Files are considered closed by the FBI but information is still inserted in its dead files.

And while the Justice Department and Congress try to write intelligence guidelines to restrict the FBI to investigations to anticipate violence, the current Director resists such restrictions. He states in a memoradum to the GAO that:

Limiting domestic investigations to preventing force and violence could restrict the gathering of intelligence information useful for anticipating threats to national security of a more subtle nature.

And I don't know what that means.

As the Senate committee reports point out, the agents inside the Bureau interpret the guidelines to allow them to investigate subversives.

If intelligence guidelines have not worked to date, why will they work now?

Those who argue that they can be enforced rely on oversight. But can Congress or the Justice Department or both oversee the thousands of investigations undertaken each year? I understand that the Attorney General has three monitors appointed to oversee all intelligence investigations in the field, but how can the Department or Congress hold the Bureau accountable if the standards for investigation are as vague and flexible as those proposed in the guidelines?

Is Congress with its capacity to create a House Un-American Activities Committee, as well as an Intelligence Oversight Committee, a better guarantee of Bureau propriety?

Will the Justice Department or the FBI act as a restraining influence on agents, when the facts indicate that they are often the ones urging the agents to intensify their intelligence activities to meet the crisis of the moment?

I think not. Although oversight in certain circumstances can be an effective and a necessary means to control the FBI and other investigative agencies, oversight can never be relied upon in the absence of a charter that explicitly states the limits of FBI activity.

I think it is time to draw the line and call the halt to intelligence investigations. And it is time to enact a charter that defines the FBI's mission as an investigator, upon reasonable cause, of the commission of a crime against the United States.

The purpose of a charter is to define the proper role of the FBI in the free society. That role was best articulated by Harlan Fiske Stone in 1924 when he said that the "FBI investigates conduct in violation of the laws of the United States and is not concerned with the political or other opinions of individuals."

I believe my recommendations incorporate this concept and should be adopted in legislation. Enactment of a legislative charter for the FBI is essential in a society based on the rule of law and committed to eliminating official lawlessness.

I make two additional points in conclusion: One, Harlan Fiske Stone announced that standard after the Palmer raids, when Congress had before it a charter and was considering enacting a prohibition against intelligence investigations. But, because they believed in the Attorney General, as we may believe in Attorney General Levi, Congress did not. It took only 10 years to turn the whole thing aroundsecret orders were issued and the Bureau was on its way.

Finally, what I think we are really calling for is a statute for the whole Government, not just for the FBI, to serve as a reminder for Congress, the Executive, and the people that the democratic ideals we are committed to must be a standard that we look at in the next time of crisis and that we have to ponder why we set it down before we make any efforts to change it and start us on this lawless track again.

Thank you very much.

Mr. EDWARDS. Thank you very much, Mr. Berman. [The prepared statement of Mr. Berman follows:]

STATEMENT OF JERRY J. BERMAN*

Mr. Chairman, Congress must enact a comprehensive legislative charter to govern the FBI. No more important business is before the Congress. At issue is the rule of law and the future of constitutional democracy. I therefore welcome this opportunity to state my own views on key issues that must be deliberated and resolved.

I believe the need for a comprehensive FBI Charter is beyond debate. Before the FBI can be made to obey the law, it must have a rule of law to obey. The present statutes governing the investigative responsibilities of the FBI are silent on intelligence investigations aimed at American citizens.1 Congress has allowed the Executive Branch to conduct intelligence operations as a matter of executive discretion and the Executive Branch has authorized and expanded the FBI's intelligence mission at will. This is not law but license. Allowing the Executive Branch to claim an "inherent power" to direct FBI intelligence has led to widespread abuse." Rule by executive order, subject to modification at any moment, has placed our liberties on anything but a firm foundation. Only a legislative charter can put to rest the doctrine of inherent power and place all of the investigative activities of the FBI within a framework of positive law. After forty years of executive disorder, only public convenants can begin to restore public trust in our investigatory agencies. The new Domestic Security Guidelines which Attorney General Levi promulgated in April of this year are a case in point. They may be more restrictive than previous executive directives, but they have been established under questionable authority and can be changed tomorrow or by the next Attorney General.

4

Congress must no longer defer to the Executive. It must enact a Charter that sets forth precisely under what circumstances and to what extent the Bureau may investigate the political activities of American citizens. This poses a basic issue that must be resolved during these deliberations: Should Congress authorize, limit, or prohibit domestic intelligence investigations?

While I sense growing support for a Charter to define and clarify the investigative jurisdiction of the FBI, I do not believe the proponents of legislation agree on how Congress should resolve this vital issue. The FBI and the Justice Department want the Congress to authorize domestic security investigations.5 The

*Mr. Berman is an attorney and directs the Domestic Security Project of the Center for National Security Studies of the Fund for Peace. The views presented are his own. 1 See primarily 28 U.S.C. 533, the basic investigatory authority of the FBI.

2 For the most broad interpretation of the President's inherent power, see Testimony of Former Assistant Attorney General William Rehnquist in "Federal Data Banks and Constitutional Rights", a study prepared by the staff of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 93rd Congress, 2d Session (Committee Print: 1974), pp. 598–604.

Justice Department Guidelines on Domestic Security Investigations and Reporting on Civil Disorders and Demonstrations Involving a Federal Interest, as released to the press on March 10, 1976. (Hereinafter The Justice Department Guidelines)

The Attorney General claims authority to issue intelligence guidelines under a subsection of 28 U.S.C. 533, which provides that the FBI may conduct "such other investigations regarding official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General." See Attorney General Edward H. Levi, Address to the American Bar Association, August 13. 1975. The question, however, is in reality whether intelligence investigations are "official matters" under the control of the Attorney General. No other statute provides such explicit authority, unless the section of this same statute which authorizes the FBI to "detect" crimes is read to cover intelligence matters. Such a reading would mean that the FBI and the Justice Department can put all Americans under surveillance "to detect" crimes.

5 The Attorney General and the Director of the FBI have articulated this position in innumerable statements. The latest will suffice: See Testimony of Attorney General Edward H. Levi before the Subcommittee on Civil and Constitutional Rights of the House Com82-629-77-20

Senate Select Committee on Intelligence has made a series of recommendations that, if adopted, would limit but not curtail intelligence investigations. The House Intelligence Committee has called for prohibition by recommending the abolition of the Internal Security Branch of the FBI. My own opinion, and one that has been endorsed by a number of public interest organizations, is that the FBI should be prohibited from conducting domestic intelligence investigations targeted at American citizens. Today, I would like to explain why I have reached this conclusion.

The duty of the Congress is to devise a legal structure for the FBI that will curtail FBI intelligence activiites in order to avoid a repetition of the past. I also believe it is incumbant on Congress to make no law "abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Congress can only accomplish both by enacting a Charter that prohibits all domestic intelligence investigations by the FBI, and specifically limits the FBI to initiating investigations only to "detect * ** and prosecute crimes against the United States.""

The record of FBI intelligence activities over the last 40 years leads to the inescapable conclusion that our country does not need and can no longer afford to permit the FBI to engage in ongoing intelligence investigations targeted at those who are not actually suspected of having committed crimes. Moreover, there is no reason why FBI criminal investigations of illegal acts will not take care of our real security interests; I can think of no other limitation on the FBI that can guarantee our constitutional liberties and democratic values.

By definition intelligence investigations are initiated, without reasonable cause to believe a crime has been committed, to gather information on the plans, activities, beliefs, associations and membership of individuals and groups. Investigations intrude on speech and associational privacy protected by the First, Fourth, Fifth, and Ninth Amendments to the Constitution. They "chill speech" by subjecting citizens to the fear of investigation, exposure, and reprisal if they engage in unpopular political activity.10

Acting under Executive Orders to investigate "subversive activities"," and "prevent violence"," the FBI has not only intruded upon the privacy of innumerable individuals and groups, but has engaged in systematic illegal activities. As the Committee is well aware, the FBI has not confined its investigations to individuals or groups engaged in illegal conduct. It has investigated members of Congress, peace groups, civil rights organizations, the women's liberation movement, and delegates to political conventions. It has routinely initiated and conducted investigations and maintained files on nearly one million associates and members of organizations that espouse revolutionary doctrine but whose activities have posed no clear and present danger to the security of the country. And it has engaged in extensive illegal activity.13b

FBI "black bag jobs" or illegal burglaries carried out against hundreds of citizens and groups;

mittee on the Judiciary, February 11, 1976; and the Statement of Clarence M. Kelley, Director of the FBI, before the same Subcommittee on February 11, 1976.

See Recommendation 44 in "Intelligence Activities and the Rights of Americans", Book II of the "Final Report of the Select Committee to Study Government Operations with Respect to Intelligence Activities", United States Senate. 94th Congress, 2d Session, Report No. 94-755 (Government Printing Office: April 26, 1976). (Hereinafter Senate Final Report)

Recommendations of the House Committee on Intelligence, February 11, 1976, House Report 94-833.

8 See Letter To Senate Intelligence Committee on FBI Charter Recommendations from the American Civil Liberties Union, Americans for Democratic Action. Center for National Security Studies, Committee for Public Justice, Common Cause, and United Automobile Workers, March 11, 1976.

918 U.S.C. 533.

10 A line of cases develops these propositions, e.g., NAACP v. Alabama, 357 U.S. 449 (1958); Bates v. Little Rock, 361 U.S. 516 (1960).

11 See Executive Directives first issued by President Roosevelt orally in 1936 and by way of a press release in 1939; reissued in 1943 by the Justice Department; in 1950 by the Justice Department; and in 1952 by President Truman. See also, discussion in Senate Final Report, note 6 supra, pp. 25-28.

12 I refer particularly to the order issued by Attorney General Ramsey Clark in 1967 to gather intelligence relative to civil disorders: Memorandum from Attorney General Ramsey Clark to J. Edgar Hoover, Director FBI, September 14, 1967. See also discussion in Senate Final Report, note 6 supra, pp. 82-84.

13a Senate Final Report, note 6 supra, p. 6.

13b See generally Senate Final Report, note 6 supra. See also. Jerry J. Berman and Morton H. Halperin, eds., "The Abuses of the Intelligence Agencies" (Center for National Security Studies: 1975), pp. 14-50.

FBI mail opening programs conducted in contravention of statutes and postal regulations and mail opening programs, also illegal, conducted in cooperation with the CIA, eventually resulting in the opening of 13,000 letters annually; FBI COINTELPRO operations conducted to "disrupt or otherwise neutralize" political groups, 2,411 actions that included harassment, dissemination of derogatory information from investigative files, dissemination of false and anonymous materials to breed dissension among groups, agents provacateur and interference in the political and judicial process;

FBI "smear campaigns" against civil rights leaders, including Dr. Martin Luther King, Jr., involving illegal wiretapping, dissemination of derogatory information and an anonymous letter urging King to commit suicide;

FBI programs of warrantless wiretapping dating back to 1940, directed at citizens and groups in the United States;

FBI political intelligence programs conducted at the request of the Executive to keep Presidents informed about their "enemies" and opponents (usually persons who have done no more than dissent from Administration policy).

I believe this public record of abuse places a heavy burden of proof upon the Executive to show both the legitimacy and the propriety of allowing the FBI to continue to direct intelligence investigations at American citizens. Certainly the intrusions into individual and associational privacy that are inherent in intelligence gathering make this burden of proof substantial.

This burden of proof relates directly to the debate over the future role of FBI intelligence. Today, the Justice Department and the FBI seek authorization to conduct intelligence investigations in order to anticipate and prevent violence. The Department and the Bureau cite statistics which show that acts of violence and terrorism are on the rise in the United States to justify the continuing need for FBI intelligence investigations." In its Final Report, the Senate Select Committee also recommends that the FBI should be authorized to conduct limited intelligence investigations to prevent violence and terror.15 Two assumptions underly these recommendations: (1) that intelligence investigations play a useful role in anticipating and preventing violence; and (2) that carefully drawn guidelines together with executive and congressional oversight can prevent serious abuse. These assumptions are simply not supported by the evidence on the public record. The facts strongly indicate the contrary and lead to the conclusion that this grant of authority is both unwarranted and dangerous.

16

I want to make it clear that I think violence and terrorism pose a danger to our society and I believe we must step up our efforts to find ways to reduce the instances of violence in our society. However, I do not believe intelligence investigations provide a meaningful solution to this problem and in fact may exacerbate it. I think the evidence makes this clear.

First, the public record demonstrates that FBI intelligence has been all but useless in anticipating or preventing acts of violence.

According to the Senate Select Committee, between 1960 and 1974, the FBI conducted over 500,000 separate investigations of persons and groups under the "subversive” category, predicated on the possibility that they might be likely to overthrow the government of the United States. Yet not a single individual or group has been prosecuted since 1957 under the laws which prohibit planning or advocating action to overthrow the government and which are the main alleged statutory basis for such FBI investigations."

According to the GAO audit of FBI intelligence investigations, the Bureau has not been able to anticipate violence through its vast intelligence operations. "Investigations of sabotage, certain bombings, and riot violations, and protection of foreign officials, although handled as part of the FBI's domestic intelligence operations, usually involved criminal acts committed before the investigations were initiated.18

See Statement of Clarence Kelley, Director, FBI, before the Civil Rights and Constitutional Rights Subcommittee of the House Judiciary Committee. February 11, 1976. 15 Recommendation 44, and discussion in Senate Final Report, note 6 supra, pp. 318323.

16 Senate Final Report, note 6 supra.

17 Senate Final Report, note 6 supra, p. 19.

18 Comptroller General of the United States, "Report to the House Committee on the Judiciary, FBI Domestic Intelligence Operations Their Purpose and Scope: Issues That Need to be Resolved" (General Accounting Office: February 24, 1976), pp. 3-4. (Hereinafter cited as GAO Report)

In fact, the FBI rarely anticipates significant activity of any kind, including violent acts. According to the GAO audit of 19,700 cases, involving a random sample of 898 cases in 10 FBI field offices, the FBI anticipated activity in only 17 cases. Only 6 cases involved potential violence."

One of the main reasons advanced for expanded collection of information about urban unrest and anti-war protest was to help responsible officials cope with possible violence. However, as the Senate Committee reports, a "former White House official with major duties in this area under the Johnson administration has concluded, in retrospect that 'in none of these situations. would advance intelligence about dissident groups (have) been of much help,' and that what was needed was 'physical intelligence' about geography of major cities, and that the attempt to 'predict violence' was not a 'successful undertaking.' Moreover, much FBI information is useless to other agencies concerned about violent political acts. The GAO report notes that, while the FBI disseminates over 89% of its intelligence case reports to the Secret Service, responsible for protecting the lives of high government officials, the agency retains only 6% of the information received. The Secret Service said it received "too much not always useful information." " A specific Defense Department Directive, DOD Directive 5200.27, requires the destruction of a great deal of information it receives from the FBI about civilians considered "threatening" to the military, including reports on civilian subversion.22

While citing acts of violence and terrorism as a justification for intelligence activities, it is common knowledge that the FBI did not anticipate any of them. The civil disorders of the 1960s, the Capitol bombing, the political assassinations and attempts, the activities of the SLA, and other instances, were not anticipated and obviously not prevented by FBI intelligence gathering.

23

I believe this record not only undercuts the FBI's case for conducting intelligence investigations in order to anticipate and prevent violence, but documents why intelligence investigations are all but useless for this purpose. First, the FBI collects "facts", but the record shows that we do not know what facts are relevant in predicting violence. Second, intelligence agencies depend on prior notice, yet most political violence is spontaneous. As three presidential commissions have concluded, "the larger outbreaks of violence in the ghettos and on the campuses were most often spontaneous reactions to events in a climate of social tension and upheaval." " Third, the FBI assumes there is a causal connection between "speech" and "action", but as random bombings demonstrate, terrorists do not follow rational patterns. And finally, the FBI relies on a network of established informants for information, but true terrorists know this and operate underground. Under these circumstances, massive intelligence coverage is relatively useless and will continue to be unless we adopt the unacceptable alternative of putting everyone under surveillance. The problem must be addressed differently.

My second major point is that the Justice Department Guidelines and the Senate Committee recommendations, designed to limit the FBI, actually authorize continuing coverage of lawful political activity. They pose a grave risk to our civil liberties.

To allow the FBI to anticipate violence, the Justice Department Guidelines authorize the FBI to initiate an investigation against an individual or individuals acting in concert on the basis of a mere allegation that they are engaging or will

19 GAO Report, pp. 140-144. In reviewing 101 organization files, the GAO found only 119 instances where activities were anticipated by the FBI. Only 12% of these activities could conceivably involve violence. There is no record of whether the FBI prevented any of this potential violence. The FBI contends that these statistics may be unfair because they concentrate on investigations of individuals rather than groups (GAO Report. Appendix V). In response, GAO states that its "sample of organizations and control files were sufficient to determine that generally the FBI did not report advance knowledge of planned violence." In most of the 14 instances where such advance knowledge was obtained, it related to "such activities as speeches, demonstrations or meetings-all essentially nonviolent." (GAO Report, p. 144).

20 Senate Final Report, note 6 supra. p. 19. Testiminy of Joseph Califano.

21 GAO Report, note 18 supra, pp. 125–126.

22 Senate Final Report. note 6 supra, p. 254.

23 See the examples cited by Director Kelley in his statement of February 11, 1976, cited in note 14 supra and in his Memorandum to the Comptroller, GAO Report, note 18 supra, pp. 212-217...

24 Senate Final Report, note 6 supra, p. 68. See "Report of the National Commission on Civil Disorders" (1968), chapter 2; "Report of the National Commission on the Causes and Prevention of Violence" (1969); "Report of the President's Commission on Campus Unrest" (1970).