The facts by themselves are not too meaningful. They are On certain crucial subjects the domestic intelligence agencies reported the "facts" in ways that gave rise to misleading impressions. For example, the FBI's Domestic Intelligence Division initially discounted as an "obvious failure" the alleged attempts of Communists to influence the civil rights movement.98 Without any significant change in the factual situation, the Bureau moved from the Division's conclusion to Director Hoover's public congressional testimony characterizing Communist influence on the civil rights movement as "vitally important." 98a FBI reporting on protests against the Vietnam War provides another example of the manner in which the information provided to decision-makers can be skewed. In acquiescence with a judgment already expressed by President Johnson, the Bureau's reports on demonstrations against the War in Vietnam emphasized Communist efforts to influence the anti-war movement and underplayed the fact that the vast majority of demonstrators were not Communist controlled.99 (d) "Chilling" First Amendment Rights.-The First Amendment protects the Rights of American citizens to engage in free and open discussions, and to associate with persons of their choosing. Intelligence agencies have, on occasion, expressly attempted to interfere with those rights. For example, one internal FBI memorandum called for "more interviews" with New Left subjects "to enhance the paranoia endemic in these circles" and "get the point across there is an FBI agent behind every mailbox." 100 More importantly, the government's surveillance activities in the aggregate whether or not expressly intended to do so tends, as the Committee concludes at p. 290 to deter the exercise of First Amended rights by American citizens who become aware of the government's domestic intelligence program. (e) Preventing the Free Exchange of Ideas. Speakers, teachers, writers, and publications themselves were targets of the FBI's counterintelligence program. The FBI's efforts to interfere with the free exchange of ideas included: -Anonymously attempting to prevent an alleged "Communistfront" group from holding a forum on a midwest campus, and then investigating the judge who ordered that the meeting be allowed to proceed.101 -Using another "confidential source" in a foundation which contributed to a local college to apply pressure on the school to fire an activist professor. -Anonymously contacting a university official to urge him to "persuade" two professors to stop funding a student newspaper, in order to "eliminate what voice the New Left has" in the area. 97 Sullivan. 11/1/75, p. 48. 95 Memorandum from Baumgardner to Sullivan, 8/26/63 p. 1. Hoover himself construed the initial Division estimate to mean that Communist influence was "infinitesimal." 98a See Fniding on Political Abuse, p. 225. "See Finding on Political Abuse. p. 225. 100 "New Left Notes-Philadelphia," 9/16/70, Edition #1. 101 Memorandum from Detroit Field Office to FBI Headquarters 10/26/60; Memorandum from FBI Headquarters to Detroit Field Office 10/27, 28, 31/60; Memorandum from Baumgardner to Belmont, 10/26/60. 68-786 O 763 -Targeting the New Mexico Free University for teaching "confrontation politics" and "draft counseling training". 7. Cost and Value 102 Domestic intelligence is expensive. We have already indicated the cost of illegal and improper intelligence activities in terms of the harm to victims, the injury to constitutional values, and the damage. to the democratic process itself. The cost in dollars is also significant. For example, the FBI has budgeted for fiscal year 1976 over $7 million for its domestic security informant program, more than twice the amount it spends on informants against organized crime.103 The aggregate budget for FBI domestic security intelligence and foreign counterintelligence is at least $80 million.104 In the late 1960s and early 1970s, when the Bureau was joined by the CIA, the military, and NSA in collecting information about the anti-war movement and black activists, the cost was substantially greater. Apart from the excesses described above, the usefulness of many domestic intelligence activities in serving the legitimate goal of protecting society has been questionable. Properly directed intelligence investigations concentrating upon hostile foreign agents and violent terrorists can produce valuable results. The Committee has examined cases where the FBI uncovered "illegal" agents of a foreign power engaged in clandestine intelligence activities in violation of federal law. Information leading to the prevention of serious violence has been acquired by the FBI through its informant penetration of terrorist groups and through the inclusion in Bureau files of the names of persons actively involved with such groups.105 Nevertheless, the most sweeping domestic intelligence surveillance programs have produced surprisingly few useful returns in view of their extent. For example: 102 See COINTELPRO Report: Section III. "The Goals of COINTELPRO : Preventing or disrupting the exercise of First Amendment Rights." 103 The budget for FBI informant programs includes not only the payments to informants for their services and expenses, but also the expenses of FBI personnel who supervise informants, their support costs, and administrative overhead. (Justice Department letter to Senate Select Committee, 3/2/76). 10 The Committee is withholding the portion of this figure spent on domestic security intelligence (informants and other investigations combined) to prevent hostile foreign intelligence services from deducing the amount spent on counterespionage. The $80 million figure does not include all costs of separate FBI activities which may be drawn upon for domestic security intelligence purposes. Among these are the Identification Division (maintaining fingerprint records), the Files and Communications Division (managing the storage and retrieval of investigative and intelligence files), and the FBI Laboratory. 105 Examples of valuable informant reports include the following: one informant reported a plan to ambush police officers and the location of a cache of weapons and dynamite; another informant reported plans to transport illegally obtained weapons to Washington, D.C.; two informants at one meeting discovered plans to dynamite two city blocks. All of these plans were frustrated by further investigation and protective measures or arrest. (FBI memorandum to Select Committee, 12/10/75; Senate Select Committee Staff memorandum : Intelligence Cases in Which the FBI Prevented Violence, undated.) One example of the use of information in Bureau files involved a "name check" at Secret Service request on certain persons applying for press credentials to cover the visit of a foreign head of state. The discovery of data in FBI files indicating that one such person had been actively involved with violent groups led to further investigation and ultimately the issuance of a search warrant. The search produced evidence, including weapons, of a plot to assassinate the foreign head of state. (FBI memorandum to Senate Select Committee, 2/23/76) -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.106 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.107 -A recent study by the General Accounting Office has estimated that of some 17,528 FBI domestic intelligence investigations of individuals in 1974, only 1.3 percent resulted in prosecution and conviction, and in only "about 2 percent" of the cases was advance knowledge of any activity legal or illegal-obtained.108 One of the main reasons advanced for expanded collection of intelligence about urban unrest and anti-war protest was to help responsible officials cope with possible violence. However, 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," that what was needed was "physical intelligence" about the geography of major cities, and that the attempt to "predict violence" was not a "successful undertaking." 109 -Domestic intelligence reports have sometimes even been counterproductive. A local police chief, for example, described FBI reports which led to the positioning of federal troops near his city as: almost completely composed of unsorted and unevaluated stories, threats, and rumors that had crossed my desk in New Haven. Many of these had long before been discounted by our Intelligence Division. But they had made their way from New Haven to Washington, had gained completely unwarranted credibility, and had been submitted by the Director of the FBI to the President of the United States. They seemed to present a convincing picture of impending holocaust.110 In considering its recommendations, the Committee undertook an evaluation of the FBI's claims that domestic intelligence was necessary to combat terrorism, civil disorders, "subversion," and hostile 106 This figure is the number of "investigative matters" handled by the FBI in this area, including as separate items the investigative leads in particular cases which are followed up by various field offices. (FBI memorandum to Select Committee, 10/6/75.) 107 Schackelford 2/13/76, p. 32. This official does not recall any targets of "subversive" investigations having been even referred to a Grand Jury under these statutes since the 1950s. 108 "FBI Domestic Intelligence Operations-Their Purpose and Scope: Issues That Need To Be Resolved," Report by the Comptroller General to the House Judiciary Committee, 2/24/76, pp. 138–147. The FBI contends that these statistics may be unfair in that they concentrate on investigations of individuals rather than groups. (Ibid., Appendix V) In response, GAO states that its "sample of organization and control files was sufficient to determine that generally the FBI did not report advance knowledge of planned violence." In most of the fourteen instances where such advance knowledge was obtained, it related to "such activities as speeches, demonstrations or meetings-all essentially nonviolent." (Ibid., p. 144) 109 Joseph Califano testimony, 1/27/76, pp. 7–8. 110 James Ahern testimony, 1/20/76, pp. 16, 17. foreign intelligence activity. The Committee reviewed voluminous materials bearing on this issue and questioned Bureau officials, local police officials, and present and former federal executive officials. We have found that we are in fundamental agreement with the wisdom of Attorney General Stone's initial warning that intelligence agencies must not be "concerned with political or other opinions of individuals" and must be limited to investigating essentially only "such conduct as is forbidden by the laws of the United States." The Committee's record demonstrates that domestic intelligence which departs from this standard raises grave risks of undermining the democratic process and harming the interests of individual citizens. This danger weighs heavily against the speculative or negligible benefits of the ill-defined and overbroad investigations authorized in the past. Thus, the basic purpose of the recommendations contained in Part IV of this report is to limit the FBI to investigating conduct rather than ideas or associations. The excesses of the past do not, however, justify depriving the United States of a clearly defined and effectively controlled domestic intelligence capability. The intelligence services of this nation's international adversaries continue to attempt to conduct clandestine espionage operations within the United States. Our recommendations provide for intelligence investigations of hostile foreign intelligence activity. 111 Moreover, terrorists have engaged in serious acts of violence which have brought death and injury to Americans and threaten further such acts. These acts, not the politics or beliefs of those who would commit them, are the proper focus for investigations to anticipate terrorist violence. Accordingly, the Committee would permit properly controlled intelligence investigations in those narrow circumstances.112 Concentration on imminent violence can avoid the wasteful dispersion of resources which has characterized the sweeping (and fruitless) domestic intelligence investigations of the past. But the most important reason for the fundamental change in the domestic intelligence operations which our Recommendations propose is the need to protect the constitutional rights of Americans. In light of the record of abuse revealed by our inquiry, the Committee is not satisfied with the position that mere exposure of what has occurred in the past will prevent its recurrence. Clear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect. 111 An indication of the scope of the problem is the increasing number of official representatives of communist governments in the United States. For example, the number of Soviet officials in this country has increased from 333 in 1961 to 1,079 by early 1975. There were 2,683 East-West exchange visitors and 1.500 commercial visitors in 1974. (FBI Memorandum. "Intelligence Activities Within the United States by Foreign Governments," 3/20/75.) 112 According to the FBI, there were 89 bombings attributable to terrorist activity in 1975, as compared with 45 in 1974 and 24 in 1973. Six persons died in terrorist-claimed bombings and 76 persons were injured in 1975. Five other deaths were reported in other types of terrorist incidents. Monetary damage reported in terrorist bombings exceeded 2.7 million dollars. It should be noted, however, that terrorist bombings are only a fraction of the total number of bombings in this country. Thus, the 89 terrorist bombings in 1975 were among a total of over 1,900 bombings, most of which were not, according to the FBI, attributable clearly to terrorist activity. (FBI memorandum to Senate Select Committee, 2/23/76.) II. THE GROWTH OF DOMESTIC INTELLIGENCE: 1936 TO 1976 A. SUMMARY 1. The Lesson: History Repeats Itself During and after the First World War, intelligence agencies, including the predecessor of the FBI, engaged in repressive activity.1 A new Attorney General, Harlan Fiske Stone, sought to stop the investigation of "political or other opinions." 2 This restraint was embodied only in an executive pronouncement, however. No statutes were passed to prevent the kind of improper activity which had been exposed. Thereafter, as this narrative will show, the abuses returned in a new form. It is now the responsibility of all three branches of government to ensure that the pattern of abuse of domestic intelligence activity does not recur. 2. The Pattern: Broadening Through Time Since the re-establishment of federal domestic intelligence programs in 1936, there has been a steady increase in the government's capability and willingness to pry into, and even disrupt, the political activities and personal lives of the people. The last forty years have witnessed a relentless expansion of domestic intelligence activity beyond investigation of criminal conduct toward the collection of political intelligence and the launching of secret offensive actions against Americans. The initial incursions into the realm of ideas and associations were related to concerns about the influence of foreign totalitarian powers. 1 Repressive practices during World War I included the formation of a volunteer auxiliary force, known as the American Protective League, which assisted the Justice Department and military intelligence in the investigation of “un-American activities" and in the mass round-up of 50,000 persons to discover draft evaders. These so-called "slacker raids" of 1918 involved warrantless arrests without sufficient probable cause to believe that crime had been or was about to be committed (FBI Intelligence Division memorandum, “An Analysis of FBI Domestic Security Intelligence Investigations," 10/28/75.) The American Protective League also contributed to the pressures which resulted in nearly 2,000 prosecutions for disloyal utterances and activities during World War I, a policy described by John Lord O'Brien, Attorney General Gregory's Special Assistant, as one of "wholesale repression and restraint of public opinion." (Zechariah Chafee, Free Speech in the United States (Cambridge: Harvard University Press, 1941) p. 69.) Shortly after the war the Justice Department and the Bureau of Investigation jointly planned the notorious "Palmer Raids", named for Attorney General A. Mitchell Palmer who ordered the overnight round-up and detention of some 10,000 persons who were thought to be "anarchist" or "revolutionary" aliens subject to deportation. (William Preston, Aliens and Dissenters (Cambridge: Harvard University Press, 1963), chs. 7-8; Stanley Coben, A. Mitchell Palmer: Politician (New York: Columbia University Press, 1963), chs. 11-12.) 2 See Attorney General Stone's full statement, p. 23. |