preserved but kept secret and denied to the American people, they will be deprived of the only means, the essential ingredient to assure accountability and governance by the people.

It is in this context that we evaluate the National Intelligence Bill of 1980. In so doing the revelations of the past decade must be given great weight. If we "cannot remember the past, we are condemned to repeat it." The repetition of unlawful conduct on the part of the executive and intelligence agencies will strike a severe blow and do grievous harm to our nation both at home and abroad.

S. 2284

The genesis of the present bill was the realization that in order to prevent the injury and sins of the past, it was essential to enact legislation in the form of a charter which would proscribe and prevent unlawful activity by the executive and the intelligence agencies. But an examination of S. 2284 reveals rather a bill which with the broadest language and the vaguest of definitions only enhances and expands the power and jurisdiction of the executive and the intelligence agencies to engage in the illicit and dangerous activities it was supposed to deter and prohibit. The purported "limitations" of the powers of these arms of government are inordinately limited to the point of depriving them of any effectiveness. Further, each and every "limitation" has exceptions and loopholes that essentially negate them.

The bill in effect becomes the "statutory basis" attempting to legalize the improprieties of the past, giving Constitutional sanction to those improprieties and in effect establishing a secret arm of government accountable to no one. The bill suffers from numerous constitutional infirmities, and is clearly violative of the First, Fourth and Fifth Amendments of the Constitution. It destroys the entire concept of a government of checks and balances.

The unlawful activities, the invasion of constitutional rights on the part of the president and the executive agencies was said to be authorized by the "inherent powers" of the presidency. The inherent powers theory has in many instances been found to be lacking by the courts, by congressional committees and repudiated by the American people upon learning of the misdeeds engaged in under the cover of such executive authority.

In looking at S. 2284 we are compelled to state that it has a certain deja vu quality reminding one all too much of the excesses during the Nixon administration, epitomized by the Huston Plan. This plan, which was to be effected by the "intelligence system" authorized the covert activities, COINTEL programs, mail openings, surveillances, electronic and physical, infiltration. breaking and entering, the massive use of informers. The defect in this plan was not merely its lack of statutory authority, but that it was one that cast aside any constitutional protection and rode rough shod over basic rights and liberties.

S. 2284, we are compelled to state. is a more sophisticated Huston Plan, given the cover of legality by the vesting of statutory authority, by act of Congress to carry out these activities in secrecy under the claim of external and internal security and acquisition of "intelligence" data. The enactment of a bill such as S. 2284 does not justify or make legal and constitutional that which was unlawful and unconstitutional prior to its enactment.

As a result of the media reports of this legislation, one would believe that it was limited to the CIA alone, but clearly as this Committee knows, and as the bill provides, its scope and compass is much broader and even more dangerous. It not only authorizes certain activities by the CIA, the FBI and the National Security Agencies as well as certain bureaus and divisions of the Department of Justice, the Department of State, the Treasury and Energy, it also authorizes the president to vest such "intelligence" powers in any other executive agency or subdivision the president deems appropriate.

Over the past decade the Congress has sought to assert its constitutional powers and require that the office of the president act coordinately with it and account to it in the exercise of presidential powers and in compliance with the statutes enacted by Congress. The present legislation makes a mockery of presidential accountability to the Congress or meaningful congressional oversight. This bill constitutes a carte blanche to the executive to do what it will in the area of "national and internal security", national defense and foreign relations. It gives unbridled authority to intrude upon and disrupt lawful activities of United States persons domestically and abroad. It gives the president and the intelligence officials authority to engage in political and economic warfare and to assemble and exploit quasi military forces in countries throughout the world.

The only suggestion of accountability to Congress is the very limited advice and notice which may be given by the executive or the intelligence agencies of certain types of covert, special or extraordinary activity. The few members of Congress to whom this notice is given must themselves be cleared and approved by the intelligence agencies who are to "account" to them. Exaggerated claims of secrecy with limited disclosure are bound to have an intimidating effect and deter correction and exposure where truly warranted in the national interest. It becomes a form of cooperation.

But it is not only Congress which is excluded as a branch of government, as a check and balancer. It is the judiciary as well. Under the Foreign Intelligence Surveillance Act of 1978, for the first time in this nation's history, we created a court that sits in secret to deal with applications for the issuance of secret warrants authorizing electronic surveillance and the fruit of the surveillance remains hidden unless revealed at the sole option of the intelligence agencies. Any action of this court may be reviewed on appeal, in secret, only upon the application of the government in the event the secret court refuses to authorize the warrant. This bill extends the power of the secret court and the authority of the intelligence agencies to obtain warrants including warrants applicable to United States persons for physical as well as electronic surveillance, and the color of authority to engage in the very kinds of activities which were so roundly condemned by the Church Committee. Thus the checks and balances which constitute the foundation of our Constitution is substantially impaired by S. 2284.

The past disclosures establish that the record of illicit CIA and FBI activities and that of other investigative agencies and personnel were not initiated by the officials and employees of those agencies alone. Much of the unlawful activity was initiated and authorized by the president, directly and through cabinet members and presidential aides in formulating and carrying out, in secret, foreign and domestic policies unbeknownst to the people as well as other branches of government. By vesting this broad indiscriminate power in the executive and the intelligence agencies under S. 2284, Congress is vesting in the president the power to utilize these agencies in secrecy in conceiving and executing policies and without being compelled to account to Congress or the people, and without judicial scrutiny and injunction.

The mere enactment of S. 2284 without § 421 (d) would nevertheless constitute a serious blow to the FOIA and the right of the people to seek and obtain an accounting from the government. The elaborate intelligence system created by S. 2284 and its articulated premises are bound to have an adverse impact upon the judiciary and make it more fearful and less disposed to grant the disclosure the people are entitled to under the FOIA as it now exists.

The real danger to the national interest

The CIA has been operating under its initial charter of 1947 without any accounting by it to the people or to Congress except to a limited extent for a brief period following Watergate. Even in the absence of congressional oversight and based upon information that has been disclosed without the FOIA, it is a known fact that the CIA has engaged in "covert operations" and special and extraordinary activities in many countries throughout the world such as Greece, Guatemala, Chile, Cuba, Iran, France, Angola, Zaire, Brazil, Italy, the Philippines, Portugal, Korea. Viet Nam, Laos and Thailand. Obviously neither Congress nor the people know of all covert activities of the CIA of an operational rather than an intelligence gathering nature.

Yet most of these secret actions have not advanced the security, welfare or interest of the United States. Quite to the contrary (e.g. Iran). They have caused severe harm to the status, influence and reputation of the United States in the eyes of untold millions of people throughout the world. It has interfered with the capacity of the United States to establish good faith relationships with countries, particularly of the Third World, based upon mutual trust and common purpose. We are because of the very activity the intelligence agencies wish to engage in, in secrecy, looked upon as an opponent of democracy and social change abroad, as supporters of undemocratic and repressive elements and regimes. The intelligence agencies at home and abroad and the U.S. people

S. 2284 represents an elaborate piece of legislation vesting tremendous power with the president and his executive and intelligence agencies. This bill creates a vast intelligence system with enormous powers never before conceived of let

alone enacted by any Congress. It raises the most profound constitutional questions and on its face suffers from constitutional defects and infirmities. Its implications and effect upon the total structure of the United States Government are such as requires the most intensive and prolonged study, scrutiny and evaluation. Legislation such as this should never be enacted in moments on perceived political crises at home or abroad. To permit the enactment of such legislation in these circumstances would result in the enactment of laws that will do irreparable injury to this nation and all of its people.

The legislation both because of its scope and novelty is complex and hence it would be impossible in this brief statement in the shortness of time available to deal with all of the multi-faceted problems it raises. In effect this bill establishes a fourth branch of government, not merely an information-gathering system, but an active operational system which unlike any other branch of government, will be permitted to act in what amounts to total secrecy destroying the people's means and right to know and exercise their constitutional privilege of knowing what the government is doing and seeking correction by legislation and elective process.

It must be noted and remembered that almost all of the domestic intelligence activity of the CIA engaged in illegally, pertain to political surveillance, political information and intrusion upon and interference with the people's exercise of their lawful constitutional rights. More than 50 percent of the files of the FBI have nothing to do with criminal activity. Rather its focus has been political surveillance, political operations in the form of COINTEL and otherwise and in the vast intrusion upon the private and political lives of the people.

In light of the above this statement can only deal with a few aspects of this bill. The need for time to study, to present evidence and testimony on the bill and its implications require an extended period of time and it is hardly subject to critical analyses and intelligent discernment in the context of a presidential election.

The very definition of terms as found in § 103 of the bill, terms such as counter intelligence activity, intelligence activity, terrorist activity, national intelligence activity, special and extraordinary activity as defined in that section, the very meaning and impact and the broad and vague definition of such terms raises serious questions and thereby taints the entire piece of legislation and subjects it to constitutional attack on the grounds of vagueness under the Fifth Amendment. The vesting of authority to conduct such activities and other sensitive intelligence activities and the authorization to engage in them are equally vague and subject to abuse. The president's power to delegate and sub-delegate authority to engage in such activities only serves to compound the danger of § 123.

The limitations in the bill pertaining to private institutions and the maintenance of their integrity is essentially ineffective and includes a whole series of categories of organizations which would be subject to exploitation and manipulation by the intelligence agencies, the effect of which would destroy their integrity and validity and would make it impossible for them to function abroad with any sense of credibility and truthworthiness.

Title II of the Act, Standards for Intelligence Activity, and the definitions thereunder, suffer from the same deficiencies as that applicable to Title I. Part B thereof and particularly §§ 211-214 grant the intelligence system essentially uncontrolled authority subject to their subjective and non-reviewable judgment, to engage in various forms of surveillance, intrusion, by mail cover, surreptitious entry, recruitment and placement of informants, and the power to engage in COINTEL activities all under the cover of the broad definition of counter intelligence, counter terrorism in the absence of illegal activity, based upon the possibility that some conduct may be engaged in some time in the future or that a United States person may be the subject or target of hostile organizations, governments or agencies. The language used in the bill, "circumstances which indicate that the person is or may be engaged in clandestine activities" only serves to vest unlimited discretion with those intelligence agencies which past disclosure has established have acted illicitly and violated the constitutional rights of hundreds of thousands of people.

Title II of the bill along with Title IV § 414 and Title V, § 504 grants jurisdiction to the CIA within the United States and expands the jurisdiction of the FBI beyond the United States. They authorize these intelligence agencies to act in concert without jurisdictional limit among themselves and with foreign intelligence agencies with no accountability to any independent branch of government or the people.

The showing necessary to obtain a warrant is far less than that required for a criminal proceeding. The obtaining of the warrant by the agency and its enforcement and the information derived therefrom, can at the sole discretion of the agency, be kept secret, secretly disseminated to other federal agencies and to local and state agencies or can be destroyed at the agency's convenience under a minimization procedure.

Were we now to look at the hearings of the Church Committee, and the final reports issued by it, we would find that essentially each and every one of the activities frowned upon and condemned and found to be a threat to our national integrity would be authorized and sanctioned by this bill and all such activity would have a total cloak of secrecy.

This piece of legislation constitutes a clear and present danger to the entire fabric of American democratic government. It is a threat to all of our basic liberties. It is a bill which will damage this country at home and abroad. This is a bill that does not limit and prevent the abuses of the past. It sanctions, condones and authorizes them. It gives statutory approval of the excessive claims of executive authority and inherent power and relegates legislative and judicial branches of government to non-participants and deprives them of the power to protect this nation, its national interest and its security in the truest meaning of the word.

Under the cover of more efficient intelligence gathering, this bill de facto amends our Constitution and destroys any semblance of checks and balances. It deprives the people of the knowledge essential to enable them to call a halt to improper, unwise and illegal conduct by the government.

TESTIMONY OF MARSHALL PERLIN, GENERAL COUNSEL, FUND FOR

OPEN INFORMATION & ACCOUNTABILITY, INC.

Mr. PERLIN. I am pleased to have the opportunity to give testimony with reference to this bill, whose consideration by this committee and the discussion and concern it is causing throughout the country mandates that it receive whatever aid each and every one of us can give to this committee to assure that no bill is enacted into law which does injury and harm to our basic democratic society.

I have been practicing law for more than 33 years. For the last 5 years, whether I wished it or not, most of my time has been concerned with the Freedom of Information Act, and many other years prior to that time, I have been concerned with representing unions, workers, and other people who have suffered grievous harm by intelligence agencies and no means of having effective recourse because of the cloak of secrecy that existed and protected these agencies doings, legal and illegal.

One of the first cases that I handled on behalf of some clients in the Freedom of Information Act were the sons of Julius and Ethel Rosenberg. As a result of that litigation, which has been going on now for 5 years, we probably have obtained more pages from the FBI, surely from the FBI, as well as pages from other agencies, totaling approximately 200,000 pages, but that took 5 years of work.

But even more significant is that more than that number have been withheld. More than that number have not been accounted for; 100,000 pages are being withheld on the grounds of (b) (1) laws under the Freedom of Information Act, that is, national security, and the national defense and foreign relations.

Almost an equal number of pages and portions of pages have been withheld on claims protecting confidential sources. Many of these claims, as the litigation has demonstrated, have been ridiculous and

absurd. There is an illusion that by instituting a Freedom of Information Act, you suddenly have the doors open and the files fall upon you. That is not so.

The agencies, and particularly the intelligence agencies, use every means to delay and limit that which you receive. The CIA gave us 300 legal-sized pages of an inventory, single-spaced, of the total number of documents that we obtained. It was slightly more in pages than the size of the inventory.

The amount of material that was disclosed from the CIA under the FOIA has been miniscule. We have had the opportunity also to face one other problem. In order to resist disclosure, and we have found the evidence on that, and we brought action in the Federal courts based thereon, the FBI destroys its files.

But it is not the FBI alone. It is a convenient way of withholding documents, either to destroy them or to not find them or not search for them. So, I do not see in the course of processing these past 5 years FOIA proceedings any massive disclosures of national security interest and exposure of informants, any danger to our national security. What I do see from reading those 200,000 pages I have referred to and thousands of other pages from other organizations that we have seen, we find a history going back at least a quarter of a century of the CIA, the FBI, and other intelligence agencies engaged in unlawful, illicit conduct.

The remarkable thing is, much of their conduct which is hidden under claimed FOIA exemptions is known to many of the people. When we have a CIA having the power in coordination with the FBI to draw up lists of people who sign petitions, citizens of the United States and fine people, and amass those lists of names and send them to CIA stations throughout the world so those people can be subject to scrutiny-in one example, thousands upon thousands of names were disseminated for those purposes for one single reason. People overseas and people here had committed the dangerous and subversive act of seeking to save the lives of the Rosenbergs.

When I see among the limited files that I obtained records of the FBI active in almost every country of South America, Cuba, Ecuador, Panama, Argentina, Uruguay, and go right on down the list, evidence of CIA interference in the domestic life of those countries, seeking to affect those lives, and seeking to interfere with organizations of people who wish to express their views on current issues that bear upon relations with the United States, I get very concerned. When we are then confronted with a statute which says, in effect, the intelligence system can act in absolute secrecy, there is a natural and inevitable dichotomy of countervailing interests which we under our Constitution have to try to reconcile, the right of the people to know, the right to compel their government to account, the right to rectify their government's action, and the need to acquire intelligence information.

We have the present bill placing under secrecy not merely the CIA, but all intelligence agencies. It is not merely 421 (d), you also have pending before a Senate committee a bill, the FBI charter, which essentially exempts the FBI documents from disclosure. You have a host of other bills which have the effect of eviscerating the FOIA or under the claim of national security and the national interest.