former executive official, and a relative of an executive official.” 502 There were numerous wiretaps and some microphones used against the Black Panther Party and similar domestic groups. 503 Attorney General John Mitchell approved FBI requests for wiretaps on organizations involved in planning the November 1969 antiwar "March on Washington," including the moderate Vietnam Moratorium Committee.503a (3) Supreme Court Restrictions on National Security Electronic Surveillance: 1972.-The issue of national security electronic surveillance was not addressed by the Supreme Court until 1972, when it held in the so-called Keith case that the President did not have the "constitutional power" to authorize warrantless electronic surveillance to protect the security of the nation from "domestic" threats.504 The Court still remained silent, however, on the legality of warrantless electronic surveillance where there was a "significant connection with a foreign power, its agents or agencies." 505 As a result of this decision, the Justice Department eliminated as criteria for the use of warrantless electronic surveillance the two categories, described by Congress in the 1968 Act, dealing with domestic intelligence interests.506 b. CIA Mail Opening Although Director Hoover terminated the FBI's own mail opening programs in 1966, the Bureau's use of the CIA program continued. In 1969, upon the recommendation of the official in charge of the CIA's CHAOS program, the FBI began submitting names of domestic political radicals and black militants to the CIA for inclusion on its mail opening "Watch List." 507 By 1972, the FBI's list of targets for CIA mail opening included: New Left activists, extremists, and other subversives. Protest and peace organizations, such as People's Coalition Subversive and extremist groups, such as the Black Panthers, White Panthers, Black Nationalists and Liberation Groups, Students for a Democratic Society, Resist, Revolutionary Union, and other New Left Groups. 502 See Findings C and E, pp. 183 and 225. 503 For example, at one time in March 1971 the FBI was conducting one microphone surveillance of Black Panther Party leader Huey Newton, seven wiretaps of Black Panther Party offices including Newton's residence, one wiretap on another black extremist group, one wiretap on Jewish Defense League headquarters, one wiretap on a "New Left extremist group", and two wiretaps on "New Left extremist activities." (Memorandum from W. R. Wannall to C. D. Brennan, 3/29/71, printed in Hearings, Vol. II, pp. 270-271.) 503a Memoranda from Hoover to Attorney General Mitchell, 11/5/69 and 11/7/69. This and other aspects of electronic surveillance in this period are discussed in Findings C and E in greater detail, pp. 183 and 225. 504 United States v. United States District Court, 407 U.S. 297 (1972). 505 United States v. United States District Court, 407 U.S., at 309 (1972). 506 Memorandum from William Olson to Elliott Richardson, June 1973. Until 1975, however. the Justice Department stretched the term "connection with a foreign power" to include domestic groups, such as the Jewish Defense League, whose protest actions against a foreign nation were believed to threaten the United States' relations with that nation. [Zweibon v. Mitchell, 516 F. 2d 594 (D.C. Cir. 1975).] 607 Memorandum from FBI/CIA Liaison Agent to D. J. Brennan, 1/16/69. Traffic to and from Puerto Rico and the Virgin Islands showing anti-U.S. or subversive sympathies. 508 Thus, the mail opening program that began fourteen years earlier as a means of discovering hostile intelligence efforts in the United States had expanded to encompass communications of domestic dissidents of all types. c. Expansion of NSA Monitoring Although NSA began to intercept and disseminate the communications of selected Americans in the early 1960s, the systematic inclusion of a wide range of American names on the "Watch List" did not occur until 1967. The Army Chief of Staff for Intelligence requested "any information on a continuing basis" that NSA might intercept concerning: A. Indications that foreign governments or individuals or organizations acting as agents of foreign governments are controlling or attempting to control or influence the activities of U.S. "peace" groups and "Black Power" organizations. B. Identities of foreign agencies exerting control or influence on U.S. organizations. C. Identities of individuals and organizations in U.S. in contact with agents of foreign governments. D. Instructions or advice being given to U.S. groups by agents of foreign governments.509 Two years later, NSA issued an internal instruction intended to ensure the secrecy of the fact that it was monitoring and disseminating communications to and from Americans.510 This memorandum described the "Watch List" program in terms which indicated that it had widened beyond its originally broad mandate. In addition to describing the program as covering foreigners who "are attempting" to "influence, coordinate or control" U.S. groups or individuals who "may foment civil disturbance or otherwise undermine the national security of the U.S.," the memorandum indicated that the program intercepted communications dealing with: 511 Information on U.S. organizations or individuals who are engaged in activities which may result in civil disturbances or otherwise subvert the national security of the U.S.511 This standard, which was clearly outside the foreign intelligence mandate of NSA, resulted in sweeping coverage. Communications such as the following were intercepted, disseminated, and stored in Government files: discussion of a peace concert; the interest of the wife of a U.S. Senator in peace causes; a correspondent's report from Southeast Asia to his magazine in New York; an anti-war activist's request for a speaker in New York. According to testimony before the Committee, the material which resulted from the "Watch List" was of little intelligence value; most 508 Routing Slip from J. Edgar Hoover to James Angleton (attachment), 3/10/72. 509 DOD Cable, Yarborough to Carter, 10/20/67. 510 NSA's name, for example, was to be kept off any of the disseminated "product." 511 MINARET Charter, 7/1/69. intercepted communications were of a private or personal nature or involved rallies and demonstrations that were public knowledge. d. FBI Cutbacks 512 The reasons for J. Edgar Hoover's cutback in 1966 on FBI use of several covert techniques are not clear. Hoover's former assistants have cited widely divergent factors. Certainly by the mid-1960s, Hoover was highly sensitive to the possibility of damage to the FBI from public exposure of its most intrusive intelligence techniques. This sensitivity was reflected in a memorandum to Attorney General Katzenbach in September 1965, where Hoover referred to "the present atmosphere" of "Congressional and public alarm and opposition to any activity which could in any way be termed an invasion of privacy." " 513 The FBI Director was particularly concerned about an inquiry by the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee chaired by Senator Edward Long. (1) The Long Subcommittee Investigation.-The Senate Subcommittee was primarily investigating electronic surveillance and mail cover. The Bureau was seen as a major subject of the inquiry, although the Internal Revenue Service and other Executive agencies were also included. In February 1965, President Johnson asked Attorney General Katzenbach to coordinate all matters relating to the investigation, and Katzenbach then met with senior FBI officials to discuss the problems it raised.515 According to a memorandum by A. H. Belmont, one of the FBI Director's principal assistants, Katzenbach stated that he planned to see Senator Edward Long, the Subcommittee chairman, for the purpose of "impressing on him that the committee would not want to stumble by mistake into an area of extreme interest to the national security." According to Belmont, the Attorney General added that he "might have to resort to pressure from the President" and that he did not want the Subcommittee to "undermine the restricted and tightly controlled operations of the Bureau.” FBI officials had assured Katzenbach that their activities were, indeed, "tightly controlled" and restricted to "important security matters." 516 The following note on the memorandum of this meeting provides a sign of Director Hoover's attitude at that time: I don't see what all the excitement is about. I would have no 512 W. R. Wannall (FBI Assistant Director for Intelligence), 10/3/75, p. 13. "The feeling is that there was very little in the way of good product as a result of our having supplied names to NSA." 513 Memorandum from Hoover to Katzenbach. 9/14/65. This memorandum dealt specifically with electronic surveillance and did not mention mail openings or "Black Bag Jobs." Hoover said the FBI had "discontinued" microphone surveillances (bugs), a restriction which Attorney General Katzenbach said went too far. (Katzenbach to Hoover, 9/27/65.) 515 Memorandum from A. H. Belmont to Mr. Tolson, 2/27/65. Katzenbach testimonv, 12/3/75. Hearings, Vol. 6. p. 204. 516 Memorandum from A. H. Belmont to C. Tolson, 2/27/65. believe and none warrant the FBI being used to justify Several days later, according to a memorandum of the FBI Director, the Attorney General "advised that he had talked to Senator Long,' and that the Senator "said he did not want to get into any national security area. "518 Katzenbach has confirmed that he "would have been concerned" in these circumstances about the Subcommittee's demands for information about "matters of a national security nature" and that he was "declining to provide such information" to Long.519 Again in 1966, the FBI took steps to, in the words of Bureau official Cartha DeLoach, "neutralize" the "threat of being embarrassed by the Long Subcommittee." 520 This time the issue involved warrantless electronic surveillance by the FBI, particularly in organized crime matters. DeLoach and another ranking Bureau official visited Senator Long to urge that he issue a statement that "the FBI had never participated in uncontrolled usage of wiretaps or microphones and that FBI usage of such devices had been completely justified in all instances." 521 The Bureau prepared such a statement for Senator Long to release as his own, which apparently was not used.522 At another meeting with DeLoach, Senator Long agreed to make "a commitment that he would in no way embarrass the FBI." When the Subcommittee's Chief Counsel asked if a Bureau spokesman could appear and "make a simple statement," DeLoach replied that this would "open a Pandora's box, in so far as our enemies in the press were concerned." Senator Long then stated that he would call no FBI witnesses.523 (2) Director Hoover's Restrictions.-The Director subsequently issued instructions that the number of warrantless wiretaps installed at any one time be cut in half. One of his subordinates speculated that this was done out of a concern that the Subcommittee's "inquiry might get into the use of that technique by the FBI." 524 In July 1966, after hundreds of FBI "black bag job" operations had been approved over many years, Director Hoover decided to eliminate warrantless surreptitious entries for purposes other than microphone installations.525 In response to an Intelligence Division analysis that such break-ins were an "invaluable technique," although "clearly illegal," Hoover stated that "no more such techniques must be used." 526 Bureau subordinates took Hoover's "no more such tech517 Hoover Note on Belmont Memorandum to Tolson, 2/27/65. 518 Memorandum from Hoover to Tolson, et al., 3/2/65. 519 Katzenbach testimony, 12/3/75, Hearings, Vol. 6, pp. 205–206. 520 Memorandum from DeLoach to Tolson, 1/21/66. 521 Memorandum from DeLoach to Tolson, 1/10/66. 523 Memorandum from M. A. Jones to Robert Wick, 1/11/66. 823 Memorandum from DeLoach to Tolson, 1/21/66. 524 C. D. Brennan deposition, 9/23/75, p. 42. 525 According to FBI records and the recollections of Bureau agents, the following number of microphone surveillances involving "surreptitious entry" were installed in "internal security, intelligence, and counterintelligence" investigations: 1964: 80; 1965: 59; 1966: 4; 1967: 0; 1968:9; 1969: 8; 1970: 15; 1971:6; 1972: 22; 1973: 18; 1974: 9; 1975: 13. The similar figures for "criminal investigations" (including installations authorized by judicial warrant after 1968) are: 1964: 83; 1965: 41; 1966: 0; 1967: 0; 1968: 0; 1969: 3: 1970: 8; 1971: 7; 1972: 19: 1973: 27; 1974: 22; 1975: 11. (Memorandum from FBI to Select Committee, 10/17/75.) 520 Hoover note on memorandum from Sullivan to DeLoach, 7/19/66. This memorandum cited as a "prime example" of the utility of a "black bag jobs" a break-in to steal records of three high-ranking Klan officials relating to finances niques" language as an injunction against the Bureau's mail opening program as well.527 Apparently, a termination order was issued to field offices by telephone. FВÍ mail-opening was suspended, although the Bureau continued to seek information from CIA's illegal mail-opening program until its suspension in 1973. A year and a half before Hoover's cutbacks on wire-tapping, "black bag jobs," and mail-opening, he prohibited the FBI's use of other covert techniques such as mail covers and trash covers.528 FBI intelligence officials persisted in requesting authority for "black bag" techniques. In 1967 Director Hoover ordered that "no such recommendations should be submitted." 529 At about this time, Attorney General Ramsey Clark was asked to approve a "breaking and entering" operation and declined to do so.530 There was an apparently unauthorized surreptitious entry directed at a "domestic subversive target" as late as April, 1968.531 A proposal from the field to resume mail opening for foreign counterintelligence purposes was turned down by FBI officials in 1970.532 7. Accountability and Control a. The Huston Plan: A Domestic Intelligence Network In 1970, pressures from the White House and from within the intelligence community led to the formulation of a plan for coordination and expansion of domestic intelligence activity. The so-called "Huston Plan" called for Presidential authorization of illegal intelligence techniques, expanded domestic intelligence collection, and centralized evaluation of domestic intelligence. President Nixon approved the plan and then, five days later, revoked his approval. Despite the revocation of official approval, many major aspects of the plan were implemented, and some techniques which the intelligence community asked for permission to implement had already been underway. In 1970, there was an intensification of the social tension in America that had provided the impetus in the 1960s for ever-widening domestic intelligence operations. The spring invasion of Cambodia by United States forces triggered the most extensive campus demonstrations and student "strikes" in the history of the war in Southeast Asia. Domestic strife heightened even further when four students were killed by Naand membership which "we have been using most effectively to disrupt the organization." 527 Wannall, 10/13/75, pp. 45-46. There is to this day no formal order prohibiting FBI mail-opening, although Assistant Director Wannall contended that general FBI Manual instructions now applicable forbid any unlawful technique. 528 These techniques were not prohibited by law. Their use was banned in all cases, including serious criminal investigations and foreign counterintelligence matters. (Memorandum from W. C. Sullivan to A. H. Belmont, 9/30/64.) Mail covers, which may be used to identify from their exteriors certain letters which can then be opened with a judicial warrant, were reinstituted with Justice Department approval in 1971. (Memorandum from Hoover to Mitchell, 7/27/71; Memorandum from Assistant Attorney General Will Wilson to Hoover, 9/31/71.) 529 Memorandum from Hoover to Tolson and DeLoach, 1/6/67. 530 "Once Mr. Hoover, apparently at the request of the National Security Agency, sought approval to break and enter into a foreign mission at the United Nations to procure cryptographic materials to facilitate decoding of intercepted transmissions. The request was presented with some urgency, rejected and presented again on perhaps several occasions. It was never approved and constituted the only request of that kind." [Statement of former Attorney General Ramsey Clark, Hearings before the Senate Judiciary Subcommittee on Administrative Practice and Procedure, (1974).] 531 Memorandum from FBI to Senate Select Committee, 2/23/75. 532 Memorandum from W. A. Branigan to W. C. Sullivan, 3/31/70. |