On December 23, 1974, FBI Headquarters reiterated the rules for FBI employee conduct by the Director to all FBI Field Offices and further stated: "You are reminded that these instructions relate to informants in the internal security [domestic intelligence] field and no informant should be operated in a manner which would be in contradiction of such instructions." 219 This instruction appears to be the only written provision applying FBI employee conduct standards to informants.220 Prior to the issuance of this instruction in 1974, there were no formal or specific provisions relating to informant conduct in FBI directives. The resulting effect on FBI agent direction of informants can be illustrated by two additional cases. The first case involved an FBI informant in a group of anti-war protestors. In August 1970, this group broke into the Camden, New Jersey, Draft Board, after several months of planning and preparation. The informant, Robert Hardy, testified that he provided essential direction and materials to the group, making the break-in possible. Hardy testified: Everything they learned about breaking into a building or climbing a wall or cutting glass or destroying lockers, I taught them. I got sample equipment, the type of windows that we would go through, I picked up off the job and taught them how to cut the glass, how to drill holes in the glass so you cannot hear it and stuff like that, and the FBI supplied me with the equipment needed. The stuff I did not have, the [FBI] got off their own agents.221 Second, in late 1966 or early 1967 the FBI Field Office in San Diego, California was approached by one Howard Berry Godfrey. Godfrey testified that he was "approached" by a member of a right-wing paramilitary group to join. The Committee received varying information concerning why Godfrey contacted the FBI and at whose initiative the informant relationship arose.222 In any event, Godfrey and the FBI entered into a relationship in 1967 by which Godfrey would provide the Bureau information. This relationship was formalized in August of 1967 when Godfrey was officially "approved" by the FBI's Washington Headquarters as an informant. Godfrey's relationship with the FBI lasted over five years, terminating in November of 1972. Godfrey was paid varying amounts from 1967 through 1970 when he began to receive $250 per month plus up 9 Memorandum from FBI Headquarters to all SAC's, 12/23/74. 220 FBI officials testified, however, that it is unwritten Bureau practice to instruct informants that they are not to engage in violence or unlawful activity and, if they do so, they may be prosecuted. FBI Deputy Associate Director Adams testified: .. we have informants who have gotten involved in the violation of the law, and we have immediately converted their status from an informant to the subject, and have prosecuted, I would say, offhand . . . around 20 informants. (Adams, 12/2/75, Hearings, Vol. 6. p. 150.) 221 Hardy testimony, 9/29/75, pp. 16-17. Staff summary of Howard Berry Godfrey interview, 1/18/76. 69-984 - 76 - 18 to $100 per month in expenses. 224 He continued at that level until his termination.225 Godfrey's case study, albeit dealt with here briefly, illustrated a number of the issues which wove their way through the Committee's inquiry into the FBI's use of informants. The first issue is control over the informant by the Bureau. In accord with FBI procedure, Godfrey always was assigned to a principal case agent. The Committee's investigation determined, however, that the actions of Godfrey and his cohorts in the San Diego area were rife with destruction and violence. There is little evidence, other than Godfrey's less than convincing claims, that he actually prevented any violence or destruction from occurring. As a member of the District Attorney's office told the Committee: They [the FBI] couldn't control him [Godfrey]. Godfrey's For a large part of his time as an FBI informant, the responsibility for monitoring Godfrey was in the hands of a single FBI agent. Moreover, under Bureau procedure, the reports of the informant are only sent to Washington every six months. And, the reports in the case of Godfrey were largely "form" type responses, providing an inadequate basis for any reviewing authority in Washington to determine Godfrey's usefulness. The second overriding issue present in the Godfrey case study was how the Bureau could prevent the informant from actually inciting, encouraging or participating in violence and/or destruction without losing his utility as an informant. Godfrey admits to participating in some violence and destruction and the record suggests that he may have participated in even more than he now admits to.227 Examples of the types of actions Godfrey and/or the Secret Army were involved in include firebombing, smashing windows, placing stickers bearing SAO or Minutemen symbols on cars and buildings, propelling lug nuts through windows with sling shots, and breaking and entering.228 Upon questioning by the Committee, all FBI agents who dealt with Godfrey testified that while Godfrey was specifically instructed never to engage in illegal acts such as firebombings, etc., they recognized that this was often difficult if not impossible to accomplish. One FBI agent put it this way: Well, I remember almost on a daily basis, this matter would 224 It should be noted, however, that Godfrey did not always receive exactly $250; it often depended upon the degree of his activity. 225 228 As earlier referenced, the average FBI informant salary was $100 per month. Staff summary of member of San Diego District Attorney's office interview, 1/22/76. 27 Staff summary of Godfrey interview, 1/18/76. 228 Indeed, the literature of the Secret Army features a pamphlet which instructs the public in the art of burglary complete with diagrams of "forced entry of building." can and then find some logical excuse to bow out at the last minute. But he was never asked by me to participate in anything that I would consider illegal or that I think that he would consider illegal and to the best of my recollection, during our association. I can't recall anything specific . . . Now there were occasions when I know that he didn't get out of it. He might have been in one, he had to go and be involved or he would have been out of the group. I really don't remember anything right definite at this time but there were several of those cases, no question about it.229 And, Godfrey himself described his instructions as: Q. Was there ever a conversation in which [you and the FBI agent] decided [that] while you would attempt to stay out of [a violent or destructive activity] if it came down to either getting involved in it, or having to just leave the scene [with] a number of questions [being] asked later, under those circumstances that you would go ahead and do the particular activity? A. Yes.230 The SAO's actions escalated to a level of violence and destruction where Godfrey's name had to be revealed as an FBI informant. Two events precipitated this. The first was the shooting of Paula Tharp, who was in the residence of the San Diego State University professor Peter Bohmer. Briefly, while Godfrey and an SAO associate were "on a surveillance" of Bohmer's residence (instituted by Godfrey), the associate, according to Godfrey, picked up a gun Godfrey had under the seat of his car and fired shots into the Bohmer house, one of which struck Ms. Tharp.231 Previously the SAO and Godfrey had singled out Professor Bohmer in their literature for special attention: For any of our readers who may care to look up Red Scum, The significant factor for the Committee's analysis of FBI informants is that even this shooting incident did not immediately terminate Godfrey as an informant. Rather the FBI records show that Godfrey remained on the Bureau payroll until November, 1972. 22 Staff summary of FBI Agent #1 interview, 1/22/76, pp. 26-27. 231 Staff summary of Godfrey interview, 1/18/76, pp. 54-55. This incident is not only a matter of pending civil litigation but Godfrey's SAO associate was convicted in a criminal trial in San Diego. The details of the shooting are a matter of public record in the trial transcript. And, it was not until the second major act of destruction that Godfrey was "surfaced" as an informant.232 The second major act of destruction which occurred was the bombing of the Guild theatre in San Diego. According to Godfrey, the bombing was perpetrated by his subordinate in the SAO, one William Yakopec.233 Godfrey participated in the SAO sale of some explosives to Yakopec. Yet, he promptly notified the FBI of Yakopec's alleged involvement in the Guild Theatre bombing. Yakopec, who maintains his innocence, was subsequently indicted and convicted of the bombing offenses in the local courts of San Diego. Godfrey testified publicly at both the Yakopec and Hoover trials and was thereafter re-located to another part of California and ceased to serve as an FBI informant. Godfrey's use as a Government informant is now in litigation. The intelligence informant technique is not a precise instrument. By its very nature, it risks governmental monitoring of Constitutionally-protected activity and the private lives of Americans. Unlike electronic surveillance and wiretaps, there are few standards and no outside review system for the use of intelligence informants. Consequently, the risk of chilling the exercise of First Amendment rights and infringing citizen privacy is increased. In addition, existing guidelines for informant conduct, particularly with respect to their role in violent organizations and FBI use of intelligence informants to obtain the private documents of groups and individuals, need to be clarified and strengthened. 232 Godfrey did turn over the weapon to his FBI supervisor after the shooting. The FBI did tell a representative of the San Diego police department that they had an informer who was a witness to the shooting, but neither this information nor the existence of the gun was furnished to the unit of the San Diego Police Department which investigated the Tharp shooting for several months. 233 'Godfrey testified before a San Diego grand jury that Yakopec was a “lieutenant in my-an assistant San Diego County commander." III. Presidential and Attorney General Authorization for Warrantless 293 A. Pre-1952. 1. 1931-1942_ 294 294 2. 1942-1952_ B. 1952 to 1965_ 294 295 C. 1965 to the Present__ IV. An Overview of FBI Electronic Surveillance Practice.. 298 300 A. Purpose and Value as an Investigative Technique. A. Extent of FBI Electronic Surveillance: 1940 to 1975. 2. FBI policy on the maximum number of simultaneous B. Requests, Approvals, and Implementation. C. The ELSUR Index. D. Congressional Investigation of FBI Electronic Surveillance Practices: The Long Subcommittee. V. Warrantless FBI Electronic Surveillance of Foreign Intelligence and 1. Dissemination of domestic intelligence from incidental 2. Indirect targeting of American citizens through VI. Warrantless FBI Electronic Surveillance of American Citizens. Information_____ D. Electronic Surveillance Predicated on Other Grounds. 300 301 301 303 303 304 305 307 310 311 312 313 314 315 316 318 321 328 |