all over town" that the FBI was making allegations concerning Dr. King, and that Moyers had "stated that the President felt that [the newsman] lacked integrity...." Moyers could not recall this episode, but told the Committee that it would be fair to conclude that the President had been upset by the fact that the newsman revealed the Bureau's conduct rather than by the Bureau's conduct itself.45 The response of top White House and Justice Department officials to strong indications of wrongdoing by the FBI was clearly inadequate. The Attorney General went no further than complaining to the President and asking a Bureau official if the charges were true. President Johnson apparently not only failed to order the Bureau to stop, but indeed warned it not to deal with certain reporters because they had complained about the Bureau's improper conduct. In 1968 Attorney General Ramsey Clark asked Director Hoover if he had "any information as to how" facts about Attorney General Kennedy's authorization of the wiretap on Dr. King had leaked to columnists Drew Pearson and Jack Anderson. Clark requested the FBI Director to "undertake whatever investigation you deem feasible to determine how this happened." 45a Director Hoover's reply, drafted in the office of Cartha DeLoach, expressed "dismay" at the leak and offered no indication of the likely source.45b In fact, DeLoach had prepared a memorandum ten days earlier stating that a middle-level Justice Department official with knowledge of the King wiretap met with him and admitted having "discussed this matter with Drew Pearson." According to this memorandum, DeLoach attempted to persuade the official not to allow the story to be printed because "certain Negro groups would still blame the FBI, whether we were ordered to take such action or not." 45c Thus, DeLoach and Hoover deliberately misled Attorney General Clark by withholding their knowledge of the source of the "leak." Subfinding (e) Congress, which has the authority to place restraints on domestic intelligence activities through legislation, appropriations, and oversight committees, has not effectively asserted its responsibilities until recently. It has failed to define the scope of domestic intelligence activities or intelligence collection techniques, to uncover excesses, or to propose legislative solutions. Some of its members have failed to object to improper activities of which they were aware and have prodded agencies into questionable activities. Congress, unlike the Executive branch, does not have the function of supervising the day-to-day activities of agencies engaged in domestic "Memorandum from Cartha DeLoach to John Mohr, 12/1/64. 45 Moyers, 3/2/76, p. 9. 45a Memorandum from Clark to Hoover, 5/27/68. The story was published in the midst of Robert Kennedy's campaign for the Democratic presidential nomination. 45b Memorandum from Hoover to Clark, 5/28/68. 45c Memorandum from C. D. DeLoach to Mr. Tolson, 5/17/68. Four days later DeLoach had a phone conversation with Jack Anderson in which, according to partment official "had advised him concerning specific information involving an old wire tap on King." (Memorandum from C. D. DeLoach to Mr. Tolson, 5/21/68.) Both of these memoranda were initialed by Hoover. intelligence. Congress does, however, have the ability through legislation to affect almost every aspect of domestic intelligence activity: to erect the framework for coordinating domestic intelligence activities; to define and limit the types of activities in which executive agencies may engage; to establish the standards for conducting investigations; and to promulgate guidelines for controlling the use of wiretaps, microphones, and informants. Congress could also exercise a great influence over domestic intelligence through its power over the appropriations for intelligence agencies' budgets and through the investigative powers of its committees. Congress has failed to establish precise standards governing domestic intelligence. No congressional statutes deal with the authority of executive agencies to conduct domestic intelligence operations, or instruct the executive in how to structure and supervise those operations. No statutes address when or under what conditions investigations may be conducted. Congress did not attempt to formulate standards for wiretaps or microphones until 1968, and even then avoided the issue of domestic intelligence wiretaps by allowing an exception for an undefined claim of inherent executive power to conduct domestic security surveillance, which was subsequently held unconstitutional. 45d No legislative standards have been enacted to govern the use of informants. Congress has helped shape the environment in which improper intelligence activities were possible. The FBI claims that sweeping provisions in several vague criminal statutes and regulatory measures enacted by Congress provide a basis for much of its domestic intelligence activity.5e Congress also added its voice to the strong consensus in favor of governmental action against Communism in the 1950's and domestic dissidents in the 1960's and 1970's. Congress' failure to define intelligence functions has invited action by the executive. If the top officials of the executive branch are responsible for failing to control the intelligence agencies, that failure is in part due to a lack of guidance from Congress. During most of the 40-year period covered in this report, congressional committees did not effectively monitor domestic intelligence activities. For example, in 1966, a Senate Judiciary subcommittee undertook an investigation of electronic surveillance and other intrusive techniques by Federal agencies. According to an FBI memorandum, its chairman told a delegation from the FBI that he would make "a commitment that he would in no way embarrass the FBI," and acceded in the FBI's request that the subcommittee refrain from calling FBI witnesses. 46 45d U.S. V. U.S. District Court, 407 U.S. 297 (1972). 45e These include the Smith Act of 1940 and the Voorhis Act of 1941. In addition to reliance on these statutes to buttress its claim of authority for domestic intelligence operations, the FBI has also placed reliance on a Civil War seditious conspiracy statute and a rebellion and insurrection statute passed during the Whiskey Rebellion of the 1790's. FBI Director Clarence Kelley, in a letter to the Attorney General, stated that these later statutes were designed for past centuries, "not the Twentieth Century." (Memorandum from Director, FBI, to Attorney General, Hearings, Vol. 6, Exhibit 53.) The Committee agrees. 46 Memorandum from DeLoach to Clyde Tolson, 1/21/66. Another example of the deficiencies in congressional oversight is seen in the House Appropriations Committee's regular approval of the FBI's requests for appropriations without raising objections to the activities described in the Director's testimony and off-the-record briefings. There is no question that members of a House Appropriations subcommittee were aware not only that the Bureau was engaged in broad domestic intelligence investigations, but that it was also employing disruptive tactics against domestic targets. In 1958, Director Hoover informed the subcommittee that the Bureau had an "intensive program" to "disorganize and disrupt" the Communist Party, that the program had existed "for years" and that Bureau informants were used "as a disruptive tactic." 47 The next year, the Director informed the subcommittee that informants in 12 field offices have been carefully briefed to engage in controversial dis- Under another phase of this program, we have carefully Hoover described more aggressive "psychological warfare" techniques in 1962: During the past year we have caused disruption at large The Appropriations subcommittee was also told during this briefing that the FBI's operations included exposing and discrediting "communists who are secretly operating in legitimate organizations and employments, such as the Young Men's Christian Association, Boy Scouts, civic groups, and the like." 49 In 1966 Director Hoover informed the Appropriations subcommittee that the disruptive program had been extended to the Ku Klux Klan.50 The present Associate Director of the FBI, Nicholas Callahan, who accompanied Director Hoover during several of his appearances before the Appropriations subcommittee, said that members of the subcom 47 1958 Fiscal Year Briefing Paper prepared by FBI for House Appropriations Committee. 48 1959 Fiscal Year Briefing Paper prepared by FBI for House Appropriations Committee. 49 1962 Fiscal Year Briefing Paper prepared by FBI for House Appropriations Committee. 50 1966 Fiscal Year Briefing Paper prepared by FBI for House Appropriations Committee. mittee made "no critical comment" about "the Bureau's efforts to neutralize groups and associations." 51 Subcommittee Chairman John Rooney's statements in a televised interview in 1971 regarding FBI briefings about Dr. Martin Luther King are indicative of the subcommittee's attitude toward the Bureau: Representative ROONEY. Now you talk about the F.B.I. leaking something about Martin Luther King. I happen to know all about Martin Luther King, but I have never told anybody. Interviewer. How do you know everything about Martin Representative ROONEY. From the Federal Bureau of In- Interviewer. They've told you-gave you information based Representative ROONEY. They did. Representative ROONEY. Why not? 52 Former Assistant Attorney General Fred Vinson recalled that in 1967 the Justice Department averaged "fifty letters a week from Congress" demanding that "people like [Stokely] Carmichael be jailed." Vinson said that on one occasion when he was explaining First Amendment limits at a congressional hearing, a Congressman "got so provoked he raised his hand and said, 'to hell with the First Amendment."" Vinson testified that these incidents fairly characterized "the atmosphere of the time." 53 The congressional performance has improved, however, in recent years. Subcommittees of the Senate Judiciary Committee have initiated inquiries into Army surveillance of domestic targets and into electronic surveillance by the FBI. House Judiciary Committee subcommittees commissioned a study of the FBI by the General Accounting Office and have inquired into FBI misconduct and surveillance activities. Concurrent with this Committee's investigations, the House Select Committee on Intelligence considered FBI domestic intelligence activities. Our Constitution envisions Congress as a check on the Executive branch, and gives Congress certain powers for discharging that function. Until recently, Congress has not effectively fulfilled its constitutional role in the area of domestic intelligence. Although the appropriate congressional committees did not always know what intelligence agencies were doing, they could have asked. The Appropriations subcommittee was aware that the FBI was engaging in activities far beyond the mere collection of intelligence, yet it did not inquire into the details of those programs.54 If Congress had addressed the issues of domestic intelligence and passed regulatory legislation, and if it had probed into the activities of intelligence agencies and required them to 51 Memorandum from FBI to Select Committee, 1/12/76. 52 Interview with Congressman Rooney, NBC News' "First Tuesday," 6/1/71. Fred Vinson testimony, 1/27/76, p. 34. 53 54 Director Hoover appears to have told the subcommittee of the House Appropriations Committee more about COINTELPRO operations and techniques than he told the Justice Department or the White House. account for their deeds, many of the excesses in this Report might not have occurred. Subfinding (f) Intelligence agencies have often undertaken programs without authorization, with insufficient authorization, or in defiance of express orders. The excesses detailed in this report were due in part to the failure of Congress and the Executive branch to erect a sound framework for domestic intelligence, and in part to the dereliction of responsibility by executive branch officials who were in charge of individual agencies. Yet substantial responsibility lies with officials of the intelligence agencies themselves. They had no justification for initiating major activities without first seeking the express approval of their superiors. The pattern of concealment and partial and misleading disclosures must never again be allowed to occur. The Committee's investigations have revealed numerous instances in which intelligence agencies have assumed programs or activities were authorized under circumstances where it could not reasonably be inferred that higher officials intended to confer authorization. Sometimes far-reaching domestic programs were initiated without the knowledge or approval of the appropriate official outside of the agencies. Sometimes it was claimed that higher officials had been "notified" of a program after they had been informed only about some aspects of the program, or after the program had been described with vague references and euphemisms, such as "neutralize," that carried different meanings for agency personnel than for uninitiated outsiders. Sometimes notice consisted of references to programs buried in the details of lengthy memoranda; and "authorization" was inferred from the fact that higher officials failed to order the agency to discontinue the program that had been obscurely mentioned. The Bureau has made no claim of outside authorization for its COINTELPROS against the Socialist Workers Party, Black Nationalists, or New Left adherents. After 1960, its fragile claim for authorization of the COINTELPROS against the Communist Party USA and White Hate Groups was drawn from a series of hints and partial, obscured disclosures to the Attorneys General and the White House. The first evidence of notification to higher government officials of the FBI'S COINTELPRO against the Communist Party USA consists of letters from Director Hoover to President Eisenhower and Attorney General William Rogers in May 1958 informing them that "in August of 1956, this Bureau initiated a program designed to promote disruption within the ranks of the Communist Party (CP) USA." 55 There is no record of any reply to these letters. Later that same year, Director Hoover told President Eisenhower and his Cabinet: 55 To counteract a resurgence of Communist Party influence in 5 Memorandum from the Director, FBI to the Attorney General, 5/8/58. |