8 48 being nO different from Ouz intelligence-type investigation8 relating to plenlg Or groups Or individuals to overthrow destroy intcrigre with or threaten the survival of effective operation of national , gtate , &nd Jocal govcrnments _ 7 3 - NW# : 88608 DocId: 32989541 to ================================================== Page 80 ================================================== Tho' Attorney General Baged On this study , Wc believe thet had there never been & single one of the Pregidential directives in queation the FBI would have conducted ard will , through necessity , continue to conduct tho same intelli- gence-type investigations &8 were conducted from 1839 to the present date _ We also believe , howkever that in order to countcr the criticisr &nd skepti- cism} Of' such individuals a8 Professor Elllff &nd Scnator Gam J _ Ervin that an "p-tO-date Executive order should be issued clearly esteblishing & need for Intelligenee-type investigations and delineating & clear authority for the FBI t0 conduct such Investigationg based On guidelines cstablished by the Attorney General and adhering to constitutional principles _ The study concluded with two banic recommendations_ 1) That the Departrent of Justice be requested to sponsor comprehensive legislaticn spelling cut the FBI's investigative &uthority in the collection o intelligerce information relating to the national gecurity &d; 2) that the Department of Justice be requested to seek & comprehensive Executive order which would cover &ny posgible gep between statutory authority and Executive necesgity in protectkon of the national gecurity _ At first glence thege recommendations mey eppcar to contradict our position that we already have statutory authority to conduct security-type inveatigations; that this being the case we do not need additional legislative enactxents nor do we need &n Executive order But being realigtic we think that the basic statuteg upO3 which we rely for Qur &uthority to conduct domestle intelligence investigations need to be upaated to fit 1973 needs_ Title 18 U.S.C . Sections 2383 _ 2884, &nd 2385 rclate to the national gecurity_ but the legislative hstory of 2383 and 2384 indicate8 that they were designed for the Civil War era, not the Twentieth Century , and Section 2385 has been reduced t0 & fragile shell by the Supreme Court- Thege statutes are unques- tionably still valid but updeting i8 certainly indicated_ The billg introduced es H.R_ 6046 and $ _ 1400 in the 93rd Congress appear to contain lnguege which should fill our statutory needs , except perheps for those groups 3 such e5 the Ku Klux Klen, Which do not seck to overthrow the Government, but never- theless are totalitarian in nature &nd seek to deprive congtitutionally guaranteed richts _ NW# : 88608 DocId: 329895414 ================================================== Page 81 ================================================== The Attorney General As to the need for an Executive order we think tbat two jesues are involved . We have statutory authority , but what we nced 15 & definitive requirement from the Pregident 48 to the nature ana type O intelligence data he requireg in the pursuit of hig responsibilities based On our statutory authority _ In other words there is & need, from cur standpoint_ for both authoritative gnd definitive guidelines The statutes u8 the authority _ The Ezecutive order would define our national gecurity objectives _ Menbers 0f Congrcss 9 including such men &S Senator Robert C . Byrd of West Vlrginia, have proposed legislation to spell out jurisdiction &nd authority of the FBI in this field. It would appear that the President would rather out his Own requirenents in &n Executive order instcad of having Congress tell him what the FBI might do to help him fullill his obligationg and responsibillties &5 Fresident . The political climate Of suapicion and distrust resulting from disclosures coming Out Of the Watergete hearing8 could pregent an obstacle to getting any such Executive order signed in the immediate {uture_ However , the rationale i8 nevertheless valid and when ecrutinized closely the language in the Exccutive order we hereinafter propose establishes detinitive guidelines which have heretofore been unclear_ It is my belief that we should go forward wlth tbi8 . We therefore propose and recommend that an Executive order along the following lines be submitted to the White House with & strong recommendation for approvel _ The language which follows ig mcrely to illuatrate the type of Executive order which we think would be appropriate and does not necesgarily represent an ideal format or gtyle which Bhould be Bubmitted to the White House . EXECUTIVE ORDER "Where88 the Constitution of the United States wag established to insure, among other things , domestic trunquility; to provide for the common defenge; end to promote the general welfare the pcoplc 0f the United States; &nd 5 - NW# : 88608 DocId:32989541 give spell for ================================================== Page 82 ================================================== The Attorney General "Whereas the President of the United States has the constitutionally imposed responsibility of defending the Constitution and the existence of the Government thereunder; end "Whereas there have been continuing unlawiul acts of violence perpetrated against the Government of the United States or against citizeng of the United States or egainst persons entitled to the protection of the United States thereby endangering the domestic tranquility , threatening the common defense , and jeopardizing the general welfare 0f the people 0f the United States; and "Whereas the Congre8s has enacted laws prohibiting &ctg such as treagon , sedition sabotage _ 1 espionage , insurrection and rebellion 3 seditious congpiracy, civil disobedience, rioting= assassination _ 9 hidnaping = deprival of civil rights 9 and conspiracies to commit such acts; and "Whereas the President of the Unlted States 88 Chief Executive in the maintenance of the Government thereunder must have intelligence information for appropriate decisiong in the discharge of his constitutionally imposed responsibilities; "Now by &uthority vested in me by the Constitution and statutes of the United States and in the interest of orderly operation of thig Government and in furtherance of the domestic tranquility = 3 common defense and general welfare of the people Of the United States it i8 ordered that; "The Attorney General prepare and issue guidelines = } conforming to the principles of the Constitution &nd the Bill of Rights _ and outlining the necegsary direction, coordination _ and guidance of investigations to assure that the Federal Bureau of Investigation provides on a continuing basis intelligence iniormation essential to the execution of laws pertaining to sub- versive activity &d other such activity affecting the national security domestic tranquility and general welfare of the United States m The Nation hes been going through a time of terror_ The concept of urban guerrilla terrorism hag been adopted by various extremist elements in the United States _ Bombing8 of public buildings &nd national institutions; ~6~ NW# : 88608 DocId: 32989541 ================================================== Page 83 ================================================== The Attorney General killing of police officers who, their uniform are & symbol of the democratic establighment; hijacking of aircraft in furtherance f revolutionary movements; terrorist assaults on foreign diplomatic personnel and establishments; and open declaration of war on our form Of government &re only & few of the violent acts which have been perpetrated by domestic subversives who seek to destroy or seriously cripple our Government Terrorist guerrilla attacks which were once confined to far away places &nd related to problems of no immediate con- cern of ours are now possible in this country_ Foreign terrorist groups in collusion with domestic terrorists have laid plans for &n airport massacre of the type which recently occurred in Israel . Other foreign terrorist elements have laid plans for terrorist attacks on American soil _ Already one foreign official has been assassinated possibly by terrorists _ It would be folly to adopt &n investigative policy based on the concept of investigation only when there i8 reason to believe a crime involving the national security has been committed . The FBI must obviously anticipate the crimes described above _ We believe that in order for the Government to be in pogition to defend itself against revolu- tionary &nd terrorist efforts to destroy it, the FBI must have sufficient investigative authority to conduct intelligence-type investigations not normally associated with enforcement of the statutes_ In other words we think the President has the inherent Executive power to expand by further defining the FBI'8 investigative authority to enable it to develop advance information concerning the plans end aspirations of terrorists and revolu- tionaries who seek to overthrow or destroy the Government_ However , we elso believe that such expanded authority must be formally set forth in &n Executive order and that this recommendation is responsive in the Attorney General's expregsed interest in laying more formal guidelines to our work in areas where definition is not now clear We consider the issuance of & new Executive order delineating our jurigdiction, authority , and responsibility to gather and report intelligence information relating to the national security to be a very important &nd high priority matter _ We believe the igsuance of guidelines by the Attorney Generel under 'itle 28 , Seetion 533 , Undted States Code, to be equally important_ NW# : 88608 DocId:32989541 by ================================================== Page 84 ================================================== The Attorney General For your information . OU1' Own investigative guidelines &8 con- tained in our Manual of Instructions relating to domestic subvergive investiga- tions have been completely rewritten to conform with the concept that our domestic intelligence-type Investigations are based on Federal statutes _ These "guidelines provide thet in each instance the domestic intelligence investigation must be predicated on information indicating that the organization or individual ig engaged in activity which could involve a violation of specific statutes relating to the national security_ 4 copy of the new guidelines was previously provided to the Department of Justice in connection with the request of Senator Edward M. Kennedy to obtain & copy of the FBI'g Section 87 of the Manual of Instructions _ The effective dete of the new guidelines was August 1, 1973 _ 1 7 The Deputy Attorney General NOTE See memorandum T . J , Smith to Mr. E_ S Miller dated 8/6/73 , captioned as above, prepared by TJS: bjr _ 8 NW#--88608 DocId:32989541 ================================================== Page 85 ================================================== Mr . J, B_ Adamg 5/9/74 W . R . Wannall RECKEISHAUS' ISSUE #&: SKOULD TIIE INTELLICENCE GATHERING FUNCTION OF TNE YBI BI SEPAIAZED FROM THE LAW ENFORCEiENT FUNCTION OF THE FBI? Reference my memorandun 8 4/16/74. Refcrenced memorandum enclosed & lcngthy cnalyeis of the above isoue , which contained recommendations fOr in-house considcration _ Mr Adamg asked that an abbrevieted vergion be prepared for' referral to tho Deparament o Juctice , containing the conclusion that all three missiong 0? the FBI 3 viz, X law enforcement, intcrnal sccurity , und counterintelligenca be retalned the FBI _ ACTION: Atteched I8 abbreviated pogition paper for referral t0 #he Department of Justice,, Enclosure Ihiodoouadad BOn; eCoreanitiecesponse to von request om i mot for dissemiz- ZG.iO Contaidteeyowd Cencoittee: Its %se ? limitcd to. official proceedings b1 ncL ritheutthe Ch6 contecaKRN At 6} isclosed to Viduphorocecanersov1 express ' approval of the FZI JFM: vb (4) 3 ~ Mr . W . R. Wannall 1 4 Mr . Aa B Julton MMr , & . P. Miller N#:88608 DocId:32989541 by ================================================== Page 86 ================================================== INQUIRY # 4 NW# : 88608 DocId: 32989541 ================================================== Page 87 ================================================== The Deputy Attorney General October 1, 1978 Director , FBI 1 1 2t" TmsZ 02 sicz TENURE OF THE DIRECTOR 7,2 9 . In response to your requegt, tbe foilowing is submitted concerning the terure Of the Director of the FBI: 1 The problem: In view of the unique position Occupied by the FBI Director 9 i9 it i0 the begt interests of the Government and the Nation to limit the term of offce ? 2, Thepreeent policy: statute , the Director of the FEI shall be appointed by the President, by and with the consent of te Senate. There i8 no specified term Of Office. The Issues raiged: REC-|I L3-2115-108 There bave beeu a number Of bills introduced in the Jast ffteen months proposing legislation limiting the tenure Of the Director to varying terms up to fifteen years. There bas been RO affirrative 4 07n+*0 Ker action taken O aay of tbem . MAILED 3 OCT 8 -. 1973 5 OCT 5 1973 Optious for future policy: AFBI *rt 0t srnerer Ret8 Eocosuri The cptions are whether Te temr" Of the Director of the EBI chould bave no limitatiou or tbat & fixed term be established: 2) ssoc. Dir. In Dy-testinlony'Allore the Cormittee O the Judiciary sst. Dira: Admin. in June, 1973 , I indicated that L felt independence ie achieved through Comp. Syst Ext. Af;airs tenure, and ezgydssed €y thrught that nine years wvould be & proper Filos & Com. term_ Gon. Inv. Idont. GLM:mm (6) 3 5 Inspoctlon 1 L Mr . Callaban (Direct) +p Intcll. Laborolory 1 7 Mr . Walsh (Direct) Hla PljBageli-on Memo Walsh to Hunsinger, 9/28/73 GLM:p38. Spoc. Inv. to Iquest 8 natfor dissemi- TrainIng This document is prepared in response limited eret proceedings bu Coun. 2 nation outside gour Committee. Its use %s Telophono Rw the content ma nut be disclofed' to wnauthorized Yiroctor Sa 386830 308w1979 %8* 8a8u EFeverene coptovai" iet %Bi NW#: DocId: 32989541 By S[;12A R6xf Q) :43 Jots Logal person- ================================================== Page 88 ================================================== The Depaty Attorney General After as3uming the offlce o Director [ beve had a opportunity to afford further thougat to this quegtion and arpreciate that there are some Gubstantial considerations that question whether the Director 0f the FBi should be restricted to & given term Of office. From 2 practical standpoinl, it is doubted that legislation to gpeciflcelly restrict the term of office 0f & Pregidential appointee i8 necegsary. We know of no elear-cut authority t0 remove an Officiai who hag received a Presidential appointment Fowever , In tne final analysis, the Presidert woxld lkely his vay because he ha8 the power to appoint & cuccessor, in this case the Director; In eifect, in absence 0f tenure, the Director will be serving at the pleagure of whoever i8 President: Should the pogition of Director of tile FBI be slrgled out for restriction 28 to term 0f office? An informal check by this Bureau bas discloged no restrictiong on the tenure Of beads Of other investigative 1 agencie8; namely , Central Intelligence Agency, Drug Enforeement Administration; and Seeret Service. Accordingiy, to sitgle Out the Directorship 0f the FBI would be in effect an exception: To provide tenure for the Director of the FBI would be tantamount to placing him In the same category a8 heads and commissionerg Of regulatcry bodies and the Interstate Commerce Commission wbo do serve for speclfic periodg. Tbe latter officialg make regulatory decisions affecting the Nation and specific terms of office have the effect of assurirg & continuing balance of political power. The office of Director of the FBI 1s not political: Experience hag shown that cooperation by other law entorcement agencies &d tbe general public has been instrumental In FBI investigatipe Slccess- While it cannot be preclgeiy measured, the degree 0f coniidence inspired by the individual gerving &8 Director influences the quality and quantity Of such cooperation: The offiece 0f Dlrector, 2 won ~poiitical one, has been charged wth the responsibility of providing fzctual Information upon which administrations Of diverse political persuasiong could formulate progecutive policy and look after the interial security interegts of the country. 8ingling Out the position ~- N#: 88608 DecId: 32989541 get ================================================== Page 89 ================================================== Tke Deputy Atsorney General o2 Director of the EBI for & restrieted term 0f ofiiee could suggest tbat perbape te confidence heretofore placed in the FBI I8 no longer reritede Pbetber this would have ay Impact 0 tbe ccnfidenc:? and ccoperetion by the public would ba problematie. iter weighing te foregoing &nd considering tne unique role of and fogerd %Or the Director of the FBL, it [3 my coucluaion tbat fbe Natlon wonld Ieel comfortable vith tenure for the Director 0f the FBI, and tenure would contribute toward countering any construetion tbat appointment of ay Director was polltical in tbe sense that tke Directorship wculd not necesgarily chang? hands with eaeh administaation. I fesl tne Incurbent sences & greater independence tbrough tenure. I feel tbat tenure should b8 for & perlod Sueh &6 Eina yearg t0 miniralze the occasions wieu appointive consideration [zotid coinelde witt 9 change in acministratione. Such & period would algo provide the Incumbent & sufficient feeling of independence. Howevez, tbi8 Buzeau deler8 to thc Department 0n tie gubject Of Length Of time. NW# : 88608 DocId: 32989542" ================================================== Page 90 ================================================== INQUIRY # 5 NW# : 88608 DocId: 32989541 ================================================== Page 91 ================================================== The Deputy Attorney General October 16, 1973 Director , FBI ?F,1.1' Should the Federal Bureau of Investigation be an Independent Agency ? In response to your request, the following i8 submitted 2 0 regarding Question #5 , . "'Should the FBI be an independent agency 1 or continue a8 Of the Justice Department ?" 1. Problem: Should tbe FBI be an independent agency or continue H as part Of the Department of Justice ? 8 8' 01 2. Polic: At tbe present time the FBI Is a bureau within the Depart 4H ment of Justice and, 28 such, is responsible to the Attorney General 8 3 The Issues Raised: The question bas arisen on several occasions # whether the FBZ, with its vast resources and knowledge, should be 7 under the control of a political appointee, the Attorney General, Or 8 !0 separated from the Department of Justice &nd established &8 an 888 independent agency within the Executive Branch: & 6ze-38 2 2 v / 2 1 4 Optiong_for Future_Policyz%-Tue main options for the future of the' [ 2 #BI are two: (T)RRemove @t from its position a8 an integral Of the Hi 1 ~ Department of Justice and establish it a8 an independent agency , Or & 12) maintain the present status Of the FBI in its role &8 the ipvestige_ & five arm of the Department and, a8 such, responsive to the directives 0 f the Attorney General. 20 OCT 19 1973 L 8 2 A brief Iook at history indicates that in 1908 Congress rreated 8 the Bureau 0f Investigation and designated it a8 a part of the Departmed 1 Assoc. Dir. Of Justice. The main reagon for this action was that a certain void 0 Asst. Dir : Admin. existed prior to this time in the' enforcement function performed 3 by the Comp. Syst: Attorney General. While the Department traditinnally bore the Ext. Affairs Filos & Com. bility 0 enforcing the laws of the United States and prosectiting violators Gon. Inv- Qf these laws, there ezisted no permanent group 0f individuals who could Identa Inspeetion Intell: FJFA:CSH (6) Cover memo, Baker to Callahan, Laboratory Plon: & Eval QERA Callahan 10/4/73 re "Issues Raised b1; Spoc: Inv. Mr . Ruckelshaus re future #TBf" Trainlng Baker (JFA:csh) Logol Coun. 18j-; Eakerz Telephono Rm. ROOM Gwj T Nult8860EAIL : {3c13LEBIS part part 8 n 2 'VVC ================================================== Page 92 ================================================== The Ceputy Attorney General conduct the fact-finding investigationg necesgary to gustain guccegsiul prosecutions. The creation of this "'detective" force by Congress aimed to fill that vola Over the years the responsibllitles of this agency , whlch eventually became kown &8 the Federal Bureau 0 Investigation (FBI) , have increased tremendously. From & Small agency charged with the task of conducting investigetions regarding relatively few matters, the FBI has developed into an agency held accountable for investigating violations of over 180 categories of Federal Law. In addition, the FBI has become more than just &n investi- gating agency , due to its maintenance Of various data in certain areas indispensable to a criminal justice system. The proposal to make the FBI an independent agency within the Executive Brench has been voiced on geveral occasions in Congress: Within the very recent past two bills were introduced in the Senate to achieve this aim. Additionally 48 far back &9 1947, Congressional sentiment existed to separate the FBI a8 an independent agency. The proponents of this move bave made it clear that the possi- bility of a politically motivated FBI bas caused them great concern and led to the introduction Of measureg which feel would go & long way toward preventing undue political influence. The argument is made that the Attorney General Is almost always a political appointee of the President, whose view8 generally coniorm with his Owyn: Those espousing this argu- ment point to recent events a8 exzamples of how an Attorney General could use his poSition to political advantage and fear tbat because of this mctivation he could easily manipulate an agency possessing vast amounts of sensitive information and substantial regources, such &8 the FBI, &nd easily misuse this organization which i8 eubject to bis directives &8 & part of the Depart- ment he heads. The questlon arises at this whether removal Of the FBI from the Department 0f Justice i8 the proper means Of assuring its justifiable degree of independence and freedom from undue poiitical pressure: The 2 - NW# : 88608 'DocId:32989541 they point ================================================== Page 93 ================================================== The Deputy Attorney General designation f the FBI as an independent agency would simply mean that the Director wouid no longer report to the Attorney General, but would instead be responsible directly to the White Houge, 25 iS the cage vith existing independent agencieg: There appears to be some Berious doubt whether &n FBI Director would be more or less subject to political pressure when placed in this posture: The FBI must be responsive to the desires and needg of the American public and in this sense Only should it be considered rolitically responsive: The denger of becoming enmeghed in partisan political dealings might easily be increased by removing this additional layer 0f Executive Branch regponsibility which now exists in the person of the Attorney General. Opponents of tnese proposed Senate bills note that, while some denger does exist in the FBI's reporting to & political appointee, a far greater danger would exist if the FBI, performing a8 an independent agency , became the arm of & politicaliy motivated Director who was responsible to no oe but the White House: When one considers tbe possibility of an independent FBI, it is difficult to ignore the specter of a national police force at th e disposal of the incumbent administration, a condition generally repugnant to or citizens. The relationship between the investigator and the prosecutor is 2 very delicate; vital one. Neither can properly iulfill his role without the wholehearted assistance 0f the other. 80 it is with the FBI and the Department Of Justice. close working relationship has developed and must be maintained #f the responsibilities of each are to be met. Tle FBL does need & certain amount of independence and this fact has been recognized by even its most gevere critics In addition, Congress, in creating & new Subcommittee on FBI Oversight, bas In effect ingured a certain degree 0f FBI independence: 3 ~ N#: 88608 DocId: 32989541 yet ================================================== Page 94 ================================================== Tbe Deputy Attorney General In consideration of all the foregoing, It is believed the FBI ehould remain a Bureau within the Department of Justice where it can properly perform its iunction to investigite violations of various Federal laws &nd report its impartial findings to those who wiLl conduct the progecution of these violations in Our judicial sygtem. "4 - N#: 88608 DecId.32989541 ================================================== Page 95 ================================================== INQUIRY # 6 NW# : 88608 DocId: 32989541 ================================================== Page 96 ================================================== The Deputy Attorney General October 16, 1973 Director , FBI KUESTANTIVE ISSUES REGARDING _ TEE FUTURE OF THE FEDERAL_BUREAU QF IVESTICA TTON Reference iS made to your memoranda to me, captioned aS above, and dated 20 and August 20, 1973. Attached hereto is the FBI response to Issue #6. Enclosure 4 2 JFH:CSH (6) NOTE: Mr. Ruckelshaus" memorandum of 7/20/73 enumerated 11 issues regarding FBL%iGanization and operation being studied by him. The 8/20/73 memoyset forth the format for response. Issue #6 concerns the relationship between the Director and the Attorney General, assuming that the Bureau remains & part of the Justice Department, 1 C Mr. Callahan 62_9432-3441 Mz rt Assoc. Dir. Mr. Baker Asst. Dir:: Admin. 1 Mr. Emery 6 OCT-19 1973 Comp. Syst. Ext. Affoirs 9 Filos & Com: Gon. Inv. {dent. WAILED 2 27 #'1313 Inspoctton Intoll: Laboratory 1 1973;: _ Plan: & Evol; doqument is prepared i response to request and.is not' for dissen Spoc. Inv. ~lie dodutaedd iour econenvn;eee Its use is -limited to-official proceedings Training your . Coimittee and_the content "ar nt 6e disclosed to uniuthorized Logal Coun. Fi nel without the express "dpproval of the FBI Telephone Rn. Director sdy 6 0GF1 8oojt973 TELETYPE UNIT N#: 88608 DocId: 32989541 July v REC 56 EX-112 ENCLQSURE EEy;97 y0u: 1973 ` 19 person 'OCT ================================================== Page 97 ================================================== Iseue #6: Assuming the FBI remains 2 of the Justice Department, what Should be the relationship of the Director to the Attorney General ? AM the organizational and subgtantive reiationships should be examined: 1 The_problem; By Congressional enactment, the Attorney General has been designated the head 0f the Department of Justice and has been charged with the responsibility of supervising and directing the administration and operation of that Department. Further , the Federal Bureau 0f Investigation has been placed in the Department of Justice with the Director 0f the FBI a8 its head: The FBI, through Congressional enactment, Executive Czder, and Directive Of the Attorney General, has been charged with the responsibility Of periorming certain autieg subject to the general supervision and direction of the Attorney General: Tbe Director of the FBL, 2 Bureau chief within the Deprtment, having been granted enormous responsibility , must attain & proper balance between independence and responsiveness in order to properly discharge this responsibility. 2. The_present policy: Disclosures Of political and business corruption and unethical practices auring the investigation Of land-fraud &nd antitrust cases in the early 1900'$, coupled with the recognition 0f the need for &n investigative arm within the Department of Justice gubject to its control, led to the creation of the Bureau 0f Investigation (forerunner 0f tie Federal Eureau 0f Investigation) within the Department in 1908. In an effort to reverse a trend Of political iniluence Tithin the Bureau ad the Department, Attorney General Harlan Fiske Stone in 1924 appointed J. Edgar Hoover as Acting Director of the Bureau: Shortly thereafter Attorney Ceneral Stone dictated that the Director Of the FBI be directly responsible to him with respect to the operations 0 the Eureau as a whole: In addition, it was understood that tbe Bureau was to operate free Of political influence and limit its investigative activity to certain violations over which the Bureau had jurisdiction: Tbls Fas formed to give the Director, charged primarily with delegated investigative responsibility, a degree of independence recognized 28 80 necegsary for him to properly digcharge his duties and JFH:CSH (6) Attachment to memo to Deputy Attorney General, 10/16/73 , captioned "Substantive Issues re Euture Of the FBI" TNCLOSURE 62-24112-341 N#: 88608 DocId:32989541 part pct ================================================== Page 98 ================================================== Btill remain subordinate to the Attorney General, who had been charged primarily with & prosecutive function: Codification 0i dutieg to be performed by the Attorney General 28 head of the Department 01 Justice, and the Director 28 bead of the FBI within that Department, plus recogniticn that both muzt attempt to perform their related duties within the criminal justice system to the optimum, has led to the necessity ior & substantial degree Of inde- pendence on tne part 0f the Director, balanced with a responsiveness by bim to reagoned coungel, guidance, supervision end control by tbe Attorney General. 3. The issues ralsed: () During the "Princeton Conference" It wa8 said that time "and practice have made the FBI & totally separate gower answerable to no ore. More specifically , the Attorneys General, Fresidents and Congress have granted power and responsibility to the FEI but have jadled to direct, guide and control it (b) During the course of the FBI investigation Of the 'Watergate break-in, {R allegation8 were made that the FEI bas been too respongive to demands made upon it, particularly those of & political nature: 4 Optiong_for_future_policy: Tbe Director of the FBI, as bead of the princigal investigative Bureau Within the Department of Jusiice, must be permitted to discharge his responsibilities iree from political or unethical pressure: Thi8 mst be balanced with his responsibility to remain responsive to the Attorney General's leadership and direction of that Depart- ment having a8 one 0f its principal functions the enforcement Of the Federel law through prosecution: f Congressional oversight committee, available to give the FBI coungel, guidance and direction, could greatly axsist the FBI in achieving and maintaining this balance. There must be an efficient working relationship, With free and open channelg 0f comrunication betreen the Director and the Attorney General, due to their mutual and interlocking responsibilities in the criminal juetice field, primarily investigative on the of the FEI and prosecutive On the of the Department. This relationship should generate, at descending levelg in the Department and the FBI, 2 commitment to accorplish en efficient work flow, in appreciation Of the impact 0f this interaction on the ~2 - NW# : 88608 DocId:32989541 part part ================================================== Page 99 ================================================== entire criminal justice syetem. Because of the multiple and varied responsi - bilities of the FBI, the Attorney General-Director relationship and the counterpart division relationshipg should insure & Smooth and coordinated efiort which willl enable the accomplishment of major objectives, while at the game time providing necessary FBI gervices to other elements Of the criminal justice system. That we are well aware Of our role and responsibilities in this Tegard, and to cite only one Of geveral ezamples, i8 evidenced by the opera - tion of the Computerized Criminal History Frogram which provides much needed data to all branches of the System: Thus, to the extent possible, these relationships should be Guch that both objective achievement and mutual a8sistance between components Of the systems are enhanced. With regerd to other continuing relationghips having a bearing on the Attorney General-FBI Director relationship, the FEI head must communl- cate directly with the President On Occasicn, and with the recent establish- ment 0f 2 Congressional overgight committee, direct contact will be main- tained with this group. Concerning utimate alternatives in tbe relationship, the FBI Director must be in 2 position to register reasoned disagreement at times ad, if the Situation dictates, to take up important matters 0f disagree- ment with the Fresident and with the Congressional oversight committee. ~NW#+8.8608_ DocId:32989541 ================================================== Page 100 ================================================== 7 _ ; INQUIRY # 7 NW# : 88608 DocId: 32989541 ================================================== Page 101 ================================================== 1 3 Mr . Mile 1 7 Mr. Wannall 1 3 Mr . Mintz The Acting Attorney General 1 - Mr. T. Smith December Wl, 1973 ST-114 REC 38 62-34/72 ~ Director , FBI STUDY OF FBI PROGRAMS AND POLICIES Reference is made to your letter of December 5, 1973, 8 captioned as above Il I fully support the idea 0f & study launched for the 4 L purpose of considering the need for additional legislation to enable 8 ] tbe FB to counter violence in the time Of crisis such 38 existed at the time the FBI implemented the COINTELPRO 9 New Left. 4 3 0 88 0 8 As you know the FBI has conducted an in-depth study 1 8 of the scope of FBI jurisdiction and authority and it wag concluded lil that additional legisiation is needed to enable uS to more fully 3 ] discharge our responsibilities relating to the national gecurity. 1 8 2 Copies 0f this study have been furnished to the Department. 2 ~ 8 383 As for the general study Of programg and policies of the : 4 I FBI which was initiated by former Attorney General Richardson and 0 L former Deputy Attorney General Ruckelshaus , we have completed < 11 compiling most of the information requested . However_ as pointed 0 0 out during Our meeting on-December 5, 1973 _ information requested in item No. 7 relating to Investigative Techniques was 80 broadly L 4 requested by Nr. Ruckelshaus that It encompasses extremely sensitive 8 07 1 foreign intelligence collection techniques _ Such information is 80 8 ciosely held in the FBI that it is banded On & strictly need-to-know basis. 3 We therefore do not feel that the information should be included in a 1 @u study 0f thig type which will be beyond the control of tbe FBI. Assec 1 Mr. Petergen noted at the meeting that such iniormation Ad 8 is needed if we expect to legislation which would give uS the Adrins Syst. authority we need in the sensitive foreign field. We recognize thi8_ Ext. Affairs 12 Files &' Com; E 1I Gen. Inv- TJS:mah (7) SEE NOTE , PAGE Two' Ident: Inspaction MAILED 2 Intoll: Loboratory DECiiisij Plan. & Evol: Spoc. Inv. #FBI Trainlng Cega/hGourRm, JAN 8 1976 QaI 8 1974 V Nuleliebo ictht 3360 8MAIL ROcD6OIdu8.298912 35k0 (J7 being 3 icc 0 get Compa JWd TJT Unck ONIT REC: 'XRS. 58 ================================================== Page 102 ================================================== Tbe Acting Attorney General but ve feel that such could be handled during oral briefingg during high-level conferences. In this regard, you have designated Meagrs. Henry E. Petersen, Robert Cizon, J. Stanley Pottinger, and Irving Jatie to be avadlabie for consultation and advice. Iam designating Assistant to the Director-Deputy Bssociate Director Edward S. Miller; Asgistant Director W R. Wannall, Intelligence Division; Inspzctor John A, Mintz, Legal Counsel; and Inspector Tbomas J. Srith, Intelligence Division, to meet wth the aforesaid for tbe purpoze of regolving issues bearing 0 FBI programg and policies _ I feel tbat it would be highly profitable if the Department and FBI representatives could arrange & t1o- Or three-day conference away from Washington, possibly at our Quantico facilities, where 2n uninterrupted discussion Of the various proplems could be held and durirg Tnich recommendations for positive action could b2 formulated. K you agree, I wil to arrange gomething for soon aiter the first 0f tbe yzar_ NOTE: A conference was held 12/5/73, between Mr _ Bork and the Director _ Alss present were Assistant to the Director Edward S. Miller and Inspector Thomas J_ Smith from the Bureau and Mr _ Henry ES Petersen _ Relet was discussed at the conference The letter was deemed necessary because of the Carl Stern suit involving his request under the Freedom of Information Act for documents relating to the COINTELPRO 4 New Left . Mr. Bork feels that tke Bureau and Department should study need for future legislation in connection with issues relating to the COINTELPRO_ NW# : 88608 DocId:32989541 try ================================================== Page 103 ================================================== kn 'DJ-1s0 972 Assoc. Dir. # 4-26-65) Asst. Dir.: ~UNKTRD STATES GOVEF ENT ARTMEAT OF Admin: Syst. Memorandum Ext. Affairs Files & Gen. In.v . TO Clarence M. Kelley, Director DATE: December Idont: Federal Bureau Of Investigation Inspection Intell: Laboratory FROM Robert H_ Bork, Acting Attorney Rhb Plan. & Eval: Spec. Inv. General Training Legal Coun. SUBJECT: 'Study oX FBI Programs and Policies Telephone Rm. Mbl Director Sec'y 2 n eb. As yox know 1 a general study of the programs and policies of the FBI was initiated in by former Attorne= General Richardson , former Deputy Attorney General Ruckelshaus 1 ana yourself_ 1 As Acting Attorney General, I have continued to b support this effort and you and I have discussea various 04 approaches to further implementation of the stuay. In additiony) k7 I have discussed the matter with Senator Saxbe to assure that he is properly advised of on-going matters pending before the Department_ As a result of my conversation with him, I am ~ 7 certain the study will continue to receive the highest priority- when the new Attorney General assues office. 6 A new dimension was added however as a result of a suit filed against the FBI under the Freedom Of Information 2 Act a reporter for the National Broadcasting Company, Carl 2 Stern The suiE brought to my attention certain information 2 Which demonstrates anew the importance of the study. In my 5 capacity as Solicitor General, I decided that the law ana the 1 public policy expressed in the Freedom of Information Act did 83 not warrant appealing the district court'8 decision that the documents in question must be provided to Mr Stern I under-~ stand that the material is in the process of being turned over _ { to Mr Stern ST-114 FEC 38 ( 3 34/71.-356` L Meanwhile, it 5 appropriate--indeed imperative__ that you complete as rapidly as possible the inquiry into 3 8 investigative techniques that and Mr _ Ruckelshaus had 2 begun As you and I have agreed , the study should focus in particular on the programs and activities referred to in the 1 documents involved in the Stern litigation_ I ask that you 3rr4e report on these matters as expeditiously as possible, and that your report include a detailed summary of conduct in 1273 past under such programs and actions taken to insure that the rights of individuals are not violated while essential FBT 3t Rrrrk- investigations are pursued. In terms of priority I think that the program COINTELPRO--New Left should receive first This document is prepared in response to request and is not for dissemi- nation ortside your xse is limited to official proceedings by your Committee and Cozeyatteat Eiay md-ut be disclosed to uauthorized = #30REJ UNTP nel without the express_ gf the FBI LNW#+88608 DocIda 22a81h8 I MZ Compa Com. July 3 2 by _ > 7 # ~ you ~tx" Ahels your Oec_ ================================================== Page 104 ================================================== 2 consideration I also seek your recommendations as to any corrective: action that shoula be taken either you or by the Attorney General_ It may be that the best solution would be additional legislation_ In addition to the general support of the Depart- ment and its personnel to assist you in your undertaking , I am specifically designating four Department officials to make thenselves available to yoU , individually or as a group , for consultation and advice_ They are Henry E= Petersen Assistant Attorney General in charge of the Criminal Division, Robert Dixon Assistant Attorney General in charge of the Office of Legal Counsel, J_ Stanley Pottinger 1 Assistant Attorney General in charge of the Civil Rights Division and the acting head Of the Civil Division , Irving Jaffe They will also be available to the incoming Attorney General for the same purpose_ I know that you agree with me that it is critical to the national interest that the FBI be able effectively to counter violence in time of crisis and that there be no occasion for public doubt concerning the legitimacy of its actions _ NW488 608 D3aT.32989341 by ================================================== Page 105 ================================================== INQUIRY # 8 NW# : 88608 DocId: 32989541 ================================================== Page 106 ================================================== Tssu: FILES AND THEIR DISCLOSURE I. Problen: Mr. William D. Ruckelshaus, in item #8 of memorandum to the Director dated 7/20/73, stated, "The Wvhole question of files and their disclosure must be studied with a view toward understanding files are kept, what categories 0f files there what information is contained in the files and whether the purposes for maintaining files are being met under present policy_ In the issue of disclosure, where: and to whom must also be thoroughly 4 examined: As problems involved in creation and maintenance of files and disclosure of information contained in them are rather complex are being discussed separately_ Identification Division records consisting of fingerprint cards and identification records (Rap Sheets) are not considered to fall in this category of "Files" and their use is not commented upon. II. Present Policy A Why Files Are_Kept: Of information in FBI files covers a relatively short span of years _ FBI had very few files until the President in 1939 , directed the FBI be responsible for the Internal Security of the United States In view of and as the number of violations of law over which tke FBI has jurisdiction has nearly doubled since 1939, the vast majority of FBI files have been created since :939_ Regulations of National Archives &nd Records Service, (NARS) General Services Administration, Thich are based on Title 44, Chapter 33, Seetions 3301 and 3302, U.S. Code, govern tne type of matcrial which we mnust maintain. Record material is dcscribed aS including "all books, pnpers, maps; photographs , or other cocumentary materials; regardless of plysical iorm Or characteristics, mace or' received by an agency of t ~ TJnited States Government under Fedleral Law 01' in connection with the transaction Of public business and preserved or appropriatc for preservation by that agency 0r its lcgitimatc succcssor a5 evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the inforrational Viilue of clata contained therein. M This docament is prepred in response to request and is not for dissemi- nation outside yowr) Committee. Its use is limited to -official proceedings by your Committee and the content mal nut be disclosed to waduthorized person nel without the express_approval_of_ the FBI (CCNTINUED 0 OVEI?) NW# : 88608 DocId: 32989541 4 8 why are, when, they being Age this, yovr ================================================== Page 107 ================================================== In view of this definition of record material, we are required to retain any material which we have made or received during the course of public business, and which has been preserved or is appropriate for preservation: In 1969 1 NARS surveyed the records of the Department of Justice inclucling those of FBI and subsequently instructed that certain categories of FBI files at FBIHQ be retained indefinitely _ Included were files which would have historical value and would document policies, procedures, functions, budgetary policies, etc _ In addition, vast majority of investigative files must be kept indefinitely although it was prescribed that only a representative sampling of certain types of violations at five year intervals be retained. These require- ments apply only to files at FBIHQ. NARS has previously approved destruction of closed field files a8 all pertinent information is in file at FBMHQ As a practical matter, however, field investigative files are retained 20 years before being destroyed. to The FBI has an active program to its records at FBIHQthe barest minimum. While certain categories of our files, as previously mentioned, must be retained permanently , some are obsolete and valueless- With approval of NARS we destroy certain categorics of such obsolete material. Examples of the larger categories are: Results of investigations over 25 years old regarding alleged subversive and espionage activities wherein complaints were nebulous and no derogatory information was developed, and investigations where the perpetrators of the crimes were never identified. In order to reduce ~mount of storage space required for files we microfilm, with approval of NARS, majority of files regarding criminal violations which are over 10 years old. B Categories 0f Files Material is filed into one of the following general types of files: Main Files A main file is opened on an individual, organization, or subject matter when there wll be an adequate volume of mail or the matter is deemed of sufficient importance to be assembled in one place. Main files are referred to as "Case Files" when we are making an investigation. ~ 2 - JNW#_:88.608 DocTd: 32989541 keep ================================================== Page 108 ================================================== General Files General filas are used For nonspecific violations, complaints over which we have no jurisdiction, and miscellaneous matters_ General files are also maintained on various indivicluals; organizations; foreign_ local and state lawv enforcement agencies a8 well as Federal agencies (for information regarding cooperation, liaison general organization, etc.); associations; patriotic organi- zations such as the American Legion; newspapers, magazines, radio and television stations wvhich cooperate with the Bureau in publishing fugitives-and to whom we give press releases; and activities of foreign nations such as Soviet and satellite activities, etc . Control Files Control files are maintained for the purpose of having all information regarding & specific matter immediately available without the necessity of reviewing numerous case files. An example is "Threats Against the President _ M Individual case files are opened for each threat on Thich we conduct an investi- gation; however, a copy is placed in the control file so that all such threats are recorded in one place Policy Files A policy file is maintained for each violation over which the FBI has investigative jurisdiction along Tith various specific programs arising from this jurisdiction_ Administrative Files Administrative files are maintained on statistical reports, appropriations, conferences, training schools, FBI National Academy matters, and related subjects_ Set-up Files These are files which are set up by locality Or special ( _tegory Tvith subs for field offices, states, continents, 01 foreign nations _ Almost any type of file can be made & set-up file if the volume of mail expected is grcat enough or if the supervision of the subject mnatter is divided among several Special Agent Supervisors according to locality. 3 N#: 88608 DocId: 32989541 ================================================== Page 109 ================================================== C_ Type_of Information Contained in the_Files Generally speaking, there are no limits aS to the type of information in our files_ The FBI, by the very nature of its jurisdiction and its worldivide rcputation as an elite law enforcement agency, attracts information. In addition to being responsible for investigations relating to interstate criminal activity throughout the United States, the FBI is also responsible for the Internal Security of the United States. Any intelligence organization survives on information uncovered by investigation or received from other sources_ Citizens write to the FBI regarding any matter which they feel is against the best interests of the United States or where they feel an individual or organization might be violating a laT_ The average citizen is not awvare of the jurisdiction of che various investigative agencies, local, state or Federal and many of them bring their problems to the FBI, The FBI will promptly disseminate any matter which is under the jurisdiction of another agency to that agency. The nondisseminated information is either acted upon and filed, or filed because no action is required. In addition to the filing 0f material relating to criminal and security matters, the Bureau is responsible for a number of applicant-type (background) investigations and the information ceveloped during lhese investigations is filed. D. Disclosure of Information in FBI Files 1 Responsibility for Proper Utilization of Information Among the foremost of the FBI's responsibilities is the proper utilization of information received either through investigative activities or through other means aS this information may be of vital interest to another Government agency 01" a local law enforcement agency. It is extremely important that the FBI keep these agencies informed concerning matters in which they would have & legitimate interest. Information is disseminated at both field and Headquarters level with FBIHQ making the information available to Federal agencies at the national level. 2 . Basis for Dissemination a0 To Government Agencies The FBI is under obligation to act as a clearing house for information whicl a[iccts the Internal Security of thc United States. This obligation is based on the following: 4 - NW# : 88608 DecId: 32989541 ================================================== Page 110 ================================================== 1. Beginning in 1939 various Presidential directives requested all liw enforcement @fficers to report information regarding espionage, sabotage, subversive activities and related matters to the FBI: These directives charge fne FBI with the responsibility of correlating the material and referring matters uder jurisdiction of other Federal agencies to the appropriate agencies. 2 _ The Delimitations Agreement between the FBI and the Armed Forces intelligence agencies provides that the responsibilities assumed by one organization in a given field carries with it the obligation to exchange freely and directly with other subscribing organizations all information of mutual interest_ In addition, 3 supplemental agreement provides that certain information of general interest to the intelligence services of the Armed Forces be furnished them _ 3. The National Security Act of 1947 provides that upon written request from the Director of Central Intelligence Agency (CIA) the Bureau shall make available information for correlation, evaluation and dissemination essential to national security. 4 Executive Order 10450 (Security of Government Employees) requires the FBI to check names of all civil applicants and civil incumbents of any department or agency of the Executive Branch against records of the FBI. 5 _ Supplement Number Four (Revised) of Departmental Order 3464, signed by the Attorney General in January, 1953, classified all official records and information 0f the FBI as "'Confidential. 18 However, in accordance with long-standing policy concurred in by the Attorney General, the practice of passing to other Government agencies information coming to the FBI'& 2ttention in connection with the conduct of investigations normall- wthin the Burezu's jurisdiction Tes entirely appropriate and correct. The Attorney General advised the Bureau it would be remiss in its duty if it failed to pass along information which might prove of interest to the general welfare. b. White House Requests Pursuant to requests from the White House, the names of individuals who attend, serve or perform at White House functions, or Ivho may be considered for Presidential appointments are checked against Bureau files including Iclentification Division records for any derogatory data which indicates the indi- vidual might pose & threat or embarrassment to the President or members of his family . Such requests are handled expeditiously and any derogatory infor- mation is reportcd directly to the White House Staff security Oflicer by appropriate communications depencling upon the time factors involved _ At the request of the White Fouse the FBI conducts background investigations on Presicential appointces, White House cmployees and persons having regular access to the White House. ~5- NW#: 88608 Doctd.32989541 ================================================== Page 111 ================================================== For a number of years wve have followed the practice of furnishing significant intelligence information, both in the domestic and foreign arcas, on a ti mely basis directly to the White House concurrent with the clissemination of the same data to the Attorney General and other interested agencies. The Bureau disseminates by teletype to the White House and other interested agencies summary data concerning civil unrest and acts of violence as they occur in the U.S. We also provide the White House by letter or teletype, aS circumstances indicate, top-level intelligence data developed through our sources when it appears the President or senior members of his staff would have an interest_ Much of this originates Tvith our Legats and through our coverage of foreign establishments in the U.S: Simultaneous dissemination is made to the Attorney General Tho is advised of our dissemination to the White House. It is noted that frequently the value of information being disserinated depends entirely on the timeliness of our dissemination. Therefore, direct and irmediate dissemination to the White House is the only effective wvay to handle these matters. FBI Legal Counsel on 7/20/72, set forth the opinion that the FBI had no legal basis to disseminate information to the White House concerning a current criminal case. I is the obligation of the FBI to keep the Attorney General fully informed and leave further dissemination to him_ Acting FBI Director Gray instructed this policy be followed and we have been complying with this directiona C. Exceptions_ 1. Congressional Committees The Attorney General on 6/14/54, ruled that the FBI shall make name checks and investigations of individuals being considered for staif positions of the following Congressional Committees when Such requests are made by the chairmen: 2. Senate and House Appropriations Committee ba Senate and House Judiciary Committee C. Joint Committee on Atomic Energy (Cooperation extended to this Committee pursuant to the Atomic Energy Act of 1946) do Senate Armed Services Committee N#:88608 DecId:329895475_(a) 3 ================================================== Page 112 ================================================== e. Senate Foreign Relations Committee 2_ Supreme Court The Bureau conducts name checks for the Supreme Court, which checks are nor mally limited to employees such as charwvomen, elevator operators and individuals of this type. 3. Foreign Intelligences Serviceg As a matter of cooperation with friendly intelligence services, the Bureau conducts name checks for the following such agencies who have liaigon representatives stationed in Washington, D.C. a. Royal Canadian Mounted Police (Canada) ba M-5 (British Security Service) C' Australian Security Intelligence Organization (Australia) d. New Zealand Security Service (New Zealand) e French Foreign Intelligence and Counterespionage Service f M-6 (British Secret Intelligence Service)_ g. BFSS (Bureau For State Security) ` (South Africa) In addition, name check requests are conducted for cooperative foreign_ police and intelligence services through the Bureau's Legal Attaches stationed in foreign countries. In & very limited number, name check requests are handled for cooperative foreign police agencies by direct correspondence. d. To Local and State Law Enforcement Agencies The FBI traditionally has C joperated with local and state Iaw enforcement agencies in matters of common interest. Pertinent information regarding local criminal matters if furnished to local and state law enforcement agencies when such dissemination will not jeopardize FBI investigations or informants_ During' Fiscal Yeer' 1973, 189, 910 items of criminal information were furnished by the FBI to local and state law enforcement agencies. 6 - NW# : 88608 DocId: 32989541 ================================================== Page 113 ================================================== E_ Type oE Information Disseminated Name check requests received from agencies within the Executive Branch, as 2 general rule, are checked against FBI Files for "subversive-type" references only and criminal-type references are not reviewed: However, for some agencies, at their specific request, all references in Bureau files are reviewed. All agencies are aware of the Limitation on the type of search made 2S are furnished & copy of a FBI booklet describing procedures for requested name checks. The policy of disseminating only "subversive-type"' information is based on the fact that any agency desiring to obtain & copy of the individual's identificatior record showing his arrests may do so by submitting & separate request directly to the Identification Division. A second reason for limiting the search is due to economy aS searching criminal-type references would require additional personnel and an increase in the cost of conducting name checks. In response to name check requests, the Bureau disseminates the results of Bureau investigations, information received from reliable sources concerning membership in subversive groups, pertinent public source information, and_ information which good judgment ad comnon sense dictate should be furnished. Information falling in the category of rumor or gossip Which is found in Bureau files is not disseminated uless a compelling reason exists therefor, and when such information is disseminated to a requesting agency , that agency is alerted to the nature of the information and the fact that it has not been verified by the FBI. Derogatory information on Federal employees is furnished to the Civil Seivice Commission and wvhere common sense dictates, it is also furnished to the employing agency. F_ How Dissemination is Made I. Name Checks When possible & copy of the FBI communications is furnished to the requesting agency . A record is maintained on the original of this communication that 2 copy Tas furnished to the particular agency. When information is located in numerous FBI communications, the pertinent data is abstracted and summarizel into & separate communication. copy of this communication is retained in FBI Files. 4 7 - NW# ;-88608 Deetd+ 32989541 they ================================================== Page 114 ================================================== 2_ Other Than Name Check Requests information received by the FBI which is of interest to another Federal Agency is furnished in writing to that agency. G.Protection of Information Disseminated When reports or letterhead memoranda already in the file are disseminated to a requesting agency, each such document contains the following statement: "This document contains neither recommendations nor conclusions 0f the FBI. I is the property of the FBI and is loaned to your agency; it and its contents are not to be distribued outside your 11 agency _ Data abstracted from the files and disseminated by letter Or in letterhead memoranda form contains, in substance, terminology appearing above. I_ Issues Basic issue appears to be whether FBI should retain and disseminate information in its files which is not acquired as a direct result of its investi- gations. IV _ Options There are no options: We are required by law to retain information which has been made or received in connection with the transaction f public business and which has been preserved or which is appropriate for preservation as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities or because f the informational value of data contained there. With respect to the dissemination cf information to Federal agencies, we are required by Presidential directives, and instructions of theAttorney General to furnish information in our files to agencies of the Executive Branch. The exception:: cited previously are logical and no change is believed necessary. Likewise, the welfare of the general public requires that we continue OUr policy oE furnishing pertinent information regarding local criminal matters to local and state law enforcement agencies. NW#: 88608 DecId: 32989541 - Any law, ================================================== Page 115 ================================================== INQUIRY # 9 NW# : 88608 DocId: 32989541 ================================================== Page 116 ================================================== 1 5 Mr _ Baker 1 - Mr. E= S . Miller Mr . William D_ Ruckelshaus September 1 9 1973 The Deputy Attorney General Designate 1 ~ Mr . T J_ Smith Director , FBI 1 5 Mr _ Sizoo SUBSTANTIVE ISSUES REGARDING THE FUTURE OF THE FBI Reference ,is made to your memoranda to me captioned a8 above and dated July 20 and August 20 , 1973 _ Attached is the FBI's response to Issue Nine of your July '20, 1973, memorandum . Enclosure JMS:rlc (C: (7) _ NOTE: Ree-38 (3 -24/73 - 344 Mr _ Ruckelshaus' memorandum 7/20/73 enumerated 11 issues regarding FBI organization and operation being studied by him _ The 8/20/73 memorandum from Mr Ruckelshaus set forth the format for response for Issue Nine, which concerns the question of a Civilian Review Board over FBI intelligence gathering activities ` Our response opposes creation of such a board . 20 MAILED 2 SEP 30 1973 2E} | ; 30 HW .? Assoc. Dlr- Asst. Dic:: LFBI Admin: 0 I22CE Syst. wirrek Ext. Affairs Gala. ,av Com; Idont: Inspoction ZM Intell: Laboratory Plan. & Eval_ s in responsA request and is not for dissemi- Spoc. Inv. atson- outside %joi; (Committee. Its %se is limitcd-to 'official-proceedigs Troining vowr. Cowittee and %he content mal nut be disclosed to uauthorized TcdophGou Rm; #7othoilitte ewpress approval 0f 'the FBl Dersetv=0 Diroctor Sec'y MAIL ROOM TELETYPE UNT NW# : 88608 DocId:32989541 0+.B-I; Dte * 5455275~ SEP 1973 ENcLosTRI N Comp. 4 document - Asimrepared "'yoi by 54SEP 24 ================================================== Page 117 ================================================== 9 _ Problem The question of a Civilian Review Board for the intelligence- gathering activities 0f the FBI should be examined _ This is a recurrent guggestion which came up at the Princeton Conference, in addition to other forums_ Policy There is no Civilian Review Board to monitor the FBI inasmuch as various checks and reins are available to check or control the FBI _ (See Options) Igsue Is it necessary to have a group of civilians review the FBI'8 policy and activities to insure that nothing improper Is being done &nd to handle complaints regarding the FBI? Optiong No Civilian Review Board is required since numerous means. exist to control the FBI _ These specifically include: a Senate Oversight Committee the Senate and House Appropriations Committees , the Office of Management and Budget, the National Security Council, the President'g Foreign Intelligence Advisory Board , the Civil Service Commission, the Attorney General , the Department of Justice, the Federal Courts the news media , and of course public opinion _ The President's Foreign Intelligence Advisory.Board i8 in reality 8 civilian review board for the President_ Its members are non-government personnel qualified in matters relating to national defense on the basis of their knowledge and experience _ Especially is the FBI opposed to the concept of civilian boards exploring the field of FBI counterintelligence and intelligence-gathering operationg which would adversely aifect this Bureau' s relations with foreign intelli- gence agencies _ In general , we feel that the Congressional oversight concept ghould have this question to rest_ JMS: rlc NOTE: See memorandum to Mr Ruckelshaus_ captioned "Substantive Issues Regarding the Future of the FBI: dated 9/19,/73 , prepared by JMS: rlc _ 28/73 - 344 ENCLOSURI NW#:: 88608 DecId:32989541 put 63 ================================================== Page 118 ================================================== INQUIRY # 10 NW# : 88608 DocId: 32989541 ================================================== Page 119 ================================================== #[O Tssue 1 THE PROBLEM: What should be the relationship between the Federal Bureau of Investigation and the other Departments and Agencies 0f the Federal Govern- ment ? To what extent should the Federal Bureau of Investigation keep tabs In other Departments and Agencies through the development of sources and anformants in those Agencies ? I THE PRESENT POLICY: AS Relationship between the Federal Bureau 0f Investigation and ~other Departments and Agencies 0f the Federal Government The Federal Bureau of Investigation enjoys & close working rrelationship with the other Departments and Agencies: Of the Federal Govern- ment and traditionally has cooperated fully with local, State and Federal agencies in matters of common interest. Cooperation among the Federal Bureau of Investigation and other Federal Departments and Agencies takes-2 variety 0f forms, including high- Jevel coordinating committees contractual 2greements, and written guide- lines for investigative jurisdicticn in areas in which the Federal Bureau of Investigation and one or more Departments or Agencies have concurrent juris - diction and share responsibility for enforcing & Federal Statute_ The purposes of the committees, agreements, and.guidelines are to promote the closest possible cooperation and coordination between the involved agencies, to insure there is no duplication 0f effort in &ny field; and to insure that proper coverage is maintained: In addition to the above cooperative means, the Federal Bureau of Investigation maintains the following programs relevant to its relation - ship with other Federal Agencies and Departments: 1 FBI Liaison Program In order to insure adequate and cffective liaison arrangements wilh other Gorernment agencies, the Federal Burcau of Invesligation main- tains a Liaison Scction within its Intelligence Division at Federal Burcau of Investigation Hzadquarters. 'The Objcctive Of this section is io insure ilrat the Federal Bureau of Invesiigation'S business with other U. S. Governinent Agencies is accomplished promptly_ 1 effectively econorically, and with & minimum of jurisdictional 01" policy problems, through ^ppropriate high- level liaison #ith kcy Olficials 0f thcse Agencies. This document i8 prepared im response to jour request and is not for disseni; nation utside your Committee Its use %8 Uirmited to official proceedimgs brj you Committee ad the content many t be disclosed to wathorized person nel_without the 3269gtval of the FBI NW# 88608 1 Doetdi ================================================== Page 120 ================================================== By the establishment of effective liaison contacts, we recognize. and solve minor problems before they become major problems, requiring protracted and expensive negotiations between the Federal Bureau of Investi - "gation and other Agencies. These objectives are achieved by placing experience FBI representatives in contact with Officials at the highest-levels of other Government Agencies where the Federal Bureau 0f Investigation either needs assistance or has concurrent interests: The Federal Agencies with which the Federal Bureau of Investigation currently maintains direct personal liaison are: {a) The White House Office of the Vice President National Security Council 8 Foreign Intelligence Advisory Board Drug Enforcement Administration (f) Central Intelligence Agency (g) Postal Inspection Service (h) Department of Defense (includes direct liaison with various elements of Army , Air Force, and Marine Corps) National Security Agency Atomic Energy Commission 8 Department of Transportation Department of State (m) Department of the Treasury (Internal Revenue, Bureau of Customs, Bureau of Alcohol, Tobacco and Firearms, Secret Service) (n) Immigration and Naturalization Service (0) U. S. Marshal Service Liaison with other Federal Agencies is handled by receiving ctelephone calls 2nd visits from representatives Of those Agencies, and by ~contacts with them on an irregular basis aS the need may arise_ In addilion to maintaining close liaison with various Federal Agencies at the Hcadquarters level in Washington, D. C 9 FBI regulations call f0r an effective liaison program at the field level. ~The Special Agents in Charge (SACs) of the FBI'S fifty-nine field ffices are directed to speci- ~fically designate an Agent (or Agents) to bc Tesponsible for developing and maintaining liaison with other Federal Agencies represcnted Jocally. In each instance, liaison contacts are developed to include a close iriendly relationship, nutual understanding of the Federal Burcau of Investigalion and Agency juriscictions, and an indicalcd willingncss by the Agency rcpre - sentalive to coorcinate activitics and to discuss problems '0f mutual intercst. 2 NW# : 88608 Docid:32989541 Navy , ================================================== Page 121 ================================================== 2e Dissemination of Information The proper utilization of information received by the FBI, either through investigation or otherwise, is foremost among our responsi- bilities. Such information may be of vital interest to another Government AAgency and/or local lawv enforcement agency and it is not FBI policy to withhold from dissemination iniormation to which other agencies are justi- fiably entitled. Dissemination f information to other agencies is handled at the Headquariers level in Washington, D. C. , as well as in the field. The FBI serves as & clearing house for information affecting the internal security of thc United States: This is based on various Presidential directives which have specifically requested all law enforcement officers to report information regarding espionage, sabotage,: subversive activities, and related matters to the FBL These directives charge the FBI with the responsibility of correlating this material and referring matters which are' uder the jurisdiction of any other Federal Agency with responsibilities in this field to the appropriate Agencies: Various 2greements between the FBI and other Federal Agencies provide ior exchange Of information Of mutual interest and require that the FBI disseminate certain information to other Departments and Agencies of the Federal Government. An exzmple is the agreement between the FBI and U. S Secret Service concerning protective responsibilities which requires that we disseminate to Secret Service certain information which by its nature reveals a definite or possible threat to the President's safety. Under provisions Of Executive Order 10450 the FBI checks names of all civil applicants and civil incumbents of any department or agency of the Executive Branch against FBI records. In August, 1972 , thc FBI instituted a program aimed at providing effective and expanded coordinalion of cfforts with the local, state and Federal Agencies having direct responsibilities in the narcotics field. Each FBI officc has designaled an Agent lo act in a liaison capacity aS & narcotics coordinalor and FBI Hcadquiirters has designated & national narcotics coordinator {0 expedite lhis progran. information receivcd by thc FBI concerning narcolics is promplly disseminaled to thc Drug Enforcement Administralion, which is chargcd with the responsibility Of cnforcing the various drug laws. N#: 88608 Docd:32989541 Any ================================================== Page 122 ================================================== 3. Cooperative Services In its traditional role of seeling professionalism at all levels ~f law enforcement, the FBI is enthusiastically committed to providing ~expert assistance to local, State and Federal law enforcement agencies: {Some of the facilities of the FBI available to Federal-law enforcement egencies are: () The FBI Identification Division. The FBI is the central repository ior fingerprint identification information. Data from the identification records are furnished to law eniorcement and governmental agencies at the Federal, State, and local levels for official use (b) The FBI Laboratory_ The FBI maintains a well-equipped technical laboratow at its Headquarters in Washington, D. C 3 for the investigative and probative use of local, State and Federal law enforcement agencies , nd prosecutors throughout the United States. An excellent working relationship nOw exists between the FBI Laboratory and the laboratories of other Federal Agencies for the exchange of technical data and procedures: The services of the FBI Laboratory are, made available on & cost-free basis to all Federal Agencies in civil and criminal matters, and to State-and local law enforcement agercies in criminal matters only_ Expanded programs 01 scientific aid and trainingto State and local crime laboratories are presently under development and will involve the continuing; close cooperative efforts-of local, State and Federal Agencies and the FBL (c) TThe National Crime Information Center (NCIC) The FBI's NCIC is a computerized information system established as & service to all law eniorce- ment agencies--local, Stale and Federal. The system operates by means Of computers, data transmission over comunication lines, and telecommunicad tion devices_ Its objective is to improve the effectiveness of law enforcement through the more efficient handling and exchange-f documented police informa- tion. In the beginning NCIC contained data concerning stolen property and wanted persons. In November , 1971, NCIC operations were expanded to include a file of offenders criminal histories, which is kown .as the Computeri= Criminal History (CCH) file. (d) Thc FBI Nalional Academy_ Since its cstablishment in 1935 , the FEI National Academy has provided a professional training progran of highest qualily to career officcrs from throuchout tlle law enforcemcnt comunity_ At ils new training Iacilities at Quanlico, Virginia, during Fiscal 1973 _ 1,044 officers fromn various local, 'state, Federal and friendly foreign law ~enforcement agencics completed the intcnsive 12-week coursc. This course is dcsigncd lo cnlance an Olliccr'S capabilitics :5 a law enforcement adniinistrator and to bcttcr prepare him t0 Icach his fellow officers: Nli 88608 DocId: 32989541 only . ================================================== Page 123 ================================================== Although many officers from other Federal law enforcement agencies attend the FBI National Academy each year, the number in attendance is limited due to the mandate that the FBI provide this service to local and state law enforcement officers: B_ Extent to which the FBI should keep tabs on other Departments and Agencies through 'the development of sources and informants in those Agencies The FBI does not have the authority or responsibility to keep tabs on other Departments and Agencies of the Federal Government; therefore, it does not have any policy whereby it checks on other Depart- ments and Agencies. Because of the lack of FBI jurisdiction to keep tabs on other Federal Departments and Agencies, no effort has ever been made for the development of sources and informants in those Agencies for that purpose_ Although the FBI does not keep tabs on other Departments 2nd Agencies, it has long been an accepted procedure among other Agencies of the Government that the FBI would conduct investigetions of violations Of Federal law in those Agencies where primary investigative jurisdiction is vested in the FBI, and we do S0 0n & regular basis. Violations of Federal law involving personnel of other Government Agencies over which the FBI has statutory investigative jurisdiction include bribery, civil rights, Fraud Against the Government, Theft of Government Property , and Federal Housing Administration matters: This iS not & Situation unique to the FBI A comparable Situation exists in Thich the U. S. Secret Service is charged with investigating the theit 0f a Government check: It carries out its Tesponsibilities not only in its own Department (Treasury) but in all other Federal Agencies &S well: IIL THE ISSUES RAISED: A Relalionship bclween the Federal Burcau of Investigation and other Dcpartments and Agencies 0f the Fecleral Government No issues are known to have been raised relative to the FBI's present policy regarding its relationship with other Departmcnts and Agencics ~Of thle Fcderal Government. 5 NW# : 88608 DocId: 32989541 ================================================== Page 124 ================================================== B Extent to which the FBI should keep tabs 0n other Departments and Agencies through the development of sources and informants in those Agencies In regard to the present policy of not developing sources and informants in other Federal Depirtments and Agencies for the purpose of keeping tabs on those agencies, no issues are kown to have been raised. IV< OPTIONS FOR FUTURE POLICY: A Relationship between the Federal Bureau of Investigation and 'other Departments and Agencies of the Federal Government It is imperative that there be 2 friendly 3 'cooperative association between the FBI and otller Departments and Agencies O the Federal Govern- ment. There must be <n efficient working relationship, with free and open channels of communications, among all Federal Agencies: The Director 0f the FBI and the heads of other Federal Agencies should confer periodically 0n matters of mutual interest and definitely work together on all occasions. In order to 2void duplication of effort and prollems Of jurisdictional responsi- bilities there should be a clear delineation of duties 2nd investigative limits for all Federal investigative Agencies: A prevailing cooperative spirit throughout the entire Federal Jaw enforcement community is & vital necessity in our Nation 'S wer on 'crime and subversion. The rapid escalation of serious crime and the complexities of upholding the law in today'S society have made it impcrative that information, expertise, and resources be freely and expeditiously shared by all Federal investigative Agencies. Cooperation iS a bilateral obligation. If the FBI does not continue to cooperate and reciprocate in exchange of information and resources with other Federal Agencies, it cannoi conduct 4 successul operation: Therefore, it is my recommendalion that the FBI ~continue its policy of working closely and coopcrating fully with other Dcpart- ments and Agencies of the Federal Government. NW# : 88608' DocId:32989541 ================================================== Page 125 ================================================== B Extent to which the FBI should keep tabs 'on other Departments and Agencies through the development 0f sources and informants in those Agencies Inasmuch 2S no issues have been raised regarding the FBI'S current policy in this area, and since & change in policy involving the FBI keeping tabs on other Federal Departments and Agencies through the development of sources and informants in those agencies could be most detrimental to all concerned, Irecommend there be no change in the FBI's present policy in this area. NW# : 88608 Docfd: 32989541 ================================================== Page 126 ================================================== INQUIRY # 11 NW# : 88608 DocId: 32989541 ================================================== Page 127 ================================================== The Deputy Attorney General October 1, 1973 02 / < ~ 6 nseisdsshe Director FBI 1 ~ Mr _ Baker 1 ~ Mr . EJ S . Miller SUBSTANTIE ISSQES REGARQING 1 - Mr _ Boynton THFFOTRE_GE THE EBI EEnAheal} Mr. T J . Smith INFORIATION #EMORANDUM 1 1 Mr . J_ M_ Sizco Reference is made to your memorandum to me captioned es above &nd dated July 20_ 1973 _ Attached is the FBI's response to Issue Eleven of that memiorandum in the format requested in your August 20 _ 1973 , memorandum captioned &8 above - ~ 3 } 2 Enclosure { : JMS: rlc/bjr- e 1 (8) NOTE: Mx Ruckelshaus' menorandum 7/20/73 enumerated 1l issues regarding FBI organization and operation being' studied by him_ The 8/20/73 memorandum from Mf Ruckelghaus set fortH tae format for response for Issue Eleven, Which concerns therretention of FB Legal Attaches_abroad t0 carry out EBI responsibilities Qur response recbmmends retention of E the Tega Attaches Isoc. 'Dir. Yrcc A_ H#etsin As3t. Dir-: Admin. Cemp: Syst: Ext. Affoirs OcT 4 1973 Filos & Com. Gan. Inv. ident: MAILED 3 Iaspection E' :alic= Intell: {Q61.8 - 1973 Loboratory Plca. & Eval: prb FBbceet i8 prepared i response to yo}lequest and is not for dissemi Ic: Iv. sainivg outside zour Committee. Its %Se i3 pmited to off:cial proceedigs by gol Coln. 0533742 the content may %ut 6e disclosed to unathorized-person Iophoro Rm: nel without excpresswpproval of the FBI ector Soc'y MAIL RCOM TELETYPE UNIT 8.G :) N#88608 551 Deetd:3228854 ZeC SIWj ENCLOSURE {81451 ls OCT ================================================== Page 128 ================================================== 11. Problem Should the FBI have foreign officerg reporting directly to the Director? Policy The FBI has had Agents stationed abroad in American Embassies since 1940 _ This has not been & Gecret Cr classified fact They are known 88 Legal Attaches &nd are not operational . They do not conduct investiga- tions bul depend upon law enforcement &nd security agencies of the host government for coverage of FBI leads oversees _ They maintain regular liaigon with such agencies in countries where stationed, &8 well &8 in other countries that they visit on road trips _ Legal Attaches are regularly called upon to secure in-depth cooperation from foreign agencies on criminal and security matterg which are frequently 0f & complicated and sensitive nature_ These matters fre- quently include requests for surveillences , complicated interviews , informa- tion from normally confidentiel records of foreign agencies epprehensions and informal deportations _ In order to handle such matters effectively 8 Legal Attache must be proficient in the language of the foreign country involved and must have &n extensive knowledge 0f its culture, customs ed judicial process. On the other hand , he must have & thorough knowledge of FBI jurisdiction , regulations and policy _ Thig knowledge _ which can only be achieved through years of experience &S an FBI Agent, is extremely broad _ In addition, in order to maintain the cooperation of foreign agencies_ 2 Legal Attaches assist these agencies by having investigations con- ducted in the United Stateg concerning matters o interest to the foreign countries involved _ Thege matters frequently involve major criminal cases _ espionage and terrorist cases which are often of substantive interest to the FBI _ Numerous problems arise in connection with handling leads abroad and matters in this country on behalf of foreign countries_ Since each country is different with regard to its laws , customs language &nd tradition, the FBI has found it necessary and in fact invaluable to have & man stationed abroad, on tne scene, who can insure that prompt and efficient action i8 taken and that cooperative relationshipg are nurtured &nd protected JMS:rlc M (7) B1 SEE NOTE PAGE 6 This document is prepared in response to request and is not for dissemic nction outside your _ Committee: IsS ~se €y Tmited to 0ffica] RaAteed persc by Committee ad the conte; : mct} %ut 6e disclosed to u person- zcl without the express approval of tne FBI N#: 88608 DocId:32989541 ENCLOSURL 9 0e 'yor ~{4y5. %OUr ================================================== Page 129 ================================================== While our representatives abroad are still FBI employees , are well aware that the American Ambassadors hold euthority through varicus Presidential directives over the entire American presence in their respective countries of assignment and that &ll matters ,of interest must be ccordinated with Ambaesadors and their staffs _ This includes political intelligence information ucquired by Legal Attaches_ Isgue Is the FBI to continue using Legel Attaches t0 meets its responsibilities abroad? Options: 1_ Retaln FBI representatives to carry out functiong which have gerved since 1940 to assist the FBI and U.S . law enforcement agencies in their responsibilities having foreign ramifications 1 88 well a8 to assist foreign law enforcement and gecurity agencies _ The Jiaison function of FBI representativeg serves to develop and maintain close $ cooperative relationshipg with police and other investi- getive agercies of the countries covered . In the modern-day world with the speed and facility of communication and transportation crime has taker on immense international aspects which require constant liaison attention_ Accomplishments attained by the FBI through the liaison activities of the Legal Attaches with foreign law enforcment agencies in the past fiscal year (1973) include 1,047 FBI fugitives located; 109 fugitives located for state locel and other agencies; 167 automobiles recovered; &nd total property recovered worth $2,260 , 725 , 00 _ 'Retention of Legal Attaches will permit further accomplishments _ such &s in several specific cases set forth below It is firmly believed that these successe8 wculd not have Occurred in .the &bsence of personal and direct FBI liaison with foreign police agencies in the countries involved Sensitive Foeeign iNtelligence" Sburce The Legal Attache Beirut } has obtained through contacts & considerable amount of vital information concerning Arab terrorist activities Thich have becomo in recent years a major law enforcement problem through- out the world_ The Central Intelligence Agency and the State Department have congratulated us on the intelligence information developed by this -2- N#: 88608 DocTd: 32989541 they ================================================== Page 130 ================================================== particular Legal Attache. In &ddition, he recently uncovered & international car theft ring involving the theft of over 180 cars stolen in the U.8 , and valued &t $700 ,000 . The Legal Attache , Buenos Aires _ located and is currently attempting to arrange for the return of & subject fror Argentina who was involved in & $200,080 fraudulent traveler:s checkr case _ This office has elso been succegsful in tentatively identifying two individuals in Argentina who have been involved in the disposition of part of $8,000 worth of securities and blenic money orders stolen in Chicago in 1971 during a robbery in wnich the owner was shot This Legal Attache was commended by the American Ambassador in Buenos Aires for the part he played in the successful recovery of & hijacked American airliner in Buenos Aires which occurred without loss of life Ox damage to the 9ircraft _ The Legal Attache, Buenos Aires 8lgo played & leading role in preventing Meyer Lansky = the financial wizard of U,.8 _ organized crime, from receiving asylun in South America , This action resulted in Laneky'g return to the U.8 . and errest by the FBI on Federal criminal con- tempt charges _ The Legal Attache 9 London , ha8 valuable contacts not with New_Scotlond Yard but &lso with all major police departments in Great Britain _ Time end his office has &cted a8 9 conduit in major cases involving_Britieh and FBI interests _ Fe &lso maintaing close liaison with British intelngence services The recent rash of letter bombs , one of 0f which wounded an employee of the British Embessy in Weghington, has 'called for immediate and close lialson with British authorities _ FBI bomb experts collaborated closely with Scotlend_Yerd in_London_to the benefit of both agencie8 _ Since the U,S _ and Great Britain are prime targets of Soviet 'espionage, numerous instance8 Of cooperation in this very delicate end secretive field have occurred between the FBI and the British intelligenee service _ This would be most difficult had we not had & Legal Atteche stationed in London The Legal Attache , Madrid through the cooperation of_Bpanish police , was able to effect 24-hour coverage on an Areb Al Fatah representative from Puerto Rico who visited and made contacts in Spain in June of this year _ He also was able to arrange similar coverage on & visit to Madrid in 1973 of John Joseph Lombardozzi of the Cerlo Gambino family of La Cosa Nostra_ The -3- NW# : 88608 DocIdi32989541 only again SEnSiTivE Foreien intelligence Source SENS itive Foreign intelligenee Coueec ================================================== Page 131 ================================================== extensive police work needed for Such coverage would certainly not have been put forth by the Banish police had not had @ close personal friend- ship with confidence in our Legel Attache jn Madrid sensitive Fbreign intelligence Souace The Legal Attaches in Manila and Mexico combined in & joint effort which resulted in the cepture and return to the U.8 _ of & fugitive in connection with the theft of over 1 million dollars in California _ This individual had fled to Australia in 1970 and extradition was impossible _ The Legal Attache 3 Manila , who handles Australia, determined that subject regularly traveled to Mexico _ The Legal Attache_ Mexico arranged for his apprehension Mexican authorities on a visit to that country _ Another example of the importance 0f foreign offices concerns the kidnaping of & Mexican child in Pueblo _ Mexico , by an American citizen _ Rensom in the amount of $105,000 was in New Orleans &nd the child wes sefely recovered in & motel in Louigiana _ Mexican police authorities developed very little information concerning this matter The Legal Attache , Mexico however through investigative guidance established the identity of the kid - naper and the fact that he had an estranged wife residing in Australia _ The Legal Attache Manila, working through Australian police had tnis women inter- viewed with negative results Australian police authorities were then guided into checking her finances &nd determined she had received large sums 0f money from Tel Aviv , Israel_ The Legal Attache 2 Tel Aviv , through Israeli police located the subject, recovered part of the ransom money and arranged for his extradition t0 the U.8 , where he is awaiting' trial in New Orleans There is no doubt that this case would not have been solved had we not had Legal Attaches in the above-mentioned locations The foreign police agencies involved had come up with negative information &nd only through personal contect &na on-the-scene counsel by Our experienced Legal Attaches , were local author- itie8 able to produce the information required for the successful conciusion of this case _ The Legel Attache Tel Aviv has effected & close working relationship with Israeli police and Intelligence agencies and regularly furnishes information which TS vital to our coverage of the militant_Jewish Defenge League'E &ctivities in the U.8 _ and of Arab terrorist activities It is extremely doubtful that we would regulariy receive such information were it not for the presence of our representative in Isrgel, NW# 886.08 DocId:32989541 they and City City by paid City , SeNSItive Forcise intelligete Sovrce ================================================== Page 132 ================================================== The tracing of Watergate funds by Legal Attache _ Mexico through established Mexican banking sources is another example Of the capabilities developed by our Legal Actache system'_ 2 , Attempt to gccomplish FBI responsibilities with foreign ramifications by having other Embassy personnel handle FBI work _ This option, while removing FBI personnel from foreign embassies would require an increase in State Department personnel to asgume & work load, based cn August 31 1973 , figures _ of 4,283 FBI cases in the 20 FBI posts abroed, including 734 in Mexico, 527 in Hong Kong, 498 in Canada &nd 401 in Great Britain _ Expenses involved in the returning of all FBI personnel and equipment in these 20 offices would be considerable and would be doubled by similar expenses to assign additional State Department pergonnel abroad to handle the work formerly handled by FBI personnel_ More important, such & change would result in the EBI being represented &broad by personnel with no experience in law enforccment and no knowledge of the internal policies ad regulations of the FBI. It would also result in a person outside the Bureau not under FBI control becoming intimately ecquainted with numerous Bensitive matters and thezeby opening the to leakks or other embarrassing situations from 2 security point of view _ It is not believed that Foreign Service officers who Giffer greatly in background, experience &nd training from law enforcement officers could effectively represent the FBI with foreign law enforcement and security 'agencies 3 _ Have FBI interests abroad handled by the Drug Enforcement Agency , Immigration and Naturalization Service, U.8_ Customs Service , U.8 Secret Service o other Federal law enforcement agencies which currently maintain liaison offices abroad _ None of these agencies have the broad scope of investigative jurisdiction which the FBI is required t0 Bhoulder_ Their standards policies methods of operations investigative techniques and calibre of personnel differ greatly from that of the Bureau_ Some of these agencies are actually operational abroad _ No matter how well intentioned such a_ representative might be on behalf of the FBI, it is not felt that he would have the necessary experience and/or knowledge of Bureau operationg to successfully function a8 & representative of the FBI: It is, therefore, not believed that this would be advantageous _ -5- N#: 88608 DecId:32989541 Foreign Saurce Sensitive GENCE (Ntelli City; gate option ================================================== Page 133 ================================================== 4. End all FBI pursuit of foreign ramifications in criminal &nd sccurity regponsibilities by FBI personnel stationed abroad gnd conduct them by direct communications This option does not appear to have &ny edvantageous aspects and would tend to stifle effective foreign-liaison _ Only 8 man on the scene can be thoroughly aware of the local customs , traditlon &nd judicial process of the numerous foreign countries involved _ Each country is different and the unique understanding of these differences is vital for successful communication and cooperation _ It i8 not believed that & supervisor stationcd in Washington can adequately grasp these unique situations If such a is adopted, it is felt that our present outstanding relationship8 With hundreds of foreign police agencies would quickly disintegrate _ Furtheriore, such communications because of & lack of direct cable connectiong with foreign countries would force the FBI to utilize direct mail or public cable systems a8 opposed to secure methods presently being utilized _ This would not create delays , but would also pose serious security risks This therefore 2 not acceptable _ Conclusion Fol the reasons set out above, it is felt that the only effective way for the FBI to discharge the full scope of its responsibilities is to maintein its Hiaison posts abroad. NOTE: See memorandum to Mr. Ruckelshaus dated 10/1/73, captioned "Substantive Issues Regard' the Future of the FBI; prepared by JMS:rlc/bjr_ ~6- NW# : 88608 DocId: 32989541 option only long option i8, 'ing

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