person could CIA "prove the negative" that none were under foreign domination.464 In 1972, the CIA Inspector General found "general concern" among the overseas stations "over what appeared to constitute a monitoring of the political views and activities of Americans not known to be, or suspected of, being involved in espionage." Several stations had “doubts as to the nature and legitimacy of the program" because requests for reports on "prominent persons" were based on "nebulous" allegations of "subversion." 465 This led to "a reduction in the intensity of attention to political dissidents," 466 although the program was not terminated until March 1974.467 By the end of the CHAOS program, 13,000 different files were accumulated, including more than 7,200 on American citizens. Documents in these files included the names of more than 300,000 persons and groups, indexed by computer.468 In addition to collecting information on an excessive number of persons, some of the kinds of information were wholly irrelevant to the legitimate interests of the CIA or any other government agency. For example, one CIA agent supplying information on domestic activities to Operation CHAOS submitted detailed accounts of the activities of women who were interested in "women's liberation." 469 c. CIA Security Operations Within the United States: Protecting "Sources" and "Methods" The National Security Act of 1947 granted the Director of Central Intelligence a vaguely-worded responsibility for "protecting intelligence sources and methods from unauthorized disclosure." 470 The legislative history of this provision suggests that it was initially intended to allay concerns of the military services that the new CIA would not operate with adequate safeguards to protect the military intelligence secrets which would be shared with the CIA.471 However, this authority was later read by the CIA to authorize infiltration of domestic groups in order to protect CIA personnel and facilities from possibly violent public demonstrations. It was also read to permit electronic surveillance and surreptitious entry to protect sensitive information. The CIA undertook a series of specific security investigations within the United States, in some cases to find the source of news leaks and in others to determine whether government employees were involved in espionage or otherwise constituted "security risks." These investigations were directed at former CIA employees, employees of other government agencies, newsmen and other private citizens in this country.472 Among the techniques used were physical surveillance, 464 "Helms deposition, Rockefeller Commission, 4/24/75, p. 234; Ober deposition, Rockefeller Commission, 3/28/75, pp. 137–138. 465 'Memorandum from Inspector General to Executive Director-Comptroller, 11/9/72, p. 1. 466 Memorandum from Executive Director-Comptroller to DDP, 12/20/72. 467 Cable from CIA Director William Colby to Field Stations, March 1974. 468 Rockefeller Commission Report, p. 23. 469 Agent 1. Contact Report, Volume II, Agent 1 file. 470 50 U.S.C. 403 (d) (3). 471 Lawrence Houston testimony, Rockefeller Commission, 3/17/75, pp. 1654– 1655. 472 Rockefeller Commission Report, pp. 162-166. mail and tax information coverage, electronic surveillance, and surreptitious entry. Attorney General Robert Kennedy appears to have authorized CIA wiretapping in one of these investigations. With this exception, however, there is no suggestion that the CIA's security investigations were specifically approved by the Attorney General.473 The CIA Office of Security established two programs directed at protest demonstrations which involved the CIA in domestic affairs on the theory that doing so was necessary to safeguard CIA facilities in the United States. Project MERRIMACK (1967 to 1973) involved the infiltration by CIA agents of Washington-based peace groups and Black activist groups. The stated purpose of the program was to obtain early warning of demonstrations and other physical threats to the CIA. However, the collection requirements were broadened to include general information about the leadership, funding, activities, and policies of the targeted groups. Project RESISTANCE (1967 to 1973) was a broad effort to obtain general background information about radical groups across the country, particularly on campuses. The CIA justified this program as a means of predicting violence which might threaten CIA installations, recruiters, or contractors, and gathering information with which to evaluate applicants for CIA employment. Much of the reporting by CIA field offices to headquarters was from open sources such as newspapers. But additional information was obtained from cooperating police departments, campus officials, and other local authorities, some of whom in turn were using collection techniques such as informants. These programs illustrated fundamental weaknesses and contradictions in the statutory definition of CIA authority in the 1947 Act. While the Director of Central Intelligence is charged with responsibility to protect intelligence "sources and methods," the CIA is forbidden from exercising law enforcement and police powers and "internal security functions." The CIA never went to Congress for a clarification of this ambiguity, nor did it seek interpretation from the chief legal officer of the United States-the Attorney Generalexcept on the rarest of occasions.477 473 According to a "memorandum for the record" sent by CIA General Counsel Lawrence R. Houston to Deputy Attorney General William P. Rogers in 1954, an agreement was reached at that time allowing the CIA to investigate on its own any "actual or probable violation of criminal statutes" involving the CIA's "covert operations" and to determine for itself, without consulting the Justice Department, whether there were "possibilities for prosecution." The Justice Department would not be informed if the CIA decided that there should be no prosecution on the ground that it might lead to "revelation of highly classified information." (Memorandum from Houston to Rogers, 3/1/54, and enclosed memorandum from Houston to the Director of Central Intelligence, 2/23/54.) This practice was reviewed and re-confirmed internally within the CIA on at least two subsequent occasions. (Memorandum from Houston to the Assistant to the Director, CIA, 1/6/60; memorandum from Houston to the Deputy Director of Central Intelligence. 6/10/64.) It was not terminated until 1975. (Memorandum from John S. Warner, CIA General Counsel, for the record, 1/31/75.) 474 These CIA activities, Projects MERRIMACK and RESISTANCE, were described in great detail by the Rockefeller Commission. (Rockefeller Commission Report. Chs. 12 and 13.) 477 The Rockefeller Commission Report describes ". . . two cases in which telephones of three newsmen were tapped . . . [One] occurred in 1962, apparently with the knowledge and consent of Attorney General Kennedy." (Rockefeller Commission Report, p. 164.) d. NSA Monitoring The National Security Agency was created by Executive Order in 1952 to conduct "signals intelligence," including the interception and analysis of messages transmitted by electronic means, such as telephone calls and telegrams.178 In contrast to the CIA, there has never been a statutory "charter" for NSA. The executive directives which authorize NSA's activities prohibit the agency from monitoring communication between persons within the United States and communication concerning purely domestic affairs. The current NSA Director testified: [The] mission of NSA is directed to foreign intelligence ob- However, NSA has interpreted "foreign communications” to include communication where one terminal is outside the United States. Under this interpretation, NSA has, for many years, intercepted communications between the United States and a foreign country even though the sender or receiver was an American. During the past decade, NSA increasingly broadened its interpretation of "foreign intelligence" to include economic and financial matters and "international terrorism." 99 480 The overall consequence, as in the case of CIA activities such as Project CHAOS, was to break down the distinction between "foreign" and "domestic" intelligence. For example, in the 1960s, NSA began adding to its "watch lists," at the request of various intelligence agencies, the names of Americans suspected of involvement in civil disturbance or drug activity which had some foreign aspects. Second, Operation Shamrock, which began as an effort to acquire the telegrams of certain foreign targets, expanded so that NSA obtained from at least two cable companies essentially all cables to or from the United States, including millions of the private communications of Americans. 6. Intrusive Techniques As domestic intelligence activity increasingly broadened to cover domestic dissenters under many different programs, the government intensified the use of covert techniques which intruded upon individual privacy. Informants were used to gather more information about more Americans, often targeting an individual because of his political views and "regardless of past or present involvement in disorders." 483 The CIA's mail opening program increasingly focused upon domestic groups, including "protest and peace organizations" which were covered at the FBI's request.484 Similarly, NSA-largely in response to Army, CIA, and FBI pressures-expanded its international interception program to include "information on U.S. organizations or individuals who are engaged in activities which may result in civil 478 Memorandum from President Truman to Secretary of Defense, 10/24/52. 479 General Lew Allen testimony, 10/29/75, Hearings, Vol. 2, p. 6. 480 Allen, 10/29/75, Hearings, vol. 2, p. 11. The programs of NSA are discussed further in the succeeding section, "Intrusive Techniques," p. 183. 483 Memorandum from FBI Executive Conference to Mr. Tolson, 10/29/70. See pp. 74-76. 484 Memorandum from Hoover to Angleton, 3/10/72. disturbances or otherwise subvert the national security of the United States." 485 During this period, Director Hoover ordered cutbacks on the FBI's use of a number of intrusive techniques. Frustration with Hoover's cutbacks was a substantial contributing factor to the effort in 1970— coordinated by White House Aide Tom Charles Huston and strongly supported by CIA Director Helms, NSA Director Gaylor and Hoover's Intelligence Division subordinates-to obtain Presidential authorization for numerous illegal or questionable intelligence techniques. a. Warrantless Electronic Surveillance (1) Executive Branch Restrictions on Electronic Surveillance: 1965-1968.-In March 1965, Attorney General Nicholas de B. Katzenbach established a new requirement for the FBI's intelligence operations: the Bureau had to obtain the written approval of the Attorney General prior to the implementation of any microphone surveillance. He also imposed a six month limitation on both wiretaps and microphone surveillances, after which time new requests had to be submitted for the Attorney General's re-authorization.486 Upon Katzenbach's recommendation, President Johnson issued a directive in June 1965 forbidding all federal government wiretapping "except in conjunction with investigations related to national security." 487 This standard was reiterated by Attorney General Katzenbach, for both wiretapping and microphone surveillances three months later, and again in July 1966.487a While the procedures were tightened, the broad "national security" standard still allowed for questionable authorizations of electronic surveillance. In fact, Katzenbach told Director Hoover that he would "continue to approve all such requests in the future as I have in the past." He saw "no need to curtail any such activities in the national security field." 488 In line with that policy, Katzenbach approved FBI requests for wiretaps on the Student Non-Violent Coordinating Committee,489 Students for a Democratic Society,490 the editor of an anti-communist newsletter,491 a Washington attorney with whom the editor was in frequent contact,492 a Klan official,493 and a leader of the black Revolutionary Action Movement.494 According to FBI records, Katzenbach also initialed three memoranda informing him of microphone surveillances of Dr. Martin Luther King, Jr.495 485 Memorandum from NSA MINARET Charter, 7/1/69. 486 Memorandum from Hoover to Katzenbach, 3/30/65. 487 Memorandum from President Johnson to Heads of Departments, 6/30/65. 487 Memorandum from Katzenbach to Hoover, 9/27/65; Supplemental Memorandum to the Supreme Court in Black v. United States, July 13, 1966. Katzenbach also stated to Hoover that while he believed such techniques could be properly used in cases involving organized crime, he would not approve any such requests in the immediate future "in light of the present atmosphere." 488 Memorandum from Katzenbach to Hoover, 9/27/65. 489 'Memorandum from Hoover to Katzenbach, 6/15/65. 490 Memorandum from Hoover to Katzenbach, 5/25/65. 491 Memorandum from Hoover to Katzenbach, 4/19/65, see footnote 266. 492 Memorandum from Hoover to Katzenbach, 6/7/65, see footnote 266. 493 Memorandum from Hoover to Katzenbach, 9/28/64. 494 Memorandum from Hoover to Katzenbach, 3/3/65. 495 Memoranda from Hoover to Katzenbach, 5/17/65, 10/19/65, 12/1/65. There were no similar electronic surveillance authorizations by Attorney General Ramsey Clark in cases involving purely domestic "national security" considerations.496 Clark has stated that his policy was "to confine the area of approval to international activities directly related to the military security of the United States.497 (2) Omnibus Crime Control Act of 1968.-In response to a 1967 Supreme Court decision that required judicial warrants for the use of electronic surveillance in criminal cases,198 Congress enacted the Omnibus Crime Control Act of 1968. This Act established warrant procedures for wiretapping and microphone surveillances, but it included a provision that neither it nor the Federal Communications Act of 1934 "shall limit the constitutional power of the President." 499 Although Congress did not purport to define the President's power,500 the Act suggested five broad categories in which warrantless electronic surveillance might be permitted. The first three categories related to foreign intelligence and counterintelligence matters: (1) to protect the nation against actual or potential attack or other hostile acts of a foreign power; (2) to obtain foreign intelligence information deemed essential to the security of the United States; and (3) to protect national security information against foreign intelligence activities. The last two categories dealt with domestic intelligence interests: (4) to protect the United States against overthrow of the government by force or other unlawful means, or (5) against any other clear and present danger to the structure or existence of the government. Thus, although Congress suggested criteria for warrantless electronic surveillance for intelligence purposes, it left to the courts the task of defining the scope of the national security exception, if any, to the warrant requirement. Between 1969 and 1972, the Nixon administration used these criteria to justify a number of questionable wiretaps. One New Left organization was tapped because, among other factors, its members desired to "take the radical politics they learned on campus and spread them among factory workers." 501 Four newsmen were wiretapped or bugged during this period, as were sixteen executive branch officials, one 496 For example, Clark turned down FBI requests to wiretap the National Mobilization Committee Office for Demonstrations at the Democratic National Convention in Chicago in 1968. (Memoranda from Hoover to Clark 3/11/68, 3/22/68, 6/11/68). Clark decided that there was not "an adequate demonstration of a direct threat to the national security." (Clark to Hoover, 3/12/68) (These memoranda appear at Hearings, Vol. 6, pp. 740-755. 497 Clark has stated that he denied requests "to tap Abba Eban when he was on a visit to this country, an employee of the United Nations Secretariat, the Organization of Arab Students in the U.S., the Tanzanian Mission to the U.N.. the office of the Agricultural Counselor at the Soviet Embassy and a correspondent of TASS." [Statement of Former Attorney General Ramsey Clark, Hearings before the Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, United States Senate (1974).] 488 Katz v. United States, 397 U.S. 347 (1967). This case explicitly left open the question of warrantless electronic surveillance in "situation (s) involving the national security." (397 U.S., at 358 n. 23.) 499 18 U.S.C. 2511 (3). 500 See United States v. United States District Court, 407 U.S. 297 (1972). 501 Memorandum from Hoover to Attorney General Mitchell, 3/16/70. |