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•, -

INQUIRY # 1

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UNID STATES DEPARTMENT ON JUSTICE

WASHINGTON, D.C.

20530

July 20, 1973

Mr. Heila

Address Reply to the

Division Indicated

and Refer to Initials and Numbe

Mn Foll

Mr. Baker

Mr. Callanco -

Mr. Cleveland -

Mr (

LoDrad

M:

M.. Tentag

Mr

Marshall

Mr

Mile:

ES.

M:

Sr a cyre

3ár. Thompsou

Mr

"6.5

Tele

_ m

Mir. Boise -

Mr. BarDos

Mr. Eowers

Mr. Herington

far. Conmy -

Mr. Mir:z

Mir. Eerdley

Mare. Hogem

40 197

MEMORANDUM FOR: Mr. Clarence M. Kelley

Director, FBI

FROM:

Wiltam D. Ruckelshaus CeSK

SUBJECT:

substantive Issues Regarding

the Future of the FBI.

F. 13. 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.

2. The issue of whether the

function of intelligence gathering

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

w a clear policy.

ENGY

USURE

3.

The statutory basis for the FBI's intelligence gathering

I functions. Is there any statutory basis? Is the whole function based

on Presidential and Attorney General directives? Should a firm

statutory basis be sought?

EX-LUB

7

18 AUG & 1973

= AERotis document is prepared in lasponse to your request and is not for dissemi-

"Aur 1E isnaton outsue you committee., Its use is timited to officit proceedings by

8.0 AUG2 2 1923

Four cummittee and the contát maynut be disclosed to unanionzea person-

nel without the express approval of the yBl

NWH: 88608 E/Dp@Idt329895414-7-2773 am

**,

RECORDED COPY FIE

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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

lof 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

I 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.

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 throuch

the development of sources and informants in those Agencies?

1l. Should the FBI have fareign 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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Mr. William D. Ruckelshaus

The Deputy Attorney General - Designate

August 24, 1973

Director, FBI

SCOPE DE FBI JURISDICTION

AND AUTHORITY IN DOMESTIC

INTELLIGENCE INVESTIGATIONS

1 - Mr. Mintz

1 - Mr. E. S. Miller

1 - Mr. T. J. Smith

17

• *

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, II.

On August 15, 1973, Mr. Jack Goldkiang, 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.

Assoc. Dir.

Asst. Dir.:

Admin.

Comp. Syst.

Files & Com..

Gen. Inv..

Ident.

Inspection

Intell. -

Loboratory

Plan, & Eval. -

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 N. Kennedy.

REC 77 6 1

EX-103*

AUG 28 1973

: The study made in August, 1972, for fir. Gray was

written and intended purely for in-house use and deliberations and ser

was not prepared for purposes of dissemination or use by any agency

outside the FBId sio

TJS: bjr (6) Bea

Spec. Inv..

MAILED 3

Training

Legal Coun.

Hites

UG 2 7 1973

SEE NOTE PAGE TWO

Cong, Serv.

ument is prepured inresponse to you

Corr. & Cim.

Its use is maid i official proceelings by

Research

wenuttee and the content may nut be disclosed to unauthorized person

Press Off.

Telophono Rm.

SAUG

mel without the express approval of the FBI .

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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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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, referrea

to law enforcement and intelligence functions.

What was meani

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 dietinat in nature that an arganizational circa

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

enforcament, 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

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 .

Are the missions of law enforcement, internal

.. security, and counterintelligence separable?

b.

If so,

is complete separation possible, practical

or politically feasible or desirable?

Can the three missions be accommodated in one

organization?

d.

By doing so, do any of the missions suffer?

e.

If all three missions can be accommodated in

one agency, is the FBI currently doing it the

best way possible?

f. If not, is it practically or politically feasi-

•ble or desirable to change the FBI's way of jer-

forming the mission?

g. 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,

internal security groups are funded by, and act on

behalf of, foreign intelligence services. Internal security is

motivated, are being committed in violation of the uts.

• enlitically

motivated, are being committed

criminal

law.

Yet, the investigation may be a continuing effost,

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, investigati

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 te:rorist

acts, e.g., skyjacking, etc.

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An examination of the services of the democracies

mentioned above, viz., Britian, Australia and Canada, reveal

that all do distinguish between the pure law enforcenent

function and the counterintelligence/internal security

function; however, there is not

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 ão

into countrintelligence

and internal security investi-

gations make them a different animal from "routine" criminal

investigation; yet, they aiso 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

SENSITIVE

FOREIGN

INELeNE practically feasible.

MI-5 and ASIO were originated without

law enforcement powers, and MI-5 candidly admits it would

SOURCES

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.

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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 or 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

Lie new cunyeessiunai tunesh with keepiny

Ent IDI puliiiunity

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 subjeci

it to more intense political pressures, both from within the

administration and without, which pressures it might not be

capable of withstarding.

Such separation appears politically

unfeasible and undesirable.

• Practical considerations against divestiture of

the counterintelligence and internal security functions from

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 wing: of the effective use of the FBI name,

reputation, and contacts and sources built-up over years using

the FBI name.

== 5 -

.*

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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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## Page 14

Former Attorney General

William D. Ruckelshaus'

memorandum, 7/23/73, to F. B. I.

Director, Clarence M. Kelley,

setting forth the ll areas of

inquiry.

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SSC REQUEST OF 10/2/75

Elle Copy

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1 - Mr

* Baker

1 - Mr. Mintz

1 - Mr. E. S. Miller

1 - Mr. T. J. Smith

September 20, 1973

J. F. Miller

Nr. Wiliam D. Buckelshaus

The Deputy Attorney General - Designate

Director, FBI

1 - Mr.

SUBSTANTIVE ISSUES REGARDING

THE FUTURE OF THE FBI

JUNE

Reference is made to your memorandum of August 20, 1973,

Technical Surveillance-girl

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 "Electronie 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.

unrates keen taint

*.*

LY. 105

CAUTION: THE APPENDIX TO THE

UNDATED

LATEN

CAPTIONED

TRONIC SURVEILLANCE," AND THE JULY 11, 1973, MEMORANDUM ARE

CLASSIFIED

"SECRET, NO FOREIGN DISSEMINATION/NO DISSEMINATION

ABROAD."

LOSUS

Enclosurds

MIME

SAN 212 Pm

•c. Dir. -

• Dir.:

nin._

np. Syst. -

= Affoirs -

os & Com. -

n. Inv.

nt..

DATE

9-24-73

BY

Ritas

(8) M :71

SECRET MATERIAL ATTACHED

343

NATIONAL SECURITY

NOTE:

Unauthorized Disclosure:

17121915

Subject to Criminal Sanctions

an. & Eval. -

The

above memorandum and enclosures are in response to the

Neputy Attorney General Ruckelshaus' memoranda of, 7/20 ,and 8/20/73 concern-

hing i#'Substantive Issues Regarding the Future of the FBI." These materials are

phone

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ELECTRONIC SURVEILLANCE

This document is prepared in response to your-request and is not for dissemi

nation outside your Conimitte

Its use us mited to officiat proceedings by.

our connet and the conter: may nut. be disclosed to inauthorized person-

xl without the express approval of the FBI .

SECRET MATERIAL ATTACHED

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TABLE OF CONTENTS

I.

II.

III.

Authorization of Consensual, Title III, and

National Security Electronic Surveillances

A. Consensual •

B. Title III. •

C. National Security. •

Background of Federal Electronic Surveillance

Law...

•-

•

National Security Electronic Surveillance.

A.

Domestic.

→..

1. The Keith Decision

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.

3.

Status •

B. Foreign. . .

IV. Value of National Security Electronic

Surveillances. . . . ••

o

....

V..

Domestic "Internal Security" Electronic Surveil-

lance:

Alternatives to Keith Prohibition. • •

Appendix

• Page

1

1

1

2

4

6.

6

7

11

11

1:3

14

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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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..:

в ..

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

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;

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.

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

power:

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 memoranaum

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 •

hugs: det

want aste cabe de use seria

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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

to his they,

(bug), i.e., the interception of a nontelephone conversation

by means of a microphone which can lead either to a recorder

ox 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 survell-

lance or a wiretap was excluded if it was determined the instal-

lation required a "trespass" and was thus an unlawful search anâ

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

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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 reguirement 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 eléctronic

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 wiretay 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, of 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 worid

seem to be based on the supposition that formal guidelines would

• be exclusive, and binding in all instances.

Any guidelines

issued would

probably be more 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.

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, of 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 tre

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 reguest 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 bot

on to another agency. There is no airtight response to this;

it is a question of human motivation,

sense of obligation, cuty

and responsiblity.

The impulse to be less than diligent is

countered by an employee's professionalism and career

considerations.

***

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1

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 electroni-

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 prohibitea

"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. 2a 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."

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 stil 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.

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

murder police officers, bomb buildings, etc., so law enforcement's

job is then to thwart commission of the crime. This is an inter-

ligence investigation.

It is conducted prior to a threatened

criminal act, not after the act, and

as such ranges wider and

looks into more facets 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 grouo

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.

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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

"national security" basis; and because there is no practical,

goal, the "national

security" foundation for investigation of them has, in many

of the latitude that has been allowed in

"national security"

investigations as opposed to simple criminal investigations.

The difficulty is that these domestic "internal securit:"

cases lie somewhere between what is generally accepted as "nationa"

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 tö 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, committe.

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 crie

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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 postoone

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

I "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 ERCrP 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. FRCIP 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.

FRCIP 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, anä the

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threatened destructive acts might involve solely local offenses,

eig., 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

FRCrP 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 Of FRCIP 41

could be used to secure an electronic surveillance. It is believea

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 os

thwarting that activity, no matter how potentially destructive,

will require enabling legislation. My. 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 tha

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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• NO, FOREIGN

SECRET

SSEMINATION/NO DISSEMIN

ON ABROAD

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

called Headquarters

to inform that our wiretap on the Soviet

FOREIGN

Mission to the United Nations was intercepting an inordinate

INTELLICENCE

OPERATION

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

Soviet on the Czechoslovakian question, reported on the UPI

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

SECRET

NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD

NATIONAL SECURITY INFORMATION

Unauthorized Disclosure

Subject to Criminal Sanctions

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• NO FOREIGN

SECRET

SSEMINATION/NO DISSEMINA

N

ABROAD

SENSITIVE FOREIGAS

OPERATION

INTELEILENCE

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

Pakistan War, our intercepts on various missions to the

many indicators as to the intercepted parties' relative positifERATioNs

United Nations and embassies in the United States provided INTELLIGENCE

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.

SECRET

NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD

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NO FOREIGI

SECRET

ISSEMINATION/NO DISSEMIN

ON ABROAD

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

SECRET

NO FOREIGN DISSEMINATION/NO DISSEMINATION ABROAD

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: NO FOREIGN

SECRET

SEMINATION/ NO DISSEMINA

ABROAD

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!

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 used 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 lanzania.

On September 28, 1971, electronic surveillance reported

Newton's travel plans to China, and on October 19, 1971, it

reported details of his visit.

SECRET

NO FOREIGN DISSEMINATION/ NO DISSEMINATION ABROAD

-iv -

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NO FOREIGI

SECRET

ISSEMINATION/ NO DISSEMIN

TON ABROAD

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 allorea

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 o-

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 needes.

SECRET

NO FOREIGN DISSEMINATION/ NO DISSEMINATION ABROAD

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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 Ill 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.

NW# : 88608

This document is prepared in response to your request and is not for dissem

nation outside your Committee.

Its use is limited to official proceedings by

your Committee and the content. may.nut be disclosed to unauthorized person-

nel without the express approval of the FBI..

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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.

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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.

:

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*** sins

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,

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*"..

-;:

....

múrders 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 aitached study, Title IlI and FRCrP 41

do not seem to offer practical alternatives for this type of coverage.

=..

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UNSTED SPACES COURT OF APPEAR

FOR TRE THIRD CIRCUET

UIRED SINIES OF ANGRICA,

Appellee,

No. 72-1741

ICOR A. IVANOV,

Appellant.

PETITION FOR RENEARING

HERBERT J. STERIT

• UNITED SIATES ATTORNEY

This dooment is prepared in response to your request and'is not for disseme

ration outside your Committee..

Its use is limited to official proceedings by

your Cormittce and the content may nut be disclosed to unauthorized person

nel without the express approvat of the FBI.

On the Bricf:

JONATHAN L. GOLDSTEIN

JO:!! J. BARRY

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i UNITED STATES COUNT OF ARZEALS -

FOR THE QUIRD CIRCUIT

UNIZED STARES OF ABRICA,

Appella2,

NO.

72-1741

V:

IGOR d. IVANOv,

Appellant.

PETITION FOR REHEARING

The United States petitions the Court to grant a

renearing in this case and modify its opinion and decision.

Fe

linit our roquest to thai portion of the decision which relates

to tha disclosure to defendant of the logs of electronic sur-

veillance initiated with the express authorization of the Attorne:

Generel to obtain foreign intelligence infornation.

In our view; the decision, insofar as it ralates 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 Altenament rights.

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SENTSIDE OF TE3 CASE

11

iss initial decision in this case, the Court

arriral austiant's conviction of conspiracy to violate, the

384. F.28 55÷

espl0.age

(Igó7).:

appellant's certiorar

petition was pending, the

Solicitor Ganeral informed the supreme Court that appellant had

been clacürorically overheard. The Supreme Court considered the

effect i such disclosures in this case and in one arising ow

the tenth Circuii in Aldarman v. United States, 394 U.S. 165

(1909) and resended both cases to the respective District Courts:

clusions (1, on the question of

whether with respect to any petitiones

there was electronic surveillance wich

vAriateù nir Fourin Amendment rippes.

anti

(2) it. unere was suen

surveillance

respect to any petitioner,

on ihe

nature and relevance to his conviction

of any conversations which nay have

been overheard througn that surveillance."

394 J.S. 185 (emphasis adde)

The sipreme court, in elaborating on its instructions.

repeated again that the scope of inquiry was to be confined o

Possible Fourth Amendment violations, "It ordered that:

Ine District Court should contine the

evluence prasenced by both sides to

ther which is materiar so the question

of the boscicio violation or a Deci-

Floreng pouren

ArendhonE rigos, 50

the content or conversations illegally

overheard by surveillance which violated

those rights and to the relevance.of

•such conversations to the petitioner's

suassaxent conviction.

The District

Court will make such

findings of l'act

on those questions

as may be appropriate

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in light of the further evidence and

trie

entire existing

record.

Discrict Count decitas

on tre casis

01°

1Cn

2N6S

111

thet

70002

133

e

31!

* 32

aspect

one

01'

HORE

2902620092S

3.

Fourth

Ment, or (2) that although there ras

surveillance in violation of one or

more of the petitioner's Fouron amera-

ment rights,

the conviction or such

•petitioner was not tainted by the use

of evidence so obtained, it will enter

new final judgmento of conviction based

the existing record as suppiemented.

by. its further findings, thereby pre-

serving

appellate review.

394 U.s. 185-37

(emphasis addea)

On. remand, the Government conceded for purposas oste

hearing thai one set of electronic surveillances, contained i

Logs designated 4001-s* and 4002-5*

violated appellant's Fou

Ameniment rights and voluntarily disclosed those logs io hin

(2095a). A taint hearing resulted in a finding by the Bistric*

Court that appellant's conviction was not tointed froz these isg=

and that finding was unanimously uphela by this Cout.

(Opinis=

pp. 22, 22) .

The Government further disclosed that there easted =

second set of logs, designated Government Exhibits a-1, 1-2 a-s

A-3. The Government represented that these logs were dig oa-

trinad by the Depariment of Justice in the exercise of the Prazi-

dent's right to obtain foreign intelligence infornation anè t===

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!.

alsionan certain conversations of Ivanoy were overheard, he vas:

nos una subject of the electronic surveillance reflected on thosa

10gs (14a, 202). These logs were submitted to the court for an

In camera inspection, along with an affidavit of Attorey Cencrai

mücholl, designaied Government Exhibit B.

A copy of the aifida-

vit wes made available to Ivanov. Upon review of these materials,

the District Court made the following findings:

do, that the surveillances here under attaci were

...."..1.

expressly authorized by the Attorney General shown in the

exhloits;

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 oi said premises being

set forth in the exhibits;

4. thai said surveillances were conducted and. nain-

tained solely fos the purpose of gathering foreign intelligence

information;

• 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

nake a disclosure of the particular facts concerning said

surreillances. (202)

Based on these findings, the Court concluded that

::

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disclosure nsed not be made because the surveillances were 1a:-

êul and not in violation of any Fourth Amenament signis of

Ivanoy (20a). Although not atrected to do so of the supreme

Court's mandate, the Court also concluded that disclosure las

not required by reason of the provisions of the Communications

Act of 1934, 47 U.S.C. $ 605 because that Act was inapplicable ie

the sizuation disclosed by the withheld material (23a).

On appeal, this Court reversea the District Court nola-

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 ma 20-21), that, in the present

procedural posture of the case, "it must be assumed that the con-

versations of Ivanov overneard on the wiretaps led to evidence

used ai this trial": (Opinion p. I3.) and, therefore that appei-

:lant is entitled "to disclosure or an evidentiary hearing" (Opizia:

p. 2) )•. In reaching this conclusion, the majority accepted,.

for purposes of analysis, the proposition that the interceptiona

.. were

a lawiul 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 night have been riolate:.

In dissent, Juige Adams concluded both that the proposicion ac-

cepted by the majority for purposes of analysis was, in fact,

correct and that Ivanov's Fourth Amendment rights vere not viola=::

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.•

As the

e prasontly stands, une

no decrmination of the issue which the Supreme Comet pagizE:

directed to ba datermined and disclosure is being eriased 0a =

misapprehension of the legal necessity for such discionio.

ARGUMENT

• POINT I

ASSUMTIG THE COPRECTESS 0E. THE COURTIS

CONSTRUCTIOS OR 47 U.S.C. & 605:

PERE AE

IS NOT EXCITIZO 7O. TEE DISCECSURE 03 222

SURVEILLANCE IOGS OR TO. AN EVIDEAZIARE

HEARING WIDE RESPECT THERETO

•In remanding this case the Unitea States Serene Com

was very careful and very specific as to the scone of its minista.

It ordered the District Court to determine wheihes or cou braze

has been any electronic surveillance which violates /zella's

Fourth Amendment richts. It did not asis the District Court to

-

-

consider whether of not there mey have been a violation on & 555

or lany other faderal statute. It is in this contest flat the

Court's language as to disclosure must be understood because nsas

exisis no precedant which requires the Unided Staves to ture are=

the logs of a foreign intelligence survegilance were suen sca

•Lance has not violated any Fourtr amenince rights of a defeat:

the necessity for the disclosure of the seaseds of

electronic surveillances only arises where such dissicsure is

necessary to protect a defendant's Fourth Amendment =-ita,

-

Alderman V. United Statos, 394. U.S. 165, 182-05. (1959)s IERESE-

netti v. United Stctas, 39÷ U.S. 316, 317 (1959); s03 aiso the ==

curring opinion of Stewari,. Jo, in Giordano v. United States,

•

394 U.S. 310 (1957), the opinions DE Douglas, Jo, 5=2603 =

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bey in Busso Vo

U.S,

3 34 1

*8.

ing from the denial of a petition for cartioneri in the some case;

400 U.S. 1013 (1972).

• As stated by the Court in Tanliucetti:

•..

Nothing in Alderman y. United States, Ivanov

Unitsa States, or Buienko v. Uniüed States; ante

p: 165, roguires an advarsary proceeding and zull

disclosure for rasolution of evary issue reised by

an electionic surveillance.

On the contrary, en

adversary proceeding and disclosure vero requisea

in those cases, not fog lack of confidence in the

Integrity of government counsel or the trial judges

but calv because the in camera procedures at issue

there wouta

nare

Been En inedentate monna to coca-

guara a

drencent is Pourin Amenameno Pisitüs. 394

U

•S.

at 317 (impnasis adaed)

As stated by. Mr. Justice Stewart in Giordene:

As we made explicit in Aldeman, Butenko, and

Ivanov, the requirement that certain producis

governmental electronic surveillance

be turnad

over to defense counsel wes esmressly limited to

situations

where the surveillance haa violated

the Fourin

Ansnarent. 394 U.s. 310, 343 (imprasis

saded;

• in ardomas, the cout consuda that einousn

procedures vere suificient to vindicate siatutory rights.

such 25

those wider the Jencks act and certain que process rights, such as

the right to the disclosure of the identity o

an incormer (38÷ U.5

at 182-83, fin. 14), such procedures

"are unable to provide the

scrutiny which the Fourth Amendment exclusionary rule demands" =

those circumstances where there exist "a large volume of factual

materials":

384 U.S. 183-84.

Thus, Alderman cannot be rera to require disclosure

where there has been no violaiion of Fourin monament signes.

Indeed, even In cases involving a possible violation of louren

mendent, rights.

Alderman can be read as not. requirin, disclo

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ir.=

where there exist, congelling reasons for nondesclosure ma the

factual materials tivolved are neither volumnous nor saguise

complex judgments,

Inited States v. Lemonakiss

.. F. d.

NO. TI-1745, D.C. Ore Of ADD, June 27, 1973, Dr• 35-454

In the Lemanskis case, the Court, like the maarity =

the court in the case at bar, pretermitted the constitional

-

issues involved in the executive authorization of foreign inte--

i. •

Ligence gaühering by means of elecironic surveillance and her==

based on its own in cemere examination of the logs in castic.

that that material contaired

therein had no relevance to tha

sues of

evidence in appelient's trial and that, because of the

national interest involved in the revelation on logs t fores

intelligence operations, the logs need not be revealed, Id.

-

If the tenchings of both Alderman and Lemonie ba

applied to the cese at bar in its present posture, it is cle==

that the logs in question nese not be disclosed för i rease=s.

•First, as the Court los assumed, there has been no Ic=th Anema-

ment violation.

second, as the Court can readily ascartain foc

Its own examination of Goverment Exhibits A-I, A-? en 4-3, ==

20gs are not voluminous and the tast of evaluating they is

neither burdensome nor complex.

3:0:5.-

-..°

In this connection, it should be noted that the Bareme Jous:

has not yet directly addressed the question of wether edgeles ==

or logs si foreie::

intelligence surveillances is regarea.

United Suches

L2EE29 SE:020 DisinteE Court,

==

I.n.

щO ME, 2919

• 2I (1572), i nich one court expressly ceserves leisa

= ==

-====

to the constitutio. issues involved in foreign inte

-23002

(cont'e"

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iw3-

• Therafore

there is no legal justi

ation 2oi dis

closing sensilve logs of a foreign inballigance surveillance +

a spy for a foreign pover,

Maso would not only be inconst

S6220

with the narrowly. and specifically drain mandaté of the Suprana

Court in this

case but rould, in addition; make a nocitery of the

assumed conclusion by this court that the surveillance itsel va

Lawful, The

procedural question of wether and under what circum-

stances disclosure shoula be made is fully as sensitive and delisate

as the constitutional question of the presidential power to conduca

the surveillance, and procedures ought not to be employed which

would erasculate the constitutional pover.

Surely the considerations which compel the conclusion

that tha President is vested under Article II of the Constitutios

of the Unitea States to conduct foreign intelligence operations

by means of electronic surveillance equally compel the corclusio

I (contia)

survaillances, the Couri also found it "unnecessary at (that] time

and on the facts of [thail case" to reexamine "the basis and" the

decision in Alderman" insofar as that decision

related to the disclosure of

The

records of surveillandes where

Posach Amendment rishts had been violatad.

In denying

cene 2020a

Maso v.

3120E,

4ug bas, 10is (1972 The Court let

Hinon circuit decision which ugheld an

the trial Court thet the records of

an arguably foreign intelle

sence electronic overnearing of defendant's counsel were not reia-

vait to any issue in detendants trial.

Dissent Erom denial ca

certiorari,

Ibid.

See also opinion per ir. Justice Douglas grant.

ing a suay of the Ninth Ciscuit's miling.

, 34 L.Ec,

30 (1972)..

;..

:.:

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that the results of such surveillance should not be dia-losad.

where no Fourtn Amendment rights of ony indiriqual hava been

violaied because to do otherwisa roula reveal informatica mis=

•

would make the surveillance valueless in the future,

Io conclude otherise would be to put the corernme

to an untenable election.

It would have to elect baucer

disclosure of a vital and proper intelligence operation, on tha

one hard, and prosecution of a criminal who may have blundered

or even intruded himsali on the ochei.

"Such a construcison ve-is

even give to a criminal the power to prevent his prossation =

simply taking steps to ensure that a conversation of is is

overneard auring the course of a foreign intelligence suvil-s=.

• POINT II

PRIOR JUDICIAL CONSORUCFIONS OF

47 U.S.C. § 605 REINTORCE TNE

CONCLUGION THAT DISCUOSURS OF THE

SURVEILLANCE LOGS IS NOT REQUIRED

IN THIS CASE

The correctness of the conclusion that dissiasure

Is inappropriate in circumstances where there has been to Towi

Amendment violation is further reinforced by the considertiera

wich underlie prior judicial constnictions of 47 U.s.., Scs.

In those cases, courts have made it clear that wireter eriderc=

and its fruits are to be suppressed only in those insieces i===

the wiretap was utilized by law enforcoment öfficers roper

• to obtain evidence.

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-10-

As stated by the United Stutes Court of Ago=zis

for tie second Circuit in United Sintes V. Gris:.

247 F,22

850. 364 (2957) :

Wiretay avidence is excluded by the

federal courts in onder to discourage

persons from uncartaking the proscribed

activities in an erfort to obtain evi-

dence for use in trose couros:

Where

exclusion sould not serve. this pumose....

the evidence is admitted.

If the Goverrment was acting lavully in conducting

the sueveillance; there is no illegal conduct to deter and

hence no reason for applying the remedy of suppression in this

case, se there 16 no rosso sor suppresens, where jo no repso

for esther disclosure or for en evsentiary hearing.

at is cleer beyond cavil, that, ln consorlns

§605 to bar either testimony as to the contents or an inter-

costed conversation or the densvatave une oe an intercepsea.

conversation to obtain evidence.

the Supreme Court did so; solely

to deter law enforcement personnel from utilizing wireteeping

as

a moans of obtaining evidence. Nardone v. United States,

302 U.S. 389 (1937); Nardone v. United States, 308 U.S. 338. (1939

(Nardone II) •

In Narcone I; the Supreme Court held that the Consuice-

tions Act. of 1934 barred testimony by federal agents as to the e=

of messages intercepted by wiretaps by zoplication of the prines-=

of staiutory construction "that the sovereign is embracaà by

gencial voras of a statute intended to prevent injury and one".

302 U:S. at 384. "The "injury and tong" mich the Court perceivaa

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## Page 59

....

- 13.00

and it spectilated that, in enacting $ 605: "Congress my bara

thought it

est inportant that sone offenders should go unzippea

si justice

mas that offacars should resort to mathods desaaa i=-

consistent

ith personal liberty". Id. at 303.

pardone II, the court, to further the policy expresses

IF Hereone E, held that where "a substantial portion of the ease"

ageing a defendant is proven by him to have been developed by

means of illicit wire tapping, his conviction cannot he permiates

to staná. • In so holding, the Court rejected the argument. tres

§.605 only barred testimony as to the content of an intercested

message staping that;

Such a reading of f505 would largely

scultify the policy which compelled

our decision in Nardone v, United

States, supra.

That decision was not

the product of a merely ratioulous

reading or technical language.

It

was the translation into practicality

of broad considerations of morality.

and public well-being: This Court

found thai the logically relevent

-.}

procs which Congress had ouflamed,..

it outlaved because "Inconsistent

•riith ethical standards and destruc

tive of personal liberty.

1.. 302 U.5

379, 353.. To forbid the direct uce

of methods thus characterized but

to.

put no curb on their full indirect

use would only invite the

very methods

deemed "inconsistent with

ethical

stendards and destructive

of personal

•Liberiy." 308 U.S. at 340

In other words, the linchpin of analysis in both

secisions is the perceived congressional rejection of vireteppin-

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## Page 60

-12-.

for the purposes of ostrining evidence. -- viretopping which vas

In the Cour

"illicit".

Divulgence was held to include

use in obtaining pridence end was comprehended by the statuie.

solely because the court determinca that such a construction was

necessary to

discourage cificers from. wiretapping to ootain.

evidence.

In the case at bar,.

the wiretap was not for the purposes

of obtaining evidence but rather

Fog the purpose of cotaining

foreign intelligence information. The broad considerations of

morality and public well-being" deaned relevant to the former pur-

pose are not

mutatis mutandis translatable to the latter purpose.

at those consideration are not so trengletedle then

the exclusionary rule forged by the court in Narcone II is not se

translatable.

Às the court mates clear, the derivative use of

intercepto herage to promised no because no statione

Language but solely to preclude illicit wiretapping. 3%

If, as the court is willing to assume, the wiretap in

issue in this case was not illicit but was, instead, a proper exe-

cise of Presidential power pursuant to aricle II of the Conse_=-

2/ For this reaso?,

we urge the court to reconsider those decisi-

cited ai pages

Let of our main brief and at pages 22-29 o1

Adams' dissenting opinion which hold that 47 U,S.C. & 605 has no

applicability to the type of wirecepping in issue here.

See aiss

United States

Lemonalis. suoze ct. pp. 35-40

3/ In this respest,

the basic justification for the rule is thus

Juentical to thet iiin respect

to the Fourth Anonduenü exclusions

rule -- the bollar that

acterrent to po

0110, 392 U.5.

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## Page 61

there

exists no rational purpose for holding

evidentiam

hearing to deterine whether the viretsy has been derizatively

used against Irenor:

None of the cases cited by the majority are authores

for the proposition that such a hearing is required in cases

There the interception was not illicit, Benenti"v. United States

355 U.S. 96. (1957), does not carry the absolutist implications

which the majority reads into it. (Opinion, po 14). The Benanti

dacision simply holas that the provisions of & 605 cannot be

superseded by siate law and that siate 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 wireteoping, it had earlier characiorized as Millicit" in

both Nerdone decisions, lee wiretapping fos the purposes of

obtaining evidence. The opinion does noù suggest thai a divulgence

of a laul interception would constitute a violation of §. 605.

Horeover, it expressly refused to reach the issue reached by the

majority in this case -- i.e.s whether both interception and

divulgence are necessary elements of a § 605 violation. 355 u.s.

at 100, I.n. 5. Inus, all that Benanti stands for is the

In advancing this contention...

we do not mean to be understoà

as impLicitly scating that there was, in fact, any suen derivesire

use much less that

a substantial portion of

the cass"

against

Ivanov was the fruit of the wiretan

• in issue.

As- either this

Count or the District court can really determine in comere.

the

vareroo materials are wolly irrelevant to the issues and evidara

in this case.

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proposition that f005 applics unifomly to sinte and federel

officers.

Indeed, the very same day the Court decided Benacii,

It also decided in Rethbin v. United States, 355 U,S. 107

(195T) that not every interception is an "interception as Congress

intended the word to be usad" in 47 U.s.c. $605, staring that

"(e)very statute must be interpreted in the light of reason and

connon understanding to reach the results intended." 355 U.s.

at 109: In that case, over a strong dissent, the Court held

that where one party to a telephone conversation gives the police

authority to listen in on an extension, there has been no inter

ception "as congress intended the tora to be used." Id.

(Emphasis added) See also United States v, Sugden, 226 F-2d

28i (9th Cir. 1955), affa per curien 351 V.S. 916 (7955)

(holding it would defeat the policy of.$ 605 to bar testinony

as to the content of an intercepted illegal private broadcasi,.

T meretone, neither Benenbi nox insted stetes y

CopIon, 185 F.2a 6a9 (22 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 Conlea:

"the court merely assumed that the surveillance itself was allege.

under section 605." Id. Such an assumption is not proper andes

the facts of this case and, indeed, is flatly inconsistent is.

the assurption of legality made by the majority.

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## Page 63

•

-15÷

•CONCLUSICIE

The court should amend lus decision to require

eras disalore of the survetilence logs not bo made.

Respectaully submittea,

HEPBERT I.

STERN

United States Autorney

Ca the Eriei

'COLDSTEIN

22081

assistari

Uniied Stetes Attorneys

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## Page 64

UNITED S'PEELOVERSSAMAATION/NO DISSEMINATION

• 1 = Mr

Memorancam

1

-

Mr.

- Mr.

ABROAD

S. Miller

A.

Brannigan

J..À.

Mintz

Hr. Felt -

Str. Bakrs

1s. Cler= ==

TO

Mr. E. S. Miller

DATE: 7/11/73

Bro decices -

Str. Haste: -

Str. Miller. ES.-

FROM

: 1.

J. Smith

• Mr. T. J. Smith

- Mr.

.

F. Miller

Mr. Sobers

1tr. Thousso -

Mir. Haliers -

Tele. FocE -

Sir. Baise

SUBJECT: U. S. VS: JOHN WILLIAM BUTENKO AND

Itr. Barses -

IGOR A. IVANOV, IGOR A. IVANOV,.

Bir. Borers -

APPELLANT

Bir. Cocai

12. sliniz

Sirs. Hoge -

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

Ivanov, an

Amtorg Trading Corporation chauffeur, and

Butenko, a U. S. citizen, were originally convicted of à

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

INFORMATION

murderous threats in interstate commerce.)

In Alderman the Supreme Court, noting that no evidence

NATIONAL, SECURITY

Unauthorized Disclosure

Subject to Criminal Sanctions

or evidence obtained from leads which were obtained from an

illegal electronic surveillance i.e., one which violated

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 recoras

was sufficient, and held that the defendant was the only one

in a position to adequitely knowingly review such recoras 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

JEM: kaf

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## Page 65

-

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.

these cases, he argued on behalf of disclosure to the defendant

of only those portions which the trial court in camera founa

"arguably relevant" to the Government's case against the defendant.

The Ivanov ana Butenko cases were remanded to the

District Court,

to determine whether there was electronic

surveillance which violated either defendant's 4th Amendment

huge and 20

rights and 2) if so, to determine whether any of the intercepted.

conversations were relevant to his conviction.

The Suprene

Court stated that if the District Court found 1) that there

was electronic surveillance but it did not violate the defendant's

4th Amenament 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 convictic-

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 monitorea

during 1963: 1)

2 microphones at the homes of Ivanov and Karatsura.

•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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## Page 66

Memorandum to ME. S. Miller

Re:

U. S. vS..

John William Butenko and

Igor A.

Iv

ov, Igor A. Ivanov,

Appellant

intain.

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.

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 warran=

requirement, and that the President's responsibility for foreig

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 intendes

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 os

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 propositics

that the question of whether or not the Government's evidence

was obtained from electronic surveillance could be resolvea

only by an evidentiary hearing, and because the Government rouls

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 con-

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## Page 67

Memorandum to Mr. E. S. Miller

Re::, U.S. vs.

nn

William Butenko and

Igor A. IV

Ijo= A. Ivanov,

Appellant

"SER

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, ara

therefore could not "...properly be considered on the taint

issue" (342 F. Supp. at 931) .)

(Note that Alderman ruled only on "illegal" electroni-

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 electroni

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 lot 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 Sectio=

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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## Page 68

Memorandum to

E. S. Miller

Re:

U. S. VS.

n

William Butenko and

Igor A. Ivanov, I.J- J. 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.

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

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

reversed and the case

remanded for further proceedings,

• viz., to conduct an evidentiary hearing to determine it 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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## Page 69

83;m0;;

Memorandum to Mr

E. S. Miller

"Re.:'

U. 'S. vs.

in Willim Butenko and

Igor A. Ivanoy, Igor !. 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 apol?

to federal officers nor to bar testimony relating to the

contents of radio messages intercepted by them. Judge Adams

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

the punishment of crime."

question is one of policy. " Supreme

"that

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

crime, but at gathering foreign intelligence deemed erson os

essential

to the security of the U.S.

He thus concludes that the fardore

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 Amendmeat

allow the President to authorize warrantless electronic surrei:-.

lances in foreign intelligence cases.

He concludes that it

does. He argues that constitutional rights are not absolüte;

they must be weighed against competing rights; and the th

Amendment prohibits only unreasonable searches and seizures.

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## Page 70

ULUITE!

. Memorandum to Mr

S. Miller

Re:

U.S. vs. John Wi.?: ? 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 judicia

post surveillance review. If the court finds that the surveii-

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 uncelated, it would be unreasonable._

and its

results excluded from a criminal trial.

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## Page 71

Memorandum to M

E. S. Miller

Re!

U.

'S. vS.

wen Milliam Butenko and

Igor A. Ivanov, Is: J. 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 li

the Government's case against him was

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

usbased 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 juagments

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'=

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

.i°

-'ід •і

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## Page 72

. *o

Memorandum to M) E..

• S. Miller

Re:

U. S. vS•

John William Butenko and

Igpr 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 coula

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

i derman

.....

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 safeguara

should be imposed on Presidential

surveillances;

2) allow in camera review and require disclosure linites

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 injurea, the Government's case is not illegally

"tainted," therefore, disclosure is not necessary, and, additio--

ally, disclosure would be very damaging to national security.

Even if the surveillances were found legal, however,

the Section 605 evidentiary issue would remain. A Hearing of an

in camera review would have to determine whether any of the

Government's case was built on electronic surveillance, and, if =s.

the Section 605 evidentiary bar decided with respect to foreig.

intelligence-espionage cases. Since the Ivanov case is not built =

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## Page 73

Memorandum to

E. S. Miller ECKel

Re:

U.

S. vS.

William Butenko and

IgOr A. Ivas

ov, Igor A. Ivanov,

Appellant

electronic surveillance evidence, presumably the convictions

would be reimposed; however, supposedly the. Supreme Court does

not know this, and it would

t weuld conclude that

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 ba=

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 fourd

the surveillance legal, it would. have to rule on two issues

605 evidentiary issue; if the Supreme Court affirmed the Court

of Appeals, It would have to decide only the Section 605

evidentiary issue.

A..T-

SECRET

= 10 -

CONTINUED - OVER

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## Page 74

*::

Memorandum to M

Re: ' J. S. vS.

Igpr A. Ive

Appellant

ti.

Ann

Millerkur.

William Butenko and

Igor A. Ivanov,

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

grasp the "out" of the Section 505 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 of

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.

SECRET

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INQUIRY # 3

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## Page 76

1 - Mr. Baker

1 - Mr. E. S. Miller

1 - Mr. T. J. Smith

Mr. William D. Ruckelshaus

September 17, 1973

The Deputy Attorney General - Designate

Director, FBI

1 - Mr. Sizoo

SuBsTANTIVE ISsUES. REGARDING

THE FUTURE OF THE FBI

F. B.I.

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, memorandun 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.

led

- 1.4/

REC-52

JMS: rIche

(7)

34

Assoc. Dir. -

Asst. Dir.:

Admin.

Comp. Syst.

Ext. Affairs

Files & Com..

Gen. Inv.

Idont.

Inspection

Intell.

Loboratory

Plan. & Eval. -

Spoc, Inv. -

Training

Lagal Coun. .

Telophone Rm. -

Director Soc y -

NW#: :8-8-6-0.8

MAILED, 2

SEP 191973

1E SEP 19 1973

Karan

NOTE:

orBr

See memorandum T. J. Smith to Mr. E. S. Miller dated

9/13/73 sEeP tored

as above, prepared by JMS: ric.

поріо

un response to your requestand is not for assemi-

Itsuses limited, to official proceedings oy

MAIL ROOM L

mmittee and the content may nut be disclose to unauthorized person-

LETweEniTike express approval of the FBI.

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## Page 77

The Attorney General

1 - Mr. Mintz

1 - Mr. Baker

August 7, 1973

Director, FBI

1 - Mr. E. S. Miller

1 - Mr. T. J. Smith

SCOPE OF FBI JURISDICTION

AND AUTHORITY IN/OMESTIC

INZELLIGENCE INVESTIGATIONS

Security Jurisdictind

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 works 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. Fuckelshaus with regard to this matter when we have completed.

the results of our consideration and findings within the FBI.

Assoc, Dir.

Asst. Dir-:

Admin.

Comp. Syst. -

Files & Com.

Gen. Inv.

Ident.

Inspection

Intell.

Laboratory

Plan, & Eval. -

Spec, Inv.m

Training A ntS; 1yge/3

Legal Coun

Cong. Serv. --

Corr. & Crm.

Research

NW#": 88608

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, IlI, was designated as Acting

Director of the FBl, 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.

REG-29 62-66727-

Over a period of several months there were a number of public

statements questioning authority and jurisdiction of the FBI to conduct domestic

intolligence-type investigations, particularly where there is no cloor-cut

legislative authority apparent. One of the inost searching inquiries was con-

tained in a paper presented by t'roiessor cin I Elig at e twe say conference

at Princeton University in October, 1971, sponsored by the Committee for Public

Justice..

16 AUG 8 1973

This document is prepared in response toryou request and is not for

dissemi-

Its use is limited to official proceedings by

your Committee ind the content miy nut be aisclosed to unauthorized person-

mel without the express approbal of the FBI.

DocId: 32989544 13 1973

SEE NOTE PAGE EIGHT

3

...

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## Page 78

The Attorney General

A major thrust of Professor Ellift'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. 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 domestie 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 of could

not be conducted under an umbrella of legislative enactments.

0 2-

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The Attorney Genaral

As a matter of historical fact, President Roosevelt in August,

1936, did request former Director 2. 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 concuct such investigations it 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 Fedcral law enforcement agencies and patriotic citizens

and to sift and coordinate all such intormation 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 Federai statutes and

stated these could be applicable in using maximum available resources,

investigativa 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 baing no different from our intelligence-type

investigations relating to plans of groups or individuals to overthrow,

destroy, interfere with or threaten the survival of etfective operation of

national, state, and local governments.

-3-

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: 22

The Attorney General

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 1339 to the present date.

We also believe, however, that in order to counter the criticism and skepti-

cism of such individuals as Professor Elliff end 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 conduet such investigations based un 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 collestion of

intelligerce intormation 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

domestle 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 iI.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

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 cur 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 fultill 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 Exccutive order we hereinalter propose establishes detinitive guidelines

which have heretofore been unclear. It is my belief that we should go forward

with this.

We therefore proposa 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 CRDER

"Whereas the Constitution of the United States was established to

insure, among other things, domestic trunquility; to provide for the common

defense; and to promote the general welfare for the people of the United States:

and

i "

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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;

annet.

- Ea

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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 deiend 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, Scetion 533, United States Code, to be equally important.

- 7-

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## Page 84

The Attorney General

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.

- 8-

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## Page 85

Mr. d. B. Adams

W. R. Wannall

RUCKENSHAUS' ISSUE 122:

SHOULD THE INTELLIGENCE GATHERING FUNCTION

OF THE FBI BE SEPARATED FROM THE LAW

ENTONCEMENT FUNCTION OF THE FBI?

5/0/74

Reference my memorandum, 4/16/74.

Referenced memorandum enclosed a longtly analysis of the above

issue, which contained recommendations for in-house consiucration, Mr Adams

asked that an abbreviated version be prepared for referral to the Department or

Justice, containing the conclusion that all three missions of the FBi, viz,, law

enforcement, internal security, and counterintelligence be retained by the fBI.

ACTION:

Attached is abbrevinted position paper for referval to ine Department

of justice,

Enclosure

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 oy

prux Committee and the content may nut b? disclosed to unauthorized person-

nel wühout the express approval of the FBI.

TEM: v

(4)

NW# : 88608

8 ~ Mr, W. R. Wannall

~ Mr. A. B. Fulton

Mr. 3. K. Miller

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INQUIRY # 4

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## Page 87

: -

The Deputy Attorney General

Director, FBL

TENURE OF THE DIRECTOR

October 1, 1973

appointment of hireten

5739

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 diace.

3. The issues raised:

NE0-11 63-7865-108

There have been a number of bills introduced in the last

fitteen months proposing legislation limiting the tenure of the Direcior

to varying terms up to fifteen years. There has been no affirmative

straininis

action laken on any of them.

MAILED 3

OCT 3 - 1973

E2 OCT 5 1973

-. Options for future policy:

LUNETICES SOUANSTARIT DANETIARA

ANGLOSO

The options are whether the tenure of the Director of the

BUNGLeST

37

EBI should have no limitation or that a fixed term be established.

• 418

ssoc. Dis. -

sst. Dir.:

In my testimony ilfore the Committee on the Judiciary

Admin. --

in dube, 15to, 1 nacatea that 1, leit independence 1s achieved trough

Comp. Syst. -

Ext. Afiairs -:

tenure, and expossed my thougt that nine years wowd be a proper

Filos & Com. -

term.

Gon. Inv. -

Idont. -

GLM:1mm (6)

'97-

Inspoction.

1 - Mr. Callahan (Direct)

13

Intcll. -

Laboratory

1 - Mr. Walsh (Direct)

Pliased on Memo Walsh to Hunsinger, 9/28/73, GIV :pas.

This document is prepared in response se is limited fontain proceedings bu

nation outside your Committee.

O MAIL ROOMILY AS

NWA

88608

mise and the content may nut be discloped to unauthorized person

DocId: 32989541

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## Page 88

The Depaty 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 oitice. From

a practical standpolat, 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 Seeret 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 gho 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 publie 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

-Д-

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## Page 89

The Deputy Attomey General

of Director of the FBI for a restricted term of oifice could suggest

that perhaps the confidence heretofore placed in the FBI is no longer

merited. Whether this would have any impact on the contidence and

cooperation by the public would ba problematie.

Atter weighing the foregoing and considering the unique

role of and sugard for the Director of the FBI, it la my conclusion that

the Nation wonld feel comiortable 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 sach administration.

I feel the incumbent sences a greater independence through tenure.

I feel that tenure should be for a period such as sine years

to miniraize the occasions whea appointive consideration would coincide

witle a change in administrations. such a period would also provide the

incumbent a suiticient feeling of independence. However, this Bureau

defers to the Department on the subject of lengta of time.

NW# : 88608

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## Page 90

• $

INQUIRY

# 5

NW#: 88608

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## Page 91

The Deputy Attorney General

October 16, 1973

Director, FBI

F.B. I'

Should the Federal Bureau of Investigation

be an Independent Agency?

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?

nel without: the

2. Policy: At the present time the FBI is a bureau within the Depart

express

ment of Justice and, as such, is responsible to the Attorney General.

your Committee and the

3. The Issues Raised: The question has arisen on several occasions

approval

nation outside your commitee

This

document is

prepared

whether the FBI, with its vast resources and knowledge, should be

under the control of a political appointee, the Attorney General, or

content may

separated from the Department of Justice and established as an

Its use

22 response

independent agency within the Executive Branch.

R66-38

12-20177

£2612T 100

Options for Future Policy: X-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

disclosed

limited to

(2) maintain the present status of the FBI in its role as the investiga-.

five arm of the Department and, as such, responsive to the directives

of the Attorney General.

20 OCT 19 1973

unaut

rm

A brief look at history indicates that in 1908 Congress created

the Bureau of investigation and designated it as a part of the Department

Assoc. Dir.

of Justice. The main reason for this action was that a certain void

Asst. Dir.:

official proceedings

and

is

Admin.

existed prior to this time in the enforcement function performed by the

not for dissemi-

Comp. Syst. .

Attorney General.

Ext. Affairs

Files & Com.

While the Department traditionally bore the respons

bility of enforcing the laws of the United States and proseciting violators

Gen. Inv. -

Ident.

of these laws, there existed no permanent group of individuals who could

Inspection -

Intell. -

-JFA:CSH (6)

Laboratory

Plon. & Evgh

Callahan

poc. Inv.

1-

- Baker

Cover memo, Baker to Callahan,

10/4/73, re "Issues Raised by

Mr.

Ruckelshaas - re future of

(JFA:sh)

'BI"

0

Logal Coun.

Telephone Rm. l

19

Mre Aheaxy74

NWH:8860 ROOMSoCIa: 32939541

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## Page 92

The Deputy Attorney General

conduct the fact-finding investigations necessary to sustain successiul

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 lew 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 coniorm 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

2

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The Deputy Attorney General

designation of the FBI as an independent agency would simply mean

that the Director wouid 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 Eranch

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

eifect 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 # 6

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The Deputy Attorney General

Director, FBI

SUESTANTIVE ISSUES REGARDING.

THE FUTURE OF THE

FEDERAL BUREAU OF INVESTIGATION

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 #S..

October 16, 1973

Enclosure

JFH:CSH (65

Assoc. Dis. _

Asst. Dir.:

Admin. -

Comp. Syst. —

Ext. Affairs

Files & Com.

Gen. Inv. _

ident.

Inspection.

Intell. -

Laboratory

Plan, & Eval. -

Spec. Inv. -

Training -

• *:

NOTE: Mr. Ruckelshaus' memorandum of 7/20/73 enumerated 11

issues regarding froh roanization 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

1 - Mr.

Callahan

1 - Mr.

Baker

1 - Mr.

Emery

MAILED: 2

з

V.

ENCLOSURE

28 SV 1313

REG5a

EX-112

E OCT •19 1973

1973

This document is prépared in response to your request, and is not for dissem

utside your committee. Its use is limited to official proceedings y

Ell

your. Committee and the content may nut be disclosed to uninthorized person

nel without the express approval of the FBI

Telaphone Un.

Director Seely

60Đ San 1973

TELETYPE UNIT L

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Issue #6: Assuming the FEI 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 Eureau of Investigation) within the Department in 1908. In an effort

to reverse a trend of political intluence within the Bureau and the Department,

Attorney General Earlan 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

62-24170-343

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## Page 98

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, guicance, supervision and control by the Atiorney

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 answeratie 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 Eureau within the Department of Justice,

must be permitted to discharge his responsibilities free irom 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 Direcior and the Attorney

General, que to their mutual and interlocking responsibilities in the criminal

justice field, primarily investigative on the part of the FEI 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

- 2 =

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## Page 99

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-TBI Director relationship, the FBI head must communi-

cate directly with the Fresident 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.

FiC

....

• 7..

..:...

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INQUIRY

7

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## Page 101

1 - Mr. Miler

1 - Mr. Wannall

1 - Mr. Mintz

The Acting Attorney General

1 - Mr. T. Smith

ST-11A REC-38

Director, FBI

62-24172-3546

STUDY OF FBI PROGRAMS AND POLICIES

December 11, 1973

Legal Coun. -

Training -

Spoc. inv. -

Plan. & Eval. -

Laboratory

Intoll. -

Inspection —

Ident.

Gen. Inv. -

Files & Com.

Ext. Affairs

Comp. Syst.

Assi.

Assas

* i*

stoon outsiss your

document is prepared in response to your request and is not for dissemi-

Committee.

your Committee and the

Its use

is limited to

offinal proceedings b

nel

without

content may not

the

express

be disclosed to unauthorized person.

approval of the FBI

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 legisiation 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.

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 Mir. Ruckelshaus that it encompasses extremely sensitive

foreign intelligence collection techniques. Such information is so

closely held in the FBI that it is handied 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. Petergen 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

1:481.

are 11 1

TJS:mah (7)

SEE NOTE, PAGE TWO

MAILED. 2: 3

M

M

16.

4001 n0-

ORDED

COPY FILED IN

58 JAN 8

8

1974

, REC. UNIT

*

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## Page 102

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 Jatie 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; Inspecior 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 threa-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 ba

formulated. I you agree, I will try to arrange something for soon

after the first of the gear.

NOTE:

A conference was held 12/5/73, between Mr. Bork and the

Director. Alss 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 CONTELPRO.

- 2

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1n1°26-15)

4-26-65)

UNITED STATES GOVER

Memorandum

ENT.

IRTMENT OF

TO

: Clarence M. Kelley, Director

Federal Bureau of Investigation

DATE: December

FROM : Robert H. Bork, Acting Attorney

General

RHB

study of fBI Erogans and Policies Ma nupta.

As you know, a general study of the programs

General Richardson,

and yourself.

Assoc. Dir. V

Asst. Dir.:

Admin:

Comp. Syst. -

Ext. Affairs -

Files & Com. -

Gen. Iny. -

Ident. -

Inspection

Intell. -

• Laboratory

Plan. & Eval. _

Spec. Inv..

Training

Legal Coun.

Telephone Rm. -

Director Sec'y

dry Demot

1973

0:

support this effort and you and I

approaches to further implementation of the study.

In additiony

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.

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

FILED

COPY

documents in question must be provided to Mr. Stern.

stand that the material is in the process of being turned over:

to Mr. Stern.

SJ-114

REC-38 6224172-3569

Meanwhile, it

is appropriate--indeed imperative--

2-556

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

I in the Stern litigation. I ask that you a sti

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

This document is prepared in response to your request and is not for dissemi

nation outside your commite arouse is limited to offical proceedings oz

your committee and the cootent

el without the express-approval of the FBI

may nut be disclosed to unauthorized persons Do. Unat

NW.#-: 8.8.6.0.8

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## Page 104

+•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.

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## Page 105

INQUIRY # 8

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## Page 106

ISSUE

#8

FILES AND THEIR DISCLOSURE

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 *939.

Regulations of National Archives and Records Service, (NARS) General

Services Administration, which are based on Title 41, Chapter 33, Sautions

3301 and 2302, U.S. Code, govern the type of mterial 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 ti. United States Governmont under Federai

Law or in connection with the transaction of public business and preserved or

appropriate for preservation by that agency or its icgitimate 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 nut 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.

The FBI has an active program to keep its records at FBIHQthe 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 mount 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

suificient 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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General Files

General files are used for nonspecific violations, complaints over

which we have no jurisdiction, and miscellaneous matters. General files are

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

suojects.

Set-up Files

These are files which are set up by locality or special stegory 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 il the supervision of the subject matter is divided among several Special

Agent Supervisors according to locality.

3

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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 anc 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

FBIQ making the information available to Federal agencies at the national level.

2. Basis for Dissemination

2. To Government Agencies

The FBI is under obligation to act as a clearing house for information which

affcets the Internal Security of the United States. This obligation is based on the

following:

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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 maters

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. Suc'? 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 Mouse.

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..

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

aupears 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 name

checks and investigations of individuals being considered for stai positions o

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 Committee

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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)

+60:1204944899797

C.

Australian Security Intelligence Organization (Australia

SET REDPOSORTERHAR TIESE ANDREI ARHATE DELTA TRI FELTINE OSSURITE

a. New dealand Securty Service (New Zealand)

MANETIAR, PISSES EIT

e.

Exench Foreign Intelligence and Counterespionage

Service

f. MI-6 (British Secret Intelligence Service).

g.

BESS (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.

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I. Tyve 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

I. 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 retainer in FBI

files.

=7-

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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.

I. 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 exceptione 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 intormation regarding local criminal matters

to local and state law enforcement agencies.

... ' vas

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-

INQUIRY # 9

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1

- Mr. Baker

• 1 - Mr. E. S. Miller

Mr. Wiliam D. Ruckelshaus

The Deputy Attorney General - Designate

Director, FBI

September 1 9, 1973

1 - Mr. T. J. Smith

1 - Mr. Sizoo

SUBSTANTIVE ISSUES REGARDING

THE FUTURE OF THE FBI

0.

7.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: Fle NU

(7).

NOTE:

REC-38

62..24172-

5344

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 quéstion of a Civilian Review Board

over FBI intelligence gathering activitie

Our response opposes creation

of such a board.

ENCLOSURE

SEP 201973

1.7

MAILED, 2

SEP 201973

4FBI

2E6 1:

3.13

Assoe. Dir.

Asst. Dir.:

Admin. =

12 LICE

Comp. Syst.

Ext. Affairs

Files & Com.

Gen. Inv. .

Ident.

Inspection

Intell.

Laboratory

Plan. & Eval. -

this

Spoc. Inv. -

Training -

susan, outside your Committee

do mond or are in real a reet one is not for digen

Logal Coun. —

Telephone Rm. -

basEP 24 tonithou the express approval of the FBI .

oir Committce and the content may nut be disclosed to unuthorized personi, =o

Director Sec'y -

MAIL ROOM

TELETYPE UNIT |

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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: ric

NOTE:

See memorandum to Mr. Ruckelshaus, captioned "Substantive

Issues Regarding the Future of the FBI: dated 9/19/73, prepared by JMS: ric.

62-24172-

34÷

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INQUIRY # 10

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ISSUE

$ 10

-I.

• THE PROBLEM:

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-

Jevel 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 Burcau of

Investigation Headquarters. The objective of this section is to insure that

the Federal Bureau of Intestigation's business with other U. S. Governnent

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.

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 bj

your Committee and the content may nut be disclosed to inauthorized person

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•

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

(i) 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

(0) 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 Eurcau of Investigation

and Agency jurisdictions, and an indicated willingness by the Agency repre-

sentative to coordinate activities and to discuss problems of mutual intercst.

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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 a program aimed at providing

effective and espanded 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 Headquurters 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 laborato

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 agercies

in criminal matters only. Expanded programs of scientific aid and trainingto

State and local crime laboratories are presently under development and wili

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 Computeril

Criminal History (CCH) file.

(d) The FBI National Academy. Since its establishment in 1935, the FRI

National Academy has provided a professional training program of highest

qualily to carcer officers from throughout the law enforcement community.

At its new training facilities at Quantico, Virginia, during Fiscal 1973,

1, 041 officers from various local, state,

Federal and friendly foreign law

_enforcement agencics completed the intensive 12-week coursc. This com'se

is designed to enhance an officcr's capabilities as a law enforcement

administrator and to better prepare him to teach his fellow officers.

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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.

TIL.

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 Agchcies

of the Federal Government.

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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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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.

::

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INQUIRY # 11

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1

October 1, 1973

The Deputy Attorney General

Director, FBI

: 4 - Mr. Baker

1 - Mr. E. S. Miller

UBSTANTIVE ISSUES REGARDING

1 - Mr. Boynton

COEURE OR SHEPBE DeaL attriked 2 Mr. I. J. Smith

INFORMATION MCNCRANDUM (

1 - Mr. J. M. Sizoo

Reference is made to your memorandun to me captioned as

above and dated July 20, 1973. Attached is the FBl's response to Issue

Eleven of that memorandum in the format requested in your August 20,

1973, memorandum captioned as above.

Enclosure

JMS: ric/bjady:

(8)

NOTE:

Mr. Ruckelshaus' memorandum 7/20/73 enumerated ll 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 Es Legal Attaches abroad.

to carry out responsibilities Our response recommends retention of

gek

- ENCLOSURE

14445

REG. 2L,

Isoc. Dir. -

Aszt. Dir.:

Admin.

Comp. Syst.

Ext. Affoirs -

Filos & Com. -

Gon. Inv. -

Ident. -

Inspection -

Intell. -

Hoboratory -

Plen. & Eval. -

OCT 4

1973

MAILED 3

EM.

raining

enl Coun.

lephore Rm.

actor Soc'y -

00T

MAIL ROOM

9673 - 1973

nate acument is prepared in response to you fequesi and is not for dissemi-

Its use i smited

to official proceedings by.

Conmitrees and the content may

nut be disclosed to unauthorized-person-

nel without the express approval of

the FBI.

TELETYYE UNIT L

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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 FSI 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: rIc R

SEE NOTE PAGE 6

This document is prepared in response to your request and is not for dissemi-

nation outside your Commitec.

lus nose is lemated to orman proceedings by

your Committee and the conter, may nut be disclosed to

wu sporized person

nel without the express approval of the FBI.

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ENCLOSURD

SUrE 4-1445.

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While our representatives abroad are still FBI employees,

they are well aware that the American Ambassadors hold authority through

varicus 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

-

iutelligence information acquired by Legal Attaches.

Issue - Is the FBI to continue using Legal Attaches to meets its responsibilities

abroad?

Optons:

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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particular Legal Attache. In addition, he recently uncovered an international

car theft ring involving the theit of over 180 cars stolen in the U.S. and

valued at $700,000.

The Legai 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 & hijacked American airliner in Buenos Aires which occurred without loss

of life or damage to the aircraît. 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 errest 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

SENSITIVE

with British intelligence services. The recent rash of letter bombs, one of

FOREIGN

INTELLIGENCE

of which wounded an employee of the British Embassy in Washington, has

called for immediate and close liaison with British authorities. FBI bomb

SOURCE.

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.

SENSITIVE

The Legal Attache, Madrid, through the cooperation of Spanish

police, was able to effect 24-hour coverage on an Arab Al Fatan representative

INTELLIGENE 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

INTELLIGENEI

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 contidence in our Legal Attache in Madrid.

SENSITIVE FOREIGN

INTELLIGENCE

SOUACE

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 conciusion

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

The tracing oi Watergate funds by Legai 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

ch 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 EBI. 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 ditterences 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:

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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