PREPARED STAtement of MORTON H. HALperin, Before THE SENATE SELECT COMMITTEE ON INTELLIGENCE, JUNE 15, 1978

Mr. Chairman: I very much appreciate the opportunity to appear before this Committee to testify on S. 2525. More generally, I want to express my appreciation for the opportunity that I and others of the Center for National Security Studies have had to comment on this legislation as it has developed. I look forward to such continued interchanges in the future.

It would seem more appropriate today not to provide detailed and specific comments on the current draft but rather to comment briefly on some of the major issues that are raised by this effort to draft legislative charters for the intelligence agencies.

Let me say first that I think this task is not only extremely important but essential if we are to bring the intelligence agencies under constitutional control and keep them there. Whatever one may think about the current activities of American intelligence agencies the one unmistakable lesson of the past is that we cannot permit that conduct to be left to internal directives or presidential orders. To do that would be to assume that never again in the future will those in charge of those agencies be tempted to conduct operations which violate constitutional rights. At the same time, I would be less than candid if I did not say there was a danger (one which I think is in fact reflected in parts of S. 2525) that the efforts to legislate controls over the activities of the intelligence agencies may succeed merely in authorizing the activities which previously had been conducted without congressional authorization without putting meaningful limits and controls over those activities. I am thinking particularly of covert operations but I think the same is true of other intelligence agency operations.

CRITERIA FOR DEVELOPING AUTHORIZATIONS AND LIMITATIONS

In authorizing activities for the intelligence agencies and in seeking to put limitations on those activities, it is obviously not sufficient to try to determine what methods and techniques would, from the point of view of the intelligence agencies, be optimum. The most effective techniques-such as mass arrest and torture-in tracking down spies and terrorists are of course those that are only acceptable in a totalitarian society. It is the essence of a democratic society that we are prepared to run some risks in the most effective operation of the police and intelligence services in order to insure that the state does not become a far more dangerous threat to its own people, as police states have been.

Nor, in my view, is it enough for new charters to simply ensure that the operations of the intelligence agencies do not violate the constitutional rights of American citizens as they have been interpreted thus far by the courts. If the new charter merely restates constitutional restrictions, this would be far too narrow a response, given the extensive power of the clandestine intelligence agencies and the record of abuse which is before this Committee. Rather, I would submit that one must begin with the spirit embodied in the First, the Fourth and other amendments to the Constitution. The new interpretation of these provisions must match the intent of the Framers with the technology and resources now available to intelligence agencies, while finding effective ways of dealing with the threats to American society from counterintelligence and international terrorist operations.

In the attempt to draw the line, the first effort should be to ask the question of how, in the day to day operations of the intelligence agencies, we are still to strike a balance between what we want their functions to be and what limitations we want to put on them. The limitations, of course, derive from the problems of fitting them into a constitutional government-how do we go about authorizing certain activities and also putting controls on those activities? This is essentially the question which S. 2525 tries to answer. The balancing on which this bill relies implicitly assumes that the intelligence agencies and presidents and attorneys general will operate in good faith with an effort to comply with both the letter and the spirit of the legislation. My own view is that this is not sufficient-that looking at the record of the past requires that this Committee go beyond its initial analysis and give intelligence officials far clearer instructions about where to draw the line.

In doing this, there must first be a probing search into the value of various techniques in order to determine whether giving the intelligence agencies the power that they may ask for is, in fact, of sufficient use to them and to the nation that it is worth running risks of violations of the privacy and constitutional rights of American citizens. For example, while the intelligence agencies continue to assert that informants played a key role in preventing terror, this claim has not been borne out by outside investigations.

The record of the late 1960's, when there was extensive political violence in the United States and when the FBI and other agencies had free reign in the use of informants, suggests (and the GAO report confirms) that the value of such informants in such an enterprise is, in fact, extremely small. By contrast, the dangers informants and agents provocateur present are quite grave. I would urge this Committee not to accept statements that the restrictions in this bill interfere with the effective operations of the intelligence agencies. Indeed, I think the case has not yet been made for many of the intelligence activities that this bill would authorize-it has not yet been shown that they are sufficiently important to the proper goals of the intelligence agencies that they to should be authorized. There is, for example, no record at all on counterintelligence operations targeted on American citizens.

Beyond that, I think that the record of abuse by the intelligence agencies-abuses wherein they stretched their authorized functions to often illogical and illegal ends and undercut the constitutional rights of American citizens-cannot be ignored in the drafting of charter legislation. The record shows that not only have the intelligence agencies consistently chosen to ignore the law in the past and to do the things which they knew to be illegal, it also shows that they gave a broad interpretation to all of the authority which they did have. It is a record where the letter of the law, and the spirit behind the law, have been violated on a day to day basis by the intelligence agencies and by our presidents.

I recognize that this Committee feels that the investigative phase of the congressional inquiry into the intelligence agencies should be over. I would dissent from that view only to the extent of urging you to conduct some hearings on new material which has been released since the Church Committee filed its report. I think such hearings would show that on a number of subjects-including the CIA's Operation CHAOS program, the FBI surveillance of Martin Luther King, and the CIA's presence on university campuses-substantial and important material was withheld from the Church Committee and that the record is substantially worse than even that described in the Committee's Report.

This record of abuse cannot be simply swept under the rug with the assumption that such abuses will no longer occur. The recommendations of the Church Committee, from which S. 2525 substantially retreats in a number of areas, deserve serious consideration in light of the fact that it arose from the Church Committee which conducted extensive investigation of intelligence agency abuse. (The Center for National Security Studies has compiled a comparison of S. 2525 with the Church Committee recommendations in key areas. I would like to submit a copy of that analysis for inclusion in the record as an attachment to my statement.) 1

There is no reason to think that the process of exaggerated interpretation of intelligence agency authority has not continued unchanged or will not broaden in the future. In such areas as the CIA's background investigations of unwitting American citizens, the CIA now appears to be stretching its authority and to be reluctant to conform to legislative restraints on its activities. The reasons are familiar; it contends restraints would impede the most effective operations of its organization.

To provide a concrete example of this problem: the FBI and the Justice Department have been found by the District Court in Northern Virginia to have violated congressional restrictions on FBI wiretapping programs by conducting a surveillance which was primarily for prosecutorial purposes. Instead of using the procedures of Title III and obtaining a search warrant, the government claimed inherent and presidential power and did not obtain a court order.

I have alluded to only a few examples which raise important questions, without offering at this point any systematic effort to explore the degree to which intelligence agencies are not now following both the spirit and the letter of those few restrictions which actually exist. But, it should be borne in mind that we are at a period during which we would expect them to adhere more closely to established regulations than they might in some future date, when scrutiny is less intense and the society as a whole perceives greater danger from espionage operations or international terrorism.

The task now, therefore, is to devise restrictions and regulations which cannot be abused and cannot be ignored. Restrictions must be written on the assumption that at some future time we will have a president, an attorney general, CIA or FBI director, or some other official who will seek to take advantage of every loophole, of every ambiguity in order to broaden the powers of the intelligence agency. The restrictions in the bill must be drawn tightly and there must not be the kind of

'See p. 327.

ambiguity which appears in many points in this legislation and which could easily be used to carry on kinds of activities which the Committee does not now anticipate.

COVERT OPERATIONS

The section of S. 2525 dealing with covert operations (or "special activities") ignores both the record that the Church Committee developed and the conclusion that the Church Committee reached-that covert operations over the past 25 years had not contributed to promoting American security. Moreover, the draft provisions contained in S. 2525 differ from those of the Church Committee in fundamental ways.

I do not think it is possible to put effective controls on covert operations by legislating reporting requirements to the Congress, or establishing procedural requirements within the executive branch, or imposing specific restrictions and prohibitions. On the first two issues I would refer this Committee to the exceedingly important exchange of views between the late Senator Phillip Hart and Clark Clifford in the public hearing on covert operations held by the Church Committee. To summarize briefly: Senator Hart expressed doubt whether any congressional committee could effectively control covert operations; Mr. Clifford expressed doubt whether any executive branch committees could prevent such operations if the President were determined to carry them out. That specific kinds of prohibitions prove ineffective and that they probably prove dangerous has already been shown in hearings on S. 2525 before this Committee.

In short, I think there are three possible routes that Congress can take in dealing with covert operations. First, it can abolish them. Second, it can, as the Church Committee recommended, limit them to extraordinary situations when all would agree that the survival of the nation is at stake. Third, it can authorize past practice-it can recognize and authorize such operations, essentially leaving it to the discretion of the President to use the technique whenever he chose to do so, limited only by the fear of disclosure and the temper of the times.

My own view continues to be that we should abolish all such operations. Their utility is so small, the difficulty of controlling them is so great, the abuses that they create (both in our foreign policy and our domestic society) is so large, that I think the time has come to take the United States out of the covert operations business. On this subject, I have little to add to my previous testimony before the Church Committee and I request that my opening statement then be attached as an appendix to my statement today before this Committee.2

The second possibility and one I would urge this Committee to give most careful consideration to, is the recommendation of the Church Committee. Namely, that the authority to conduct covert operations should not be taken entirely from the President, the legislation should make it clear that such authority is to be used only in the most extreme situations. The critical question is whether covert operations are to be conducted regularly or whether they need to be limited to quite extraordinary events, the kind of event which, when the covert operation is finally revealed, a large proportion of the Congress and the public would agree that this was the kind of extraordinary circumstance that justified the use of this technique.

If one is not prepared to go that far, then I think efforts to regulate covert operation will be largely unsuccessful. We will have simply a situation in which the Congress, as a reform measure after the first intensive review of covert operations, would end up for the first time authorizing those activities. The provisions of S. 2525 would even end up being a step backward because it would limit the reporting of such operations to one committee in each house of the Congress. Again, I would urge the Committee to look at the record of abuses, to examine the claimed effectiveness of these operations, and to worry about the possibility that authority given will be stretched and abused in the present and the future. The application of these principles would, I believe, lead to a decision that covert operations should either be abolished or limited to the most extraordinary circumstances.

CIA ACTIVITIES IN THE UNITED STATES

In dealing with the possible activities of the CIA in the United States, S. 2525 would in effect repeal the absolute prohibition in the National Security Act of 1947 and would allow CIA activities within the United States. The legislative history of that act makes it clear that the prohibitions against domestic activities of the CIA stated in the legislation were intended, in fact, to prohibit any CIA investigations of Americans or even, apparently, of foreigners within the United States. We now know that right from the beginning the CIA acted within the United States, conducting surveillance of foreign emigre groups, of foreign intelligence activities, and

2 See p. 408.

of American citizens. However, rather than tightening up the restrictions in order to be sure that they are now followed, S. 2525 moves in the other direction and authorizes the CIA to conduct a number of operations within the United States. In taking this step the draft legislation ignores the very important differences between the FBI on the one hand and the CIA and other foreign intelligence agencies on the other. In setting up the CIA, Congress recognized that it would be granted greater secrecy than was necessary for the FBI and that its activities would necessarily come under less scrutiny. For that reason, among others, it directed that the CIA not conduct any operations within the United States. S. 2525 ignores that distinction and imposes its restrictions without regard to the fact that the CIA's activities, being super-secret, are inherently more difficult to control.

I would urge this Committee to return to the principles of the National Security Act of 1947 and to require that, whenever investigations are to be conducted within the United States for the purpose of gathering foreign intelligence information or for the purpose of interferring with the activities of foreign intelligence services in the United States, be conducted by the FBI. If investigations are to be made of individuals in order to consider approaching them for jobs or to determine whether they are the targets of counterintelligence, such investigations should be conducted by the FBI. If investigations are needed to determine whether individuals are threatening the physical facilities of the operations of intelligence agencies, those investigations should be conducted by the FBI within the context of an investigation of possible criminal activity. The CIA, if it is to operate at all, should be confined to operations abroad.

Certainly, before the Committee retreats from the principles of the 1947 Act it ought to conduct a searching examination to determine why these operations cannot be conducted effectively in the United States by the FBI. There are two specific areas in which S. 2525 appears literally to be dealing with the problem of past abuses by authorizing conduct which now appears to be in violation of the CIA charter. I refer to the CIA's activities on university campuses and to its background investigations on unwitting Americans with no connection with the CIA.

As this Committee knows, the Church Committee devoted considerable attention to the problem of the CIA on U.S. campuses and concluded it was a serious threat that needed to be dealt with. At the same time, it accepted the CIA's insistence that a full description of current CIA activities on campus could not be given. This Committee, it seems to me, has one of two choices. First, it can publish the secret portions of the Church Committee Report dealing with the CIA on university campuses and urge the universities to react to it and take appropriate steps to deal with what the Church Committee described as a serious threat to academic freedom. Alternatively, it can legislate its own restrictions to deal with that problem taking guidance from university spokespersons who have now become generally aware of the content of the secret portions of the Church Committee Report. What it should not do is what S. 2525 appears to do-which is simply to authorize current CIA activity on campus without explaining to universities what they are, and without explaining why this Committee differs with its predecessor and does not see them as a threat to academic freedom.

One of the justifications for CIA investigations of Americans is that the CIA is thinking of approaching an individual to provide some operational service for the agency. The Court of Appeals for the District of Columbia Circuit in a case called Weismann v. CIA, 565 F. 2d 692 (D.C. Cir. 1977), as amended by unpublished memorandum April 4, 1977, held that such investigations violated the congressional intent in the National Security Act. However, the CIA apparently is continuing to conduct such investigations, either under the theory that the CIA need not obey the law or under the theory that the law as stated by one Circuit Court of Appeals is not definitive. In any case, Congress should make certain that the intentions of the 1947 Act are observed, rather than, as S. 2525 does, authorizing such investigations. The CIA, like any other agency, should be required to approach an individual it is thinking of hiring and ask whether he or she wishes to be considered for employment without secretly gathering information about that individual.

The CIA has shown in the past that it can abuse the authority to collect information (anti-war activists, for example, were investigated under this pretext) and that it keeps its files long after it is no longer considering someone for employment. But even leaving aside the question of abuse, an American citizen should not be subjected to a secret investigation without his or her consent.

STANDARD OF INVESTIGATION AND OF INTRUSIVE TECHNIQUES

No legislation authorizing counterintelligence activities can meet the necessary standards of the Constitution unless it first prohibits investigations of American

citizens who are not suspected of criminal activity, and second, requires warrants according to the criminal standards of the Fourth Amendment. S. 2525 appears to accept both of these principles, but (particularly in the area of the criminal standard) it provides a number of different exceptions and possible loopholes so as to render the standard ineffective.

For example, I see no reason why American citizens traveling abroad should be subject to investigation by American intelligence agencies of a non-criminal standard. It is difficult to understand why the conduct of Americans abroad poses a sufficiently greater threat to American interests that citizens must be subjected to an investigation under a lesser standard. Moreover, the standards for gathering information about potential terrorist targets or potential intelligence sources leave much room for abuse, in that they permit investigations of these individuals without their permission. The authority to conduct investigations to protect physical facilities of the intelligence agencies is also subject to abuse in that it is not limited simply to active control of one of installations, but authorizes such techniques as interviews, even pretext interviews; this suggests strongly that there will be wide ranging investigations of individuals because of the speculation that someone may, at some unspecified future time, threaten physical facilities. Women Strike for Peace was an organization targeted under the pretext of protecting Langley.

Moreover, once an intelligence agency begins an investigation, S. 2525 would permit it to continue indefinitely simply by reiterating the same suspicion of criminal activity which initially triggered it. While there may be some justification for a lower standard of suspicion for beginning an investigation, an investigation should not continue unless it uncovers more proof of criminal activity over time than it had when it began.

Finally, there is one area where I believe it is extremely important for legislation to go beyond what the courts have suggested the Fourth Amendment requires. This is the area of informants. The courts have held that while a court order is needed for wiretaps, informers can be planted without any judicial review. Specifically, the cases thus far have ruled that if the government conducts its investigation through an informant, the Fourth Amendment provides no protection to someone's criminal enterprises. But the court has never squarely ruled on the question of whether informants raise First Amendment or Fourth Amendment problems when they gather information about lawful political activity. The abuse in the use of informants by the intelligence agencies which has occurred thus far makes it imperative that this extraordinarily intrusive technique be subjected to limitations similar to those put on wiretaps and buggings.

Mr. Chairman, let me say again how much I appreciate the opportunity to testify before this Committee, and to have the opportunity to discuss with the Committee and members of the staff S. 2525 as it has evolved and will evolve. I have this morning been critical of a number of elements of the bill, but I want to commend the Committee for moving forward with great seriousness in this enterprise. It may well be that S. 2525 is too complex to be enacted as a single piece of legislation. This Committee may want to consider moving pieces of it separately. In whatever form, we urgently need legislative controls over the intelligence agencies, particularly in light of the very serious problems created by the Carter Executive order.