@ - 16 - @ - This standard was adopted because it requires a strong showing of criminal conduct before a full investigation is authorized. I should point out that a change was made in this part of the guidelines since my testimony before the Senate Select Committee. Originally the standard had required a showing of specific and articulable facts giving reason to believe that the subjects of the investigation are engaged in activities that involve or will involve force and violence and the violation of federal law. The change to the phrase "are or may be" brings the\formulation of the standard more closely in line with the Terry standard. The previous language of the guidelines proved to be too close to the arrest standard--that is, too restrictive as a standard for the opening of an investigation. The close correspondence of the revised draft's standard with the Terry language gives the guidelines' formulation a foundation in the Supreme Court's analysis of an analagous constitutional problem which, while it involves a different area of law enforcement, does provide a definition for the standard which is to control Bureau activities. The proposed guidelines go on to require an additional consideration before a full investigation is opened. The guidelines state: [Tjhe following factors must be considered in determining whether a full investigation should be undertaken: (1) the magnitude of the threatened harm; NW 34956 Docid: 32939495 Page 30
e -17- Y (2) the likelihood it will occur; (3) the immediacy of the threat; and (4) the danger to privacy and free expression posed by a full investi- gation. This listing of factors, which has been added in the latest draft, gives the standard a dimension and explicitness it did not have in earlier drafts. For example, the balancing of the factors would require officials of the FBI and the Department of Justice to close any full investigation even if there is clear threat of a violation of federal law if the threatened harm is de minimus or unlikely or remote in time. Finally, the draft guidelines provide a procedure to be followed in emergency situations when action by the FBI to ~dntervene to prevent the use of illegal force and violence may be required. This section of the proposed guidelines has proven to~be controversial, in part for fear that it seeks to allow the FBI to engage in activities of the sort that were involved in COINTELPRO. As I have said many times before, the activities that went under the name COINTELPRO were either foolish or outrageous, and the preventive action section of the guidelines was not intended to legitimize such activities, nor would it do so. It was included in the draft guidelines in the recognition that emergency situations may arise in which human life or the essential functioning NW 54956 Docld: 32969495 Page 31 ng nen ne ne
rT - 18 - @ . of government may be threatened, In such situations law enforcement officials would be expected to act to save life or protect the functioning of government. Indeed, law enforcement officials would be condemned if they did not act. The preventive action section of the guidelines was designed to provide a procedure for the Attorney General to authorize and report to Congress such activities. It was designed to set up an orderly and careful procedure to be followed in the case of emergency. It could be supplemented by further rules developed by the Attorney General. Under the proposed guidelines the Attorney General could authorize a preventive action only when there is probable cause to believe that illegal force or violence will be used and that it threatens life or the essential functioning of government. The Attorney General could authorize preventive action only when it is necessary to minimize the danger, that is, when other techniques will not work. In the latest draft of the guidelines several specific prohibitions were included. to make clear that new COINTELPRO are not to be sanctioned. Prohibited are the commission or instigation by the FBI of criminal acts; the dissemination of information for the purpose of holding an. individual or group up to scorn, ridicule, or disgrace; the dissemination of information anonymously or under false identity; and the incitement of violence. It may be that Congress will choose to prohibit any FBI efforts to intervene to prevent force or violence. But to do so carries with it a risk and a responsibility. NW 54956 Docld: 32989495 Page 32
a, @ - 19 -  ) The proposed guidelines are still in the process of revision. They are tentative. As the guidelines have been developed they have been shown to the Chairman of this Subcommittee. We must enunciate the differences among us about the best words to use and then seek to resolve those differences. But the main thrust of the guidelines is surely the most important thing, their recognition of the need for a program for destruction of files in the interest of privacy, their requirement of consent from the subject of background investigations, their requirement of progressively higher standards and higher levels of review for more intrusive investigative techniques, their requirement that domestic security investigations be tied closely with the detection of crime, and their safeguards against investigations of activities that are merely troublesome or unpopular. Upon these main themes I hope we all agree. The Department of Justice has undertaken other steps to meet some of the issues of concern to this Subcommittee. We have created an Office of Professional Responsibility to investigate allegations of improper conduct by Department personnel and to review the investigations done by internal inspection units of agencies within the Department. We have been trying to work out a legislative proposal to bring national security wiretapping and microphone surveillance under a judicial warrant procedure. On June 24, 1975, I NW 34956 Doocld:32989495 Page 33 1
® - 20 - © ; provided the Chairman of the House Judiciary Committee with statistics concerning the use of national security electronic surveillance instituted without prior judicial approval. Before the Church Committee I recounted the history of national security electronic surveillance since 1940, revealing a year-by-year count of the number of telephone and microphone surveillances. The latest figures in this area show that in 1975 a total of 122 telephone wiretaps and 24 microphone devices were used to overhear conversations. We have tried to be cooperative with this and other committees of Congress about other aspects of the past history of the FBI and other agencies within the Department. We have tried to reveal as much as possible about the past out of a sense of comity and a feeling that the past problems must be discussed in the process of creating new policy. But we have tried also to recognize that the past is not always the best guide to the future. As we review recent history we may be so overwhelmed by it--and by our failure of memory about the social and political forces that shaped recent history--that we will read. its lessons more broadly than we ought to. If there was a lack of humility in the past about the perfection of our vision of what was proper, I hope we cannot fail to recognize the flaws in our vision about the past and the future today. §4956 Doocld: 32999495 Page 34
It is a challenging and interesting time, and I hope together we can prepare ourselves wisely for the future. We cannot escape from the responsibility of looking at the problems we face today and are likely to face in the future. When I testified almost one year ago I stated to this committee--and I want to emphasize most strongly again today-- that I have both a personal and official concern for the issues which face us in this area. Those issues are close to the basic duties of the Attorney General to protect the society--its values, and the safety of its members. I am sure that Director Kelley will agree with me that we must clarify for the present and for the future the kind of course to be followed, meticulously and candidly. I believe we have already made considerable progress in this regard. Together with Congress legislation can be worked out and wise policy achieved. DOSJ-1976-02 NW 34956 Docld: 325989495 Page 35