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U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,

OFFICE OF THE DIRECTOR,
Washington, D.C., January 15, 1976.

SPECIAL AGENT JAMES P. HOSTY, JR., INFORMATION CONCERNING FBI POLICY AND PROCEDURES RELATING TO PERSONNEL MATTERS

In response to a request from the U.S. House of Representatives Committee on the Judiciary December 15, 1975, relating to information contained in the personnel file of SA James P. Hosty, Jr., it is noted that among the documents in question are two copies of a memorandum from Special Agent Hosty to Special Agent in Charge, Dallas, dated December 6, 1963. Each copy contains handwritten notations, corrections or additions thereon. These copies were previously made available to the committee by SA Hosty.

The only other document involved was an undated letterhead memorandum prepared by the Special Agent in Charge in Dallas and transmitted to the Bureau on December 8, 1963, and contained the names of Lee Harvey Oswald and Marina Nikolaevna Oswald in the caption. This document contained explanations from individuals involved in the investigation of Lee Harvey Oswald and is available for your review with appropriate excisions to protect the privacy of individuals other than SA Hosty mentioned therein.

In connection with the committee's request for information pertaining to policy and procedures employed by the FBI in personnel matters the following is noted. By statute, all positions in the FBI are excepted from the competitive service and, therefore, our administrative actions relating to disciplinary matters are not governed by the requirements of the Civil Service Commission for the competitive service. We do, however, adhere closely to guidelines set forth by the Commission and have a two-step system wherein employees who are nonveterans and are the subjects of adverse action, which action is taken by the Assistant Director in Charge of the Administrative Division, have the right to appeal this action to the Director. It should be noted that an adverse action case is one involving more than thirty days' suspension, reduction in rank or compensation, or dismissal.

It should be noted that the two-step appeal system within the FBI, relating to both veterans and nonveterans was formalized in 1974 as a result of Civil Service Commission revisions relating to adverse actions in September, 1974, which stressed that the final action on an adverse action case should be taken by a higher official than the one that took the initial action. Prior to that time all administrative action of this nature was handled by the Director and appealable only to the Director except for the veteran who had the right of additional appeal to the Civil Service Commission.

In the case of veterans of the military service, however, all such employees are afforded all rights available to them in accordance with the Veterans Preference Act of 1944. A veteran must be given thirty days' advance written notice of the proposal of any of the above-mentioned adverse actions (Title 5, Section 7512. U.S. Code) and may also appeal an adverse decision to the Civil Service Commission (Title 5, Section 7701, U.S. Code). The veteran is entitled to his rights under the provisions of 5 Code of Federal Regulations (CFR), Part 752.201 et seq (Adverse Actions by Agencies) and under Federal Personnel Manual, Section 752.202 (revised September 9, 1974).

Information concerning veterans' rights in such matters appears in the FBI's Manual of Rules and Regulations, Part I, Section 9-E-7, and Part I, Section 10D-1. Although the veteran has the added protection of the advance written notice and a right of appeal to the Civil Service Commission, all employees are treated in the same manner in relation to other aspects of disciplinary policy. Each employee is fully advised of the specific nature of any allegation pertaining to that employee, is afforded an interview, has the right to reply to specific charges. and is given every opportunity to furnish explanations and refute allegations. Matters involving possible disciplinary action are handled in a thorough manner. including extensive investigation where warranted and no action is taken until all facts have been firmly established. All employees, of course, have the right to contest adverse action in Federal court.

CC MICHAEL E. SHAHEEN. Jr.,

Special Counsel for Intelligence Coordination.

FBI OVERSIGHT

Attorney General's Guidelines for FBI Activities and
Additional Legislative Proposals

WEDNESDAY, FEBRUARY 11, 1976

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CIVIL AND
CONSTITUTIONAL RIGHTS OF THE
COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The subcommittee met, pursuant to notice, at 9:35 a.m., in room 2237, Rayburn House Office Building, Hon. Don Edwards [chairman of the subcommittee] presiding.

Present: Representatives Edwards, Drinan, Badillo, Dodd, and Butler.

Also present: Alan A. Parker, counsel; Thomas P. Breen, assistant counsel; and Kenneth N. Klee, associate counsel.

Mr. EDWARDS. The subcommittee will come to order.

The gentleman from New York.

Mr. BADILLO. Mr. Chairman, I move that the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary permit coverage of this hearing in whole or in part by television broadcast, photography, or any other method pursuant to the rules.

Mr. EDWARDS. Without objection the resolution ordered by the gentleman from New York is adopted.

A little over a year ago the Attorney General and Mr. Kelley were here discussing with the House Judiciary Committee the subject of domestic intelligence. This area of work done by the FBI is a very large part of the FBI's activities. I believe that one estimate is that it represents 18 percent of the work, perhaps $70 or $80 million a year in FBI budgetary expenditures. The General Accounting Office estimated that in 1974 in 10 field offices there were perhaps 17,000 to 18,000 either open cases or files, or something along that order, in domestic intelligence in the 10 field offices that the General Accounting Office examined.

This subject and this responsibility also is the stickiest thing the FBI must contend with. It is fraught with danger, not only to the FBI, but to the public. One of the problems is that there is no explicit law that delineates its responsibilities and designates the FBI as the official organization that shall be in charge of domestic intelligence within the United States. And perhaps because of the lack of congressional guidelines, congressional law, the domestic intelligence pro

gram over the years has done great damage to the FBI and the public's opinion of it. The COINTELPRO, of course, was a part of the domestic intelligence activities of the FBI, and some other unfortunate things that happened such as the persecution of Dr. Martin Luther King was a part of the domestic intelligence activity of the FBI.

So the preparation of the guidelines that we are going to talk about today is a welcome step. Because it is terribly important that we somehow define and limit the domestic intelligence activities which are very important, very essential in this country. Both Congress and the Department of Justice have been most negligent over the years in their responsibilities to be interested in the problem.

Now, it is the intention of this subcommittee of the House Judiciary Committee to write law on this subject. And undoubtedly the guidelines will be of great help. Indeed, important questions about the guidelines might well be included in the laws. We are looking forward to the statements of Mr. Kelley and the Attorney General today. Again, we appreciate the attitude and spirit of cooperation that has been shown all the time by both the Attorney General and the Director of the FBI.

Mr. Butler.

Mr. BUTLER. Thank you, Mr. Chairman.

This is, of course, but another hearing in a series by our subcommittee on FBI oversight designed to examine the appropriate legislative options with reference to the Federal Bureau of Investigation.

It occurs to me that during the course of these hearings we will develop a jurisdictional basis for the FBI, and once having defined the jurisdiction, it will be necessary for this subcommittee to demonstrate the scope and the mode of the oversight to insure that the FBI operates within its jurisdictional mandate. Of course, of fundamental importance is the decision concerning the FBI oversight that should be spelled out in a statute as opposed to that which will be left to executive order or guidelines.

And with regard to the chairman's comments in this area, of course, exactly where we will draw the line between those two remains to be decided. But I hope that the members of the subcommittee, Mr. Chairman, will bear in mind that flexibility is necessary also to effective law enforcement. The statutory limitations serve to limit the activities of the FBI, but it also serves as a potential source of future litigation. So I am confident that we will do our utmost to strike a proper balance. I welcome the gentlemen today and appreciate their cooperation in being with us.

Mr. EDWARDS. Mr. Badillo.

Mr. BADILLO. Thank you, Mr. Chairman.

I want to thank you for having called these hearings.

You remember, when the guidelines were issued, I requested hearings, and I said then that I was going to introduce a resolution to disapprove the guidelines. I am reintroducing the resolution now based upon the new draft of the guidelines that is being proposed.

I discussed the resolution with some of the members of the subcommittee. But basically the reason I believe this committee and this Congress should disapprove these guidelines is because they are so broad as to give license to exactly the same kind of activity that the

FBI has carried on up until now without the benefit of guidelines. For example, during the past few months we have been shocked by the revelations surrounding the COINTEL operations against Martin Luther King. But if the new guidelines are ever propagated, exactly the same kind of activities could be given the sanction of respectability, and that sanction could include the sanction of this committee. That is because the guidelines suggest that investigations can be initiated to secure information on the activities of individuals and groups of individuals acting in concert which would involve the use of force and violence in violation of the Federal law.

We know that the activities of the Southern Christian Leadership Conference did indeed lead to violence because of the reaction of the communities in the South and so, if those activities were to be carried out, the same actions against Dr. Martin Luther King could be taken in these guidelines.

I would like to have the Attorney General and Mr. Kelley address themselves to the guidelines especially, because so many of the activities that are permitted under the guidelines are the normal activities which have to do with the protest against action of the Government. For example, on the question of B (3), the opening up of files, when an organization is doing something that would impair, for the purposes of influencing the U.S. Government policies or decisions, the functioning of the government of a State. Well, in New York State we now have people who are thinking of sitting in in the offices of the Emergency Financial Control Board because they are protesting the cuts that are being made in the City University and in hospitals. But that sitting in would impair the activity of the State government, and under those broad guidelines you could open up a file on them, too. On the question of the mail coverage, the same situation that led to Bella Abzug's mail being surveilled could take place if this was some communication with an organization that was carrying on activities that would lead to disruption of the State or Federal Government.

So I believe, Mr. Chairman, that these guidelines should be rejected by this Congress, and I believe that, if we are going to have effective oversight of the FBI, we need to write legislation in this subcommittee and have that legislation approved by the House and by the Senate. Mr. EDWARDS. Mr. Dodd.

Mr. DODD. Thank you, Mr. Chairman.

I have no opening statement.

Mr. EDWARDS. Mr. Levi, I believe you have with you Deputy Assistant Attorney General Marv Lawton. We welcome Ms. Lawton.

And we will now hear from the Attorney General of the United States, the Honorable Edward H. Levi.

Mr. Attorney General, you may proceed.

TESTIMONY OF HON. EDWARD H. LEVI, ATTORNEY GENERAL OF THE UNITED STATES ACCOMPANIED BY DEPUTY ASSISTANT ATTORNEY GENERAL MARY LAWTON, OFFICE OF LEGAL COUNSEL Attorney General LEVI. Mr. Chairman, I welcome the opportunity to talk again with this subcommittee. During the months since I last testified here there has been much discussion about various incidents

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which I described to you last February 27 involving the Federal Bureau of Investigation.

The FBI's domestic security investigations have received the most attention. And much of it has centered on COINTELPRO, which was revealed to this subcommittee before I arrived at the Department of Justice and about which I provided further details by letter on May 17, 1975, when they came to my attention.

From the beginning, this subcommittee has been interested in the FBI's domestic security investigations. But it has also been concerned with the whole range of FBI practices. During my last appearance before this subcommittee I promised to start work preparing guidelines to govern FBI practices in the future. The preparation of those guidelines has been slow and difficult-much slower and more difficult than I had realized. The problems are complex and important, as important as any now facing the Department of Justice. I had hoped when I first appeared before this subcommittee that I would be able to present to you at my next appearance a complete set of guidelines. This has proven impossible. But progress has been made in drafting guidelines in several areas. You have been provided with the most recent drafts of proposed guidelines covering the White House inquiries, investigations for congressional staff, and judicial staff appointments, the handling of unsolicited mail, and domestic security investigations. These draft guidelines cover many of the areas that have been of greatest concern to this subcommittee.

Because the statutory base for the operation of the FBI is not satisfactory, I know the members of this subcommittee have been considering what changes it should enact. The guidelines may be helpful in these deliberations. Before discussing briefly each of the draft guidelines you have seen, I would like to make a few points about the question of statutory changes.

The basic statutory provision concerning the FBI is 28 U.S.C. 533 which provides that the Attorney General may appoint officials:

(1) To detect and prosecute crimes against the United States; (2) to assist in the protection of the President; and (3) to conduct such investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General.

In addition, 28 U.S.C. 531 declares that the Federal Bureau of Investigation is in the Department of Justice. There are other statutes, such as the Congressional Assassination, Kidnapping and Assault Act, which vest the Bureau certain special responsibilities to investigate particular criminal violations. There are also Executive Orders and Presidential statements and directives placing investigatory responsibility upon the Bureau.

In some areas—such as domestic security-the simple statutory base I have just described is overlaid with a series of executive orders-for example, Executive Order 10450 concerning the Federal loyalty program-and directives dating back decades. The simplicity of the statute vanishes when placed in this setting. Moreover, the authorized work of the Bureau in terms of crime detection must be seen in the context of statutes passed by Congress such as the Smith Act, the Seditions Conspiracy Law, and the Rebellion and Insurrection Statute. I would like to begin the discussion today by suggesting a few considerations

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