antiwar movement, or in the ACLU who represents these crazy people in court. You know, I- Senator HUDDLESTON. But in this case, suppose you are not thinking of him as a potential enemy. Suppose you are thinking of him as a potential aid, and you just want to find out whether or not he is reliable. You can't go to a fellow Mr. BERMAN. You can come to me and say you want me to be a potential source for you. You can find out about me. You can say, Jerry Berman, do you want to be a potential source for us? We want to check out your reliability and let's check it out. Senator HUDDLESTON. Yes, but then in that case, you may have to reveal to him more than he ought to know if he happens to be somebody who is inclined the other way. Mr. BERMAN. Then you don't—— Senator HUDDLESTON. In other words, you want us to take all the risk, the Government. Mr. SILBERMAN. Not the Government, the people. Mr. SILBERMAN. The people. Senator HUDDLESTON. The security of the country. Mr. BERMAN. It may be the security of the country, but it may also be a serious risk of intrusive investigation of innocent Ameri cans. I think it can be worked out, but not the way it is drafted. That's all. Senator HUDDLESTON. Of course, the problem is you can present hypotheticals and run into all kinds of difficulty, but how do you draft a piece of legislation that covers every conceivable kind of situation? I think the agencies, the CIA and the FBI and the administration and everybody would be severely criticized if we were to sit here and see a potential collaboration of an American citizen with a foreign agent but not be able to find out whether there is in fact collaboration- Mr. BERMAN. But that is not, you see. That's using a potential source inquiry for something else. Then you have to be premised on-then you have to go to some other investigation. If you have a reasonable belief that a person is in collaboration, you can conduct a preliminary investigation under the schemed legislation of the Church committee, but you just can't throw the book at them with 215 techniques as outlined in this legislation. That is just too much of a risk to civil liberties. Senator HUDDLESTON. We had Prof. Thomas Emerson of Yale, I believe, here with us, who is very concerned about civil liberties, as you know, and he initially was strong, of course, for the probable cause or standard of criminal activity, but he did finally agree that there has to be some movement, some collection, some freedom to find out about a person even if he has not yet committed any crime. Mr. BERMAN. Thomas Emerson has worked with us extensively in the ACLU's efforts to draft model legislation to control the FBI, and in that legislation he recommended a limited preliminary investigation, certainly without the range of techniques suggested here. We asked him whether he had changed his mind in testifying before this committee, and Thomas Emerson said that no, he just was misunderstood, and I think he plans to communicate in writing with this committee that he did not mean to suggest that they had to have no base, that they didn't have to have any basis, supportable with facts, to conduct such an investigation, and he certainly was not relating it to the range of techniques which we have been able to define under this legislation. This legislation is complex. For the first time, we are reading all the new definitions of special activity. A U.S. person includes organizations and people. A foreign power sometimes includes U.S. persons, U.S. persons abroad. Sometimes a group abroad can be investigated under a noncriminal standard, but then it says, until it is determined that they are U.S. persons it may be presumed that they are foreign persons, thus subjecting them to the targeting for foreign persons where there is no protection whatsoever abroad. So you could be operating under intrusive surveillance techniques with nothing, based on definitions. I am saying that this is a first draft, maybe it is the second draft, but there's going to be much more drafting before it satisfies both sides. Senator HUDDLESTON. How about when the FBI sees an American citizen in contact with a KGB agent? They don't know whether he is even aware that the man he is in contact with is a KGB. On the other hand, it might be that he is in collaboration with them. Now, what investigative authority do you propose that they have there in checking out that citizen? Mr. BERMAN. You see, this is what we call in our testimony approaching the problem from both ends. We just don't understand, based on the public record, and we are not experts in counterintelligence, why it is not possible to keep the focus on the foreign espionage agent, and after a period of time there might be more contacts which would give you enough information to conduct a preliminary investigation or to meet a criminal standard. But to say, oh, boy, what we have done, let's go this way. Let's use our 218, 219, 220, 221, and 222 authorities to investigate rather than just watching for contacts which become surreptitious or look like collaboration and then turn to your investigation. What this charter proposes to do is allow the agencies, I think, overbroadly and with potential danger, to operate from both directions. Mr. SILBERMAN. Well, Mr. Chairman, I would disagree with that. I think Mr. Berman overestimates the capacity of counterintelligence to quickly make some of the kinds of determinations he suggests. Keeping your eye only on the suspected agent of, as you put it, the KGB, and paying no attention to the individuals with which he is in contact, is a recipe, in my judgment, for disaster. One of the things that is insufficiently understood generally in this country is how undermanned our counterintelligence activities. really are, and how it is virtually impossible for them to even blanket the known espionage agents of foreign and hostile powers, and sometimes the only way you can have an effective investigation which heads off or detects espionage is to focus in occasionally on something that you suspect, but you don't have reason to believe. You suspect, but it is a good suspicion, does constitute the essence or the key to an espionage ring. I think Mr. Berman's suggestion and the ACLU's suggestion is just unrealistic. It would be nice if we could do it that way, but I just don't think it will work. Senator HUDDLESTON. Could we even run a security check on the individual who might have some contact with the KGB, even if it is a casual contact, to find out whether he has clearance? Mr. BERMAN. Yes, we have less problems with some limited inquiry like that, but you define national agency checks in the broadest way. Senator HUDDLESTON. Gentlemen, it is 12:30 p.m., and I appreciate your testimony. It has been very interesting and helpful, and I am sure we will be working with all of you as we move on down the road someplace. You have been patient with your time, and we appreciate that. Mr. BERMAN. Thank you, Senator. Senator HUDDLESTON. Thank you very much. The committee will stand in recess. [Whereupon, at 12:28 p.m., the committee recessed, subject to the call of the Chair.] THURSDAY, JULY 20, 1978 U.S. SENATE, SELECT COMMITTEE ON INTELLIGENCE, Washington, D.C. The committee met, pursuant to notice, at 10:14 a.m., in room 5110, Dirksen Senate Office Building, Senator Walter D. Huddleston presiding. Present: Senators Huddleston (presiding), Hathaway, Moynihan, and Goldwater. Also present: William G. Miller, staff director; Earl Eisenhower, minority staff director; Audrey Hatry, clerk of the committee. Senator HUDDLESTON. The committee will come to order. Today's hearing is concerned with the proper relationship between the intelligence activities of the United States and the academic world. In the investigations of the Church committee, it was clear that the involvement of the intelligence agencies in the affairs of the academic community had to some degree adversely affected its independence and professional integrity. The key finding of the Church committee was that, whatever the relationship between intelligence agencies of the United States and the academic community, it should be a witting one. In S. 2525, the intelligence charters, the approach this committee has taken is to assure that the relationship between the academic community and the intelligence agencies, whatever it may be, is indeed a witting one. Further, such restrictions as there are are imposed on the intelligence agencies. Our universities, colleges, and other academic institutions are to make their own rules. So we seek the views of our witnesses this morning on this approach. These hearings are of critical importance, because the integrity and strength of our academic institutions are clearly fundamental to our freedom. And we are pleased to have before the committee this morning the president of Harvard University, Derek Bok; Morton Baratz, the general secretary of the American Association of University Professors; and Richard Abrams, professor of history at Berkeley and chairman of the Statewide Committee on Academic Freedom for the University of California. Gentlemen, we would be very pleased to have your statements individually, and then if you will continue to sit as a panel, the committee may pose such questions as they deem appropriate. We will begin with President Bok. [The prepared statement of Mr. Derek Bok follows:] PREPARED STATEMENT OF DEREK C. BOK, PRESIDENT, HARVARD UNIVERSITY Mr. Chairman and members of the committee: I appreciate the invitation to come before you today to discuss the activities of American intelligence agencies as they affect our universities. I think that I can contribute most directly to your delibera tions by talking about the policies of my own university in this field and the differences that have arisen between Harvard and the Central Intelligence Agency. In its 1976 report, a Select Committee of the Senate raised the question whether the integrity and professional standards of faculty members and institutions had been compromised or violated by some of the relationships existing between the academic and intelligence communities. The Select Committee also declared that it was the responsibility of the American academic community to set professional and ethical standards for its members with respect to intelligence activities. In response to this suggestion and with the view that the problem needed careful thought, I appointed a committee at Harvard to study the specific issues raised by the Select Committee. In choosing the members of the committee, I appointed individuals who were respected within the University and experienced in both the academic and governmental communities. The members included Archibald Cox, Professor of Law; Henry Rosovsky, Dean of the Faculty of Arts and Sciences; Don Price, Dean of the School of Government; and Daniel Steiner, Counsel to the University. After many months of study and consultation with interested parties, including the Central Intelligence Agency, the Harvard committee issued a report, a copy of which is attached to this statement.1 The report began by listing several fundamental premises. Three of them deserve mention here: First, in an era of international tension and conflict it is important for the United States to have an effective system of foreign intelligence. Second, U.S. foreign intelligence efforts, like other forms of professional work and public service, can benefit considerably from the research and expertise that can be obtained from universities and their faculty members. Third, the relationship between U.S. foreign intelligence agencies and universities must be structured in ways that protect the integrity of universities and the academic profession and safeguard the freedom and objectivity of scholarship. With these three premises in mind, the committee considered the several questions raised by the Select Committee and recommended the following guidelines to govern relationships between the Harvard community and the CIA and other U.S. intelligence agencies: 1. Harvard may enter into research contracts with intelligence agencies provided that such contracts conform with Harvard's normal rules governing contracting with outside sponsors and that the existence of a contract is made public in the usual manner by University officials. 2. Individual members of the Harvard community may enter into direct or indirect consulting arrangements with intelligence agencies to provide research and analytical services. The individual should report in writing the existence of such an arrangement to the Dean of his or her Faculty, who should then inform the President. 3. Any member of the Harvard community who has an ongoing relationship with an intelligence agency as a recruiter should report that fact in writing to the Dean of the appropriate Faculty, who should inform the President of the University and the appropriate placement offices within the University. A recruiter should not recommend to an intelligence agency the name of another member of the Harvard community without the prior consent of that individual. Members of the Harvard community whose advice is sought on a one-time or occasional basis should consider carefully whether under the circumstances it is appropriate to give the agency the name of another member of the Harvard community without the prior consent of the individual. 4. Members of the Harvard community should not undertake covert intelligence operations for a government agency. They should not participate in propaganda activities if the activities involve lending their names and positions to gain public acceptance for materials they know to be misleading or untrue. Before undertaking any other propaganda activities, individuals should consider whether the task is consistent with their scholarly and professional obligations. 5. No member of the Harvard community should assist intelligence agencies in obtaining the unwitting services of another member of the Harvard community nor should such agencies employ members of the Harvard community in an unwitting manner. These guidelines are now in effect at Harvard on an interim basis. In my opinion, they strike a sensible balance. On the one hand, they permit institutional and individual research and consulting arrangements that can benefit universities and individual academics and make available to intelligence agencies the intellectual 'See p. 643. |