File #:
62-HQ-116395
Serial Scope:
EBF 1086
NW# 88608
DocId: 32989541
Released under the John F. Kennedy Assassination Records Collection Act of 1992
£44 USC 2107 Notel Casett NW 88608 Date: 03-18-2025
INQUIRY # 1
NW#: 88608
DocId: 32989541
Address Reply to the
Division Indicated
and Refer to Initials and Number
JUL 20 1973
/-
UNIED STATES DEPARTMENT OF JUSTICE
WASHINGTON, D.C. 20530
July 20, 1973
MEMORANDUM FOR: Mr. Clarence M. Kelley
FROM:
SUBJECT:
Director, FBI
William D. Ruckelshaus
Mr. Malmfeld!
Mr. Heita
седе
Substantive Issues Regarding
the Future of the FBI
° F.B. I.
Pursuant to our conversation earlier this week, I hereby
submit a list of issues that will undoubtedly be coming up from
time to time regarding the present and future status of the FBI.
This list is by no means exhaustive, but is a good starting point
from which to go forward and come to grips with many of the
problems that will have to be addressed in the near future in one
form or another. The list, in no particular order, is as follows:
1. Wiretaps. The whole question of wiretaps should be
reviewed with a view toward developing a firm Department-wide
policy on the issues involved.
a
-019.79.
Mr. Felt
Mr. Baker
Mr. Callahan
Mr. Cleveland
Mr Conrad
M: Gardt
Mr. Jenkins
Mr Marshall
Mr Mitte: E.S.
M: S
Mr. Thompson
Mr W: S
Tele R
Mr. Boise
177
Mr. Barnes
Mr. Bowers
Mr. Herington
Mr. Conmy
Mr. Miriz
Mr. Ecrdley
Mrs. Hogom
1014 m
RECORDED COPY FILED
63. 78621
07-107
66.16137-
26 25-
62.415157 -
(2 53
18
2. The issue of whether the function of intelligence gathering 5
| should be separated from the law enforcement function of the FBI..
This issue should be studied with particular reference to those
countries which have adopted this division and a clear analysis of
the pros and cons developed. From this analysis again should
flow a clear policy.
ENCLOSURE
V
3. The statutory basis for the FBI's intelligence gathering
functions. Is there any statutory basis? Is the whole function based
on Presidential and Attorney General directives? Should a firm-
statutory basis be sought?
7
-
EX-109
REC*58
#
1112
18 AUG 3 1973
Ace
334.
XERO is document is prepared in Response to your request and is not for dissemi-
"AUC 16 19ation outside your Committee. Its use of limited to official proceedings by
70 AUG 2 2 1978
Committee and the contents may not be disclosed to unauthorized person-
nel without the express approval of the FBI
ཀ
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4. Should the FBI Director be appointed for a term of years?
(All the issues surrounding the appointment and tenure of the Director
should be explored.)
5. Should the FBI be an independent agency or continue as part
+
\ of the Justice Department? The pros and cons of this recurrent question
should be analyzed again with the purpose of adopting a firm policy.
6. Assuming the FBI remains a part of the Justice Department,
what should be the relationship of the Director to the Attorney General?
All the organizational and substantive relationships should be examined.
7. Investigative techniques. The whole question of the variety
of techniques from clearly legal to clearly illegal should be examined
in some detail. In addition, the question of authorization and
Congressional oversight should be touched upon in this examination.
8. The whole question of files and their disclosure must be
studied with a view toward understanding why files are kept, what
categories of files there are, what information is contained in the
files and whether the purposes for maintaining files are being met
under present policy. In the issue of disclosure, when, where, and
to whom must also be thoroughly examined.
9. The question of a Civilian Review Board for the intelligence
suggestion which came up at the Princeton conference in addition to
other forums.
| gathering activities of the FBI should be examined. This is a recurrent
10. What should be the relationship between the FBI and the other
Departments and Agencies of the Federal Government? To what extent
should the FBI keep tabs on other Departments and Agencies through
the development of sources and informants in those Agencies?
11. Should the FBI have foreign officers reporting directly to
the Director?
This list is not exhaustive, but should get us started toward an
indepth examination of some of the problems facing the Bureau in the
future.
WDR:fhm
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INQUIRY # 2
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它
Mr. William D. Ruckelshaus
The Deputy Attorney General - Designate
Director, FBI
Spronity Jurisdiction
C Security.
SCOPE OF FBI JURISDICTION
AND AUTHORITY IN DOMESTIC
37
INTELLIGENCE INVESTIGATIONS
August 24, 1973
1 - Mr. Mintz
1 Mr. E. S. Miller
1 Mr. T. J. Smith
-
laus
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Files & Com.
Gen. Inv.
Ident.
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec. Inv.
Training
Legal Coun.
Cong. Serv.
Corr. & Crm.
Research
Press Off.
Telephone Rm.
Piscator Sac'y
Reference is made to my memorandum to the Attorney General
August 7, 1973, captioned as above, which among other things proposed
that an Executive order be issued which would define FBI responsibilities
concerning Federal statutes relating to the national security.
My memorandum made reference to new guidelines recently
issued in manual form and to a study which was prepared in August,
1972, at the request of Acting Director L. Patrick Gray, III.
On August 15, 1973, Mr. Jack Goldklang, Office of Legal
Counsel, Department of Justice, called Mr. Nicholas P. Callahan's office
and referred to the guidelines and study mentioned above. He said that
these documents are likely to be pertinent to his analysis of the proposal
set forth in my memorandum, and he asked that the two documents be
made available to him.
For your information, the guidelines referred to are the
recently revised Section 87 of our Manual of Instructions concerning
Investigations of Subversive Organizations and Individuals. As you
know, our Manual of Instructions has not heretofore been disseminated
outside the FBI, although this particular Section (87) was loaned to
the Department for study recently in connection with a request made
of the Department by Senator Edward M. Kennedy. REC-77
EX-103
78
AUG 28 1973
The study made in August, 1972, for fir. Gray was
written and intended purely for in-house use and deliberations and
was not prepared for purposes of dissemination or use by any agency
outside the FBI
TJS: bjr (6)
MAILED 3
AUG 27 1973
SEE NOTE PAGE TWO
S
1973
This document is pured in response to your rest and is not for dissem
hation outside your Committee. Its use is tied official proceedings by
your Gmittee and the content may not be disclosed to unauthorized person
AUG net without the express approval of the FBI.
MAIL ROOM
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2.
Mr. William D. Ruckelshaus
The Deputy Attorney General
Designate
However, we recognize that these two documents may
assist the Department in analyzing our proposal concerning the issuance
of an Executive order and therefore I am enclosing a copy of the two
documents requested by Mr. Goldklang. We request that these documents
not be disseminated outside the Department of Justice; that the documents
not be duplicated or photographed; and that, if possible, they be returned
to the FBI after they have served their purpose.
If you, or members of your staff, feel that additional infor-
mation would clarify our proposal, it is suggested that consideration
be given to arranging conferences between members of your staff and
the FBI officials in the Intelligence Division and our Legal Counsel's
Office who have conducted considerable research into the matter.
Enclosures 2
NOTE:
See memo T. J. Smith to Mr. E. S. Miller dated 8/23/73,
captioned as above, prepared by TJS: bjr.
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R
ISSUE:
Should the Intelligence Gathering-Function of the FBI
Be Separated From the Law Enforcement Function of the
FBI?
Note that the issue, as originally raised, referred
to law enforcement and intelligence functions. What was meant
by intelligence was the missions of internal security and
counterintelligence. Criminal' intelligence, e.g., against
organized crime, was intended to fall within the law enforce-
ment mission. However, the functions of the FBI do not neatly
fall within "intelligence" and "law enforcement" categories.
Internal security cases are both intelligence and law enforce-
ment operations, and counterintelligence sometimes involves
arrests and prosecutions, i.e., law enforcement. To most
accurately reflect the diverse missions of the FBI the terms
law enforcement, internal security, and counterintelligence
will be used throughout this paper.
Preface
1. The Problem: revolves around the question whether the
three missions can be accommodated by one agency. That is,
are they so distinct in nature that an organizational strucs
ture set up to perform one of the missions absolutely cannot
perform the others; or can all three missions be accommodated
but only to the detriment of the others; or can all the missions
be adequately performed by one agency?
2. The Present Policy: is that all three missions are per-
formed by the FBI. The FBI organizational structure is pri-
marily a unitary one, i.e., there is one organization with a
multiplicity of responsibilities, which can be broken down
into three general missions, law enforcement, internal secu-
rity (domestic) and counterintelligence (foreign). The
organization's personnel are hired and catalogued into one
of three general functional categories, agent, steno, and to
a lesser degree, clerks, without further differentiation based
on mission, i.e., no employees, with rare exceptions, are
criminal or counterintelligence specialists, all are gener-
alists and are regularly interchanged among the three general
missions. The administration of cases at headquarters and,
to a lesser extent, the conduct of investigations in the field
follow the same format in all three general areas of responsi-
bility.
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-
The underlying rationale for, and history behind,
these concepts is:
Personnel
-
the generalist allows for a highly
flexible, mobile force which can be deployed, generally solely
on the basis of manpower needs, i.e., any agent can do any
job in the FBI. There are some exceptions; some employees
have unique abilities which tend to make them less mobile in
the eyes of administrators, e.g., language or technical
factors in the case of agent deployment and promotion; they
are more determinative in cases of clerks: special employees,
translators, etc.
Administration of cases and conduct of investigation
these were originally geared to accommodate a relatively few
criminal and civil investigative matters, and as the responsi-
bilities of the organization grew they were modified and adapted,
within the unitary structure, to accommodate the various
missions. Thus they are quite similar in all three missions.
3. . The Issues Raised:
a.
b.
C.
d.
e.
f.
g.
Are the missions of law enforcement, internal
security, and counterintelligence separable?
If so, is complete separation possible, practical
or politically feasible or desirable?
Can the three missions be accommodated in one
organization?
By doing so, do any of the missions suffer?
If all three missions can be accommodated in
one agency, is the FBI currently doing it the
best way possible?
If not, is it practically or politically feasi-
ble or desirable to change the FBI's way of per-
forming the mission?
Why are other Western intelligence services
separate from law enforcement agencies?
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4. Options for Future Policy:
The missions of law enforcement, internal security,
and counterintelligence are separate, distinct and distinguishable
functions, even though each partakes a little of each other. .
Law enforcement is investigation after a crime has been committed
to identify suspects and build a case for prosecution; counter-
intelligence is the identification, penetration and neutralization
of foreign intelligence activity in the U. S.; and internal
security is identification and thwarting of home-grown plots
to subvert the government and activities within the U. S. in
illegal support of foreign causes, whether by U. S. citizens
of foreigners.
The missions overlap to some degree. For example,
law enforcement requires some intelligence collection, and is
intimately concerned with internal security criminal acts, e.g.,
foreign related terrorist bombings, skyjackings, gunning, and
subversive groups' kidnappings, bank robberies, bombings, etc.
Counterintelligence sometimes results in criminal prosecution,
and some internal security groups are funded by, and act on
behalf of, foreign intelligence services. Internal security is
a hybrid; the basis for its investigation is that ante, politically
motivated, are being committed in violation of the U. S.
criminal law. Yet, the investigation may be a continuing effort,
based on continuing acts threatening the internal security
without actually violating the criminal law, and thus the investi-
gation is more like a counterintelligence investigation, than
like the typical law enforcement closed cycle of crime, investigatio
and prosecution.
While counterintelligence could adequately, and
with more success in some cases, be handled by an organization
totally separate from one with law enforcement powers, internal
security work, in many cases, is directly related to criminal
prosecution. There has been little effort, and less success,
in most English speaking Western democracies in prosecuting
domestic "subversives, even those with foreign ties; however,
prosecution is often a principal, if not primary, objective in
cases involving emigre bombing and harassment of foreign
diplomatic establishments, fund and arms procurement for
foreign political groups, politically motivated terrorist
acts, e.g., skyjacking, etc.
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· 3 ·

An examination of the services of the democracies
mentioned above, viz., Britian, Australia and Canada, reveal
that all do distinguish between the pure law enforcement
function and the counterintelligence/internal security
function; however, there is not a total separation of the
functions. For example, the British Security Service (MI-5)
handles counterintelligence exclusively with MI-5 case officers,
but places it's internal security investigations in the hands
of the Special Branches of the local constabularies (comparable
to the intelligence divisions of local U. S. police departments).
The Australian Security Intelligence Organization (ASIO),
modeled after MI-5, and of recent vintage (post W.W.II),
handles all counterintelligence and internal security investi-
gation with its own officers; however, it is rivalled to some
extent in the internal security field by the Intelligence
Bureau of the national Commonwealth Police. The Royal
Canadian Mounted Police, a truly national police force, with
extensive local and Federal jurisdiction, has branched. off
its intelligence division into a new, near autonomous Security
Service, with operational procedures more akin to MI-5 and
ASIO than to traditional law enforcement.
In short, these countries recognize that the
political, social and foreign policy considerations which
must go into counterintelligence and internal security investi-
gations make them a different animal from "routine" criminal
investigation; yet, they also recognize that the agency with
internal security jurisdiction must also have an intimate
and close working relationship with a law enforcement agency.
Complete separation, at least of the internal security
(function from law enforcement, does not appear to be
A
practically feasible. MI-5 and ASIO were originated without
law enforcement powers, and MI-5 candidly admits it would
like to become part of a national police force. RCMP Security
Service case officers would not consider surrendering their
police powers.
Separation of the counterintelligence function
would be more practically feasible; however, the commingling
of counterintelligence and internal security interests, and
the threat of a merger of the counterintelligence function.
with the positive foreign intelligence collection agency,
especially in the U. S., are both practical and political
reasons militating against this course.
SENSITIVE
FOREIGN
INTELLICENCE
SOURCES
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- 4
Separation of the internal security function also
presents serious political considerations. Internal security
or as some say, at least in reference to its "subversive"
investigations, political intelligence, is the most controversial
of government's intelligence collection activities. In the
U. S., this function was originally given to the FBI which
had established for itself a reputation for being responsible,
competent, and most importantly, politically neutral, and had
the confidence of most Americans. It is recognized that this
reputation is not etched in stone, and that because of the
diversity of peoples, political views, and activities tolerated
in the U. S. no internal security agency can, using human
judgement, attempt to fulfill its responsibility without
offending someone, sometime, someplace.
It is to the advantage of an internal security
agency, which is subjected to such political pressures, to
be somewhat insulated by being part of a larger, respected
organization which has a high profile as a competent and fair
investigative agency in the less politically complex law
enforcement and counterintelligence fields. Adding to this.
insulation is the tradition of FBI political independence, and
the new Congressional concern with keeping the FDI politically
independent. While the law enforcement and counterintelligence
wings of the FBI dislike the controversies into which its
internal security wings drags the FBI name, separation of
internal security into a separate agency would probably subject
it to more intense political pressures, both from within the
administration and without, which pressures it might not be
capable of withstanding. Such separation appears politically
unfeasible and undesirable.
Practical considerations against divestiture of
the counterintelligence and internal security functions from
the FBI are that: basic criminal investigative experience
equips men in many areas to be intelligence officers; a pool
of trained criminal investigators is available to the intelligence
missions to draw from, either on an ad hoc emergency basis,
e.g., seizure of an embassy or political kidnapping or skyjacking,
or as candidates for the position of intelligence officer;
a divestiture might result in the loss to the counterintelligence
and internal security wings of the effective use of the FBI name.,
reputation, and contacts and sources built-up over years using
the FBI name.
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- 5
The RCMP has shown that all three missions can
be accommodated in one agency, although the distinctive
character of each mission requires internal adjustments of
policy, structure, administration, personnel considerations,
and operations.
Implementation of adjustments within the FBI
is being considered at this time'..
Consequently, based on above considerations, the
FBI recommends that all three missions of law enforcement,
internal security, and counterintelligence remain with the
FBI.
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- 6 -
Former Attorney General
William D. Ruckelshaus'
memorandum, 7/23/73, to F. B. I.
Director, Clarence M. Kelley,
setting forth the 11 areas of
inquiry.
NW#: 88608 DocId: 32989541
1086
30
10/01/79
The Akbone. S. SIM ca
ACTIVITIES (25)
lot from £9 10/2/75,esting, inter alia,
erics of studies of various aspects 
of rox
operations perviously prepared 
by FEI at 
request
off to Do 3G Rekolthaus
. Original of 
mo
bmcued farvarding 
to Committee..
copy for your records.
NW# 88608 DocId: 32989541
SSC REQUEST OF 10/2/75
File Copy
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-
1 Mr Baker
1
1
Mr. Mintz
Mr. E. S. Miller
bayr
c. Dir.
. Dir.:
nin.
np. Syst.
.Affairs
es & Com.
h. Inv.
nt.
pection
boratory
n. & Eval.
c. In
ining
Coun
phone Rm.
ctor Soc'y ✓
Mr. William D. Ruckelshaus
The Deputy Attorney General Designate
Director, FBI
-
SUBSTANTIVE ISSUES REGARDING
THE FUTURE OF THE FBI
о
1
-
Mr. T. J. Smith
September 20, 1973
1 - Mr. J. F. Miller
JUNE
Ti
717
O Techinical Surveillance _general
Reference is made to your memorandum of August 20, 1973,
detailing a format to be followed in setting forth our responses to your
memorandum of July 20, 1973, captioned "Substantive Issues Regarding
the Future of the FBI." Attached is an undated study of 17 pages with
a five-page appendix captioned "Electronic Surveillance."
This study was prepared in response to your July 20, 1973,
request, prior to receipt of your format memorandum of August 20, 1973.
The responses to most of the questions raised in your August 20, 1973,
memorandum are contained in this study. Rather than repeat points
considered in this study, it is attached and it is recommended it be read
prior to the attached paper dated September 14, 1973, written according
to your suggested format. This second paper considers issues raised in
your August 20, 1973, memorandum not discussed in our first study, e.g.,
"Options for Future Policy." Attached to the September 14, 1973, paper
is a copy of a petition for rehearing in U.S. v. Ivanov, and a July 11,
1973, memorandum concerning the Ivanov case to that date. These attach-
ments pertain to a discussion of foreign national security electronic
surveillance in the September 14, 1973, paper.
EX. 105
REC-2 66-8160.3513
CAUTION: THE APPENDIX TO THE UNDATED PAPER CAPTIONED ELECT
TRONIC SURVEILLANCE," AND THE JULY 11, 1973, MEMORANDUM ARE
CLASSIFIED "SECRET, NO FOREIGN DISSEMINATION/NO DISSEMINATION
ABROAD."
cacleshigas38ཏོ
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(8) M
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ACT 12 1973
NOTE:
SENT FROM D. Q.
TIME
T2:42 pm
DATE 9-24-73
BY
EM
S
50
SECRET MATERIAL ATTACHED
NATIONAL SECURITY INFORMATION
Unauthorized Disclosure).
Subject to Criminal Sanctions
The above memorandum and enclosures are in response to the
UNRECOLLER CLAFIZZEDIN 67 24172.
JM
Deputy Attorney General Ruckelshaus' memoranda of 7/20, and 8/20/73 concern-
Substantive Issues Regarding the Future of the FBI." These materials are
in response to ispumber one "Wiretaps."
NW#88608
YP
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SKY
ELECTRONIC SURVEILLANCE
This document is prepared in response to your request and is not for dissemi-
nation outside your Committee. Its use is limited to official proceedings by
our Committee and the content may not be disclosed to unauthorized person-
mel without the express approval of the FBI
SECRET MATERIAL ATTACHED
Ein
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DocId: 329895 ENCLOSURE
66-8160-3513.
TABLE OF CONTENTS
•Page
I.
Authorization of Consensual, Title III, and
National Security Electronic Surveillances
A.
Consensual
·B. Title III.
•
C. National Security.
Background of Federal Electronic Surveillance
II.
Law.
III.
°
0
National Security Electronic Surveillance.
A. Domestic
•
1. The Keith Decision
1
•
1
1
2
2. Guidelines and Procedures Currently Used
by the FBI and the Department of Justice
in Determining Whether a Proposed National
· Security Electronic Surveillance Falls
Within/Without the Keith Decision.
6.
6
6
3.
Status
.
o
7
11
•
11
IV.
V.
B. Foreign.
Value of National Security Electronic
Surveillances.
Domestic "Internal Security" Electronic Surveil-
lance: Alternatives to Keith Prohibition.
Appendix
•
13
•
•
14
i
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I.
AUTHORIZATION OF CONSENSUAL, TITLE III, AND NATIONAL
: SECURITY ELECTRONIC SURVEILLANCES
The legal foundation for each of the above types
of electronic surveillance differs, and in part as a con-
sequence of that, the administrative procedure for securing
authorization to use each type differs.
A.
Consensual
_ The current law is that as long as one party to a
conversation, whether over the telephone or in person, consents
to a monitoring of that conversation by another or a recording
of that conversation by another or by himself, such a monitoring
or recording is legal, and may be introduced into evidence in a
legal proceeding.
"
At present, the monitoring or recording of telephone
conversations by the FBI with the consent of one of the parties,
e.g., via a device attached to the consenting party's telephone
or a monitoring via use of an extension telephone, is authorized
`internally within the FBI by either a Special Agent in Charge
. or, if the case is "sensitive, by a Headquarters official,
generally the Director. On the other hand, the present policy
with regard to consensual monitoring of nontelephone conversations,
e.g., body or hidden recorders or transmitters, is that the
Attorney General must approve these in advance, except in an
emergency, at which time the Director (or someone designated
by him) can approve them and then promptly notify the Attorney
General. The method of requesting Attorney General approval,
or of notifying the Attorney General of the exercise of the
emergency authorization, is a memorandum to the Attorney General
setting forth the identity of the target, the background of
the case, and the reason for the request or authorization.
B. Title III
These electronic surveillances are permitted by
act of Congress for the purpose of gathering evidence of
enumerated crimes. A requirement for the submission of
an affidavit to a court showing probable cause that a crime
is being committed and that evidence not obtainable otherwise
can be obtained via the electronic surveillance is set.
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forth in the statute.. Current procedure is to submit to
the Attorney General a copy of the affidavit the FBI proposes
to submit to the court, with a cover memorandum setting forth
the background of the case. The affidavit has been worked out
between FBI field personnel and the local United States or
Strike Force attorney, and between FBI Headquarters personnel
and Department of Justice attorneys before submission to the
Attorney General. The Attorney General either approves
or disapproves proceeding with the application for court
approval via a memorandum to the Director.
C. National Security
The continuous position of the Department of
Justice and several Presidents has been that the President
has the constitutional power to authorize warrantless
electronic surveillances in the exercise of his Articles II
and IV responsibilities "to conduct foreign affairs" and
"to protect the States against invasion." This power has
generally been exercised by the Attorney General for the
President. While not specifically approving this interpre-
tation or intending to grant or restrict any powers along
these lines, but rather as a declaration of noninterference,
Congress, when it passed Title III, stated in 18 U.S.C. 2511(3).
that nothing in Chapter 119, Title 18, of the U.S.C. or in Section
605 of the Federal Communications Act of 1934 limited the con-
stitutional powers of the President (whatever they might be) to
authorize electronic surveillance: (1) to protect the Nation
against actual or potential attack or other hostile acts of a
foreign power; (2) to obtain foreign intelligence information
deemed essential to the security of the United States; (3) to
protect national security information against foreign intelligence
activities; (4) to protect the United States against the over-
throw of the Government by force or other unlawful means; (5)
(to protect) against any other clear and present danger to the
structure or existence of the Government.
In United States versus U.S. District Court for the
Eastern District of Michigan (407 U.S. 297), commonly called
the Keith case after Judge Damon Keith, the Supreme Court held
that the President did not have the power to authorize warrant-
less electronic surveillance directed against purely domestic
organizations (and their members). The Court stated that the
issue in Keith fell within the language of categories 4 and
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5, as above, of 18 U.S.C. 2511(3), and that it was not deciding
on cases involving individuals or organizations that had a
"significant connection" with a foreign power.
power.
Consequently, since Keith, the only requests for
national security warrantless electronic surveillance referred
to the Attorney General for approval involve individuals or
organizations with a "significant connection" with a foreign.
The procedure for submitting these requests is uniform.
The Director submits to the Attorney General a memorandum
requesting approval for initiation or continuation of an
electronic surveillance on a particular individual or organization;
an attachment which is a summary of background information and
the circumstances on which the request is based; and a memorandum
from the Attorney General to the Director approving the electronic
surveillance based on, and in the language of, one or more
of categories 1 3 of 18 U.S.C. 2511(3). If the Attorney
General approves the electronic surveillance, he signs and
returns this latter memorandum and keeps for his records a copy
of the Director's memorandum to him and a copy of the attached
summary.
3
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II. BACKGROUND OF FEDERAL ELECTRONIC SURVEILLANCE LAW
The term electronic surveillance encompasses both
wiretapping (tap), i.e., the interception of a telephone
conversation by a third party, and microphone surveillance
(bug), i.e., the interception of a nontelephone conversation
by means of a microphone which can lead either to a recorder
or merely transmit the conversation to a third party, or
both. Both wiretapping and microphone surveillance can be
conducted with or without the knowledge and consent of the
parties to the conversation. Consensual monitoring, i.e.,
tapping or bugging with the consent of one of the parties
to the conversation, has generally been held to be legal,
and is not considered in the following discussion.
The separate development of the law pertaining. to
.wiretapping and microphone surveillance is, since passage of
Title III of the Omnibus Crime Control and Safe Streets Act of
1968 and the Keith decision, apparently of historical interest
only.
Prior to Title III and Keith, the law that developed
around electronic surveillances concerned itself primarily
with the admissibility of evidence obtained from electronic
surveillances rather than with the basic issue of the
"legality" of electronic surveillance itself. Evidence, or
evidence obtained from leads, gathered via wiretapping was
excluded from any criminal prosecution on the basis that pre-
sentation of such evidence was a "disclosure" prohibited by
Section 605 of the Federal Communications Act; and evidence, or
evidence obtained from leads, gathered via a microphone surveil-
lance or a wiretap was excluded if it was determined the instal-
lation required a "trespass" and was thus an unlawful search and
seizure. (These decisions often turned on technicalities
such as minimal physical penetration by a "spike mike.")
Title III established the Congressional intention
that electronic surveillance, under specific conditions, is
to be lawful and the evidence obtained therefrom admissible.
Title III also, while not conferring any statutory
authority on the President, indirectly recognized that he was
authorizing warrantless electronic surveillances in matters
4
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affecting national security, and stated that Title III or Section
605 of the Federal Communications Act did not affect any such
powers, he might have.
Title III did not distinguish between wiretaps
and microphone surveillances, and court decisions since
Title III involving both criminal and national security
matters seem to be drifting away from the artificial bases
that distinguished these electronic surveillances in the past
and are looking at the real issue of governmental powers
versus Fourth Amendment rights and the right to privacy.
The requirement of prior judicial review, the element on
which Keith turned, is a new factor in judicial consideration
of electronic surveillances, introduced by Title III.
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III. NATIONAL SECURITY ELECTRONIC SURVEILLANCE
A.
Domestic
1. The Keith Decision
The case originated as U.S. versus Plamondon,
et al., and involved Federal prosecution of defendants accused
of bombing the CIA office in Ann Arbor, Michigan, in
.September, 1968. Pursuant to a defense motion, Federal
Government electronic surveillance records were checked and
revealed Plamondon had been intercepted via a national security
wiretap on the Black Panther Party office in Oakland, California.
Under current court procedure regarding national
security electronic surveillances, the Government is required
to disclose to the court all interceptions; the judge then
determines whether the interception was legal or illegal.
If he finds it to be illegal, he orders the prosecution to
· make available to the defense all the logs and tapes pertaining
to the interception so that the defense can determine if any
of the case against it is based on illegally obtained electronic
surveillance evidence.
The trial Judge Damon Keith held that the President
had no power to authorize electronic surveillance of the
Black Panther Party without prior judicial approval, i.e.,
a warrant, that therefore the wiretap was illegal, and the
prosecution had to turn the logs and tapes of the conversation
over to the defense.
The Government appealed this decision to the
Supreme Court, thus the case at that level was titled U.S.
versus U.S. District Court for the Eastern District of Michigan,
commonly called the Keith case.
On June 19, 1972, the Supreme Court affirmed Keith's
decision and held that the President has no warrantless,
national security power to authorize electronic surveillance
of domestic organizations (or their members). The Supreme
Court defined a domestic organization as one having no
"significant connection" with a foreign power, its agents
or agencies.
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The Justice Department, in the words of Deputy
Assistant Attorney General Kevin J. Maroney before the Senate
Subcommittee on Administrative Practice and Procedure on June 29,
1972, stated that it understands "significant connection" to
mean that the domestic organization must be substantially
financed by, or in active collaboration with a foreign power
for the purpose of committing unlawful activities against the
United States Government.
2.
Guidelines and Procedures Currently Used by the FBI and
the Department of Justice in Determining Whether a
Proposed National Security Electronic Surveillance Falls
Within/Without the Keith Decision
The Keith decision applies solely to a domestic
organization (and its members ) "with no significant
connection with a foreign power." The issues are what
constitute a "domestic organization" and "significant
connection."
The Department of Justice has issued the FBI no formal.
oral or any written guidelines on these issues.
!
The reason is that the standard to be applied
is a "facts and circumstances" test in each case in the light
of the Supreme Court's language in the Keith case and the
Department of Justice's position as stated by Mr. Maroney
before the Subcommittee.
The Supreme Court in Keith said that while it was
"attempt (ing) no precise definition" the scope of its decision
was limited to a "domestic organization...composed of citizens
of the United States...which has no significant connection
with a foreign power, it agents or agencies. The Court
also recognized the difficulty in distinguishing "between
'domestic' and 'foreign' unlawful activities directed against
the Government of the United States where there is collabora-
tion in varying degrees between domestic groups or organizations
and agents or agencies of a foreign power.'
"
The Subcommittee asked the Department of Justice
what level of foreign dominance and control of a domestic
group would be considered sufficient to bring the group into the
area of foreign activities on which the Court has not yet ruled.
Maroney replied:
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*"The Keith decision has suggested a standard of
'significant connection with a foreign power, its agents
or agencies.' We do not interpret this as meaning casual,
unrelated contacts and communications with foreign governments
or agencies thereof. We would not try to apply this standard
without the presence of such factors as substantial financing,
control by or active collaboration with a foreign government
and agencies thereof in unlawful activities directed against
the Government of the United States. Obviously, such factors
will be present in a very minimum number of situations.
(Emphasis added.)
"I wish to assure the (sub) Committee on behalf
of the Attorney General, that the Department of Justice
accepts both the letter and the spirit of the Court's ruling
in the Keith case. It is the intention of the Executive
Branch to utilize electronic surveillance in present and
future national security matters in full and ungrudging
application of the rationale of the decision." (Emphasis
added.)
The FBI carried on an informal dialogue with
the Department of Justice after the Keith decision in an
attempt to establish some general guidelines in the abstract,
but the discussions eventually came back to the above language,
and the conclusion that each case requires a facts and circum-
stances test, and an exercise of the independent judgment of the
Attorney General on the facts presented.
As a result, the FBI submitted some borderline
cases, which it recognized as such, to the Attorney General
in order to get a feeling of how he and the Department of
Justice applied the above standard to specific fact situa-
tions. Some were approved, some refused. As a result
the FBI feels it has a fairly clear idea of the outer limits,
beyond which no electronic surveillance will be approved.
The lack of formal guidelines beyond the Court's
language and Maroney's testimony presents no practical or
administrative difficulty within the FBI. As Maroney noted,
the factors he related would be present in a very minimum
number of cases. That is true. Prior to Keith, domestic
national security electronic surveillances conducted by the FBI
had been winding down for some time. At the time of the Keith
decision only six, four telephone and two microphone, were in
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effect. The few cases in which are present some of the
factors noted by Maroney are subjected to joint scrutiny by,
and discussion between, FBI field and Headquarters supervisory
personnel, and only after these feel the FBI may have a case
does the field initiate the request, which must be personally
approved by the field supervisor and the Special Agent in
Charge. Upon receipt, the Headquarters supervisor drafts a
memorandum to the Attorney General, setting forth all pertinent
facts, including those showing foreign involvement, on which
the request is believed justified. He must also be able to
justify the request in the language of one or more of the first
three categories of 18 U.S.C. 2511(3). The request is presented
through channels (i.e., Headquarters unit chief, section chief,
branch chief, Assistant Director of the Intelligence Division,
Associate Director, and Director) to the Attorney General who
must make an independent judgment.
There are arguments pro and con that the lack of
formal written guidelines pose an added threat to the Fourth
Amendment rights or right to privacy of a domestic organization
or individual. The argument that it does pose an added threat world
seem to be based on the supposition that formal guidelines would
be exclusive, and binding in all instances. Any guidelines
issued would probably be moré illustrative of the above
standard than definitive. Formal written guidelines made
available to the public might curtail criticism that we are
operating without a definitive standard, however, they might
also trigger criticism that they are too vague, not inter-
pretive of the Court's intent, etc.; and, should a case
arise that does not fit squarely within the guidelines but
could possibly be justified on a broader standard, reasonably
within the Court's language, we could be criticized for not
adhering to our own guidelines. Both career professionals in
the FBI and Department of Justice attorneys review the electronic
surveillance request for need, sufficiency, and legality. The
Department of Justice. has committed itself, and the FBI, to
abiding by the letter, spirit, and rationale of the Keith
decision (and has expanded upon the decision to the extent of
Maroney's testimony). If legal action ensues, whether criminal
or civil, the courts in looking at the legality of a national
security electronic surveillance are bound only by the Keith
decision regardless of any Department of Justice guidelines.
In summary then, the procedure is: the FBI does not
submit a request to the Attorney General for approval of an
electronic surveillance upon a domestic organization composed of
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:
United States citizens, unless it has a "significant connection"
with a foreign power, its agents or agencies; by "significant
connection" the FBI and the Department of Justice understand
that the domestic organization must be substantially financed
by, controlled by, or in active collaboration with such foreign
power for the purposes of committing unlawful activities against
the United States Government. The FBI presents its request to the
Attorney General with all the facts and circumstances on which the
request is based, and he must exercise an independent judgment as
to whether the request falls within this standard and the letter,
spirit, and rationale of the Keith decision.
**********
Senator Kennedy has expressed concern in the past
that a political appointee, the Attorney General, rather than
career professionals, is the final authority on these matters.
. This is a two-edged sword. If the ultimate authority were non-
public career professionals, there would be less response
from them than from the appointee of an elected official
to public pressure criticizing procedures and decisions.
On the other hand, the Attorney General's decision
could possibly be based more on personal political attitudes and
motivation than on his interpretation of the law.
The present procedure attempts to meet both short-
comings. The Attorney General does not recommend or initiate
electronic surveillance requests; they are initiated by and
processed through several levels of career professionals who at
each step judge whether the request falls within the standard.
The request is then sent to the Attorney General, who refers it
to the Internal Security Section, Criminal Division, of the
Department for its independent judgment, before he makes the
ultimate decision. Thus, any electronic surveillance request, if
it makes it to the Attorney General, has already been approved
by the career professionals. It is arguable that a career
professional might be more cautious if he, and his agency, bore
the final authority and responsibility rather than passing both
on to another agency. There is no airtight response to this;
it is a question of human motivation, sense of obligation, duty
and responsiblity. The impulse to be less than diligent is
countered by an employee's professionalism and career
considerations.
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3. Status
The President has no warrantless power to authorize
purely domestic national security electronic surveillances.
He may have the power to subject domestic targets to electronic
surveillance, but these electronic surveillances must be
subjected to prior judicial review, i.e., a warrant, before.
installation. Admissibility of evidence obtained from such
electronic surveillances is a correlative question, not yet'
directly considered. Presumably, such evidence would be
admissible.
B. Foreign
The legality and admissibility of evidence issues
have not yet been directly considered by the Supreme Court.
The issue of "legality," based on whether prior judicial review
is required (key issue in Keith), was resolved in the Govern-
ment's favor by the United States District Court, District of
New Jersey, in United States versus Ivanov. Following an ex
parte, in camera inspection of the surveillance logs by the
district court and argument on the legality issue by the parties,
the court sustained the authority of the Attorney General to
acquire foreign intelligence information by warrantless electronic
surveillance.
The United States Court of Appeals for the Third
Circuit reversed and remanded, assuming, arguendo, that the
President did have such authority and that therefore any electronic
surveillances in the case were legal. Further, the Appellate
Court felt it had to assume "in the present posture" of the case,
that the case was in fact built on electronic surveillance
evidence. Consequently, the Appellate Court held that since
the case arose prior to passage of Title III, Section 605 of
the Federal Communications Act of 1934 applied, and it prohibiteä
"divulging" of electronic surveillance results as evidence in
court.
The issue of the legality of foreign national security
electronic surveillances is also currently under advisement by
the United States Court of Appeals for the District of Columbia
Circuit in the case of United States versus Enten. In Keith,
the Supreme Court specifically noted that two lower courts (the
Fifth Circuit Court of Appeals in United States versus Clay,
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430 F.2d 165 (1970) and the United States District Court, Central
District of California in United States versus Smith, 321 F.
Supp. 424 (1971)) have held that "warrantless surveillance...
may be constitutional where foreign powers are involved."
The argument that even foreign related electronic
surveillances should be subject to initial judicial review is
based on the argument that this is the only guaranteed method
of protecting the Fourth Amendment rights and right to privacy
of aliens, and United States citizens who might be involved.
The argument on the other side is that the nature and objective
of the activity, viz., foreign intelligence gathering, the needs
of security, the many nonprosecutive factors to be considered,
and often the time element, do not lend themselves to effective
or efficient initial judicial review; consequently, the Govern-
ment must be granted a measure of confidence to utilize this
technique on its own authority, with the safeguards of protection
from conviction or the remedies of a civil action available to
any target of an electronic surveillance, if the Government
abuses this authority.
This area is still in limbo, the same condition as
prior to Title III and Keith. Until Ivanov and Enten, or more
likely until a post Section 2511 (3) espionage case, actually
built on electronic surveillance evidence, are decided by the
Supreme Court, the Government, to be safe, must be willing to
sacrifice a criminal prosecution to obtain electronic surveil-
lance intelligence.
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IV. VALUE OF NATIONAL SECURITY ELECTRONIC SURVEILLANCES
(See classified Appendix)
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V.
11
DOMESTIC INTERNAL SECURITY" ELECTRONIC SURVEILLANCE:
. ALTERNATIVES TO KEITH PROHIBITION
There are several elements within United States
society which pose a threat to the safety and tranquility of
segments of that society, e.g., police officers, symbols of
the "Establishment,' etc. While some of these elements claim
to be "revolutionary" and claim as an ultimate objective the
overthrow of the United States Government, there is no respon-
sible opinion that feels any of these elements have any chance
of success in toppling the Government. Yet, they do pose a
significant threat of inflicting serious, and sometimes ex-
tensive, damage on individuals and property.
In combatting these elements, law enforcement is
confronted with the opposite of its usual task. Ordinarily, law
enforcement is confronted with a completed crime and investigates
to identify suspects and to prove guilt; in these cases it has
the suspects, e.g., individuals or groups have said they intend to
murder police officers, bomb buildings, etc., so law enforcement's
job is then to thwart commission of the crime. This is an intel-
ligence investigation. It is conducted prior to a threatened
criminal act, not after the act, and as such ranges wider and
looks into more fawcets of the suspect's behavior. Yet, it is
not a "fishing expedition"; it is based on some solid indication
· that the suspect intends to, and has the capability of,. committing
some crime.
Because of the exaggerated rhetoric of many of these
elements, which never do actually commit a crime, the difficulties
in identifying specific individuals as suspects, in showing a
cause-effect relationship between the urgings and claims of group
leaders and the act of the actual triggerman or bomber, and in
showing suspected imminence of the criminal act, it is almost
impossible to make a probable cause showing, as we understand
that term today, to support a warrant for restricted types of
investigation. Essentially what law enforcement has, or depending
on your emphasis, all that law enforcement has, is a suspicion,
based on stated criminal objectives of these elements, claims of
criminal accomplishments, and indications from behavior and
attitudes, that these elements may engage in destructive criminal
behavior sometime in the future.
ore
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Because these elements threaten and commit crimes in
furtherance of their stated goal of overthrowing the United States
Government, investigation of them has often proceeded on a
"national security" basis; and because there is no practical,
immediate prospect of their accomplishing this goal, the "national
security" foundation for investigation of them has, in many
quarters, not been taken seriously, and is often suspect because
of the latitude that has been allowed in "national security"
investigations as opposed to simple criminal investigations.
The difficulty is that these domestic "internal security”
cases lie somewhere between what is generally accepted as "national
security" matters and plain, simple criminal violations.
If one
interprets national security to mean only matters which threaten
the stability of the Government, either from within or without,
then these cases are not national security matters; yet, they
pose a threat to the safety and tranquility of the community
beyond individual incidents of crime, or even random sprees of
criminal acts by an individual or group. These cases also have
some effect on national and international attitudes towards U.S.
standards, morale, government, law enforcement, and the elements
involved, e.g., "Why can't law enforcement protect society, and
itself, against attacks"; or "These people are victims of a
repressive system and attack is their only effective avenue of
protest for change."
Consequently, law enforcement is confronted with a
situation wherein it is threatened with criminal acts in further-
ance of a claimed political goal, the mere condition of being so
threatened often having an impact beyond a completed routine
criminal act (although many of these threats are eventually
carried out); yet, this condition is generally insufficient to
show probable cause to justify a warrant for an electronic
surveillance.
Assuming that there is valuable intelligence to be
obtained from electronic surveillance in these matters to be
used in attempting to thwart these crimes, how can we fill the
void created by Keith?
Title III has very limited value in this area. Its
stated purpose is to gather evidence of crimes that we have
probable cause to believe are being, or are about to be, committed.
It is doubtful whether the threats of these elements, or even
evidence of past attacks, would be sufficient probable cause to
support a continuing electronic surveillance with no specific crime
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in immediate view. Title III could perhaps be used in some of these
cases where the investigation has developed to a point where we do
have probable cause for a specific crime, but the probable cause
would be momentary and would expire after the act or probability
of the act. Title III also has limited value for continuing
intelligence purposes because of its applicability only to
specified crimes; the short time period (30 days per request);
the requirement that the target eventually be given notice and
the results of the electronic surveillance (this can be postponed
but not indefinitely); and the number of people who could become
involved with and thus aware of a recurring monthly application to
a court.
After the Keith decision, there was extensive debate
within the FBI and between the FBI and the Department of Justice
on its effect, and how we could proceed, within the Keith
restriction, in cases where we felt there was a clear "internal
security" (which went undefined) threat where electronic surveil-
lance would be valuable. It was accepted that Title III would be
of minimal value because of the problems noted above. Within the
FBI it was also argued, and finally accepted, that FRCrP 41,
might be utilized to obtain a routine search warrant to install
an electronic surveillance where Title III was inapplicable.
Assistant Attorney General Olson and Deputy Assistant Attorney
General Maroney disagreed, feeling that Title III was intended to
preempt all other methods of securing electronic surveillances,
besides Presidentially approved surveillances.
The argument is largely theoretical. FRCrP 41, like
Title III, requires a showing of probable cause, so it like-
wise is available only when specified criminal acts are believed
to be going on or are imminent. FRCrP 41 warrants must also be
executed forthwith, and notice must be given to the target and
he must be served with an inventory of the items seized. Given
a case which falls within both Title III and FRCrP 41, Title III
procedures are preferable because they are less restrictive and
more clear cut since they deal exclusively with electronic
surveillances.
Title III is fairly broad in specifying the crimes for
which electronic surveillances can be authorized under its sections.
It is difficult to think of a threat to the internal security so
significant that acts in furtherance of the threat would not
involve criminal violations specified in Title III.
Of course,
the FBI would be limited to basing its requests for electronic
surveillances on Federal crimes enumerated in Title III, and the
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threatened destructive acts might involve solely local offenses,
e.g., murders of policemen. Title III provides for local
authorities to use electronic surveillances in such cases.
Even assuming that there was a case falling outside of
Title III, but within FRCrP 41, the FBI is still limited to
using search warrants obtained thereunder to seize evidence of
Federal crimes; if the threatened act is a local violation only
FRCP 41 is of no value to the FBI.
Without a showing of probable cause of an ongoing or
imminent crime, it is doubtful if either Title III or FRCrP 41
could be used to secure an electronic surveillance. It is believed
an ongoing intelligence-gathering electronic surveillance based
on indications but not probable cause, that the target might
engage in purely domestic criminal activity, for the purpose of
thwarting that activity, no matter how potentially destructive,
will require enabling legislation. Mr. Maroney in his testimony
before the Senate Subcommittee on Administrative Practice and
Procedure stated that the Department of Justice was not requesting
such legislation at that time, but that if it became evident that
a void clearly detrimental to United States security interests
had been created by Keith, the Department of Justice will seek
new legislation.
Chance for passage of such legislation at this time
is probably nil.
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APPENDIX
IV. VALUE OF NATIONAL SECURITY ELECTRONIC SURVEILLANCES
A.
Foreign
Electronic surveillances provide positive intelligence
regarding the positions and activities of foreign nations, and
thus are of value to United States Government policymakers and
diplomats, and also provide information of assistance in our
counterintelligence efforts against foreign intelligence
services operating against the United States.
1.. Positive Intelligence
Examples of positive intelligence obtained via
electronic surveillances, not directly related to our counter-
intelligence responsibility, are as follows:
At 7:40 p.m. on August 20, 1968, the New York Office SENSITIVE
FOREIGN
INTELLIGENCE
OPERATION
called Headquarters to inform that our wiretap on the Soviet
Mission to the United Nations was intercepting an inordinate
amount of traffic, approximately 40 intercepts in the preceding
30 minutes. The Soviets were calling representatives of many
of the delegations to the United Nations stating they had a
message which they desired to deliver urgently, and would meet
the representatives anywhere, even on a street corner.
The Headquarters duty supervisor thought this activity
might relate to a recently completed full plenum of the Supreme
Soviet on the Czechoslovakian question, reported on the UPI
ticker. He relayed this information to Mr. Hoover, the White
House Situation Room, and the State Department.
Classified by E. S. Miller
Exempt from GDS, Category 2, 3
Date of Declassification Indefinite
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SENSITIVE FOREIGN
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Later in the evening State Department informed us
that Soviet Ambassador Dobrynin had visited the President that
evening, left, and State was now urgently attempting to locate
him. Via our wiretap on the Romanian Embassy, we were able to
inform State that Dobrynin was with the Romanian Ambassador at
that time..
The first indicator the CIA received of abnormal
activity regarding the Czechoslovakian question was a telephone
call from the White House Situation Room at 9:30 p.m.,
August 20, 1968.
The Soviet invasion of Czechoslovakia occurred
August 20, 1968.
There was a great deal of intercept activity during
the days following the invasion, which reflected on various
governments' positions and reactions. This raw material was
relayed as fast as it came in to the State Department and the
White House Situation Room.
This example indicates the potential value of such
intercepts in extreme national security emergencies directly
affecting the United States, e.g., by indicating withdrawal of
official and diplomatic personnel from the United States;
· movement of foreign nationals to certain areas of the country,
or hostile intentions against the United States. Such infor-
mation is a priority requirement of the United States Intelligence
Board.
During the Arab-Israeli Six Day War and the India-SENSITIVE
FOREIGN
INTELLIGENCE
OPERATIONS
Pakistan War, our intercepts on various missions to the
United Nations and embassies in the United States provided
many indicators as to the intercepted parties' relative positions
and sympathies, and consequently assisted State Department
and the White House in its dealings with these nations on that
issue.
Via an electronic surveillance we obtained information
concerning the location of Soviet ships removing missiles from
Cuba in 1962.
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2.
Counterintelligence
Electronic surveillances assist our counterintelligence
efforts by providing personality data and information regarding
the contacts and activities of known and suspected foreign
intelligence officers. This information assists in planning
counterintelligence activity, assessing defection potential,
analyzing routines and patterns, conserving manpower, and in
directing sources against these officers.
SENSITIVE FOREIGN INTELLIGENCE INFORMATION
There are currently 165 known and 70 suspected Soviet
intelligence officers, and 72 known and 43 suspected Soviet-
bloc intelligence officers in the United States.
Examples of information obtained via electronic
surveillance of value to our counterintelligence responsibility
are as follows:
An individual was detected in contact with a hostile
intelligence service in September, 1972. He expressed a desire.
to defect and to offer information regarding United States naval
intelligence to which he had access. Although the interception
did not give us his name, it provided sufficient information to
conduct an investigation which established his identity, con-
firmed that he had been engaged in very sensitive naval
communications intelligence, and disclosed that he was a fugitive,
wanted on local charges. He was arrested on November 23, 1972.
In one case, electronic surveillance furnished infor-
mation, within four days of its installation, of a contact
between an official of the Soviet Illegal Support Branch and
an individual who appears to be a Soviet illegal agent.
Electronic surveillance furnished information con-
cerning an attempt in 1969 by a United States serviceman to
defect to the Soviets.
An example of the value of electronic surveillance
coverage in foreign terrorist matters involved an Al Fatah leader
formerly in the United States. In the Summer of 1972 he
departed this country for a visit to the Middle East. He later
applied for a reentry permit which was denied. In late
November, 1972, a telephone surveillance disclosed a contact
by an individual suspected to be the Al Fatah leader.
An
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investigation was initiated and a second electronic surveillance
revealed the Al Fatah leader had reentered the United States
using a variation of his family name. This information enabled
his arrest by the Immigration and Naturalization Service.
B..
Domestic
The primary value derived from intelligence gathering,
as opposed to evidentiary, electronic surveillances in this area
is in obtaining plans for carrying out threatened criminal acts,
evidence of foreign influence or financing, and information
which assists in planning apprehensions of wanted individuals
with less risk to the lives of officers and bystanders.
Examples: Via electronic surveillance of the Black
Panther Party, Cleaver Faction, in New York City; Huey P.
Newton in Oakland, California; and the Los Angeles Black Panther
Party, the following information was obtained.
On November 6, 1971, plans to kill New York Police
Commissioner Murphy were discussed.
On September 14, 1971, use of police radios to monitor
New York City Police Department activity was discussed.
On April 26, 1971, electronic surveillance identified
Robert Vickers as the assailant of a New York City police officer
killed April 19, 1971. (Although this information was also
evidentiary, it identified Vickers as a triggerman for the group
who could be useḍ in the future.)
On December 28, 1970, electronic surveillance reported
that Newton received $1,400 from a Swedish group.
On September 20, 1971, electronic surveillance reported
a communication between Newton and the President of Tanzania.
On September 28, 1971, electronic surveillance reported
Newton's travel plans to China, and on October 19, 1971, it
reported details of his visit.
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During July, 1971, a conversation was intercepted,
and when pieced together with previously monitored conversations
and other background, enabled us to apprehend, without injury
or incident, two Black Panther Party members wanted for the
murder of a policeman.
Physical surveillance of a meeting to plan the murder
of Black Panther Party rivals, the meeting site having been
learned of via electronic surveillance, resulted in the
apprehension of two fugitives. The apprehension caused a gun
battle, however, the electronic surveillance information allowed
for advance planning which cut the risk to arresting officers
and bystanders.
Electronic surveillance of the Students for a Democratic
Society Headquarters, Chicago, Illinois, provided information on
plans for the "Days of Rage" violent demonstrations in Chicago
during October, 1969. This advance information, relayed to
Chicago police, enabled them to anticipate, to some degree,
destructive activity, and to concentrate their force where needed.
SECRET
NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD
:
NW#88608
DocId+-329895-41
September 14, 1973
ELECTRONIC SURVEILLANCE
1. The Problem:
Use of electronic surveillance falls into three broad areas:
criminal, domestic national security, and foreign national security.
Little policy consideration need be given to use in criminal
cases. Such use is prescribed and proscribed in Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, has been upheld by the courts,
and has been used to great advantage under the current procedures and
policy. In short, there is no policy problem in this area.
Electronic surveillance in both domestic and foreign national
security cases is primarily used for intelligence purposes, not evidentiary
purposes; however, it often produces information of evidentiary value.
The only Congressionally approved electronic surveillance
is for the sole purpose of obtaining evidence of stated crimes (Title III).
Foreign national security electronic surveillances produce a
good deal of positive intelligence value to U.S. foreign policymakers, a
good deal of information necessary for counterintelligence activity, and,
rarely, information of evidentiary value.
Domestic national security electronic surveillances produce
information valuable to law enforcement in thwarting murders, serious
injury to persons, and extensive damage to property, and also, rarely,
information of evidentiary value.
Electronic surveillance in domestic national security cases
which was previously approved by the Attorney General for the President
utilizing his Constitutional powers has been prohibited by the Supreme
Court in the Keith case, i.e., held illegal without prior judicial approval.
This document is prepared in response to your request and is not for dissemi-
nation outside your Committee. 
Its use is limited to official proceedings by
your Committee and the content. may 
not be disclosed to unauthorized person-
nel without the express approval of the 
FBI..
NW#: 88608
DocId: 32989541
EM
The issue of the legality of warrantless, Presidentially
approved electronic surveillance in foreign national security cases has not
yet been decided by the Supreme Court; this issue is now pending in two
Circuit Courts of Appeals.
Thus the specific problems with regard to domestic national
security electronic surveillance are that it produces information of value
not obtainable by other means; it has been prohibited without prior
judicial approval; there is no mechanism to obtain prior judicial approval.
Consequently, we conduct no domestic national security electronic surveil-
lances.
The specific problems with regard to foreign national security
electronic surveillance are that: it produces information of value not
obtainable by other means; the legality of the President to authorize its
use without prior judicial review is being challenged; if it is held illegal
there probably will also be no mechanism to obtain prior judicial review;
current court procedure requires in camera disclosure of the existence
of national security electronic surveillance in criminal trials and if found
illegal, disclosure of the content of the intercepts to the defense, which
for overriding security and foreign policy reasons can usually not be made.
2. Present Policy
Domestic National Security Cases:
We do not conduct electronic surveillance in these cases.
Foreign National Security Cases:
Pending Supreme Court consideration of the "legality" of
electronic surveillance in these cases, they continue to be approved by
the Attorney General, and utilized without warrant.
3. The Issues
The main issue in both domestic and foreign national security
electronic surveillance cases is the right and need of the Government to
obtain intelligence information in cases involving (1) U.S. foreign policy
considerations; (2) threats to our security as a nation from without; and
(3) threats to the tranquility and safety of U.S. society from within,
versus 4th Amendment rights and the right to privacy.
NW#: 88608
DocId: 32989541
:
The specific issues with regard to domestic cases are: (1) Is
the threat to the safety and tranquility of U.S. society posed by certain
domestic groups of such magnitude to justify electronic surveillance as an
intelligence-gathering device to be used against them? (2) If so, is the
threat of national, i.e., Federal dimensions, or is the threat primarily to
local or regional interests? (3) If this coverage is needed, has Keith
presented obstacles; and if so, how can they be overcome? (4) If
enabling legislation is the answer to (3), should the electronic surveil-
lance intelligence-gathering authority be given to the Federal or local
government, or both as in Title III? What should enabling legislation
entail? (5) Is there any option other than enabling legislation?
The primary issue with regard to foreign cases is: Is
Presidentially approved, warrantless electronic surveillance in cases
involving a "significant connection" with a foreign power constitutional,
or "legal." On the resolution of this issue hangs all else in these cases,
viz., admissibility of electronic surveillance evidence in court; degree of
disclosure to be required in criminal proceedings; and if held illegal,
the judicial review procedure to be proposed in order to continue such
surveillances, if they are deemed of sufficient importance to continue them
in the face of additional risks inherent in a judicial review.
4. Options for Future Policy
The chief issue for future policy consideration is, will the
Department support the argument for the need for intelligence electronic
surveillance? In foreign cases? In domestic cases?
If so, then the discussion centers on Department policy
regarding the means to effect such surveillances.
Foreign national security cases:
Hopefully, the examples of intelligence value set out in the
classified appendix of the attached study carried the argument that
electronic surveillance in these cases is highly desirable, if not essential,
to our counterintelligence efforts and to our foreign policy considerations.
Even without specific examples of value derived from these surveillances,
the bottom line argument is that electronic surveillance of foreign intelli-
gence services is at least an inconvenience to them, and makes it more
difficult for them to carry on their intelligence activities.
NW#: 88608
DocId: 32989541
The present policy is to support the legality of the President's
authority to conduct this surveillance without warrant, to restrict disclosure
of the existence or contents of such surveillances, and presumably, to
support the argument that any evidence obtained from such surveillance is
admissible in a criminal proceeding.
These issues are discussed very well in the Government's
petition for rehearing in U.S. v. Ivanov, attached. Also attached is a
classified memorandum summarizing the case up to the petition for
rehearing.
Until these issues are resolved, consideration of future policy
options would be speculative, and may be unnecessary.
Domestic national security cases:
The FBI Intelligence Division feels there is something of
intelligence value to be gained from electronic surveillance coverage of
some domestic groups. The opinion of former Assistant Attorney General
Olson and Deputy Assistant Attorney General Maroney is that there is no
need to utilize this type of electronic surveillance and therefore no need
to seek enabling legislation at this time, but that if a need does appear
the Government will seek such legislation.
The examples set out in the classified appendix to the attached
study show the value that can be derived from intelligence coverage of
domestic groups. Is information of this type worth the financial man-
power expenditure (which is considerable) to obtain it? Is it worth the
task of trying to write enabling legislation (providing for judicial review
to satisfy Keith) to allow intelligence electronic surveillance in domestic
cases? Is it worth the fearsome battle such a bill would cause in Congress?
Does such a bill have a chance at this time, or in the foreseeable future?
Upon reconsideration, the blanket pessimisim on chance for
passage of such legislation in the attached study seems extreme. It is
believed that the Department and the FBI should attempt to write a bill,
with as restrictive judicial control as necessary in order to obtain Con-
gressional approval, to permit intelligence electronic surveillance against
domestic groups which threaten death or "extensive damage" (to be either
defined or specifically enumerated, e.g., plane hijackings, bombings,
NW#: 88608
DocId: 32989541
murders of officials or police, etc). A restrictive enumeration of specific
acts which if threatened, but not to the extent of producing probable
cause, would justify appeal to a court or magistrate for an intelligence
electronic surveillance, might have some chance for passage. The
judicial review would satisfy the 4th Amendment requirements; and a
specific list of acts limited to major contemporary concerns would allow
for item deletions and additions as conditions change. Such a specific
• section to the bill would allow for not only effective judicial review,
.but also effective Congressional review.
Such a bill, in our opinion, should avoid mention of contro-
versial and difficult to define terms such as "domestic national security,"
"internal security," "threats to the existence or structure of the Govern-
ment," and all terms with political connotations; and should use terms
emphasizing the aim of preventing serious criminal acts which threaten
life and limb (without mention of motivation, whether political or otherwise).
.
In our opinion, such a bill should make intelligence elec-
tronic surveillance available to both local and Federal agencies. It is
envisioned that such a bill would cover purely local groups which, e.g.,
threaten murder of local police officers, and groups national in scope,
e.g., Black Liberation Army.
As discussed in the attached study, Title III and FRCrP 41
do not seem to offer practical alternatives for this type of coverage.
NW#: 88608
DocId: 32989541
UNITED STATES OF AMERICA,
Appellee,
ICOR A. IVANOV,
Appellant.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
PETITION FOR REHEARING
*No. 72-1741
HERBERT J. STERN
UNITED STATES ATTORNEY
This document.is prepared in response to your request and is not for dissemi
nation outside your. Committee. Its use 
is limited to: official proceedings by..
your Committee and the. content may 
not be disclosed to unauthorized person-
nel without the express approval of the FBI
On the Bricf:
JONATHAN L. GOLDSTEIN
JOHN J. BARRY
Assistant United States Attorne
DocId: 32989541
ENCLOSURE
NW#: 88608
UNITED STATES OF AMERICA,
IGOR A. IVANOV,
UNITED STATES COURT OF APPEALS -
FOR THE THIRD CIRCUIT
Appellee,
NO. 72-1741
Appellant
ogr
PETITION FOR REHEARING
We
The United States petitions the Court to grant a
rehearing in this case and modify its opinion and decision.
limit our request to that portion of the decision which relates
to the disclosure to defendant of the logs of electronic sur-
veillance initiated with the express authorization of the Attorney
General to obtain foreign intelligence information.
:::
In our view, the decision, insofar as it relates to
said disclosure; is not in accord with the Supreme Court's prior
mandate in this case and has misapprehended relevant precedent
relating to disclosure in instances where there has been no
violation of Fourth Amendment rights.
NW#: 88608 DocId: 32989541
STATEMENT OF THE CASE
In its initial decision in this case, the Court
affirmed appellant's conviction of conspiracy to violate, the
espionage stitute, 18 us.c.
18 U.S.c. 
§ 794(a) and (c). 384 F.2d 554
(1967). While appellant's certiorari petition was pending, the
Solicitor General informed the Supreme Court that appellant had
General
been electronically overheard. The Supreme Court considered the
effect of such disclosures in this case, and in one arising from
the Tenth Circuit in Alderman v. United States, 394 U.S. 165
(1969) and remanded both cases to the respective District Courts:
"for a hearing, findings, and con-
clusions (1) on the question of
whether with respect to any petitioner
there was electronic surveillance which
violated his Fourth Amendment rights,
an (2) if there was such surveillance
with respect to any petitioner, on the
nature and relevance to his conviction
of any conversations which may have
been overheard througn that surveillance.'
394 U.S. 185 (emphasis added).
The Supreme Court, in elaborating on its instructions,
( repeated again that the scope of inquiry was to be confined to
possible Fourth Amendment violations, It ordered that:
3.8.60
NW#: 88608
The District Court should confine the
evidence presented by both sides to
that which is material to the question
of the possible violation of a peti-
tioner's Fourth Amendment rights, to
the content or conversations illegally
overheard by surveillance which violated
those rights and to the relevance of
.such conversations to the petitioner's
subsequent conviction. The District
Court will make such findings of fact
on those questions as may be appropriate
DocId: 32989541
in light of the further evidence and
of the entire existing record. If the
District Court decides on the basis
of such findings (1) that there was
electronic surveillance with respect
to one or more petitioners out not
any which violated the Fourth Amond-
ment, or (2) that although there was
a surveillance in violation of one or
more of the petitioner's Fourth Amend-
ment rights, the conviction of such
petitioner was not tainted by the use
of evidence so obtained, it will enter
new final judgments of conviction based
on the existing record as supplemented.
by its further findings, thereby pre-
serving to all affected parties the
right to seek further appropriate
appellate review. 394 U.S. 186-87
(emphasis added)
=
On. remand, the Government conceded for purposes of the
hearing that one set of electronic surveillances, contained in
logs designated 4001-S* and 4002-S*, violated appellant's Fourth
Amendment rights and voluntarily disclosed those logs to him
(1095a). A taint hearing resulted in a finding by the District
Court that appellant's conviction was not tainted from these log
and that finding was unanimously upheld by this Court. (Opinion
pp. 12, 22).
.
☐ The Government further disclosed that there existed a
second set of logs, designated Government Exhibits A-1, 1-2 and
A-3. The Government represented that these logs were duly ob
tained by the Department of Justice in the exercise of the Presi-
dent's right to obtain foreign intelligence information and that,
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7
-3...
although certain conversations of Ivanov were overheard, he was
not the subject of the electronic surveillance reflected on those
logs (14a, 202). These logs were submitted to the Court for an
in camera inspection, along with an affidavit of Attorney General
Mitchell, designated Government Exhibit B. A copy of the affida-
vit was made available to Ivanov. Upon review of these materials,
the District Court made the following findings:
-
1. that the surveillances here under attack were
expressly authorized by the Attorney General shown in the
exhibits;
2. that they were not made pursuant to a surveillance
of the defendant Ivanov;
3. that said surveillances were directed against
certain promises in which Ivanov had no interest, the description
and location of said premises being set forth in the exhibits;
4° that said surveillances were conducted and.main-¨¨
tained solely for the purpose of gathering foreign intelligence
information%3
:
5. that it was reasonable and necessary to authorize
such surveillances in the national interest; and
:
6. that it would prejudice the national interest to
make a disclosure of the particular facts concerning said
surveillances. (20a)
Based on these findings, the Court concluded that
NW#:88608
DocId: 32989541
disclosure need not be made because the surveillances were law-
ful and not in violation of any Fourth Amendment rights of
Ivanov (20%). Although not directed to do so by the Supreme
Court's mandate, the Court also concluded that disclosure was
not required by reason of the provisions of the "Communications
Act of 1934, 47 U.S.C. § 605 because that Act was inapplicable to
the situation disclosed by the withheld material (23a).
On appeal, this Court reversed the District Court hold-
ing in a split decision (per Aldisert, J.) that 47 U.S.c. § 605
barred "any use of the intercepted material beyond the confines
of the Executive branch" (Opinion m 20-21), that, in the present
procedural posture of the case, "it must be assumed that the con-
versations of Ivanov overheard on the wiretaps led to evidence
used at this trial" (Opinion p. 13 ) and, therefore that appel-
lant is entitled "to disclosure or an evidentiary hearing" (Opinie:
P. 21 ). In reaching this conclusion, the majority accepted,.
for purposes of analysis, the proposition that the interceptions
were a lawful exercise of the Presidential power vested by Article
II of the Constitution.. (Opinion p. 15)
The majority did not even consider the question of
whether Ivanov's Fourth Amendment rights might have been violated.
In dissent, Judge Adams concluded both that the proposition ac-
cepted by the majority for purposes of analysis was, in fact,
correct and that Ivanov's Fourth Amendment rights were not violated
NW#: 88608
DocId: 32989541
As the le presently stands, thefore, there has
no determination of the issue which the Supreme Court spa
directed to be determined and disclosure is being ordered on
misapprehension of the legal necessity for such disclosuño,
ARGUMENT
POINT I
ASSUMING THE CORRECTNESS OF THE COURT'S
CONSTRUCTION OF 47 U.S.C. § 605, APPELLANT
IS NOT ENTITLED TO. THE DISCLOSURE OF THE
SURVEILLANCE LOGS OR TO. AN EVIDENTIARY
HEARING WITH RESPECT THERETO
In remanding this case the United States Supreme Cou
was very careful and very specific as to the scope of its rinfate.
It ordered the District Court to determine whether or not there
: :
has been any electronic surveillance which violated Appellani's
Fourth Amendment rights. It did not ask the District Court to
consider whether or not there may have been a violation of t 605
for any other federal statute. It is in this context that the
Court's language as to disclosure must be understood because there
exists no precedent which requires the United States to turn
the logs of a foreign intelligence surveillance where such sta
lance has not violated any Fourth Amendment rights of a defendan
:
The necessity for the disclosure of the records of
electronic surveillances only arises where such disclosure is
necessary to protect a defendant's Fourth Amendment
Alderman v. United States, 394 U.S. 165, 182-65 (1949); "Teklia-
netti v. United States, 394 U.S. 316, 317 (1969); so the
-
curring opinion of Stewart, J., in Giordano v. United States,
394 U.S. 310 (1967), the opinions of Douglas, J., in manting
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DocId: 32989541
in Busso v.
-6-
U.S.
34 L 30 (1972) and dis
ing from the denial of a petition for certiorari in the same casb,
409 u.s. 1013 (1972).
As stated by the Court in Täglichetti:
Nothing in Alderman v. United States, Ivanov v
United States, or Butenko v. United States, ante,
p. 165, requires an adversary proceeding and full
disclosure for resolution of every issue raised by
an electronic surveillance. On the contrary, an
adversary proceeding and disclosure were required
in those cases, not for lack of confidence in the
integrity of government counsel or the trial judge,
but only because the in camera procedures at issue
there would have been an inadequate monno to safa
guard a defendant's Fourth Amendment rights. 39
U.S. at 317 (Emphasis added)
As stated by Mr. Justice Stewart in Giordano:
As we made explicit in Alderman, Butenko, and
Ivanov, the requirement that certain products or
governmental electronic surveillance be turned
over to defense counsel was expressly limited to
situations where the surveillance had violated
the Fourth Amendment. 394 U.S. 310, 313 (Emphasis
added)
:
In Alderman, the Court concluded that although in camera
procedures were sufficient to vindicate statutory rights, such as
✓ those under the Jencks Act and certain due process rights, such as
the right to the disclosure of the identity of an informer (384 U.3)
at 182-83, fin. 14), such procedures "are unable to provide the
scrutiny which the Fourth Amendment exclusionary rule demands" in
those circumstances where there exist "a large volume of factual
materials": 384 U.S. 183-84.
.
Thus, Alderman cannot be read to require disclosure
where there has been no violation of Fourth Amendment rights,
Indeed, even in cases involving a possible violation of Fourth
Amendment rights, Alderman can be read as not requiring disclo
DocId: 3298-9541-
NW#:88608
where there exist compelling reasons for nondisclosure on the
factual materials involved are neither voluminous nor regul
complex judgments. United States v. Lomonakis,
No.
F.24.
71-1745, D.C..Ct. of App. June 29, 1973; pp. 35-45.
stic
In the Lemonskis case, the Court, like the majority
the Court in the case at bar, pretermitted the constitutional
issues involved in the executive authorization of foreign intel-
ligence gathering by means of electronic surveillance and hell,
based on its own in camera examination of the logs in
logg
that that material contained therein had no relevance to the
sues or evidence in appelient's trial and that; because of the
national interest involved in the revelation of logs of foreig
intelligence operations, the logs need not be revealed. Id.
If the teachings of both Alderman and Lemontis be
applied to the case at bar in its present posture, it is clear
that
that 
the logs in question need not be disclosed for two reasons,
First, as the Court has assumed, there has been no Fourth Ameni
ment violation. Second, as the Court can readily ascertain fr
its own examination of Government Exhibits A-1, A-2 and A-3, the
·logs are not voluminous and the task of evaluating than is
1/
heither burdensome nor complex.
二
1/ In this connection, it should be noted that the preme C
has not yet directly addressed the question of whether disclose
of logs of foreign intelligence surveillances is required.
United States v. United States District Court, 407 0.5. 297, 3:
1.n. 21 (1972), in which the Court expressly reserved cision
to the constitutional issues involved in foreign intelligence
(cont')
-NW#: 88608
DocId: 32989541
-3-
Therefore there is no legal justification for dis-
closing sensitive logs of a foreign intelligence surveillance
a spy for a foreign poker would not only be inconsi
with the narrowly, and specifically drawn mandate of the Supreme
Court in this case but would, in addition, make a mockery of the
dure
assumed conclusion by this Court that the surveillance itself was
lawful. The procedural question of whether and under what circum-
stances disclosure should be made is fully as sensitive and delicte
as the constitutional question of the presidential power to conta
the surveillance, and procedures ought not to be employed, which
would emasculate the constitutional power.
Surely the considerations which compel the conclusion
that the President is vested under Article II of the Constitution
of the United States to conduct foreign intelligence operations
by means of electronic surveillance equally compel the conclusion
1/ (cont'd) {
Surveillances, the Court also found it "unnecessary at [that] tize
and on the facts of [that] case" to reexamine "the basis and the
scope of the
decision in Alderman" insofar as that decision
related to the disclosure of the records of surveillances where
Fourth Amendment rights had been violated. In denying certiorari
in Russo V. 5, 409 U.S. 1013 (1972), the Court let stand a
Ninth Circuit decision which upheld an in canera determination b
the Trial Court that the records of an arguably foreign intelli-
gence electronic overhearing of defendant's counsel were not rele-
vant to any issue in defendant's trial. Dissent from denial of
certiorari, Ibid. See also opinion per Mr. Justice Douglas grant-
ing a stay of the Ninth Circuit's ruling.
34 L.Ed,
30 (1972)..
U.S.
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DocId: 32-989541
that the results of such surveillance should not be disclosed.
: where no Fourth Amendment rights of any individual have been
violated because to do otherwise would reveal information in
surveillanc
would make the surveillance valueless in the future,
:
To conclude otherwise would be to put the Governme.
to an untenable election. It would have to elect between
disclosure of a vital and proper intelligence operation, on the
one hand, and prosecution of a criminal who may have tundërėd
or even-intruded himself on the other. Such a construction
:.
even give to a criminal the power to prevent his prosecution
simply taking steps to ensure that a conversation of his is
overheard during the course of a foreign intelligence survellin
POINT II
PRIOR JUDICIAL CONSTRUCTIONS OF
47 U.S.C. § 605 REINFORCE THE
CONCLUSION THAT DISCLOSURE OF THE
· SURVEILLANCE LOGS IS NOT REQUIRED
IN THIS CASE
The correctness of the conclusion that disclosure
is inappropriate in circumstances where there has been no Fourth
Amendment violation is further reinforced by the considerations
which underlie prior judicial constructions of 47° U.9.0. § 603.
_ In those cases, courts have made it clear that wiretap evidence
and its fruits are to be suppressed only in those instances where
___
the wiretap was utilized by law enforcement officers oper
to obtain evidence.
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DocId: 32989541
-10-
As stated by the United States Court of Appeals
for the Second Circuit in United States v. Gris, 247 F.2č
850, 564 (1957):
Wiretap evidence is excluded by the
federal courts in order to discourage
persons from undertaking the proscribed
activities in an effort to obtain evi-
dence for use in those courts: Where
exclusion would not serve. this purpose,
the evidence is admitted.
If the Government was acting lawfully in conducting
the surveillance, there is no illegal conduct to deter and
hence no reason for applying the remedy of suppression in this
case. If there is no reason for suppressing, there is no reason
for either disclosure or for an evidentiary hearing.
It is clear beyond cavil, that, in construing
§ 605 to bar either testimony as to the contents of an inter-
L
cepted conversation or the derivative use of an intercepted
conversation to obtain evidence, the Supreme Court did so, solely
deter law enforcement personnel from utilizing wiretapping
: …
as a means of obtaining evidence. Nardone v. United States,
302 U.S. 389 (1937); Nardone v. United States, 308 U.S. 338.(1939)
(Nardone II)
Nardone I; the Supreme Court held that the Communica
tions Act of 1934 barred testimony by federal agents as to the
of messages intercepted by wiretaps by application of the principle
of statutory construction "that the sovereign is embraced by
general words of a statute intended to prevent injury and wrong"
302 U.S. at 384. The "injury and wrong" which the Court perceived
NW#: 88608 DocId: 32989541
-11-
and it speculated that, in enacting 605, "Congress may have
thought it less important that some offenders should go wip
of justice than that officers should resort to methods dese in-
consistent with personal liberty". Id. at 383.
In Nardone II, the Court, to further the policy exp
in Nardone held that where "a substantial portion of the case
against a defendant is proven by him to have been developed by
means of illicit wire-tapping, his conviction cannot be permitted
to stand. In so holding, the Court rejected the argument. th
that
3.605 only barred testimony as to the content of intercepted
:
message stating that:
Such a reading of $505 would largely
stultify the policy which compelled
our decision in Nardone v. United
States, supra. That decision was not
the product of a merely meticulous
reading of technical language. It
was the translation into practicality
of broad considerations of morality
and public well-being, This Court
found that the logically relevant
proof which Congress had outlawed,.
it outlawed because "inconsistent
with ethical standards and destruc-
tive of personal liberty. 302 U.S.
379, 383. To forbid the direct use
of methods thus characterized but to
put no curb on their full indirect
use would only invite the very methods
deemed "inconsistent with ethical
standards and destructive of personal
liberty." 308 U.S. at 340
# ..
In other words, the linchpin of analysis in both ard
decisions is the perceived Congressional rejection of wiretapping
NW#: 88608
DocId:32989541
for the purposes of obtaining evidence.
wiretapping which was
in the Court's view "illicit". Divulgence was held to include
use in obtaining evidence and was comprehended by the statute.
solely because the Court determined that such a construction was
necessary to discourage officers from. wiretapping to obtain
evidence.
In the case at bar, the wiretap was not for the purposes
of obtaining evidence but rather for the purpose of obtaining
foreign intelligence information. The broad considerations of
morality and public well-being" deemed relevant to the former pur-
pose are not mutatis mutandis translatable to the latter purpose
If those considerations are not so translatable then
the exclusionary rule forged by the Court in Nardone II is not
translatable. As the Court makes clear, the derivative use of
intercepted messages is prohibited not because of the statutory
13%
language but solely to preclude illicit wiretapping
If, as the Court is willing to assume, the wiretap in
issue in this case was not illicit but was, instead, a proper exer
cise of Presidential power pursuant to Article II of the Constitut
2/ For this reason, we urge the Court to reconsider those decisio
cited at pages 44-47 of our main brief and at pages 22-29 of Judge
Adams' dissenting opinion which hold that 47 U.S.C. § 605 has no
See also
applicability to the type of wiretapping in issue here.
United States v. Lemonakis, supra at pp. 35-40...
rule
3/ In this respect, the basic justification for the rule is thus
identical to that with respect to the Fourth Amendment exclusions
the belief that it is the only effective deterrent to pol
misconduct. Term: v. Ohio, 392 U.S. 1, 12 (1969); v. Chic,
NW#: 8860843, 6cd3298954tter v. Walker, 381 U.S. 013, 639 19

-13-
there exists no rational purpose for holding
evidentiary
hearing to determine whether the wiretap has been derivatively
used against Ivanov.
W
NW
None of the cases cited by the majority are authority
for the proposition that such a hearing is required in cases
Where the interception was not illicit, Benanti v. United States,
355 U.S. 96 (1957), does not carry the absolutist implications
which the majority reads into it. (Opinion, p. 14). The Benanti
decision simply holds that the provisions of § 605 cannot be
superseded by state law and that state agents as well as federal
agents are included within its coverage. In the course of its
opinion, the Court made clear that it was dealing with the kind
of wiretapping, it had earlier characterized as "illicit" in
both Nardone decisions, i.e., wiretapping for the purposes of
obtaining evidence. The opinion does not suggest that a divulgence
of a lawful interception would constitute a violation of $605.
Moreover, it expressly refused to reach the issue reached by the
majority in this case -1.e., whether both interception and
divulgence are necessary elements of a $ 605 violation. 355 U.S.
at 100, f.n. 5. Thus, all that Benanti stands for is the
11
In advancing this contention, we do not mean to be understood
as implicitly stating that there was, in fact, any such derivative
use much less that a substantial portion of the case" against
Ivanov was the fruit of the wiretap in issue. As either this
Court or the District Court can readily determine in comers, the
wiretap materials are wholly irrelevant to the issues and evidence
in this case.
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proposition that $605 applics uniformly to state and federal
officers.
Indeed, the very same day the Court decided Ben
it also decided in Rathbun v. United States, 355 U.S. 107
(1957), that not every interception is an "interception as Congress
intended the word to be used" in 47 U.S.C. § 605, stating that
(e)very statute must be interpreted in the light of reason and
:
common understanding to reach the results intended." 355 U.S.
:
at 109. In that case, over a strong dissent, the Court hela
that where one party to a telephone conversation gives the police
authority to listen in on an extension, there has been no inter-
11
ception as Congress intended the word to be used.". Id.
(Emphasis added) See also United States v. Sugden, 226 F.2d
281 (9th Cir. 1955), affd per curian 351 U.S. 916 (1956)
(holding it would defeat the policy of $ 605 to bar testimony
as to the content of an intercepted illegal private broadcast).
Therefore, neither Benanti nor United States v.
:~
as
Coplon, 185 F.2d 629 (2d Cir., 1950), also relied upon by the
majority require a hearing in this case because neither case
addressed the legality of the wiretaps in question "Instead"
Judge Adams correctly notes with specific reference to Coplon,
"the court merely assumed that the surveillance itself was illegal
under section 605." Id. Such an assumption is not proper under
the facts of this case and, indeed, is flatly inconsistent with.
the assumption of legality made by the majority.
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CONCLUSION:
The Court should amend its decision to require
the disclosure of the surveillance logs not be made
Respectfully submitted,
HERBERT J. STERN
United States Attorney
On the Brief
JONATHAN L. GOLDSTEIN
JOHN J. BARNY
Assistant United States Attorneys
NW#: 88608
DoĊId: 32989541
MAY 1982 011-
03.GEN REG. NO. 27
DECREI
UNITED STATES PISSEMINATION/NO DISSEMINATION ABROAD
Memorandum
ΤΟ
: Mr. E. S. Miller
FROM
.
: T. J. Smith
SUBJECT: U. S. VS. JOHN WILLIAM BUTENKO AND
IGOR A. IVANOV, IGOR A. IVANOV,.
APPELLANT
1
-
Mr
1
1
-
S. Miller
Mr. Felt
Mr. Baker
Mr. Cleve
Mr. Conr
Mr. A. Brannigan Cre
Mr. J. A. Mintz
DATE: 7/11/73
-
Mr. T. J. Smith
Mr. J. F. Miller
Mr. Gebbr
Br. Jenkins
Br. Marshall
Mr. Miller. S..
Mr. Soyers
Mr. Thomso
Mr. Walters
Tele. Roca
Mr. Baise
Mr. Barnes
Mr. Bowers
Mr. Heringe
Bir. Commy
Jk. Mintz
Mr. Eardley
Mrs. Hog
On June 21, 1973, the U. S. Court of Appeals for the
Third Circuit reversed the conviction of Ivanov for violations
of 18 U.S.C. 794 (a) and (c), and 18 U.S.C. 951, and the court
remanded the case for further proceedings.
BACKGROUND
NATIONAL SECURITY INFORMATION
Unauthorized Disclosure
Subject to Criminal Sanctions
Ivanov, an Amtorg Trading Corporation chauffeur, and
Butenko, a U. S. citizen, were originally convicted of a
violation of 18 U.S.C. 794 (a) and (c) (espionage) and a
conspiracy violation of 18 U.S.C. 951 (by causing Butenko to
• act as an agent of the Soviet Union without prior notification
to the U. S. Secretary of State).
On appeal the Supreme Court found the electronic
surveillance issue in their cases was "nearly identical" to
the electronic surveillance issue in Alderman et al v. U. S.,
and considered it in conjunction with that case (394 U.S. 165).
(Alderman had been convicted of conspiracy to transmit
murderous threats in interstate commerce.)
In Alderman the Supreme Court, noting that no evidence
or evidence obtained from leads which were obtained from an
illegal electronic surveillance i.e., one which violated a
defendant's 4th Amendment rights, could be utilized in a criminal
trial, disregarded the Government's contention that a trial
court's in camera inspection of electronic surveillance records
was sufficient, and held that the defendant was the only one
in a position to adequitely knowingly review such records to
determine if the case against him was built on electronic
· surveillance. Consequently the defendant was to be given
access in a discovery hearing to illegal electronic surveil-
lance records of interceptions of his conversations.
Justice Harlan, concurring in part and dissenting
in part, distinguished between routine criminal cases and
foreign intelligence-espionage criminal cases, arguing that
while full disclosure to the defendant was acceptable in the
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NW#: 88608
DocId: 32989541
SECILT
Memorandum to Mr. E. S. Miller
Re: U. S. vs. John William Butenko and
Igor A. Ivanov, Igor A. Ivanov,
Appellant
former, it was not in the latter and might prejudice on-going
intelligence operations vital to the national security.
In
these cases, he argued on behalf of disclosure to the defendant
of only those portions which the trial court in camera found
"arguably relevant" to the Government's case against the defendant.
The Ivanov and Butenko cases were remanded to the
District Court, 1) to determine whether there was electronic
surveillance which violated either defendant's 4th Amendment
rights and 2) if so, to determine whether any of the intercepted.
conversations were relevant to his conviction. The Supreme
Court stated that if the District Court found 1) that there
was electronic surveillance but it did not violate the defendant's
4th Amendment rights, or 2) there was electronic surveillance
which did violate the defendant's 4th Amendment rights but his
· conviction was not tainted by evidence obtained from that surveil-
lance, the District Court should enter new judgements of conviction
based on the existing record, along with its further findings,
thus preserving the defendant's right to further appeal.
On remand in Ivanov the case revolved around two sets
of FBI electronic surveillances on which Ivanov was monitored
during 1963: 1) 2 microphones at the homes of Ivanov and Karatsuba,
a KGB officer and neighbor of Ivanov (for the sake of argument,
the District Court held them both to be directed at Ivanov),
and 2) a wiretap on the Soviet Mission to the United
Nations, and a wiretap and a microphone at Amtorg.
The residence microphones, which at that time Depart-.
ment procedures did not require to be authorized by the Attorney
General, were conceded by the Government to be illegal, thus
falling within the disclosure requirement of Alderman. The
District Court held that the Government, on remand, made full
disclosure on these microphones, after some argument, and
ruled that the defendant had not shown, and the Government
had carried its burden to refute, that Ivanov's case was
built on evidence from these microphones.
-
The more important issues. related to the other set of
surveillances. The Government contended that those surveillances
were duly authorized under the President's national security
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!
Memorandum to MC: E. S. Miller
Re: U. S. vs. John William Butenko and
Igor A. Iv lov, Igor A. Ivanov,
Appellant
powers to obtain foreign intelligence, thus were legal and
therefore it was not required to disclose the logs to the
_✓ ✓ defense or to participate in an evidentiary hearing regarding
these surveillances. The District Court, by reference to its
finding on remand in Butenko (318 F. Supp. 66), agreed, finding
that these surveillances and the Government's use of the logs
from them did not violate Section 605 of the Communications
Act of 1934 or the 4th Amendment, and upheld the Government's
refusal to disclose or participate in an evidentiary hearing.
The District Court in Butenko found that 4th Amendment
rights are not absolute, that there are exceptions to the warrant
· requirement, and that the President's responsibility for foreign
affairs and national security do not preclude him from authorizing
¨a warrantless foreign intelligence electronic surveillance.
It also found that, since Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, specifically 18 U.S.C. 2511 (3),
clearly showed Congress' inclination not to limit or interfere
with the President's power of obtaining foreign intelligence by
electronic surveillance, Section 605 also must not have intended
to limit this power.
OPINION OF THE THIRD CIRCUIT COURT OF APPEALS, JUNE 21, 1973.
The Court of Appeals makes it clear at the outset that
it is not considering Title III since the interceptions in issue
occured prior to passage of that Act. Both the Government and
the appellant agreed that the governing statute at the time of
the interceptions in issue was Section 605 of the Communications
Act of 1934.
The Court of Appeals found no error in the District
Court's ruling that the Government had given full disclosure
'on the concededly illegal microphones, and that these did not
taint Ivanov's conviction.
The Court of Appeals cites Alderman for the proposition
that the question of whether or not the Government's evidence
was obtained from electronic surveillance could be resolved
only by an evidentiary hearing, and because the Government would
not participate in a hearing on the second set of surveillances
the Court of Appeals felt it had to assume "in the present
posture of this case" that the Government had intercepted com-
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DocId: 32989541
Memorandum to Mr. E. S. Miller
Re: U. S. vs. John William Butenko and
Igor A. Iva , Igor A. Ivanov,
Appellant
munications and utilized the results from them in the criminal
proceedings against Ivanov. (The District Court made an in.
camera review of the second set of surveillances, but never made
a written finding that none of the Government's case was based
on information from these surveillances; he only found in camera
that they did not violate the 4th Amendment or Section 605, and
therefore could not "...properly be considered on the taint
issue" (342 F. Supp. at 931).)
(Note that Alderman ruled only on "illegal" electronic
surveillances, and instructed the District Court that if, on
remand, it found the defendant's 4th Amendment rights had not
been violated it should reimpose judgment of conviction. The
Supreme Court did not discuss the effect of Section 605 on the
cases before it in Alderman.)
The Court of Appeals states that it is not defining
the parameters of the President's national security surveillance
powers under Section 605, but that the limited issue before
it, with respect to the second surveillance is: assuming a
constitutional power of the President to have ordered electronic
surveillance of foreign agents in 1963, was it permissable for
the Government, under Section. 605., to utilize the products of
such surveillance in a criminal prosecution.
The Court of Appeals then decides the case on this
evidentiary issue and thus avoids the larger 4th Amendment
Issue of whether or not the President has the power to authorize
foreign intelligence warrantless electronic surveillances.
The Court of Appeals recognizes that the President
has constitutional powers to defend against foreign intelligence
activities and to obtain foreign intelligence, and assumes,
solely for the sake of argument, that he had the constitutional
power to authorize these surveillances; however, the Court of
Appeals draws the distinction, that was drawn by the Govern-
ment for years, between the President's power to authorize
such surveillances and the power of the Congress and Court to
make an evidentiary rule excluding evidence obtained from such
surveillances in criminal proceedings.
The Court of Appeals holds that the Supreme Court
opinion in U. S. vs. Nardone (308 U.S. 338), interperting Section
605 as being a complete bar to the introduction of electronic
surveillance results into evidence in a Federal criminal
proceeding, was governing.
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°
+
Memorandum to M E. S. Miller
Re:
U. S. vs.
On William Butenko and
Igor A. Ivanov, I o. l. Ivanov,
Appellant
Section 605 states that "... no person not being
authorized by the sender shall intercept any communication
and divulge...the existence, contents, substance, purport,
effect, or meaning of such intercepted communication to any
person. The Supreme Court in Nardone held that "no person"
encompassed federal agents, and "divulge...to any person"
barred testimony in court.
11
This Court accepts the interpretation that what
Section 605 prohibits is the interception and divulging, i.e.,
that both elements must be present to incur the prohibition of
Section 605. Thus, the President is not violating Section
605 if he only intercepts the conversation, but he is
prohibited from also divulging the contents of the interception.
.in court.
Since this Court assumed that intercepted electronic
surveillance information was used in the trial and therefore
was divulged in violation of Section 605, Ivanov's conviction
was reversed and the case remanded for further proceedings,
• viz., to conduct an evidentiary hearing to determine if in fact
any of the Government's case was built on electronic surveillance.
information.
In further defining "divulging" the Court of Appeals
accepts the argument that, the President himself will not conduct
the interceptions, but that agents of the Executive Branch,
acting as his representatives will, and that many others within
the Executive Branch can also be his representatives to receive
the results of such a surveillance, and that therefore it is
not inconsistent with Section 605 to consider the Executive
Branch (or at least all persons within the Executive Branch
with a right to such information) as "a person", so that dis-
closure within the Executive Branch does not violate the. Section's
prohibition against divulging the contents of such interceptions.)
MINORITY OPINION, THIRD CIRCUIT COURT OF APPEALS, JUNE 27, 1973
Judge Adams, disagrees that Section 605 on its own,
or as interpreted by Nardone, requires the exclusion of evidence
obtained from a Presidentially approved warrantless foreign
intelligence electronic surveillance in a Federal criminal
proceeding.
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Memorandum to Mr. E. S. Miller
Re:' U.'S. vs. an William Butenko and
Igor A. Ivanov, Igor A. Ivanov,
Appellant
He argues that Section 605 itself, its legislative.
history, and subsequent case law do not indicate that Section
605 intended to prohibit the President from utilizing electronic
surveillance to gather foreign intelligence or to use the
information gathered in cases involving a defendant's foreign
intelligence gathering. He traces the legislative history of the
Communications Act and finds its main purpose was to establish
a Communications Commission and that it extended to wire
communications almost the identical provisions of Section
27 of the Radio Act of 1927, which was thought neither to apply
to federal officers nor to bar testimony relating to the
contents of radio messages intercepted by them. Judge Adams
notės there was no Congressional debate over the meaning of the
provisions of Section 605, implying that if it had been intended
to limit the President's foreign intelligence powers, there
probably would have been debate.
Similarly, Judge Adams finds that in response to the
Government's argument in Nardone that "a construction be given.
Section 605 which would exclude Federal agents since it is
• improbable. Congress intended to ... impede ... the detection
and punishment of crime. the Supreme Court concluded "that
the question is one of policy. Judge Adams argues that where
the Supreme Court might, as a matter of policy, find that
· Congress intended to exclude electronic surveillance evidence
in run-of-the-mill domestic criminal cases, there is no evidence
it would extend the exclusion to cases involving the gathering
of foreign intelligence. Additionally, this surveillance was
not aimed solely at securing evidence to convict a person of
crime, but at gathering foreign intelligence deemed essential
to the security of the U. S. He thus concludes that the Nardone
interpretation of Section 605 is not applicable to this kind
of case, and argues that in view of the breadth of the
President's authority in foreign affairs, Section 605 should
be interpreted to limit that power only if Congress' intent
to do so is clearly manifest, which he argues it is not.
Judge Adams then addresses the constitutional
question avoided by the majority, viz., does the 4th Amendment
allow the President to authorize warrantless electronic surveil-.
lances in foreign intelligence cases. He concludes that it
does. He argues that constitutional rights are not absolute;
they must be weighed against competing rights; and the 4th
Amendment prohibits only unreasonable searches and seizures.
+
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DocId: 32989541
**:.Memorandum to Mr.
Re:
Z
S. Miller
U. S. vs. John Win Butenko and
Igor A. Ivanov, Igor A. Ivanov,
Appellant
Judge Adams finds that the constitutional responsi-
bility to conduct foreign affairs is vested in the President;
that the gathering of foreign intelligence and the protecting
against foreign intelligence activities is concerned with the
very existence of the nation; that as a result, the President
has great latitude in this area; and that to require a
judicial warrant prior to his use of electronic surveillance
presumes that a warrant could be denied, thus interjecting
the courts into foreign affairs decisions, in effect over-
ruling the President in a field where he has the responsibility
and they do not.
Thus concluding that the 4th Amendment does not and
the courts cannot, prohibit the President from utilizing
electronic surveillance in foreign affairs, Judge Adams argues
that a defendant's 4th Amendment rights can still be reconciled
with the President's electronic surveillance power by a judicial
post surveillance review. If the court finds that the surveil-
lance is related to the conduct of foreign affairs it would,
ipso facto, be reasonable and therefore not in violation of the
4th Amendment. If unrelated, it would be unreasonable, and its
results excluded from a criminal trial.
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DocId: 32989541

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Memorandum to M. E. S. Miller
Re:
U.'S. vs. Jn William Butenko and
Igor A. Ivanov, Inor A. Ivanov,
Appellant
ANALYSIS
As previously noted Alderman dealt exclusively with
illegal electronic surveillances, i.e., surveillances in
violation of a defendant's 4th Amendment rights.
It did not
distinguish between "routine" criminal cases and foreign
intelligence-espionage cases when it required that full
disclosure of all interceptions of the defendant be made to him
so that he, in an adversary proceeding, might determine if
the Government's case against him was "tainted." Justice Harlan,
objecting to full disclosure in foreign intelligence-espionage
cases, and on behalf of disclosure only of portions deemed
"arguably relevant" to the Government's case by the trial court
after an in camera review, did not raise the issue of "legal"
vs. "illegal" electronic surveillance, so presumably he was
also talking about, and intending to limit disclosure even on
surveillances which violated the 4th Amendment.
The Third Circuit Court of Appeals assumes the
Ivanov surveillances in issue were legal, but still cites
Alderman as requiring an evidentiary hearing, and without that
'hearing feels it must conclude that Ivanov's conviction was
based on electronic surveillance evidence, introduction of
which must be excluded under Section 605.
At the conclusion of Alderman, when remanding
Ivanov, the Supreme Court instructed the District Court that
if it found the surveillance in question did not violate the
defendant's 4th Amendment rights it should reimpose judgments
of conviction. The Supreme Court did not consider the effect
of Section 605 on the cases before it in Alderman.
The case has been remanded for further proceedings,
apparently an evidentiary hearing on the second set of surveil-
lances. The Government can opt to save Ivanov's conviction
by participating in such a hearing, since none of his case
was actually built on surveillance information; however this
would require disclosure to Ivanov of his intercepted conversa-
tion at the Mission and Amtorg, a disclosure concession we don't
want to have to make because of the impact it would have on
diplomatic relations, ongoing counterintelligence operations,
and possibily on future prosecutions. Additionally, the
salvaging of Ivanov's conviction falls far short of the original
purpose of continuing the appeals in this case, viz., to obtain
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DocId: 32989541
•
Memorandum to M.) E. S. Miller
Re:
U. S. vs. John William Butenko and
Igor A. Iv ov, Igor A. Ivanov,
Appellant
a Supreme Court ruling on the legality of Presidential warrantless
foreign intelligence electronic surveillances. Consequently,
the Government probably will either ask for dismissal of the
case or appeal the Third Circuit's ruling to the Supreme Court.
If Ivanov is appealed the Supreme Court will face
three possible issues, the 4th Amendment issue of the legality
of warrantless foreign intelligence electronic surveillance,
the disclosure issue, and the Section 605 evidentiary issue.
The Court could seize onto the Section 605 evidentiary issue,
not considered by it in Alderman, to dispose of the case without
reaching the 4th Amendment or disclosure questions; or it could
stand on its instructions to the District Court and rule on the
District Court's remand finding that the surveillance did not
violate the 4th Amendment.
If the Supreme Court found the surveillance illegal,
presumably Alderman's requirement of full disclosure would apply,
and the case would be remanded for an evidentiary hearing to
exclude any electronic surveillance evidence, and the Section
605 issue would be avoided.
If the Court found the surveillances legal it could:
1) extend Alderman and require full disclosure of all
interceptions even if legal, possibly arguing something to the
effect that Congress in Title III has imposed the requirement
of full disclosure in those cases, and that a similar safeguard
should be imposed on Presidential surveillances;
2) allow in camera review and require disclosure limited
to elements "arguably relevant" to the Government's case;
3) not require disclosure at all if the Government
proved in camera that the surveillances were related to foreign
intelligence, possibly arguing that since the defendant's rights
against unreasonable search and seizure were not violated, he
has not been injured, the Government's case is not illegally
"tainted,' therefore, disclosure is not necessary, and, addition-
ally, disclosure would be very damaging to national security.
11
Even if the surveillances were found legal, however,
the Section 605 evidentiary issue would remain. A Hearing or an
in camera review would have to determine whether any of the
Government's case was built on electronic surveillance, and, if so,
the Section 605 evidentiary bar decided with respect to foreign
intelligence-espionage cases.
Since the Ivanov case is not built
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Memorandum to
Re: U. S. VS.
.
E. S. Miller SECRET
hn William Butenko and
Igor A. Ivanov, Igor A. Ivanov,
Appellant
W
electronic surveillance evidence, presumably the convictions
would be reimposed; however, supposedly the Supreme Court does
not know this, and it would conclude that if the District Court
found electronic, surveillance evidence to be involved, it would
be bound by the Third Circuit's finding that the Section 605 bar
did apply, and the case would find its way back to the Supreme
Court for a final determination on this point. Thus if the
Supreme Court chose to rule on the 4th Amendment issue and found
the surveillance legal, it would have to rule on two issues
immediately, the 4th Amendment issue and the disclosure issue,
and might eventually have to decide the third issue, the Section
605 evidentiary issue; if the Supreme Court affirmed the Court
of Appeals, it would have to decide only the Section 605
evidentiary issue.
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Memorandum to ME. S. Miller
3. S. vs. hn William Butenko and
Igor A. Iva V, Igor A. Ivanov,
Appellant
CONCLUSION
The constitutional issue here is, as was the issue.
in Nardone, a policy question. Given today's climate and
public attitude towards electronic surveillances in general,
unchecked Presidential (White House) power, the distinction
between use of electronic surveillance for intelligence purposes
vs. use for criminal prosecution, and the Supreme Court's
tradition of avoiding constitutional issues if it can decide
a case on lesser issues, I am inclined to think the Court would
grasp the "out" of the Section 605 evidentiary issue, thus
leaving the constitutional issue unresolved and allowing
Presidentially approved foreign intelligence electronic surveil-
lances to continue for the time being.
The practical result of this of course would be only
to reverse the conviction of one man, Ivanov, presently at home
in the Soviet Union. This ruling would not preclude post 1968
prosecutions based on foreign intelligence electronic surveil-
lance information, since 2511 (3) presumably expresses
Congress' intent to negate the evidentiary effect of Section
605 with respect to such cases: "The contents of any wire or
oral communication intercepted by authority of the President in
the exercise of the (powers enumerated in the statute, generally
relating to foreign intelligence and efforts to unlawfully over-
throw or endanger the structure of the Government) may be
received in evidence in any trial, hearing or other proceeding
only where such interception was reasonable..."
With the Section 605 evidentiary obstacle presumably
disposed of by 2511 (3), it would seem that a post 1968 case
on facts similar to Ivanov, or preferably one actually built on
electronic surveillance information, would be the best vehicle
for eventually getting a ruling on the 4th Amendment issue.
ACTION:
For information.
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11
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INQUIRY # 3
NW#: 88608
DocId: 32989541
1 - Mr. Baker
1
1
-
-
Mr. E. S. Miller
Mr. T. J. Smith
September 17, 1973
Mr. William D. Ruckelshaus
-
The Deputy Attorney General Designate
Director, FBI
1 Mr. Sizoo
12
SUBSTANTIVE ISSUES. REGARDING
THE FUTURE OF THE FBL
0
F.B.I.
1181
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Ext. Affairs
Files & Com.
Gen. Inv.
Ident. _
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec, Inv.
Training
Legal Coun.
Telophone Rm.
Director Sec'y
Reference is made to your memorandum to me captioned
*"Substantive Issues Regarding the Future of the FBI" dated July 20, 1973,
enumerating issues on which you desired the Bureau's comments..
Concerning Issue Three in your memorandum, I call your
attention to memorandum from me to the Attorney General captioned
"Scope of FBI Jurisdiction and Authority in Domestic Intelligence Investi-
gations," dated August 7, 1973, as well as my August 24, 1973, memo-
randum to you under the same caption.
My August 7, 1973, memorandum proposed an Executive
order to define FBI responsiblities concerning Federal statutes relating
to national security. Mr. Jack Goldklang, Office of Legal Counsel, Depart-
ment of Justice, pursuant to his analysis of the proposal in my August 7,
1973, memorandum, requested a copy of Section 87 of our Manual of
Instructions concerning Investigation of Subversive Organizations and
Individuals, as well as a copy of a study prepared in August, 1972, at
the request of former Acting Director L. Patrick Gray, III. These were
furnished with my August 24, 1973, memorandum.
Inasmuch as this Bureau's extensive analysis regarding
authority for our intelligence gathering was previously furnished for
the Department's consideration in August 7 and 24, 1973, memoranda,
I assume that your needs to study Issue Three can be met by reference
to those communications without additional submissions. G2-2417
-NW#8-8-6-0-8-
JMS: rlce
(7)
NOTE:
MAILED 2
SEP 19 1973
FBI
EXID
REC-52
62-9-4192-34
1 SEP 19 1973
See memorandum T. J. Smith to Mr. E. S. Miller dated
9/13/73, captioned as above, prepared by JMS: rlc.
SUSEP 21 This document is prepared in response to your request and is not for dissemi-
nother
61oftside your Comphattee. Its limited official proceedings
your Committee and the content may not be disclose to unauthorized person-
TÉLETYPEUNIT the express approval of the FBI .
MAIL ROOM
DocId: 32989541
8-3005233
J
MIT
-
1 Mr. Mintz
это
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Files & Com.
Gen. Inv.
Ident.
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec. Inv...
.
The Attorney General
Director, FBI
SCOPE OF FBI JURISDICTION
AND AUTHORITY IN DOMESTIC
INTELLIGENCE INVESTIGATIONS
о
1 - Mr. Baker
August 7, 1973
1 - Mr. E. S. Miller
1 Mr. T. J. Smith
Security Jurisdiction
During our meeting on July 26, 1973, you referred to a discussion
you had with Senator Charles McC. Mathias, Jr., of Maryland during your con-
firmation hearings as to the statutory authority of the FBI and the Department of
Justice in the field of domestic intelligence investigations. You then asked
Mr. William D. Ruckelshaus to work with the FBI in weighing the pros and cons
with regard to statutory authority in this area. I mentioned that research was
being performed on this subject at the present time and that we would be in
touch with Mr. Ruckelshaus with regard to this matter when we have completed
the results of our consideration and findings within the FBI.
Actually, a study has been going on in the FBI for more than two
years as to the scope of FBI jurisdiction and authority in domestic intelligence-
investigations. When Mr. L. Patrick Gray, III, was designated as Acting
Director of the FBI, he instructed that a position paper be prepared concern-
ing the jurisdiction and authority of the FBI to conduct domestic intelligence
investigations. A position paper was prepared which in essence stated that
authority of the FBI in this field is based on legislative enactments, even
though we may have publicly relied heavily on Presidential directives as the
basis for such authority. Mr. Gray ordered an in-depth study made of the
position and in August, 1972, a detailed report was furnished to him. The
following is a summary of that report. REC-29 62-66727-1824
Over a period of several months there were a number of public
statements questioning authority and jurisdiction of the FBI to conduct domestic
intelligence-type investigations, particularly where there is no clear-cut
legislative authority apparent. One of the most searching inquiries was con-
tained in a paper presented by Professor John Tiff at a two-day conference
at Princeton University in October, 1971, sponsored by the Committee for Public
1 AUG 8 1973
Justice.
Training 987
Legal Coun.
Cong. Serv.
Corr. & Crm.
Research
(8)
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V
Sprepared
256
This document, is prepared in response to your request and is not for dissemi-
nation outside your Committee. 
Its use is limited to official proceedings by
your Committee and the content 
may not be disclosed to unauthorized person-
nel without the express approval of 
the FBI .
FBI
inte
DocId: 3298-9544 13 1973
SEE NOTE PAGE EIGHT
The Attorney General
A major thrust of Professor Elliff's paper concerned FBI authority
derived from legislative enactments as opposed to that derived from Presidential
directives, beginning with a directive issued by President Roosevelt in
September, 1939. Professor Elliff is of the opinion that the 1939 directive,
which was reiterated on three subsequent occasions, was magnified by the
FBI from its original purpose to a definitive order to conduct intelligence-type
investigations.
Senator Sam J. Ervin, as you know, had been probing into the
nature and extent of FBI intelligence-type investigations. Senator Ervin had
even announced that he intended to propose legislation to prohibit the FBI
from investigating any person without that individual's consent, unless the
Government has reason to believe that person has committed a crime or is
about to commit a crime. Other Congressmen indicated a similar interest
in FBI investigative activities.
.
Our study revealed that the FBI had declared publicly over a
long period of time that its responsibilities in the domestic intelligence field
are authorized under legislative enactments, Presidential directives, and
instructions of the Attorney General. The Presidential directives are obviously
the 1) directive dated September 6, 1939, and reiterated January 8, 1943;
July 24, 1950; and December 15, 1953, and 2) Executive Order 10450 dated
April 27, 1953 (and amended but not yet implemented by Executive Order
11605 dated July 2, 1971).
In carefully analyzing the language of the first directive, dated
September 6, 1939, and considering that the subsequent directives are all
hinged on that one, we believe that there is a misconception as to the extent
of jurisdiction or authority conveyed to the FBI by these directives. It
appears that while the 1939 directive fixed responsibility on the FBI to handle
espionage, sabotage, and neutrality matters, it did not convey any authority
or jurisdiction which the FBI did not already have from legislative enactments.
It is difficult to read into this directive or in any of those which followed any
authority to conduct intelligence-type investigations which would or could
not be conducted under an umbrella of legislative enactments.
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The Attorney General
As a matter of historical fact, President Roosevelt in August,
1936, did request former Director J. Edgar Hoover to conduct investigations
of subversive activities in this country, including communism and fascism.
This request, however, was a confidential oral request and there is doubt
that any record of it was made outside the FBI. This request, or Presidential
mandate, was based, incidentally, on the fact that the law provided that the
FBI could conduct such investigations if the Secretary of State should so
request.
The study revealed that while the 1939 et seq. directives did not
grant any special intelligence-gathering authority to the FBI, we were respon-
sible under these directives to collect all intelligence information furnished
by local, state, and Fedoral law enforcement agencies and patriotic citizens
and to sift and coordinate all such information for indications of subversive
activity covered by Federal statutes.
The study concluded that the FBI has the responsibility to con-
duct whatever investigations are necessary to determine if statutes relating
to espionage, sabotage, insurrection or rebellion, sedition, seditious con-
spiracy, advocacy of overthrowing the Government, and other such crimes
affecting the national security have been violated. In this connection we
note that in a letter dated September 14, 1967, the Department of Justice
advised that the FBI is continually alert to the problem of recurring riots
and is submitting intelligence reports to the Department of Justice concern-
ing such activity. This letter enumerated several Federal statutes and
stated these could be applicable in using maximum available resources,
investigative and intelligence, to collect and report all facts bearing on
the question of schemes or conspiracies to plan, promote or aggravate riot
activity.
In other words, the Department was requesting all possible
intelligence-type investigative activity based on the existence of certain
statutes. We see this as being no different from our intelligence-type
investigations relating to plans of groups or individuals to overthrow,
destroy, interfere with or threaten the survival of effective operation of
national, state, and local governments.
3 -
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The Attorney General
E
海
.
Based on this study, we believe that had there never been a
single one of the Presidential directives in question the FBI would have
conducted and will, through necessity, continue to conduct the same intelli-
gence-type investigations as were conducted from 1939 to the present date.
We also believe, however, that in order to counter the criticism and skepti-
cism of such individuals as Professor Elliff and Senator Sam J. Ervin that
an up-to-date Executive order should be issued clearly establishing a need
for intelligence-type investigations and delineating a clear authority for the
FBI to conduct such investigations based on guidelines established by the
Attorney General and adhering to constitutional principles.
The study concluded with two basic recommendations.
1) That the Department of Justice be requested to sponsor comprehensive
legislation spelling out the FBI's investigative authority in the collection of
intelligence information relating to the national security and; 2) that the
Department of Justice be requested to seek a comprehensive Executive order
which would cover any possible gap between statutory authority and Executive
necessity in protection of the national security.
At first glance these recommendations may appear to contradict
our position that we already have statutory authority to conduct security-type
investigations; that this being the case we do not need additional legislative
enactments, nor do we need an Executive order. But being realistic we think
that the basic statutes upon which we rely for our authority to conduct
domestic intelligence investigations need to be updated to fit 1973 needs.
Title 18 U.S.C. Sections 2383, 2384, and 2385 relate to the national security,
but the legislative history of 2383 and 2384 indicates that they were designed
for the Civil War era, not the Twentieth Century, and Section 2385 has been
reduced to a fragile shell by the Supreme Court. These statutes are unques-
tionably still valid, but updating is certainly indicated. The bills introduced
as H.R. 6046 and S. 1400 in the 93rd Congress appear to contain language which
should fill our statutory needs, except perhaps for those groups, such as the
Ku Klux Klan, which do not seek to overthrow the Government, but never-
theless are totalitarian in nature and seek to deprive constitutionally guaranteed
rights.
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The Attorney General
i
い
i
As to the need for an Executive order, we think that two issues
are involved. We have statutory authority, but what we need is a definitive
requirement from the President as to the nature and type of intelligence data
he requires in the pursuit of his responsibilities based on our statutory
authority. In other words, there is a need, from our standpoint, for both
authoritative and definitive guidelines. The statutes give us the authority.
The Executive order would define our national security objectives.
Members of Congress, including such men as Senator Robert C.
Byrd of West Virginia, have proposed legislation to spell out jurisdiction and
authority of the FBI in this field. It would appear that the President would
rather spell out his own requirements in an Executive order instead of having
Congress tell him what the FBI might do to help him fulfill his obligations and
responsibilities as President.
The political climate of suspicion and distrust resulting from
* disclosures coming out of the Watergate hearings could present an obstacle
to getting any such Executive order signed in the immediate future. However,
the rationale is nevertheless valid and when scrutinized closely, the language
in the Executive order we hereinafter propose establishes definitive guidelines
which have heretofore been unclear. It is my belief that we should go forward
with this.
We therefore propose and recommend that an Executive order
along the following lines be submitted to the White House with a strong
recommendation for approval. The language which follows is merely to
illustrate the type of Executive order which we think would be appropriate
and does not necessarily represent an ideal format or style which should
be submitted to the White House.
EXECUTIVE ORDER
"Whereas the Constitution of the United States was established to
insure, among other things, domestic tranquility; to provide for the common
defense; and to promote the general welfare for the people of the United States;
and
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The Attorney General
"Whereas the President of the United States has the constitutionally
imposed responsibility of defending the Constitution and the existence of the
Government thereunder; and
"Whereas there have been continuing unlawful acts of violence
perpetrated against the Government of the United States or against citizens
of the United States or against persons entitled to the protection of the
United States thereby endangering the domestic tranquility, threatening the
common defense, and jeopardizing the general welfare of the people of the
United States; and
"Whereas the Congress has enacted laws prohibiting acts such as
treason, sedition, sabotage, espionage, insurrection and rebellion, seditious
conspiracy, civil disobedience, rioting, assassination, kidnaping, deprival
of civil rights, and conspiracies to commit such acts; and
"Whereas the President of the United States as Chief Executive
in the maintenance of the Government thereunder must have intelligence
information for appropriate decisions in the discharge of his constitutionally
imposed responsibilities;
"Now by authority vested in me by the Constitution and statutes
of the United States and in the interest of orderly operation of this Government
and in furtherance of the domestic tranquility, common defense, and general
welfare of the people of the United States it is ordered that;
"The Attorney General prepare and issue guidelines, conforming
to the principles of the Constitution and the Bill of Rights, and outlining the
necessary direction, coordination, and guidance of investigations to assure
that the Federal Bureau of Investigation provides on a continuing basis
intelligence information essential to the execution of laws pertaining to sub-
versive activity and other such activity affecting the national security,
domestic tranquility, and general welfare of the United States."
The Nation has been going through a time of terror. The concept
of urban guerrilla terrorism has been adopted by various extremist elements
in the United States. Bombings of public buildings and national institutions;
-8-
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The Attorney General
killing of police officers who, by their uniform, are a symbol of the democratic
establishment; hijacking of aircraft in furtherance of revolutionary movements;
terrorist assaults on foreign diplomatic personnel and establishments; and open
declaration of war on our form of government are only a few of the violent acts
which have been perpetrated by domestic subversives who seek to destroy or
* seriously cripple our Government. Terrorist guerrilla attacks which were
· once confined to far away places and related to problems of no immediate con-
cern of ours are now possible in this country. Foreign terrorist groups in
collusion with domestic terrorists have laid plans for an airport massacre of
the type which recently occurred in Israel. Other foreign terrorist elements
have laid plans for terrorist attacks on American soil. Already one foreign
official has been assassinated, possibly by terrorists.
It would be folly to adopt an investigative policy based on
the concept of investigation only when there is reason to believe a crime
involving the national security has been committed. The FBI must
obviously anticipate the crimes described above. We believe that in
order for the Government to be in position to defend itself against revolu-
tionary and terrorist efforts to destroy it, the FBI must have sufficient
investigative authority to conduct intelligence-type investigations not
normally associated with enforcement of the statutes. In other words we
think the President has the inherent Executive power to expand by further
defining the FBI's investigative authority to enable it to develop advance
information concerning the plans and aspirations of terrorists and revolu-
tionaries who seek to overthrow or destroy the Government. However, we
also believe that such expanded authority must be formally set forth in an
Executive order and that this recommendation is responsive in the Attorney
General's expressed interest in laying more formal guidelines to our work
in areas where definition is not now clear.
We consider the issuance of a new Executive order delineating
our jurisdiction, authority, and responsibility to gather and report intelligence
information relating to the national security to be a very important and high
priority matter. We believe the issuance of guidelines by the Attorney General
under Title 28, Section 533, United States Code, to be equally important.
-7-
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The Attorney General
i
For your information, our own investigative guidelines as con-
tained in our Manual of Instructions relating to domestic subversive investiga-
tions have been completely rewritten to conform with the concept that our
domestic intelligence-type investigations are based on Federal statutes. These
guidelines provide that in each instance, the domestic intelligence investigation
must be predicated on information indicating that the organization or individual
is engaged in activity which could involve a violation of specific statutes relating
to the national security. A copy of the new guidelines was previously provided
to the Department of Justice in connection with the request of Senator Edward M.
Kennedy to obtain a copy of the FBI's Section 87 of the Manual of Instructions.
The effective date of the new guidelines was August 1, 1973.
-
1 The Deputy Attorney General
NOTE:
See memorandum T. J. Smith to Mr. E. S. Miller dated 8/6/73,
captioned as above, prepared by TJS: bjr.
3
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**PN!149463eptmatOLET==
Mr. J. B. Adams
W. R. Wannall
5/0/74
RUCKELSHAUS' ISSUE #2:
SHOULD THE INTELLIGENCE GATHERING FUNCTION
OF THE FBI BR SEPARATED FROM THE LAW
ENFORCEMENT FUNCTION OF THE FBI?
Reference my memorandum, 4/16/74.
Referenced memorandum enclosed a lengthy analysis of the above
issue, which contained recommendations for in-house consideration. Mr Adams
asked that an abbreviated version be prepared for referral to the Department of
Justice, containing the conclusion that all three missions of the FBI, viz., law
enforcement, internal security, and counterintelligence be retained by the FBI,
ACTION:
of Justice..
Enclosure
Attached is abbreviated position paper for referral to the Department
This document is prepared in response to your request and is not for dissemi
nation outside, your. Committee.
Eur Committee and the content may not be disclosed to unauthorized person-
Its use is 
limited to official proceedings by
nel without the express approval of 
the FEI ..
JFM: vb
(4)
1
V
Mr. W. R. Wannall
1- Mr. A. B. Fulton
T①③- Mr. J. F. Miller
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INQUIRY # 4
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The Deputy Attorney General
October 1, 1973
1
རབ་མཚོན
m
Director, FBI
TENURE OF THE DIRECTOR
appointment of director
of 739.
In response to your request, the following is submitted
concerning the tenure of the Director of the FBI:
1. The problem:
In view of the unique position occupied by the FBI Director,
is it in the best interests of the Government and the Nation to limit the
term of office?
2. The present policy:
By statute, the Director of the FBI shall be appointed by
the President, by and with the consent of the Senate. There is no
specified term of office.
3. The issues raised:
SHA
REC-11 63-7865-108
There have been a number of bills introduced in the last
fifteen months proposing legislation limiting the tenure of the Director
to varying terms up to fifteen years. There has been no affirmative
action taken on any of them.
4. Options for future policy:
MAILED 3
ОСТ 3-1973
A-FBI
tie
SALEHE
2 OCT 5 1973
The options are whether the tenure of the Director of the
FBI should have no limitation or that a fixed term be established.
ENCLOSURE
1
BATTAL
ssoc. Dir.
sst. Dir.:
Admin.
Comp. Syst.
Ext. Affairs
Filos & Com.
Gen. Inv.
Idont.
Inspection
Intell.
Laboratory
-
CON
In my testimony before the Committee on the Judiciary
in June, 1973, I indicated that I felt independence is achieved through
tenure, and expressed by thought that nine years would be a proper
term.
GLM:1mm (6)
1 - Mr. Callahan (Direct)
1 - Mr. Walsh (Direct)
PlaBased on Memo Walsh to Hunsinger, 9/28/73, GLM:pas.
Spec. Inv.
Training
Legal Coun.
Telophone Rn.
Director Sely.
8257
' ཀུ
Ah
ami to n
〒604
not for dissemi-
This document is prepared in response to your request
nation outside your Committee. Its use is limited focal proceedings by
your Committee and the content may not be disclosed to 
unauthorized person-
nel without the express approval of 
the FBI.
DocId: 32989541
MAIL ROOM1973
NW#:88608"
The Deputy Attorney General
After assuming the office of Director I have had an
opportunity to afford further thought to this question and appreciate that
there are some substantial considerations that question whether the
Director of the FBI should be restricted to a given term of office. From
a practical standpoint, it is doubted that legislation to specifically restrict
the term of office of a Presidential appointee is necessary. We know of
no clear-cut authority to remove an official who has received a Presidential
appointment. However, in the final analysis, the President would likely
get his way because he has the power to appoint a successor, in this case
the Director. In effect, in absence of tenure, the Director will be serving
at the pleasure of whoever is President.
Should the position of Director of the FBI be singled out for
restriction as to term of office? An informal check by this Bureau has
disclosed no restrictions on the tenure of heads of other investigative
agencies; namely, Central Intelligence Agency, Drug Enforcement
Administration, and Secret Service. Accordingly, to single out the
Directorship of the FBI would be in effect an exception. To provide
tenure for the Director of the FBI would be tantamount to placing him
in the same category as heads and commissioners of regulatory bodies
and the Interstate Commerce Commission who do serve for specific
periods. The latter officials make regulatory decisions affecting the
Nation and specific terms of office have the effect of assuring a
continuing balance of political power. The office of Director of the
FBI is not political.
Experience has shown that cooperation by other law
enforcement agencies and the general public has been instrumental
in FBI investigative success. While it cannot be precisely measured,
the degree of confidence inspired by the individual serving as Director
influences the quality and quantity of such cooperation. The office of
Director, a non-political one, has been charged with the responsibility
of providing factual information upon which administrations of diverse
political persuasions could formulate prosecutive policy and look after
the internal security interests of the country. Singling out the position
-2-
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The Deputy Attorney General
of Director of the FBI for a restricted term of office could suggest
that perhaps the confidence heretofore placed in the FBI is no longer
merited. Whether this would have any impact on the confidence and
cooperation by the public would be problematic.
After weighing the foregoing and considering the unique
role of and regard for the Director of the FBI, it is my conclusion that
the Nation would feel comfortable with tenure for the Director of the
FBI, and tenure would contribute toward countering any construction
that appointment of any Director was political in the sense that the
Directorship would not necessarily change hands with each administration.
I feel the incumbent senses a greater independence through tenure.
I feel that tenure should be for a period such as nine years
to minimize the occasions when appointive consideration would coincide
with a change in administrations. Such a period would also provide the
incumbent a sufficient feeling of independence. However, this Bureau
defers to the Department on the subject of length of time.
:
i
:
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INQUIRY # 5
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DocId: 32989541

*g¥ £ ! }?
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Ext. Affairs
MAILED 2
Files & Com. _
Gen. Inv.
Ident.
Inspection
Intell.
Laboratory
Spec. Inv. ✓
OCT 17 1973
Plon. & Evo ✓
చర
Training
Legal Coun.
Telephone Rm.
The Deputy Attorney General
Director, FBI
rector,
OF.B.I.
Should the Federal Bureau of Investigation.
be an Independent Agency?
October 16, 1973
In response to your request, the following is submitted
regarding Question #5, "Should the FBI be an independent agency
or continue as part of the Justice Department?”
1. Problem: Should the FBI be an independent agency or continue
as part of the Department of Justice?
2. Policy: At the present time the FBI is a bureau within the Depart-
ment of Justice and, as such, is responsible to the Attorney General.
3. The Issues Raised: The question has arisen on several occasions
whether the FBI, with its vast resources and knowledge, should be
under the control of a political appointee, the Attorney General, or
separated from the Department of Justice and established as an
independent agency within the Executive Branch.
nel without the express approval of the FBI
your Committee and the content may not be disclosed to unautharze person
nation outside your Committee. Its use limited to official proceedings by
This document is prepared in response to our request and is not for dissemi-
REC-38 62-24172
Options for Future Policy The main options for the future of the.
BI are two: (1) Remove it from its position as an integral part of the
Department of Justice and establish it as an independent agency, or
(2) maintain the present status of the FBI in its role as the investiga
tive arm of the Department and, as such, responsive to the directives
of the Attorney General.
20 OCT 19 1973
A brief look at history indicates that in 1908 Congress treated
the Bureau of Investigation and designated it as a part of the Department
of Justice. The main reason for this action was that a certain void
existed prior to this time in the enforcement function performed by the
Attorney General. While the Department traditionally bore the responsi-
bility of enforcing the laws of the United States and prosecuting violators
of these laws, there existed no permanent group of individuals who could
JFA:CSH (6).
MERCallahan'
19 19 Baker
NW#8860AIL ROOM
Ahearm74
TELETYPE UNIT
DocId: 32989541
'
Cover memo, Baker to Callahan,
10/4/73, re "Issues Raised by
Mr. Ruckelshaus. re future of FBI"
(JFA:csh)
لسنة
'WVC
дит
BA
отт
EM
The Deputy Attorney General
conduct the fact-finding investigations necessary to sustain successful
prosecutions. The creation of this "detective" force by Congress aimed
to fill that void.
Over the years the responsibilities of this agency, which eventually
became known as the Federal Bureau of Investigation (FBI), have increased
tremendously. From a small agency charged with the task of conducting
investigations regarding relatively few matters, the FBI has developed into
an agency held accountable for investigating violations of over 180 categories
of Federal Law. In addition, the FBI has become more than just an investi-
gating agency, due to its maintenance of various data in certain areas
indispensable to a criminal justice system.
The proposal to make the FBI an independent agency within the
Executive Branch has been voiced on several occasions in Congress.
Within the very recent past two bills were introduced in the Senate to
achieve this aim. Additionally, as far back as 1947, Congressional
sentiment existed to separate the FBI as an independent agency.
The proponents of this move have made it clear that the possi-
bility of a politically motivated FBI has caused them great concern and
led to the introduction of measures which they feel would go a long way
toward preventing undue political influence. The argument is made that
the Attorney General is almost always a political appointee of the President,
whose views generally conform with his own. Those espousing this argu-
ment point to recent events as examples of how an Attorney General could
use his position to political advantage and fear that because of this motivation
'he could easily manipulate an agency possessing vast amounts of sensitive
information and substantial resources, such as the FBI, and easily misuse
this organization which is subject to his directives as a part of the Depart-
ment he heads.
The question arises at this point whether removal of the FBI from
the Department of Justice is the proper means of assuring its justifiable
degree of independence and freedom from undue political pressure. The
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The Deputy Attorney General
designation of the FBI as an independent agency would simply mean
that the Director would no longer report to the Attorney General, but
would instead be responsible directly to the White House, as is the
case with existing independent agencies. There appears to be some
serious doubt whether an FBI Director would be more or less subject
to political pressure when placed in this posture. The FBI must be
responsive to the desires and needs of the American public and in
this sense only should it be considered politically responsive. The
danger of becoming enmeshed in partisan political dealings might easily
be increased by removing this additional layer of Executive Branch
responsibility which now exists in the person of the Attorney General.
Opponents of these proposed Senate bills note that, while some
danger does exist in the FBI's reporting to a political appointee, a far
greater danger would exist if the FBI, performing as an independent
agency, became the arm of a politically motivated Director who was
responsible to no one but the White House.
When one considers the possibility of an independent FBI, it is
difficult to ignore the specter of a national police force at the disposal
of the incumbent administration, a condition generally repugnant to our
citizens.
The relationship between the investigator and the prosecutor is
a very delicate, yet vital one. Neither can properly fulfill his role
without the wholehearted assistance of the other. So it is with the FBI
and the Department of Justice. A close working relationship has
developed and must be maintained if the responsibilities of each are
to be met.
The FBI does need a certain amount of independence and this
fact has been recognized by even its most severe critics. In addition,
Congress, in creating a new Subcommittee on FBI Oversight, has in
effect insured a certain degree of FBI independence.
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The Deputy Attorney General
In consideration of all the foregoing, it is believed the FBI
should remain a Bureau within the Department of Justice where it can
properly perform its function to investigate violations of various
Federal laws and report its impartial findings to those who will conduct
the prosecution of these violations in our judicial system.
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INQUIRY #36
NW#: 88608
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Quee
The Deputy Attorney General
Director, FBI
SUBSTANTIVE ISSUES REGARDING.
THE FUTURE OF THE
FEDERAL BUREAU OF INVESTIGATION
3.
October 16,
1973
Reference is made to your memoranda to me, captioned
as above, and dated July 20 and August 20, 1973.
Attached hereto is the FBI response to Issue #6..
Enclosure
110
JFH:CSH (65
MOPA
NOTE: Mr. Ruckelshaus' memorandum of 7/20/73 enumerated 11
issues regarding FBI organization and operation being studied by him.
The 8/20/73 memo/set forth the format for response. Issue #6 concerns
the relationship between the Director and the Attorney General, assuming
that the Bureau remains a part of the Justice Department.
62-24172-349
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst. _
Ext. Affairs
Files & Com.
Gen. Inv.
{dent.
Inspection
Inteli.
Laboratory
Plan. & Eval.
Spec. Inv.
Training
Legal Coun.
Telephone.m.
Director Say 60
1
-
Mr. Callahan
1
-
Mr. Baker
1
-
Mr. Emery
MAILED 2
10 1973
OCT 19 1973
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117.
• This
REC-56
ENCLOSURE
EX-112
5 OCT 19 1973
25891313
ARO
document is prepared in response to your request and is not for dissem
your Committee and the .content may not be disclosed to unauthorized person-
nel without the express approval of the FBI.
1973 TELETYPE UNIT
DocId: 32989541
Issue #6: Assuming the FBI remains a part of the Justice
Department, what should be the relationship of the Director to the Attorney
General? All the organizational and substantive relationships should be
examined.
1. The problem: By Congressional enactment, the Attorney
General has been designated the head of the Department of Justice and has
been charged with the responsibility of supervising and directing the
administration and operation of that Department. Further, the Federal
Bureau of Investigation has been placed in the Department of Justice with
the Director of the FBI as its head. The FBI, through Congressional
enactment, Executive Order, and Directive of the Attorney General, has
been charged with the responsibility of performing certain duties subject
to the general supervision and direction of the Attorney General. The Director
of the FBI, a Bureau chief within the Department, having been granted
enormous responsibility, must attain a proper balance between independence
and responsiveness in order to properly discharge this responsibility.
2. The present policy: Disclosures of political and business
corruption and unethical practices during the investigation of land-fraud and
antitrust cases in the early 1900's, coupled with the recognition of the need
for an investigative arm within the Department of Justice subject to its
control, led to the creation of the Eureau of Investigation (forerunner of the
Federal Bureau of Investigation) within the Department in 1908. In an effort
to reverse a trend of political influence within the Bureau and the Department,
Attorney General Harlan Fiske Stone in 1924 appointed J. Edgar Hoover as
Acting Director of the Bureau. Shortly thereafter Attorney General Stone
dictated that the Director of the FBI be directly responsible to him with respect
to the operations of the Eureau as a whole. In addition, it was understood that
the Bureau was to operate free of political influence and limit its investigative
activity to certain violations over which the Bureau had jurisdiction.
This pact was formed to give the Director, charged primarily
with delegated investigative responsibility, a degree of independence
recognized as so necessary for him to properly discharge his duties and
JFH:CSH (6)
Attachment to memo to Deputy Attorney General,
10/16/73, captioned "Substantive Issues re Future
of the FBI"
ENCLOSURE
62-24172-349
NW#: 88608
DocId: 32989541
still remain subordinate to the Attorney General, who had been charged
primarily with a prosecutive function. Codification of duties to be performed
by the Attorney General as head of the Department of Justice, and the Director
as head of the FBI within that Department, plus recognition that both must
attempt to perform their related duties within the criminal justice system
to the optimum, has led to the necessity for a substantial degree of inde-
pendence on the part of the Director, balanced with a responsiveness by
him to reasoned counsel, guidance, supervision and control by the Attorney
General.
3. The issues raised:
(a) During the "Princeton Conference" it was said that time and
practice have made the FBI a totally separate power answerable to no one.
More specifically, the Attorneys General, Fresidents and Congress have
granted power and responsibility to the FBI but have failed to direct, guide
and control it.
(b) During the course of the FBI investigation of the "Watergate
break-in," allegations were made that the FBI has been too responsive to
demands made upon it, particularly those of a political nature.
4. Options for future policy: The Director of the FBI, as head
of the principal investigative Bureau within the Department of Justice,
must be permitted to discharge his responsibilities free from political or
unethical pressure. This must be balanced with his responsibility to remain
responsive to the Attorney General's leadership and direction of that Depart-
ment having as one of its principal functions the enforcement of the Federal
law through prosecution. A Congressional oversight committee, available
to give the FBI counsel, guidance and direction, could greatly assist the FBI
in achieving and maintaining this balance.
There must be an efficient working relationship, with free and
open channels of communication between the Director and the Attorney
General, due to their mutual and interlocking responsibilities in the criminal
justice field, primarily investigative on the part of the FBI and prosecutive
on the part of the Department. This relationship should generate, at
descending levels in the Department and the FBI, a commitment to accomplish
an efficient work flow, in appreciation of the impact of this interaction on the
NW#: 88608
DocId: 32989541
the
2
&
_entire criminal justice system. Because of the multiple and varied responsi-
bilities of the FBI, the Attorney General-Director relationship and the
counterpart division relationships should insure a smooth and coordinated
effort which will enable the accomplishment of major objectives, while at
the same time providing necessary FBI services to other elements of the
criminal justice system.
That we are well aware of our role and responsibilities in this
regard, and to cite only one of several examples, is evidenced by the opera-
tion of the Computerized Criminal History Program which provides much
needed data to all branches of the system. Thus, to the extent possible,
these relationships should be such that both objective achievement and mutual
assistance between components of the systems are enhanced.
With regard to other continuing relationships having a bearing on
the Attorney General-FBI Director relationship, the FBI head must communi-
cate directly with the President on occasion, and with the recent establish-
ment of a Congressional oversight committee, direct contact will be main-
tained with this group. Concerning ultimate alternatives in the relationship,
the FBI Director must be in a position to register reasoned disagreement at
times and, if the situation dictates, to take up important matters of disagree-
ment with the President and with the Congressional oversight committee.
-NW#÷88.60.8.
DocId: 32989541'
INQUIRY # 7
NW#: 88608
DocId: 32989541

Ass
Its use is limited to official proceedings by
This document is prepared in response to your request and is not for dissemi
your Committee and the content may not be disclosed to unauthorized person
without the express 
approval of the FBI.
nation outside your 
Committee.
Admin.
Comp. Syst.
Ext. Affairs
Files & Com.
Gen. Inv.
Ident.
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec. Inv. _
Training
Legal Coun.
Telephone Rm.
The Acting Attorney General
ST-114 REC-38
Director, 171 62-
FBI
1
1- Mr. Miller
1- Mr. Wannall
1 - Mr. Mintz
Mr. T. Smith
December 11, 1973
62-24172-356
STUDY OF FBI PROGRAMS AND POLICIES
Reference is made to your letter of December 5, 1973,
captioned as above.
I fully support the idea of a study being launched for the .
purpose of considering the need for additional legislation to enable
the FBI to counter violence in the time of crisis such as existed at the
time the FBI implemented the COINTELPRO - New Left.
As you know, the FBI has conducted an in-depth study
of the scope of FBI jurisdiction and authority and it was concluded
that additional legislation is needed to enable us to more fully
discharge our responsibilities relating to the national security.
Copies of this study have been furnished to the Department.
94-4-24395
62-55087-
66-16339-
UNRECORDED COPY FILED IN 110- 4:1g100-
As for the general study of programs and policies of the
FBI which was initiated by former Attorney General Richardson and
former Deputy Attorney General Ruckelshaus, we have completed
compiling most of the information requested. However, as pointed
out during our meeting on December 5, 1973, information requested
in item No. 7 relating to Investigative Techniques was so broadly
requested by Mr. Ruckelshaus that it encompasses extremely sensitive
foreign intelligence collection techniques. Such information is so
closely held in the FBI that it is handled on a strictly need-to-know basis.
We therefore do not feel that the information should be included in a
study of this type which will be beyond the control of the FBI.
Mr. Petersen noted at the meeting that such information
is needed if we expect to get legislation which would give us the
authority we need in the sensitive foreign field. We recognize this,
TJS:mah (7)
unah
84
REC
58 JAN 8 1974
NW#88608MAIL ROC
MAILED 20
DECIS
LFBI
Id£32989541
are 1110
SEE NOTE, PAGE TWO
JAI 8 1974
1
SEIAED
१. 737,
FERS. REC. UNIT
The Acting Attorney General
but we feel that such could be handled during oral briefings during
high-level conferences. In this regard, you have designated
Messrs. Henry E. Petersen, Robert Dixon, J. Stanley Pottinger,
and Irving Jaffe to be available for consultation and advice.
I am designating Assistant to the Director-Deputy
Associate Director Edward S. Miller; Assistant Director W. R. Wannall,
Intelligence Division; Inspector John A. Mintz, Legal Counsel; and
Inspector Thomas J. Smith, Intelligence Division, to meet with the
aforesaid for the purpose of resolving issues bearing on FBI programs
and policies.
I feel that it would be highly profitable if the Department
and FBI representatives could arrange a two- or three-day conference.
away from Washington, possibly at our Quantico facilities, where
an uninterrupted discussion of the various problems could be held
and during which recommendations for positive action could be
formulated. If you agree, I will try to arrange something for soon
after the first of the year.
NOTE:
A conference was held 12/5/73, between Mr. Bork and the
Director. Als present were Assistant to the Director Edward S.
Miller and Inspector Thomas J. Smith from the Bureau and
Mr. Henry E. Petersen. Relet was discussed at the conference.
The letter was deemed necessary because of the Carl Stern suit
involving his request under the Freedom of Information Act for
documents relating to the COINTELPRO - New Left. Mr. Bork feels
that the Bureau and Department should study need for future
legislation in connection with issues relating to the COINTELPRO.
NW#: 88608
DocId: 32989541
DJ-150
d. 4-26-65)
د که
-UNITED STATES GOVER ENT
Memorandum
TO
FROM
:
: Clarence M. Kelley, Director
Federal Bureau of Investigation
Info-
ARTMENT OF J
Assoc. Dir. K
Asst. Dir.:
Admin.
Comp. Syst.
DATE: December
Robert H. Bork, Acting Attorney RHB
General
Ext. Affairs
Files & Com.
-
Gen. Inv.
Ident.
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec. Inv.
Training
[Legal Coun.
Telephone Rm.
12/1/73
SUBJECT: Study of FBI Programs and Policies
Director Sec'y
Mr.
See meets.
/5AF131,
2-12
EXP: PROC
DEC 5 1873
As you know, a general study of the programs and,
d
/G
policies of the FBI, was initiated in July by former Attorney
General Richardson, former Deputy Attorney General Ruckelshaus,
and yourself.
As Acting Attorney General, I have continued to
support this effort and you and I have discussed various
approaches to further implementation of the study.
In addition
I have discussed the matter with Senator Saxbe to assure that
he is properly advised of on-going matters pending before the
Department. As a result of my conversation with him, I am
certain the study will continue to receive the highest priority
when the new Attorney General assumes office.
A new dimension was added, however, as a result of
a suit filed against the FBI under the Freedom of Information
Act by a reporter for the National Broadcasting Company, Carl
Stern. The suit brought to my attention certain information
which demonstrates anew the importance of the study.
In my
capacity as Solicitor General, I decided that the law and the
public policy expressed in the Freedom of Information Act did
not warrant appealing the district court's decision that the
documents in question must be provided to Mr. Stern. I under-
stand that the material is in the process of being turned over
to Mr. Stern.
ST-114
REC-38 62-24172-356
Meanwhile, it is appropriate--indeed imperative--
that you complete as rapidly as possible the inquiry into
investigative techniques that you and Mr. Ruckelshaus had
begun. As you and I have agreed, the study should focus in
particular on the programs and activities referred to in the
documents involved in the Stern litigation. I ask that you
UNRECORDED COPY FILED IN
104-449
62-55047
SPORT
report on these matters as expeditiously as possible, and
that your report include a detailed summary of conduct in theis 1073
past under such programs and actions taken to insure that the
rights of individuals are not violated while essential FBI
investigations are pursued. In terms of priority, I think
that the program COINTELPRO--New Left should receive first)
This document is prepared in response to your request and is not for dissemi-
nation outside your Committee. Its use is limited to official proceedings by
your Committee and the extent may not be disclosed to unauthorized person EC. UNIT
nel without the express approval of the FBI.
NW#8.8.6.0.8.
DocId 32989541
ETVA
2
consideration. I also seek your recommendations as to any
corrective action that should be taken either by you or by
the Attorney General. It may be that the best solution
would be additional legislation.
In addition to the general support of the Depart-
ment and its personnel to assist you in your undertaking, I
am specifically designating four Department officials to
make themselves available to you, individually or as a group,
for consultation and advice. They are Henry E. Petersen,
Assistant Attorney General in charge of the Criminal Division,
Robert Dixon, Assistant Attorney General in charge of the
Office of Legal Counsel, J. Stanley Pottinger, Assistant
Attorney General in charge of the Civil Rights Division,
and the acting head of the Civil Division, Irving Jaffe.
They will also be available to the incoming Attorney General
for the same purpose.
I know that you agree with me that it is critical
to the national interest that the FBI be able effectively
to counter violence in time of crisis and that there be no
occasion for public doubt concerning the legitimacy of its
actions.
NW#1886
DocId: 32989
INQUIRY # 8
NW#: 88608
DocId: 32989541
FILES AND THEIR DISCLOSURE
Issue
#8
I. Problem:
Mr. William D. Ruckelshaus, in item #8 of memorandum to the Director
dated 7/20/73, stated, "The whole question of files and their disclosure must
be studied with a view toward understanding why files are kept, what categories
of files there are, what information is contained in the files and whether the
purposes for maintaining files are being met under present policy. In the
issue of disclosure, when, where, and to whom must also be thoroughly
examined.
As problems involved in creation and maintenance of files and disclosure
of information contained in them are rather complex they are being discussed
separately. Identification Division records consisting of fingerprint cards
and identification records (Rap Sheets) are not considered to fall in this
category of "Files" and their use is not being commented upon.
II. Present Policy
A. Why Files Are Kept:
Age of information in FBI files covers a relatively short span of years.
FBI had very few files until the President in 1939, directed the FBI be responsible
for the Internal Security of the United States. In view of this, and as the number
of violations of law over which the FBI has jurisdiction has nearly doubled since
1939, the vast majority of FBI files have been created since 1939.
Regulations of National Archives and Records Service, (NARS) General
Services Administration, which are based on Title 44, Chapter 33, Sections
3301 and 2302, U.S. Code, govern the type of material which we must maintain.
Record material is described as including "all books, papers, maps, photographs,
or other documentary materials, regardless of physical form or characteristics,
made or received by an agency of the United States Government under Federal
Law or in connection with the transaction of public business and preserved or
appropriate for preservation by that agency or its legitimate successor as
evidence of the organization, functions, policies, decisions, procedures,
operations, or other activities of the Government or because of the informational
value of data contained therein.
"
This document is prepared in response to your request and is not for dissemi-
nation outside your Committee. Its use is limited to official proceedings by
your Committee and the content may not be disclosed to unauthorized person-
nel without the express approval of the FBI .
(CONTINUED - OVER)
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In view of this definition of record material, we are required to retain
any material which we have made or received during the course of public
business, and which has been preserved or is appropriate for preservation.
In 1969, NARS surveyed the records of the Department of Justice
including those of FBI and subsequently instructed that certain categories
of FBI files at FBIHQ be retained indefinitely. Included were files which
would have historical value and would document policies, procedures, functions,
budgetary policies, etc. In addition, vast majority of investigative files must
be kept indefinitely although it was prescribed that only a representative sampling
of certain types of violations at five year intervals be retained. These require-
ments apply only to files at FBIHQ. NARS has previously approved destruction
of closed field files as all pertinent information is in file at FBIHQ. As a
practical matter, however, field investigative files are retained 20 years
before being destroyed.
to
The FBI has an active program to keep its records at FBIHQ the barest
minimum. While certain categories of our files, as previously mentioned, must
be retained permanently, some are obsolete and valueless. With approval of
NARS we destroy certain categorics of such obsolete material. Examples of
the larger categories are: Results of investigations over 25 years old regarding
alleged subversive and espionage activities wherein complaints were nebulous
and no derogatory information was developed, and investigations where the
perpetrators of the crimes were never identified.
In order to reduce amount of storage space required for files we
microfilm, with approval of NARS, majority of files regarding criminal
violations which are over 10 years old.
B. Categories of Files
Material is filed into one of the following general types of files:
Main Files
A main file is opened on an individual, organization, or subject matter
when there will be an adequate volume of mail or the matter is deemed of
sufficient importance to be assembled in one place. Main files are referred
to as "Case Files" when we are making an investigation.
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- 2 -
General Files
s are
General files are used for nonspecific violations, complaints over
which we have no jurisdiction, and miscellaneous matters. General files.
also maintained on various individuals; organizations; foreign, local, and state
law enforcement agencies as well as Federal agencies (for information regarding
cooperation, liaison, general organization, etc.); associations; patriotic organi-
zations such as the American Legion; newspapers, magazines, radio and television
stations which cooperate with the Bureau in publishing fugitives and to whom we
give press releases; and activities of foreign nations such as Soviet and satellite
activities, etc.
Control Files
Control files are maintained for the purpose of having all information
regarding a specific matter immediately available without the necessity of
reviewing numerous case files. An example is "Threats Against the President."
Individual case files are opened for each threat on which we conduct an investi-
gation; however, a copy is placed in the control file so that all such threats are
recorded in one place.
Policy Files
A policy file is maintained for each violation over which the FBI has
investigative jurisdiction along with various specific programs arising from
this jurisdiction.
Administrative Files
Administrative files are maintained on statistical reports, appropriations,
conferences, training schools, FBI National Academy matters, and related
subjects.
Set-up Files
These are files which are set up by locality or special category with
subs for field offices, states, continents, or foreign nations. Almost any type
of file can be made a set-up file if the volume of mail expected is great enough
or if the supervision of the subject matter is divided among several Special
Agent Supervisors according to locality.
NW#: 88608
DocId: 32989541.
3.
C. Type of Information Contained in the Files
Generally speaking, there are no limits as to the type of information
in our files. The FBI, by the very nature of its jurisdiction and its worldwide
reputation as an elite law enforcement agency, attracts information. In addition
to being responsible for investigations relating to interstate criminal activity
throughout the United States, the FBI is also responsible for the Internal Security
of the United States. Any intelligence organization survives on information
uncovered by investigation or received from other sources. Citizens write to
the FBI regarding any matter which they feel is against the best interests of the
United States or where they feel an individual or organization might be violating
a law. The average citizen is not aware of the jurisdiction of the various
investigative agencies, local, state or Federal and many of them bring their
problems to the FBI. The FBI will promptly disseminate any matter which is
under the jurisdiction of another agency to that agency. The nondisseminated
information is either acted upon and filed, or filed because no action is required.
In addition to the filing of material relating to criminal and security
matters, the Bureau is responsible for a number of applicant-type (background)
investigations and the information developed during these investigations is filed.
D. Disclosure of Information in FBI Files
1. Responsibility for Proper Utilization of Information
Among the foremost of the FBI's responsibilities is the proper utilization
of information received either through investigative activities or through other
means as this information may be of vital interest to another Government agency
or a local law enforcement agency. It is extremely important that the FBI keep
these agencies informed concerning matters in which they would have a legitimate
interest. Information is disseminated at both field and Headquarters level, with
FBIHQ making the information available to Federal agencies at the national level.
2. Basis for Dissemination
a. To Government Agencies
The FBI is under obligation to act as a clearing house for information which
affects the Internal Security of the United States. This obligation is based on the
following:
- 4-
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:
1. Beginning in 1939, various Presidential directives requested all
law enforcement officers to report information regarding espionage, sabotage,
subversive activities and related matters to the FBI. These directives charge
the FBI with the responsibility of correlating the material and referring matters
under jurisdiction of other Federal agencies to the appropriate agencies.
2. The Delimitations Agreement between the FBI and the Armed Forces
intelligence agencies provides that the responsibilities assumed by one organization
in a given field carries with it the obligation to exchange freely and directly with
other subscribing organizations all information of mutual interest. In addition,
a supplemental agreement provides that certain information of general interest
to the intelligence services of the Armed Forces be furnished them.
3. The National Security Act of 1947 provides that upon written request
from the Director of Central Intelligence Agency (CIA) the Bureau shall make
available information for correlation, evaluation and dissemination essential to
national security.
4. Executive Order 10450 (Security of Government Employees) requires
the FBI to check names of all civil applicants and civil incumbents of any
department or agency of the Executive Branch against records of the FBI.
5. Supplement Number Four (Revised) of Departmental Order 3464,
signed by the Attorney General in January, 1953, classified all official records
and information of the FBI as "Confidential." However, in accordance with
long-standing policy concurred in by the Attorney General, the practice of
passing to other Government agencies information coming to the FBI's attention
in connection with the conduct of investigations normally within the Bureau's
jurisdiction was entirely appropriate and correct. The Attorney General advised
the Bureau it would be remiss in its duty if it failed to pass along information
which might prove of interest to the general welfare.
b. White House Requests
Pursuant to requests from the White House, the names of individuals who
attend, serve or perform at White House functions, or who may be considered
for Presidential appointments are checked against Bureau files including
Identification Division records for any derogatory data which indicates the indi-
vidual might pose a threat or embarrassment to the President or members of
his family. Such requests are handled expeditiously and any derogatory infor-
mation is reported directly to the White House staff security officer by appropriate
communications depending upon the time factors involved. At the request of
the White House, the FBI conducts background investigations on Presidential
appointees, White House employees and persons having regular access to the
White House.
NW#:88608
55-
DocId: 32-9-8-9-5-4-1-

For a number of years we have followed the practice of furnishing
significant intelligence information, both in the domestic and foreign areas,
on a timely basis directly to the White House concurrent with the dissemination
of the same data to the Attorney General and other interested agencies. The
Bureau disseminates by teletype to the White House and other interested agencies
summary data concerning civil unrest and acts of violence as they occur in the
U.S. We also provide the White House by letter or teletype, as circumstances
indicate, top-level intelligence data developed through our sources when it
appears the President or senior members of his staff would have an interest.
Much of this originates with our Legats and through our coverage of foreign
establishments in the U.S: Simultaneous dissemination is made to the Attorney
General who is advised of our dissemination to the White House.
It is noted that frequently the value of information being disseminated
depends entirely on the timeliness of our dissemination. Therefore, direct
and immediate dissemination to the White House is the only effective way to
handle these matters.
FBI Legal Counsel on 7/20/72, set forth the opinion that the FBI had no
legal basis to disseminate information to the White House concerning a current
criminal case. It is the obligation of the FBI to keep the Attorney General
fully informed and leave further dissemination to him. Acting FBI Director
Gray instructed this policy be followed and we have been complying with this
direction.
c. Exceptions
1. Congressional Committees
The Attorney General on 6/14/54, ruled that the FBI shall make namė
checks and investigations of individuals being considered for staff positions of
the following Congressional Committees when such requests are made by the
chairmen:
a. Senate and House Appropriations Committee
b. Senate and House Judiciary Committee
c. Joint Committee on Atomic Energy
(Cooperation extended to this Committee pursuant to
the Atomic Energy Act of 1946)
d. Senate Armed Services Commiṭṭee
NW#: 88608
1
DocId: 329895415 (a) -
طال القائد
e. Senate Foreign Relations Committee
2. Supreme Court
The Bureau conducts name checks for the Supreme Court, which checks
are normally limited to employees such as charwomen, elevator operators and
individuals of this type.
3. Foreign Intelligences Services
As a matter of cooperation with friendly intelligence services, the Bureau
conducts name checks for the following such agencies who have liaison
representatives stationed in Washington, D.C.
a. Royal Canadian Mounted Police (Canada)
b. MI-5 (British Security Service)
c. Australian Security Intelligence Organization (Australia)
d. New Zealand Security Service (New Zealand)
e. French Foreign Intelligence and Counterespionage
Service
f. MI-6 (British Secret Intelligence Service)
g. BFSS (Bureau For State Security) ((South Africa)
In addition, name check requests are conducted for cooperative foreign.
police and intelligence services through the Bureau's Legal Attaches stationed
in foreign countries. In a very limited number, name check requests are
handled for cooperative foreign police agencies by direct correspondence.
d. To Local and State Law Enforcement Agencies
The FBI traditionally has cooperated with local and state law enforcement
agencies in matters of common interest. Pertinent information regarding local
criminal matters if furnished to local and state law enforcement agencies when
such dissemination will not jeopardize FBI investigations or informants. During
Fiscal Year 1973, 189, 910 items of criminal information were furnished by the
FBI to local and state law enforcement agencies.
.6.
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E. Type of Information Disseminated
Name check requests received from agencies within the Executive
Branch, as a general rule, are checked against FBI files for "subversive-type" .
references only and criminal-type references are not reviewed. However, for
some agencies, at their specific request, all references in Bureau files are
reviewed. All agencies are aware of the limitation on the type of search made
as they are furnished a copy of an FBI booklet describing procedures for
requested name checks.
The policy of disseminating only "subversive-type" information is based
on the fact that any agency desiring to obtain a copy of the individual's identification
record showing his arrests may do so by submitting a separate request directly
to the Identification Division. A second reason for limiting the search is due to
economy as searching criminal-type references would require additional personnel
and an increase in the cost of conducting name checks.
In response to name check requests, the Bureau disseminates the results
of Bureau investigations, information received from reliable sources concerning
membership in subversive groups, pertinent public source information, and.
information which good judgment and common sense dictate should be furnished.
Information falling in the category of rumor or gossip which is found in Bureau
files is not disseminated unless a compelling reason exists therefor, and when
such information is disseminated to a requesting agency, that agency is alerted
to the nature of the information and the fact that it has not been verified by the
FBI.
Derogatory information on Federal employees is furnished to the Civil
Service Commission and where common sense dictates, it is also furnished to
the employing agency.
F. How Dissemination is Made
1. Name Checks
When possible a copy of the FBI communications is furnished to the
requesting agency. A record is maintained on the original of this communication.
that a copy was furnished to the particular agency. When information is located
in numerous FBI communications, the pertinent data is abstracted and summarize
into a separate communication. A copy of this communication is retained in FBI
files.
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-7-
حمل کالا
2. Other Than Name Check Requests
Any information received by the FBI which is of interest to another
Federal Agency is furnished in writing to that agency.
G. Protection of Information Disseminated
When reports or letterhead memoranda already in the file are disseminated
to a requesting agency, each such document contains the following statement:
.."This document contains neither recommendations
nor conclusions of the FBI. It is the property of
the FBI and is loaned to your agency; it and its
contents are not to be distributed outside your
agency."
Data abstracted from the files and disseminated by letter or in letterhead
memoranda form contains, in substance, terminology appearing above.
III. Issues
Basic issue appears to be whether FBI should retain and disseminate
information in its files which is not acquired as a direct result of its investi-
gations.
IV. Options
There are no options. We are required by law to retain information
which has been made or received in connection with the transaction of public
business and which has been preserved or which is appropriate for preservation
as evidence of the organization, functions, policies, decisions, procedures,
operations, or other activities or because of the informational value of data
contained there. With respect to the dissemination of information to Federal
agencies, we are required by law, Presidential directives, and instructions
of the Attorney General to furnish information in our files to agencies of the
Executive Branch. The exceptions cited previously are logical and no change
is believed necessary.
Likewise, the welfare of the general public requires that we continue.
our policy of furnishing pertinent information regarding local criminal matters
to local and state law enforcement agencies.
NW#: 88608
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INQUIRY # 9
NW#: 88608
DocId: 32989541
بعد
1
Mr. Baker
- 1
-
Mr. E. S. Miller
Mr. William D. Ruckelshaus
The Deputy Attorney General
September 19, 1973
Designate
Director, FBI
1.
1
-
Mr. T. J. Smith
Mr. Sizoo
SUBSTANTIVE ISSUES REGARDING
THE FUTURE OF THE FBI
07. B-I.
Reference is made to your memoranda to me captioned as above
and dated July 20 and August 20, 1973. Attached is the FBI's response to
Issue Nine of your July 20, 1973, memorandum.
Enclosure
JMS: rlc C
(7).
bjr
NOTE:
REC-38
62.24172-
344
Mr. Ruckelshaus' memorandum 7/20/73 enumerated 11 issues
regarding FBI organization and operation being studied by him. The
8/20/73 memorandum from Mr. Ruckelshaus set forth the format for response
for Issue Nine, which concerns the question of a Civilian Review Board
over FBI intelligence gathering activities Our response opposes creation
of such a board.
6
SEP 20 1973
m
ENCLOSURE
Assoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Ext. Affairs
Files & Com.
Gen. inv.
Ident.
Inspection
Intell.
Laboratory
Plan. & Eval.
Spec. Inv.
Training
Legal Coun.
Telephone Rm.
Director Sec'y
MAILED 2
SEP 201973
2Eb 1.
37
FBI
18
Em
12LICE
Wirrek
wkw
This document is prepared in response to your request and is not for dissemi-
atson, outside your Committee. Its use is limited to official proceedings by
your Committee and the content may not be disclosed to unauthorized person.
54 SEP 24 1873 ithout the express approval of the FBI.
MAIL ROOM
TELETYPE UNIT
DocId: 32989541
NW#: 88608
:
:
JM57750
$
-
9. Problem The question of a Civilian Review Board for the intelligence-
gathering activities of the FBI should be examined. This is a recurrent
suggestion which came up at the Princeton Conference, in addition to other
forums.
Policy There is no Civilian Review Board to monitor the FBI inasmuch
as various checks and reins are available to check or control the FBI.
(See Options)
Issue
-
Is it necessary to have a group of civilians review the FBI's'
policy and activities to insure that nothing improper is being done and to
handle complaints regarding the FBI?
-
+
Options No Civilian Review Board is required since numerous means.
exist to control the FBI. These specifically include: a Senate Oversight
Committee, the Senate and House Appropriations Committees, the Office
of Management and Budget, the National Security Council, the President's
Foreign Intelligence Advisory Board, the Civil Service Commission, the
Attorney General, the Department of Justice, the Federal Courts, the news
media, and of course public opinion. The President's Foreign Intelligence
Advisory Board is in reality a civilian review board for the President.
Its members are non-government personnel qualified in matters relating
to national defense on the basis of their knowledge and experience.
Especially is the FBI opposed to the concept of civilian boards exploring
the field of FBI counterintelligence and intelligence-gathering operations
which would adversely affect this Bureau's relations with foreign intelli-
gence agencies. In general, we feel that the Congressional oversight
concept should have put this question to rest.
JMS: rlc
NOTE:
See memorandum to Mr. Ruckelshaus, captioned "Substantive
Issues Regarding the Future of the FBI: dated 9/19/73, prepared by JMS: rlc.
62-24172-
344
ENCLOSURE
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INQUIRY # 10
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I
THE PROBLEM:
Issue
#10
What should be the relationship between the Federal Bureau of
Investigation and the other Departments and Agencies of the Federal Govern-
ment? To what extent should the Federal Bureau of Investigation keep tabs
on other Departments and Agencies through the development of sources and
informants in those Agencies?
II. THE PRESENT POLICY:
A.
Relationship between the Federal Bureau of Investigation and
other Departments and Agencies of the Federal Government
The Federal Bureau of Investigation enjoys a close working
relationship with the other Departments and Agencies of the Federal Govern-
ment and traditionally has cooperated fully with local, State and Federal
agencies in matters of common interest.
Cooperation among the Federal Bureau of Investigation and other
Federal Departments and Agencies takes a variety of forms, including high-
level coordinating committees, contractual agreements, and written guide-
lines for investigative jurisdiction in areas in which the Federal Bureau of
Investigation and one or more Departments or Agencies have concurrent juris-
diction and share responsibility for enforcing a Federal Statute. The purposes
of the committees, agreements, and guidelines are to promote the closest
possible cooperation and coordination between the involved agencies, to insure
there is no duplication of effort in any field, and to insure that proper coverage
is maintained.
In addition to the above cooperative means, the Federal Bureau
of Investigation maintains the following programs relevant to its relation-
ship with other Federal Agencies and Departments:
1. FBI Liaison Program
In order to insure adequate and effective liaison arrangements
with other Government agencies, the Federal Bureau of Investigation main-
tains a Liaison Section within its Intelligence Division at Federal Bureau of
Investigation Headquarters. The objective of this section is to insure that
the Federal Bureau of Investigation's business with other U. S. Government
Agencies is accomplished promptly, effectively, economically, and with a
minimum of jurisdictional or policy problems, through appropriate high-
level liaison with key officials of these Agencies.
NW#: 88608
This document is prepared in response to your request and is not for dissemi
nation outside your Committee. Its use is limited to official proceedings by
your Committee and the content may not be disclosed to unauthorized person-
nel without the express approval of the FBI .
DocId: 3238954rpval
;
By the establishment of effective liaison contacts, we recognize
and solve minor problems before they become major problems, requiring
- protracted and expensive negotiations between the Federal Bureau of Investi-
gation and other Agencies. These objectives are achieved by placing experience
- FBI representatives in contact with officials at the highest levels of other
Government Agencies where the Federal Bureau of Investigation either needs
assistance or has concurrent interests. The Federal Agencies with which the
· Federal Bureau of Investigation currently maintains direct personal liaison are:
(a) The White House
(b) Office of the Vice President
(c) National Security Council
(d) Foreign Intelligence Advisory Board
(e) Drug Enforcement Administration
(f) Central Intelligence Agency
(g) Postal Inspection Service
(h) Department of Defense
(includes direct liaison with various elements of
Army, Navy, Air Force, and Marine Corps)
(i) National Security Agency
(j) Atomic Energy Commission
(k) Department of Transportation
(1) Department of State
(m) Department of the Treasury
(Internal Revenue, Bureau of Customs, Bureau of
Alcohol, Tobacco and Firearms, Secret Service)
(n) Immigration and Naturalization Service
(o) U. S. Marshal Service
Liaison with other Federal Agencies is handled by receiving
telephone calls and visits from representatives of those Agencies, and by
*contacts with them on an irregular basis as the need may arise.
In addition to maintaining close liaison with various Federal
Agencies at the Headquarters level in Washington, D. C., FBI regulations
call for an effective liaison program at the field level. The Special Agents
in Charge (SACs) of the FBI's fifty-nine field offices are directed to speci-
fically designate an Agent (or Agents) to be responsible for developing and
maintaining liaison with other Federal Agencies represented locally. In
each instance, liaison contacts are developed to include a close friendly
relationship, mutual understanding of the Federal Bureau of Investigation
and Agency jurisdictions, and an indicated willingness by the Agency repre-
sentative to coordinate activities and to discuss problems of mutual interest.
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2. Dissemination of Information
The proper utilization of information received by the FBI,
either through investigation or otherwise, is foremost among our responsi-
bilities. Such information may be of vital interest to another Government
Agency and/or local law enforcement agency, and it is not FBI policy to
withhold from dissemination information to which other agencies are justi-
fiably entitled. Dissemination of information to other agencies is handled at
the Headquarters level in Washington, D. C., as well as in the field.
The FBI serves as a clearing house for information affecting the
internal security of the United States. This is based on various Presidential
directives which have specifically requested all law enforcement officers to
report information regarding espionage, sabotage, subversive activities,
and related matters to the FBI. These directives charge the FBI with the
responsibility of correlating this material and referring matters which are.
under the jurisdiction of any other Federal Agency with responsibilities in
this field to the appropriate Agencies.
Various agreements between the FBI and other Federal Agencies
provide for exchange of information of mutual interest and require that the
FBI disseminate certain information to other Departments and Agencies of
the Federal Government. An example is the agreement between the FBI and
U. S. Secret Service concerning protective responsibilities which requires
that we disseminate to Secret Service certain information which by its nature
reveals a definite or possible threat to the President's safety.
Under provisions of Executive Order 10450 the FBI checks names
of all civil applicants and civil incumbents of any department or agency of the
Executive Branch against FBI records.
In August, 1972, the FBI instituted
program aimed at providing
effective and expanded coordination of efforts with the local, state and Federal
Agencies having direct responsibilities in the narcotics field. Each FBI
office has designated an Agent to act in a liaison capacity as a narcotics
coordinator and FBI Headquarters has designated a national narcotics
coordinator to expedite this program. Any information received by the FBI
concerning narcotics is promptly disseminated to the Drug Enforcement
Administration, which is charged with the responsibility of enforcing the
various drug laws.
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3. Cooperative Services
In its traditional role of seeking professionalism at all levels
of law enforcement, the FBI is enthusiastically committed to providing
expert assistance to local, State and Federal law enforcement agencies.
Some of the facilities of the FBI available to Federal law enforcement
agencies are:
(a) The FBI Identification Division. The FBI is the central repository for
fingerprint identification information. Data from the identification records
are furnished to law enforcement and governmental agencies at the Federal,
State, and local levels for official use only.
(b) The FBI Laboratory. The FBI maintains a well-equipped technical laborator
at its Headquarters in Washington, D. C., for the investigative and probative
use of local, State and Federal law enforcement agencies, and prosecutors
throughout the United States. An excellent working relationship now exists'
between the FBI Laboratory and the laboratories of other Federal Agencies
for the exchange of technical data and procedures. The services of the FBI
Laboratory are made available on a cost-free basis to all Federal Agencies in
civil and criminal matters, and to State and local law enforcement agencies
in criminal matters only. Expanded programs of scientific aid and trainingto
State and local crime laboratories are presently under development and will
involve the continuing, close cooperative efforts of local, State and Federal
Agencies and the FBI.
(c) The National Crime Information Center (NCIC). The FBI's NCIC is a
computerized information system established as a service to all law enforce-
ment agencies--local, State and Federal. The system operates by means
of computers, data transmission over communication lines, and telecommunica
tion devices. Its objective is to improve the effectiveness of law enforcement
through the more efficient handling and exchange of documented police informa-
tion. In the beginning NCIC contained data concerning stolen property and
wanted persons. In November, 1971, NCIC operations were expanded to
include a file of offenders' criminal histories, which is known as the Computeri
Criminal History (CCH) file.
(d) The FBI National Academy. Since its establishment in 1935, the FBI
National Academy has provided a professional training program of highest
quality to career officers from throughout the law enforcement community.
At its new training facilities at Quantico, Virginia, during Fiscal 1973,
1,044 officers from various local, state, Federal and friendly foreign law
_ enforcement agencies completed the intensive 12-week course. This course
is designed to enhance an officer's capabilities as a law enforcement
administrator and to better prepare him to teach his fellow officers.
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'
i
Although many officers from other Federal law enforcement agencies attend
the FBI National Academy each year, the number in attendance is limited
due to the mandate that the FBI provide this service to local and state law
-enforcement officers.
B.
Extent to which the FBI should keep tabs on other Departments
and Agencies through the development of sources and informants
in those Agencies
The FBI does not have the authority or responsibility to keep
tabs on other Departments and Agencies of the Federal Government;
therefore, it does not have any policy whereby it checks on other Depart-
ments and Agencies. Because of the lack of FBI jurisdiction to keep tabs
on other Federal Departments and Agencies, no effort has ever been made
for the development of sources and informants in those Agencies for that
purpose.
Although the FBI does not keep tabs on other Departments and
Agencies, it has long been an accepted procedure among other Agencies of
the Government that the FBI would conduct investigations of violations of
Federal law in those Agencies where primary investigative jurisdiction is
vested in the FBI, and we do so on a regular basis. Violations of Federal
law involving personnel of other Government Agencies over which the FBI
has statutory investigative jurisdiction include bribery, civil rights,
Fraud Against the Government, Theft of Government Property, and Federal
Housing Administration matters. This is not a situation unique to the FBI.
A comparable situation exists in which the U. S. Secret Service is charged
with investigating the theft of a Government check. It carries out its
responsibilities not only in its own Department (Treasury) but in all other
Federal Agencies as well.
III.
THE ISSUES RAISED:
A.
Relationship between the Federal Bureau of Investigation and
other Departments and Agencies of the Federal Government
No issues are known to have been raised relative to the FBI's
present policy regarding its relationship with other Departments and Agencies
of the Federal Government.
5
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B.
Extent to which the FBI should keep tabs on other Departments
and Agencies through the development of sources and informants
in those Agencies
In regard to the present policy of not developing sources and
informants in other Federal Departments and Agencies for the purpose of
keeping tabs on those agencies, no issues are known to have been raised.
IV.
OPTIONS FOR FUTURE POLICY:
A.
Relationship between the Federal Bureau of Investigation and
other Departments and Agencies of the Federal Government
It is imperative that there be a friendly, cooperative association
between the FBI and other Departments and Agencies of the Federal Govern-
ment. There must be an efficient working relationship, with free and open
channels of communications, among all Federal Agencies. The Director of
the FBI and the heads of other Federal Agencies should confer periodically
on matters of mutual interest and definitely work together on all occasions.
In order to avoid duplication of effort and problems of jurisdictional responsi-
bilities there should be a clear delineation of duties and investigative limits
for all Federal investigative Agencies.
A prevailing cooperative spirit throughout the entire Federal
law enforcement community is a vital necessity in our Nation's war on
crime and subversion. The rapid escalation of serious crime and the
complexities of upholding the law in today's society have made it imperative
that information, expertise, and resources be freely and expeditiously shared
by all Federal investigative Agencies. Cooperation is a bilateral obligation.
If the FBI does not continue to cooperate and reciprocate in exchange of
information and resources with other Federal Agencies, it cannot conduct
a successful operation. "Therefore, it is my recommendation that the FBI
continue its policy of working closely and cooperating fully with other Depart-
ments and Agencies of the Federal Government.
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:
I
B.
Extent to which the FBI should keep tabs on other Departments
and Agencies through the development of sources and informants
in those Agencies
Inasmuch as no issues have been raised regarding the FBI's
current policy in this area, and since a change in policy involving the FBI
keeping tabs on other Federal Departments and Agencies through the
development of sources and informants in those agencies could be most
detrimental to all concerned, I recommend there be no change in the FBI's
present policy in this area.
A
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INQUIRY # 11
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•
The Deputy Attorney General
e Deputy
5.15. - Gaministrative
Director,
FBI
✓ SUBSTANTIVE
STANTIVE ISSUES REGARDING
THE FUTURE OF THE EBI
INFORMATION MEMORANDUM
Legal
1
October 1, 1973
-
Mr. Baker
1- Mr. E. S. Miller
1
Mr. Boynton
ane heal Mr. T. J. Smith
-
1 Mr. J. M. Sizoo
Reference is made to your memorandum to me captioned as
above and dated July 20, 1973. Attached is the FBI's response to Issue
Eleven of that memorandum in the format requested in your August 20,
1973, memorandum captioned as above.
Enclosure
.
JMS: rlc/bjr
(8)
NOTE:
:
Mr. Ruckelshaus' memorandum 7/20/73 enumerated 11 issues
regarding FBI organization and operation being studied by him. The
8/20/73 memorandum from Mr. Ruckelshaus set forth the format for response
for Issue Eleven, which concerns the retention of FB Legal Attaches abroad
to carry out FBI responsibilities. Our response recommends retention of
the Legal Attaches.
|- ENCLOSURE
ابات المصرية الى يا حية
Villas
STI
سلام
дек
Wenke Palster
1445
REC. 27 son
Isoc. Dir.
Asst. Dir.:
Admin.
Comp. Syst.
Ext. Affairs
Files & Com.
Gan. Inv.
ident.
Inspection
Intell.
Laboratory
Plen. & Eval. _
Fonc. Inv.
raining
gal Coun.
fephone Rm.
ector Soc'y
OCT
MAILED 3
063-1973
MAIL ROOM
EM
RUCK
ال
OCT 4.1973
The document is prepared in response to your request and is not for dissemi
nation outside your Committee. Its use is imited to official proceedings by
your Committee and the content may not be disclosed to unauthorized-person-
nel without the express approval of the FBI.
TELETYPE UNIT
NW# 188-608 DocId: 3298-9541
11. Problem - Should the FBI have foreign officers reporting directly to the
Director?
Policy - The FBI has had Agents stationed abroad in American Embassies
since 1940. This has not been a secret or classified fact. They are known
as Legal Attaches and are not operational. They do not conduct investiga-
tions but depend upon law enforcement and security agencies of the host
government for coverage of FBI leads overseas. They maintain regular
liaison with such agencies in countries where stationed, as well as in other
countries that they visit on road trips.
Legal Attaches are regularly called upon to secure in-depth
cooperation from foreign agencies on criminal and security matters which
are frequently of a complicated and sensitive nature. These matters fre-
quently include requests for surveillances, complicated interviews, informa-
tion from normally confidential records of foreign agencies, apprehensions
and informal deportations. In order to handle such matters effectively, a
Legal Attache must be proficient in the language of the foreign country
involved and must have an extensive knowledge of its culture, customs and
judicial process. On the other hand, he must have a thorough knowledge of
FBI jurisdiction, regulations and policy. This knowledge, which can only
be achieved through years of experience as an FBI Agent, is extremely broad.
In addition, in order to maintain the cooperation of foreign
agencies, Legal Attaches assist these agencies by having investigations con-
ducted in the United States concerning matters of interest to the foreign
countries involved. These matters frequently involve major criminal cases,
espionage and terrorist cases which are often of substantive interest to the
FBI.
Numerous problems arise in connection with handling leads
abroad and matters in this country on behalf of foreign countries. Since
each country is different with regard to its laws, customs, language and
tradition, the FBI has found it necessary and in fact invaluable to have a
man stationed abroad, on the scene, who can insure that prompt and efficient
action is taken and that cooperative relationships are nurtured and protected.
JMS:rlc
(7)
EN
SEE NOTE PAGE 6
This document is prepared in response to your request and is not for dissemi-
nation outside your Committee. Its use 
is limited to official proceedings by
your Committee and the content may not be disclosed to 
ura.orized person-
nel without the express approval of the FBI
NW#: 88608
کے سے بت کی کمی نہیں
DocId: 32989541 ENCLOSURE
per-1445
While our representatives abroad are still FBI employees,
they are well aware that the American Ambassadors hold authority through
various Presidential directives over the entire American presence in their
respective countries of assignment and that all matters of interest must be
coordinated with Ambassadors and their staffs. This includes political
intelligence information acquired by Legal Attaches.
Issue - Is the FBI to continue using Legal Attaches to meets its responsibilities
abroad?
Options:
1. Retain FBI representatives to carry out functions which have
served since 1940 to assist the FBI and U.S. law enforcement agencies in their
responsibilities having foreign ramifications, as well as to assist foreign law
enforcement and security agencies.
The liaison function of FBI representatives serves to develop
and maintain close, cooperative relationships with police and other investi-
gative agencies of the countries covered. In the modern-day world, with
the speed and facility of communication and transportation, crime has taken
on immense international aspects which require constant liaison attention.
Accomplishments attained by the FBI through the liaison activities
of the Legal Attaches with foreign law enforcment agencies in the past fiscal
year (1973) include 1,047 FBI fugitives located; 109 fugitives located for state,
local and other agencies; 167 automobiles recovered; and total property
recovered worth $2,260,725.00.
Retention of Legal Attaches will permit further accomplishments,
such as in several specific cases set forth below. It is firmly believed that
these successes would not have occurred in the absence of personal and
direct FBI liaison with foreign police agencies in the countries involved.
SENSITIVE FOREIGN INTELLIGENCE SOURCE
The Legal Attache, Beirut, has obtained through contacts a
considerable amount of vital information concerning Arab terrorist activities
which have become in recent years a major law enforcement problem through- .
out the world. The Central Intelligence Agency and the State Department
have congratulated us on the intelligence information developed by this
-2-
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SENSITIVE
FOREIGN
INTELLIGENCE
SOURCE
..
SENSITIVE
FOREIGN
INTELLIGENCE
SOURCE
particular Legal Attache. In addition, he recently uncovered an international
car theft ring involving the theft of over 180 cars stolen in the U.S. and
valued at $700,000.
The Legal Attache, Buenos Aires, located and is currently
attempting to arrange for the return of a subject from Argentina who was
involved in a $200,000 fraudulent traveler's check case. This office has
also been successful in tentatively identifying two individuals in Argentina
who have been involved in the disposition of part of $8,000 worth of securities
and blank money orders stolen in Chicago in 1971 during a robbery in which
the owner was shot. This Legal Attache was commended by the American
Ambassador in Buenos Aires for the part he played in the successful recovery
of a hijacked American airliner in Buenos Aires which occurred without loss
of life or damage to the aircraft. The Legal Attache, Buenos Aires, also
played a leading role in preventing Meyer Lansky, the financial wizard of U.S.
organized crime, from receiving asylum in South America. This action resulted
in Lansky's return to the U.S. and arrest by the FBI on Federal criminal con-
tempt charges.
The Legal Attache, London, has valuable contacts not only
with New Scotland Yard but also with all major police departments in
Great Britain. Time and again his office has acted as a conduit in major
cases involving British and FBI interests. He also maintains close liaison
with British intelligence services. The recent rash of letter bombs, one of
of which wounded an employee of the British Embassy in Washington, has
called for immediate and close liaison with British authorities. FBI bomb
experts collaborated closely with Scotland Yard in London to the benefit of
both agencies. Since the U.S. and Great Britain are prime targets of Soviet
espionage, numerous instances of cooperation in this very delicate and
secretive field have occurred between the FBI and the British intelligence
service. This would be most difficult had we not had a Legal Attache stationed
in London.
The Legal Attache, Madrid, through the cooperation of Spanish
police, was able to effect 24-hour coverage on an Arab Al Fatah representative
from Puerto Rico who visited and made contacts in Spain in June of this year.
He also was able to arrange similar coverage on a visit to Madrid in 1973 of
John Joseph Lombardozzi of the Carlo Gambino family of La Cosa Nostra. The
-
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SENSITIVE
FOREIGN
INTELLIGENCE
SOURCE
extensive police work needed for such coverage would certainly not have
been put forth by the Spanish police had they not had a close personal friend-
ship with and confidence in our Legal Attache in Madrid.
SENSITIVE FOREIGN
INTELLIGENCE SOURCE
The Legal Attaches in Manila and Mexico City combined in a
joint effort which resulted in the capture and return to the U.S. of a fugitive
in connection with the theft of over 1 million dollars in California. This
individual had fled to Australia in 1970 and extradition was impossible. The
Legal Attache, Manila, who handles Australia, determined that subject
regularly traveled to Mexico. The Legal Attache, Mexico City, arranged for
• his apprehension by Mexican authorities on a visit to that country.
·Another example of the importance of foreign offices concerns
the kidnaping of a Mexican child in Pueblo, Mexico, by an American citizen.
Ransom in the amount of $105,000 was paid in New Orleans and the child was
safely recovered in a motel in Louisiana. Mexican police authorities developed
very little information concerning this matter. The Legal Attache, Mexico City,
however, through investigative guidance established the identity of the kid-
naper and the fact that he had an estranged wife residing in Australia. The
Legal Attache, Manila, working through Australian police had this woman inter-
viewed with negative results. Australian police authorities were then
guided into checking her finances and determined she had received large
sums of money from Tel Aviv, Israel.
The Legal Attache, Tel Aviv, through Israeli police located the
subject, recovered part of the ransom money and arranged for his extradition
to the U.S. where he is awaiting trial in New Orleans. There is no doubt
that this case would not have been solved had we not had Legal Attaches in
the above-mentioned locations. The foreign police agencies involved had
come up with negative information and only through personal contact and
on-the-scene counsel by our experienced Legal Attaches, were local author-
ities able to produce the information required for the successful conclusion
of this case.
The Legal Attache, Tel Aviv, has effected a close working
relationship with Israeli police and intelligence agencies and regularly
furnishes information which is vital to our coverage of the militant Jewish
Defense League's activities in the U.S. and of Arab terrorist activities. It
is extremely doubtful that we would regularly receive such information were
it not for the presence of our representative in Israel.
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SENSITIVE FOREIGN
INTELLIGENCE. SOURCE
Frie
The tracing of Watergate funds by Legal Attache, Mexico City,
through established Mexican banking sources, is another example of the
capabilities developed by our Legal Attache system'.
2. Attempt to accomplish FBI responsibilities with foreign
ramifications by having other Embassy personnel handle FBI work. This
option, while removing FBI personnel from foreign embassies, would require
an increase in State Department personnel to assume a work load, based
on August 31, 1973, figures, of 4,283 FBI cases in the 20 FBI posts abroad,
including 734 in Mexico, 527 in Hong Kong, 498 in Canada and 401.
in Great Britain. Expenses involved in the returning of all FBI personnel
and equipment in these 20 offices would be considerable and would be
doubled by similar expenses to assign additional State Department personnel
abroad to handle the work formerly handled by FBI personnel.
More important, such a change would result in the FBI being
represented abroad by personnel with no experience in law enforcement
and no knowledge of the internal policies and regulations of the FBI. It
would also result in a person outside the Bureau, not under FBI control,
becoming intimately acquainted with numerous sensitive matters and thereby
opening the gate to leaks or other embarrassing situations from a security
point of view. It is not believed that Foreign Service officers who differ
greatly in background, experience and training from law enforcement officers
could effectively represent the FBI with foreign law enforcement and security
'agencies.
3. Have FBI interests abroad handled by the Drug Enforcement
Agency, Immigration and Naturalization Service, U.S. Customs Service,
U.S. Secret Service or other Federal law enforcement agencies which currently
maintain liaison offices abroad. None of these agencies have the broad scope
of investigative jurisdiction which the FBI is required to shoulder. Their
standards, policies, methods of operations, investigative techniques and
calibre of personnel differ greatly from that of the Bureau. Some of these
agencies are actually operational abroad. No matter how well intentioned such
a representative might be on behalf of the FBI, it is not felt that he would
have the necessary experience and/or knowledge of Bureau operations to
successfully function as a representative of the FBI. It is, therefore, not
believed that this option would be advantageous.
.
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4. End all FBI pursuit of foreign ramifications in criminal and
security responsibilities by FBI personnel stationed abroad and conduct them
by direct communications. This option does not appear to have any advantageous
aspects and would tend to stifle effective foreign-liaison. Only a man on the
scene can be thoroughly aware of the local customs, tradition and judicial
process of the numerous foreign countries involved. Each country is different
and the unique understanding of these differences is vital for successful
communication and cooperation. It is not believed that a supervisor stationed
in Washington can adequately grasp these unique situations. If such an option
is adopted, it is felt that our present outstanding relationships with hundreds
of foreign police agencies would quickly disintegrate. Furthermore, such
communications, because of a lack of direct cable connections with foreign
countries, would force the FBI to utilize direct mail or public cable systems as
opposed to secure methods presently being utilized. This would not only
create long delays, but would also pose serious security risks. This option
is, therefore, not acceptable.
Conclusion
For the reasons set out above, it is felt that the only effective
way for the FBI to discharge the full scope of its responsibilities is to maintain
its liaison posts abroad.
NOTE:
!f
See memorandum to Mr. Ruckelshaus dated 10/1/73,
captioned "Substantive Issues Regarding the Future of the FBI, '
prepared by JMS:rlc/bjr.
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