But under the current bill as written, no consent of the target is necessary in order to do a massive background on them, as long as the appropriate CIA official simply states in writing that, in his opinion, the CIA does intend to recruit this individual and, second, that the CIA official believes in his opinion that to try and obtain the consent of the individual would jeopardize the operation.

I think that is a very unrealistic-I think that as long as the specifics of the operation are not described to the individual, I don't think that getting their consent merely for a background would jeopardize an operation.

Another area is the retention of files. Now, all the materials that I mentioned, of course, are currently in the CIA files, even though they were gathered in the fifties, the sixties, or the seventies; although they involve nothing about foreign intelligence, and just lawful domestic activities, they are still in the files.

Now, Senate bill 2525 does have a provision which provides that materials gathered during investigations can be retained only if certain criteria are followed. However, I think that that section could very arguably be interpreted in merely a prospective way, that it only covers information which will be gathered in the future, and I think it can easily be claimed that that provision does not cover the materials currently in the files which were gathered under the former procedures.

So I think the bill should definitely state very clearly and explicitly that the materials that are currently in the file should be expunged if there is no concrete value in them or relationship to legitimate foreign intelligence or counterintelligence or related activities.

I would like to make a couple comments about what I feel are the possible effects of CIA covert activities abroad on political freedom here in the United States. Looking at all the materials we have seen about domestic activities of the CIA in the United States and reading the Church committee report, I have gotten an impression of a gradual but very relentless escalation of CIA involvement in the United States since 1947, and it raises in my mind very serious questions about whether or not such gradual escalation of the CIA in the United States may not be almost inevitable. I think we should attempt to limit foreign intelligence and counterintelligence activities in the United States to the FBI, but I wonder if it is really possible, in a practical sense.

Therefore, I am very concerned about CIA activities abroad because I really fear that if the CIA engages in undemocratic activities or immoral activities abroad, I fear that it is only a matter of time before those activities will be used in the United States against American citizens. I don't think that-I think it is very questionable whether you can keep an agency to a geographical limitation, and for that reason I am very concerned about the bill's, as it currently is written, failure to flatly ban covert operations abroad.

The bill, as written, seems to authorize even the overthrow of democratic governments if nonviolent means are used, for example, and I think there is, beyond the issue of morality and the way we treat foreign people, I think there is a real danger in this bill as

the covert operations are currently authorized, as to the actual security of the American people in the United States.

Thank you.

Senator GARN. I am sure you would like to have your entire statement included in the record.

Mr. GUTMAN. Could I, Senator?

Senator GARN. Yes; we'd be happy to include it where you did summarize it.

Thank you.

[The prepared statement of Mr. Richard Gutman follows:]

PREPARED STATEMENT OF RICHARD M. GUTMAN *

I would like to thank the Chairman and the members of the Committee for this opportunity to testify on a bill as vitally important as S. 2525. The widespread violations of human rights, both here and abroad, by our foreign intelligence agencies have been extensively documented by the Rockefeller Commission, the Church Committee, and the Pike Committee. S. 2525 will either prohibit or legitimize the recurrence of those abuses.

I appear before you as an attorney currently representing 14 named plaintiff organizations, 18 named plaintiff individuals, and a class similarly situated suing the Chicago Police Department Subversive Unit, the FBI, Military Intelligence, and the CIA for politically-motivated surveillance and harassment of lawful political activity in Chicago. See Alliance To End Repression, et al. v. James Rochford, et al., 407 F. Supp. 115, 75 F.R.D. 428 et seq. (N.D.Íll. 1974).

During pretrial discovery in our lawsuit, we have obtained evidence of extensive CIA domestic activity including technical assistance to the Chicago Police Department, widespread intelligence gathering regarding lawful political activity, mail openings, and an extensive background investigation of a potential recruit. The CIA has attempted to justify much of this domestic activity as being relevant to the area of foreign intelligence or counterintelligence.

In the following pages we will describe some of the CIA activity revealed by our lawsuit and analyze whether S. 2525 forbids or legitimizes those activities. We will close with some comments on the dangers which CIA activities abroad pose to political freedom in the United States.

CIA Activity In Chicago

CIA DOMESTIC COUNTERINTELLIGENCE

The CIA files of our named plaintiffs reveal a broad pattern of CIA intelligence gathering regarding lawful political activity including the following:

(1) The CIA received Chicago Police Department Subversive Unit reports on groups planning to demonstrate at the 1968 Democratic Convention, as well as a 96page report on the founding convention of the Young Workers Liberation League. (2) The CIA prepared "Weekly Situation Reports" on domestic affairs. One Weekly Situation Report lists the major groups planning to demonstrate at the 1968 Democratic Convention and describes Black groups as "the most dangerous". The report emphasizes meetings planned in Chicago "by the National Committee of Inquiry, a broadly based all Negro group formed during the past spring to evaluate statements by political candidates and then make recommendations to the black community".

(3) The CIA had numerous files on individuals active in the "U.S. peace movement".

(4) The CIA has a list of the delegates, representatives and observers to the Chicago Convention of the Natonal Conference for New Politics.

(5) The CIA gathered and retained information on former Chicago alderman A. A. Rayner, Jr.'s 1970 campaign for U.S. Representative.

(6) The CIA has reports entitled "Movement Activity in the USA".

(7) The CIA received reports on activities in Chicago from the House Un-American Activities Committee and from Information Digest, a private national spy organization.

* Richard Gutman is chief counsel for plaintiffs in the federal class action lawsuit. Alliance To End Repression, et al. v. James Rochford, et al., 407 F. Supp. 115, 75 F.R.D. 428 et seq., and is Director of the Chicago Political Surveillance Litigation and Education Project.

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Inadequacy of S. 2525

Although S. 2525 at Section 241 forbids targeting Americans solely because of their constitutional activities, it also provides loopholes to justify such surveillance. The CIA's pretext for their massive domestic spying was inquiries from Presidents Johnson and Nixon as to whether the militant domestic dissent of the late sixties and early seventies was caused by hostile foreign powers. Despite the fact that the CIA repeatedly concluded that foreign governments did not control the U.S. antiwar movement, the civil rights movement, and the New Left, the CIA's domestic surveillance program, Operation CHAOS, continued from 1967 until 1974.

A similar justification for CIA domestic spying is established by S. 2525. Section 213(1) would authorize counterintelligence investigations of U.S. citizens within the U.S. if such persons:

(1) Is reasonably believed to be engaged in espionage or any other clandestine intelligence activity which involves or may involve a violation of the criminal laws of the United States, sabotage, any intentional terrorist activity, or any assassination, to be aiding and abetting any person in the conduct of any such activity, or to be conspiring with any person engaged in any such activity.

Although this provision may sound reasonable at first reading, a careful analysis reveals holes which would authorize extensive investigations of lawful domestic organizations based upon groundless allegations of foreign control as occurred during Operation CHAOS. First, the term "espionage" is not tied to criminal espionage statutes. Second, the term "clandestine intelligence activity", as defined at Section 204(b)(1), is even broader and does not even imply a criminal statute. Third, the phrase "may involve a violation of the criminal laws" does little to limit Section 213(1) since "may" is a very indefinite word, implying considerable speculation. Finally even the term "international terrorist activity" as defined at Section 104(21) is so broad as to arguably include a peaceful anti-war demonstration.3

Proposal

Domestic counterintelligence activities should not occur unless there is a reasonable suspicion, based upon concrete evidence, of a violation of the criminal statutes, including criminal espionage, criminal treason or criminal sabotage.

CIA BACKGROUND INVESTIGATIONS OF POTENTIAL OPERATIVES

CIA Activity in Chicago

The CIA carried out an extensive investigation of one of our named plaintiffs, ostensibly because they were considering recruiting him for CIA operations. More than two hundred pages were amassed on his political and personal activities. The CIA finally decided that he was inappropriate to recruit and never approached him. Inadequacy of S. 2525

S. 2525 at Section 221 authorizes such broad background investigations that the consent of the targeted individual is unnecessary if the appropriate CIA official makes a written finding that the CIA is serious in recruiting the individual and that a request for his consent "would jeopardize the activity for which information or assistance is sought".

Proposal

The CIA could easily use Section 221 as a pretext to engage in domestic spying on a American citizen. One is reminded that when it was discovered that the Nixon Administration was gathering information on CBS-TV correspondent Daniel Schorr, the Administration used the pretext that Schorr was being considered for an appointment to the federal Council on Environmental Quality.

The CIA should not engage in a background investigation of a potential recruit without first acquiring the individual's permission. Such consent could easily be acquired without disclosing the details of the proposed operation.

'Church Committee Report, Book III, p. 688.

2 "International Connections of the U.S. Peace Movement" 11/15/67, "Student Dissent and Its Techniques in the U.S." 1/5/68, "Special Report on Foreign Communist Support to Revolutionary Protest Movements in the U.S." 6/30/69, "Definition and Assessment of Existing Internal Security Threat-Foreign" 1/15/71; Church Committee Report, Book III, pp. 691-700.

'During the Vietnam War, it was often argued by the authorities that anti-war demonstrations would lead to property destruction or prolongation of the War. A massive anti-war demonstration could thus be defined in the terms of Section 104(21) as involving a "credible threat to commit" "violent destruction of property" or "serious bodily harm" and "appears intended to further political, social or economic goals by" "obtaining widespread publicity for a group or its cause" and "transcends national boundaries" and thus constitutes "international terrorist activity".

RETENTION OF CIA FILES

CIA Activity Regarding Chicagoans

Having requested their CIA files, named plaintiffs in our lawsuit received hundreds of pages regarding their lawful political activity, all obviously retrieved by name of target. Although the information was gathered in the early 1970's, the 1960's, or even the 1950's, the files continue in existence even today.

Inadequacy of S. 2525

S. 2525 at Section 231(a) provides for the retention of information which is collected during investigations only if certain criteria are satisfied. Secton 231(a), however, could arguably be interpreted as being only prospective in effect and not pertaining to materials in the ĈIA files at the effective date of the legislation. Proposal

A provision should expressly provide for the destruction of all information currently in the CIA files without foreign intelligence value. Information regarding possible criminal activity should be transmitted to the appropriate law enforcement agency.

CONCLUSION

Thus rather than prohibit the types of abuses made evident in our lawsuit, S. 2525 would legitimize them. We ask the Committee to engage in a major rewriting of S. 2525 in order to ensure that the CIA's systematic abuses of human rights not

reoccur.

DANGERS OF EXPANSION OF CIA ACTIVITIES ABROAD TO U.S.A.

The history of the CIA's domestic activities raises grave questions as to the dangers to Americans of CIA activities abroad. Although strictly forbidden by the National Security Act of 1947 from engaging in police, law enforcement, or internal security matters, the CIA since its creation gradually increased its operational level in the United States. The CIA's domestic activity extended to include surveillance of foreign emigre groups, interviewing foreign travelers, investigating potential employees, assistance to local police departments, surveillance of threats to CIA's physical security (MERRIMAC and RESISTANCE), and, finally, the open-ended Operation CHAOS which gathered information on 300,000 American individuals and organizations.

4

This history of gradual but relentless expansion of CIA activity at home poses a serious question as to whether the CIA can realisticly be limited to operating abroad. Although we favor statutorily forbidding the CIA from operating domestically, as long as the CIA is engaging in immoral or undemocratic activities abroad, the American people can have no real assurance that such CIA-type covert operations will not sooner or later be directed against U.S. citizens in the United States. For that reason we view as grave threats to the future security of the American people S. 2525's failure to bar all covert operations including the planting of false information in the media, the non-violent overthrow of democratic governments, and the political assassination of non-officials. (Sections 134-135)

Senator GARN. Mr. Schneider, this committee obviously is concerned about constitutional rights of American citizens or we would not have been formed. It was in response to abuses that were turned up in the Church committee that this committee was formed to act as an oversight committee for the intelligence community and to come up with charters and guidelines. In fact, that was the specific mandate that we had in Senate Resolution 400. Senator Bayh and I worked for 22 years on the question of electronic surveillance for foreign intelligence which has now passed the Senate. So I want all of you to understand, for certain, that we do share your concerns and are attempting to correct the abuses of the past. There is no doubt that they have existed.

There is obviously some disagreement as to what extent they existed, what part of the operations have been involved in illegal activities by various agencies, at what time period they were in

volved and whether they still continue, which I don't happen to think that they do.

One thing really puzzles me about your testimony. I find it rather incredible that, rather than trying to address ourselves to the abuses and to correct them so that individual constitutional right of American citizens are not violated, it is your recommendation of a couple of years ago that CIA absolutely be abolished. The first question I want to ask you is a general one, are you aware-I would think that you must be, but it puzzles me, this kind of a recommendation-are you aware of the unbelievably massive spying effort by the Soviet Union in this country? Mr. SCHNEIDER. How could I be aware of that?

Senator GARN. Well, there certainly are newspapers and news media. Senator Moynihan has made speeches. If he were here, he could certainly tell you about massive, just unbelievably massive electronic surveillance of American citizens out of the Soviet Embasssy here in Washington, of tapping telephone lines, the microwaves and all of that, and of the KGB activities in this country. It is easy for them, to begin with, because we are an open society, and I am glad that we are and that we can read things in U.S. News & World Report, Aviation Week, Space Technology, New York Times. I get some of my best information out of the press. That doesn't happen in the Soviet Union.

But you must be aware that there is an incredible-I can't even describe to you the massive spying effort of the Soviet Union in this country.

Mr. SCHNEIDER. Well, I am aware of that from occasional instances that are reported in the press, but I certainly have no access to the kind of information you may have access to that gives you the impression of a massive effort on their part.

However, in saying that, I am not-I have no basis for disputing the point you are making.

Senator GARN. Well, there is plenty of evidence. I don't think anybody really disputes that. So my question is, how do you suggest we combat this? In your testimony you have said that legitimate intelligence activities should go on, that you want the country protected. Isn't it just as important to protect the rights of American citizens or attempt to protect the rights of American citizens from illegal surveillance and investigation, regardless of the source? Are we so going to attack our own intelligence community and yet leave open you and I and everybody else, to this massive violation of our constitutional rights by foreign governments?

Mr. SCHNEIDER. Well, I would make this point, that you accurately interpret our testimony as suggesting that the CIA be confined in its activity to intelligence gathering, but we are altogether opposed to the CIA engaging in illegal surveillance of our own citizenry.

Senator GARN. Well, so are we.

Mr. SCHNEIDER. And I would call that illegal political surveillance.

Senator GARN. So do we, but your testimony, all three of you, goes far, far, far beyond that, to state that really you can't trust anybody in government. It seems to me your testimony is saying