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NRO22 WA CODE

• 1:56PM NITEL 6-13-75 VLJ

TO ALL SACS

FROM DIRFÉTOR

(62-116464)

PERSONAL PARENTION

62-2368

REBUTELS MAY 2, 28, 1975, "SENSTUDY 75."

BUFTLE 62-116464 AND EUM NAME "HOUSEUDY 75" DESIGUETED

FOR ALL MATTERS RELATING TO HOUSE SELECT COMMITTEE TO STUDY

GOVERNMENTAL OPERATIONS WITH RESRECT TO INTELLIGENCE ACTIVITIES

AND BUREAU'S HANDLING OF MATTERS PERTAINING THERETO. USE

THIS FILE NUMBER AND CAPTION FOR MATTERS RELATING TO HOUSE

COMMITTEE AS SEPARATE FROM SENSTUDY 75 FOR MATTERS RELATING

TO SENATE COMMITTEE,

END

ASHE

det

15'

6118

62-2346-1

SEANCHED.

-INDEXEDE

SERIRLIZEMK

FILED

JUN 1 3 1975

FBI- ALBANY,

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OFFICE OF THE DIRECTOR

1-75

UNITED STATES DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF INVESTIGATION

WASHINGTON, D.C. 20535

May 28, 1975

MEMORANDUM TO ALL EMPLOYEES

RE: INTERVIEWS OF FBI EMPLOYEES

All employees are advised that Congress is conducting

an inquiry into activities of the Federal Bureau of Investigation.

Congressional staff members are conducting interviews of former

and current FBI employees.

This Bureau has pledged its cooperation

with the Congress.

You are reminded of the FBI Employment Agreement

(copy attached) with which you agreed to comply during your employment

in the FBI and following termination of such employment.

Also, you are reminded of Title 28, Code of Federal

Regulations, Section 16. 22 (copy attached), which reads as follows:

"No employee or former employee of the Department of

Justice shall, in response to a demand of a court or other authority,

produce any material contained in the files of the Department or disclose

any information relating to material contained in the files of the Department,

or disclose any information or produce any material acquired as part of

the performance of his official duties or because of his official status

without prior approval of the appropriate Department official or the

Attorney General in accordance with Section 16.24."

Also, you are reminded of Department of Justice Order

Number 116-56, dated May 15, 1956, (copy attached) which, among

other things, requires an employee upon the completion of his testimony

to prepare a memorandum outlining his testimony.

Our cooperative efforts, of course, must be consistent

with the above cited authority. Therefore, if you are contacted for

purpose of interview or testimony you are to request approval as

required by the Employment Agreement and await authorization before

furnishing information, testimony, or record material.

62-2376-2

Enclosures (3)

EARCHE

SERIALIZED.

105 FILED

Clarence it. l i& 1575

A Si see LoRd: 2389495

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FD-291 (Rev. 11-1-73)

EMPLOYMENT AGREEMENT

As consideration for employment in the Federal Bureau of Investigation (FBI), United

States Department of Justice, and as a condition for continued employment, I hereby declare

that I intend to be governed by and I will comply with the following provisions:

(1) That I am hereby advised and I understand that Federal law such as

Title 18, United States Code, Sections 793, 794, and 798; Order of the

President of the United States (Executive Order 11652); and regulations

issued by the Attorney General of the United States (28 Code of Federal

Regulations, Sections 16.21 through 16.26) prohibit loss, misuse, or un-

authorized disclosure or production of national security information, other

classified information and other nonclassified information in the files of

the FBI;

(2) I understand that unauthorized disclosure of information in the files

of the FBI or information I may acquire as an employee of the FBI could

result in impairment of national security, place human life in jeopardy, or

result in the denial of due process to a person or persons who are subjects

of an FBI investigation, or prevent the FBI from effectively discharging its

responsibilities. I understand the need for this secrecy agreement; there-

fore, as consideration for employment I agree that I will never divulge,

publish, or reveal either by word or conduct, or by other means disclose to

any unauthorized recipient without official written authorization by the

Director of the FBI or his delegate, any information from the investigatory

files of the FBI or any information relating to material contained in the files,

or disclose any information or produce any material acquired as a part of the

performance of my official duties or because of my official status.

The burden

is on me to determine, prior to disclosure, whether information may be disclosed

and in this regard I agree to request approval of the Director of the FBI in each

such instance by presenting the full text of my proposed disclosure in writing to

the Director of the FBI at least thirty (30) days prior to disclosure. I understand

that this agreement is not intended to apply to information which has been placed

in the public domain or to prevent me from writing or speaking about the FBI but

it is intended to prevent disclosure of information where disclosure would be

contrary to law, regulation or public policy. I agree the Director of the FBI is

in a better position than I to make that determination;

(3) I agree that all information acquired by me in connection with my official

duties with the FBI and all official material to which I have access remains

the property of the United States of America, and I will surrender upon demand

by the Director of the FBI or his delegate, or upon separation from the FBI, any

material relating to such information or property in my possession;

(4) That I understand unauthorized disclosure may be a violation of Federal

law and prosecuted as a criminal offense and in addition to this agreement may

be enforced by means of an injunction or other civil remedy.

I accept the above provisions as conditions for my employment and continued employment

in the FBI. I agree to comply with these provisions both during my employment in the FBI and

following termination of such employment.

NW 54956

(Signature)

(Type or print name)

Witnessed and accepted in behalf of the Director, FBI, on

, 19

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(Signature)

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WW 54956

Offire of the Attorney General

Washington, D. 0. 20530

Tanuary 18, 1973

ORDER NO.501-73

RULES AND REGULATIONS

Title 28- JUDICIAL

ADMINISTRATION

Chapter I-Department of Justice

(Order 501-73]

PART 16—PRODUCTION OR DISCLO-

SURE OF MATERIAL OR INFORMA-

TION

Subpart B-Production or Disclosure

in Response to Subpenas or De-

mands of Courts or Other Authori-

This order delegates to certain De-

partment of Justice officials the author-

ity to approve the production or dis-

closure of material or information con-

tained in Department files, or informa-

tion or material acquired by a person

while employed by the Department. It

applies where a subpena, order or other

demand of a court or other authority,

such as an administrative agency, is is-

sued for the production or disclosure of

such information.

By virtue of the authority vested in me

by 28 U.S.C. 509, 510, and 5 U.S.C. 301,

Subpart B of Part 16 of Chapter I of

Title 28, Code of Federal Regulations, is

revised, and its provisions renumbered,

to read as follows:

Subpart B-Production or Disclosure in Response

to Subpenas or Demands of Courts or Other

Authorities

18.21 Purpose and scope.

16.22 Production

or disclosure prohibited

unless approved by appropriate De-

partment official.

16.23 Procedure in the event of a demand

for production or disclosure.

16.24 Final action by the appropriate De-

partment official or the Attorney

General.

6.25

Procedure where & Department decl-

sion concerning & demand

is

not

made prior to the time a response

to the demand is required.

6.26 Procedure in the event of an adverse

ruling.

AUTHORITY: 28 U.S.C. 509, 510 and 5 U.S.C.

101.

iubpart B-Production or Disclosure

in Response to Subpenas or De-

mands of Courts or Other Authori-

ties

§ 16.21 Purpose and scope.

(a) This subpart sets forth the pro-

cedures to be followed when a subpena,

order, or other demand (hereinafter re-

ierred to as & "demand") of a court or

DocId: 32989495

Page 5

son was an employee of the Department

as a part of the performance of his of-

ficial duties or because of his official

(b) For purposes of this subpart, the

term "employee of the Department" in-

cludes all officers and employees of the

United States appointed by, or subject

to the supervision, jurisdiction, or control

of, the Attorney General of the United

States,

including U.S.

attorneys,

U.s.

marshals, and members of the staffs of

those officials.

§ 16.22

Production or disclosure prohib-

ited unless approved by appropriale

Department official.

No employee or former employee of the

Department of Justice shall, in response

to a demand of a court or other

thority, produce any material contained

in the files of the Department or disclose

any information relating to material con-

tained in the files of the Department, or

disclose any information or produce any

material acquired as part of the per-

formance of his official duties or because

of his official status without prior ap-

proval of the aporopriate Department of-

ficial or the Attorney General in accord-

§ 16.23 Procedure in the event of a de-

mand for production or diselosure.

(a) Whenever a demand is made upon

an employee or former employee of the

Department for the production of ma-

terial or the disclosure of information

described in § 16.21(a), he shall im-

mediately notify the U.S. attorney for

the district where the issuing authority

is located. The U.S. attorney shall im-

mediately request instructions from the

appropriate Department official, as desig-

nated in paragraph (b) of this section.

(b) The Department officials author-

ized to approve production or disclosure

under this subpart are:

(1) In the event that the case or other

matter which gave rise to the demanded

material or information is or, if closed,

was within the cognizance of a division

of the Department, the Assistant At-

torney General in charge of that divi-

sion. This authority may be redelegated

to Deputy Assistant Attorneys General.

(2) In instances of demands that are

not covered by paragraph (b) (1) of this

section:

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If the court or other authority decline

(c) If oral testimony is sought by the

demand, an afidavit, or, if that is not

feasible, a statement by the party seek-

ing the testimony or his attorney, setting

forth & summary of the testimony de-

sired, must be furnished for submission

by the U.S. attorney to the appropriate

Department official.

Department official or the

(a) If the appropriate Department of-

ficial, as designated in § 16.23(b), ap-

proves a demand for the production of

material or disclosure of information,

he shall so notify the U.S. attorney and

such other persons as circumstances may

(b) If the appropriate Department

decides not to approve & demand for the

production of material or disclosure of

information, he shall immediately refer

the demand to the Attorney General for

decision. Upon such referral, the Attor-

ney General shall make the final decision

and give notice thereof to the U.S. attor-

ney and such other persons as circum-

stances may warrant.

16.25 Procedure where a Departmen

ecision concerning a demand is no

nade prior to the time a résponse i

he demand is required

If response to the demand is required

before the instructions from the appro-

priate Department official or the Attor-

ney General are received, the U.S. attor-

ley or other Department attorney des.

ignated for the purpose shall appear witl

he employee or former employee of th

Department upon whom the demand ha

oeen made, and shall furnish the cour

or other authority with a copy of the

egulations contained in this subpart anc

niorm the court or other authority tha

the demand has been,

be, referred for

teres being, a

prompt consideration of the appropriate

Department official and shall respect-

fully request the court or authority to

stay the demand pending receipt of the

requested instructions.

Dated: January 11, 1973.

RICHARD G. KLEINDIENST,

Attorney General.

[FR Doc.78-1071 Filed 1-17-73;8:45 am]

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OFFICE OF THE ATTORNEY GENERAL

WASHINGTON, D. C.

May 15, 1956

ORDER NO. 116-56

It is the policy of the Department of Justice to extend the fullest

possible cooperation to congressional committees requesting Information from

departmental files, interviews with department employees, testimony of depart-

The following procedures

are prescribed in order to effectuate this policy on a basis which will be

mutually satisfactory to the congressional cormittees and to the Department.

[Inis order supersedes the Deputy Attorney General's Memorandum No. 5, dated

March 23, 1953, and bis Memorandum No. 97, dated August 5, 1954.

It formal-

Izes the Attorney General's press release of November 5, 1953, establishing

procedures to permit committees of the Congress and their authorized repre-

sentatives to interview and to take sworn testimony from Federal prisoners.

It supplements Order No. 3229 (Revised) dated January 13, 1953, and Order

No. 3404, Supplement No. 4 (Revised) dated January 13, 1953 (with Nemorandum

or aw) are any a 13,

of "Authorization Under Order No. 3464 Supplement No. 4 (Revised)" dated

January 13, 1953), insofar as said orders have reference to procedures to be

followed in the Department's relations with congressional committees.

support of this order, reference should be had to the President's letter

dated May 17, 1954, addressed to the Secretary of Defense, and to the Attorney

General's Memorandum which accompanied it.]

A. REQUESTS FOR INFORMATION FROM DEPARTMENT FILES

1. Congressional committee requests for the examination of files

or other confidential information should be reduced to writing, signed by

the chairman of the committee, and addressed to the Deputy Attorney General,

who is responsible for the coordination of our liaison with Congress and

congressional committees. The request shall state the specific information

sought as well as the specific objective for which it is sought. The Deputy

Attorney General will forward the request to the appropriate division where a

reply will be prepared and returned for the Deputy Attorney General's signa-

ture and dispatch to the chairman of the committee.

2. If the request concerns a closed case, 1. e., one in which

there is no litigation or administrative action pending or contemplated,

the Ille may be made available for review in the Department, in the presence

of the official or employee having custody thereof. The following procedure

shall be followed in such cases:

a. The reply letter will advise the committee that the

file is available for examination and set forth the

name, telephone extension number, and room number of

the person who will have custody of the file to be

reviewed;

NW 54956

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D. Before making the file available to the committee

representative all reports and memoranda from the FBI

as well as investigative reports from any other agency,

will be removed from the file and not be made available

for examination; provided however that if the committee

representative states that it is essential that information

from the FBI reports and memoranda be made available,

he will be advised that the request will be considered

by the Department.

Thereafter a summary of the contents

of the FBI reports and memoranda involved will be

prepared which will not disclose investigative tech-

niques, the identity of confidential informants, or

other matters which might jeopardize the Investigative

by the division to the fil with a request for advice as

such summary by the committee representative. The file

will not be physically relinquished from the custody of

the Department. If the committee representative desires

to examine investigative reports from other government

agencies, contained in the files of the Department, he

will be advised to direct his request to the agency whose

reports are concerned.

3. If the request concerns an open case, 1. e., one which liti-

Bation or administrative action is pending or contemplated, the file may

not be made available for ezamination by the committee's representative.

The following procedure shall be followed:

a. The reply letter should advise the committee that

its request concerns a case in which litigation or

administrative action is pending or contemplated, and

state that the file cannot be made available until the

case is completed; and

b. Should briefly set forth the status of the case in

as much detail as is practicable and prudent without

jeopardizing the pending contemplated litigation or

administrative action.

B. REQUESIS FOR INTERVIEVS WITH DEPARIMENIAL PERSONNEL

1. Requests for Interviews with departmental personnel regarding

any official matters vithin the Department should be reduced to writing,

signed by the chairman of the committee, and addressed to the Deputy Attorney

General. When the approval of the Deputy Attorney General is given, the

employee is expected to discuss such matters freely and cooperatively with

the representative, subject to the limitations prescribed in A respecting

open cases and data in investigative reports;

NW 54956

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2. Upon the completion of the interview with the committee repre-

sentative the employee will prepare a summary of it for the file, with a

copy routed to his division head and a copy routed to the Deputy Attorney

General.

C. EMPLOYEES TESTITYING BEFORE CONGRESSIONAL COMMITTEES

1. When an employee is requested to testify before a congressional

committee regarding official matters within the Department the Deputy Attorney

General shall be promptly informed.

then the Deputy Attorney General's approv-

al is given the employee is expected to testify freely subject to limitations

prescribed in A respecting open cases and data in investigative reports;

2. An employee subpoenaed to testify before a congressional committee

on official matters within the Department shall promptly notify the Deputy

Attorney General.

In general he shall be guided in testifying by Order 3229

(Revised) and the President's letter of May 17, 1954, cited at the beginning

of this Order.

3. Upon the completion of his testimony the employee will prepare

a memorandum outlining his testimony with a copy routed to his division head

and a copy routed to the Deputy Attorney General.

D. REQUESTS OF CONGRESSIONAL COMMITTEES FOR THE TESTIMONY OF FEDERAL PRISONERS

Because of the custodial hazards involved and the extent to which

their public testimony may affect the discipline and well-being of the institu-

tion, it is the rolicy of the Department not to deliver Federal prisoners out-

the penal institution in which they are incarcerated for the purpose of

being intervieved or examined under oath by congressional committees. However,

when it appears that no pending investigation or legal proceeding will be

adversely affected thereby and that the public interest will not be otherwise

adversely affected, federal prisoners may be interviewed or examined under oath

by congressional committees in the institution in which they are incarcerated

under the following procedures, and with the specific advance approval of the

Deputy Attorney General.

1. Arrangements for intervieving and taking of sworn testimony

Irom a federal prisoner by a committee of the Congress or the authorized

representatives of such a committee shall be made in the form of a written

request by the chairman of the committee to the Deputy Attorney General.

2. Such written request shall be made at least ten (10) days

prior to the requested date for the interview and the taking of testimony

and shall be accompanied by written evidence that authorization for the

interview or the taking of sworn testimony was approved by vote of the com-

mittee. Such request shall contain a statement of the purpose and the sub-

jects upon which the prisoner will be interrogated as well as the names of

all persons other than the representatives of the Department of Justice who

will be present.

3. A member of the interested committee of the Congress shall be

present during the entire time of the interrogation.

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4. The warden of the penal institution in which the Federal

prisoner is incarcerated shall, at least forty-eight (48) hours prior to the

tIme at which the interview takes place, advise the Federal prisoner concerned

of the proposed interview or taking of suom testimony; and shall further

advise that he is under the same, but no greater obligation to answer than any

other witness who is not a prisoner.

5. The warden of the penal institution shall have complete

authority in conformity with the requirements of security and the minte-

nance of discipline to limit the number of persons who will be present at

the interview and taking of testimony.

6. The warden or his authorized representative shall be present

at the interview and at the taking of testimony and the Department of Justice

shall have the right to have one of its representatives present throughout

the interview and taking of testimony.

7. The committee shell arrange to have a stenographic transcript

made of the entire proceedings at committee expense and shall furnish a copy

of the transcript to the Department of Justice.

E. OBSERVERS IN AITENDANCE AT COMMITTED HEARINGS

In order that the Department may be kept currently advised in

matters within its responsibility, and in order that the deputy Attorney

General may properly coordinate the Department's liaison with Congress and

its committees, each division that has an observer in attendance at a

congrssional hearing, will have the observer prepare a written summary of

the proceeding which should be sent to the division head and a copy routed

to the Deputy Attorney General.

/s/ Herbert Brownell, JI.

Attorney General

NW 54956 DocId: 32989495

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## Page 11

ARTSH WA PLAIN

7:32PM NITEL 2 - 11-76 I KR

- TO ALL SACS

FROM DIRECTOR

TESTIMONY BEFORE HOUSE CIVIL RIGHTS AND CONSTITUTIONAL RIGHIS

SURCOMMITTEE FEBRUARY 11, 1976.

THE ATTORNEY GENERAL AND I TESTIFIED. BEFORE

CAPTIONED SUBCOMMITTEE TODAY CONCERNING LEGISLATIVE

POLICIES AND GUIDELINES FOR THE FBI. COPIFS OF THE

STATEMENIS PRESENTED TO THE COMMITIEE BY THE ATTORNEY

GENERAL AND ME ARE BEING MAILED TO ALL OFFICES TODAY: FOR

YOUR INFORMATION, THERE FOLLOWS A SYNOPSIZED ACCOUNT OF THE

MAJOR AREAS OF THE SUBCOMMITTEE'S QUESTIONS TO ME, TOGETHER

WITH MY RESPONSES':

- ¿I'' IN RESPONSE TO QUESTIONS REGARDING IHE

PREVENTIVE ACTION PROVISION IN THE ATTORNEY GENERAL'S

PROPOSED GUIDELINES FOR THE FBI WHICH ARE CITED IN HIS

PREPARED STATEMENI, I STATED IHAT THE PRIMARY MANDATE OF

LAW ENFORCEMENI IS PREVENTION; THAI WE. CANNOI INVESTIGATE

SOLELY "AFTER THE FACI3;, THAT ACTION TO PREVENT LEGITIMATE

DISSENT UNDER OUR DEMOCRATIC FORM OF GOVERNMENI WOULD BE

INTOLERABLE: THAT, PRIAR TO TAKING PREVENTIVE ACTION IN A

ASAC.

62-2376-3

GILBERT

Rec

KEEPE

SERIALIZER ARC. FILED.

LONERGAN

FEB 1 1 1976

/SIMON_

FRI- ALBAN

NW 54956 DocId: 32989495

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4

PAGE TWO

DOMISTIC SECURITY CASE TODAY WE WOULD ASCERTAIN THE NATURE

AND EXTENI OF THE THREAI INVOLVED, CONSULI WITH THE DEPARTNENT,

AND REACH A WORKABLE SOLUTION ME TO AMY NECESSARY AND PROPER

ACTION TO BE TAKEN.

(2) REGARDING THE GUIDELINES, QUESTIONS WERE ASKED

CONCERNING MY INPUT (MY RESPONSE WAS THAI THE FBI HAS A

REPPESINTATIVE ON THE GUIDELINES COMMITTEE, AND I RECEIVE

REPORTS FROM TIME IO, TIME CONCERNING IHE THRUSI OF THESD

GUIDELINESS AND WHETHEP. THE GUIDELINES IN PRESENT FORM ARE

TOO STRICI OR LOOSE MY RESPONSE WAS THAT THE FRI IS NOT

•UNCOMFORTABLE WITH IHE GUIDELINES; THAT I CANNOI BROADLY

CATEGORIZE THEM AS STRICI OR LOOSE; THAT THEY ARE STILL

UNDER CONSIDERATION BUT AT THIS POINT ARE NOI TOO PESIPICIIVE.

(3) IN PESPONSE TO A QUESTION AS TO WHETHER, THE

DÉPARIMENT OF JUSTICE SUPERVISES THE FBI, I SIATED THAT I

RECOGNIZE, THAT IT' DOES AND THAT I CAN STATE UNEQUIVOCALLY THAT.

I HAVE À VERY PLEASANT RELATIONSHIP WITH THE ATTORNEY GENERAL

AND THAT WE GET ALONG VERY WELL.

(THE ATTORNEY GENERAL AGREED AND POINTED OUT THAI

THE. FBI HAS TO HAVE CONSIDERABLE AUTONOMY, THAT THE FRI

DIRECTOR'S RESPONSIBILITY IS GREAT, AND THAI THE ATTORNEY GENERAL

NW 54956 DocId: 32989495 Page 12

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PAGE THPEE

HAS GENERAL OVEPSIGHT RESPONSIBILITY OVER THE BUREAN. HE NOTED

THAT, THE ATTORNEY GENERAL "IS NOT RUNNING THE FBI" -- OR HE

WOULD NOT HAVE TIME FOR ANYTHING ELSE -- AND THAT. THERE

IS "SOME DISTANCE"

BETWEEN THE ATTORNEY GENERAL AND THE FBI

DIRÉCTOR.)

(4) IN RESPONSE TO QUESTIONS CONCERNING CONTINUED

OVERSIGHT OF THE FBI BY CONGRESSIONAL COMMITTEES, I STATED

THAI SINCE APRIL, 1975, THE FBI HAS DEVOTED 4500 AGENT DAYS

AND 2221 CLERICAL, DAYS TO PROVIDE CONGRESS WITH THE INFORMATION

THAT IT HAS REQUESTED; THAT SOME SOURCES AND INFORMANTS

HAVE BECOME UNWILLING. TO

FURNISH US INFORMATION BECAUSE OF

THE WIDESPREAD DISCLOSUPE OF THE MATERIAL WE HAVE PROVIDED

CONGRESSIONAL COMMITTEES; THAT THE FBI DOES' NOI OBJECI TO

OVERS IGHT: THAT WI ARE WILLING IO HAVE OVERSIGHT: AND

GUIDELINES BUT THAT WE WANI TO DEVELOP 'SOME BALANCE SO

THAT WE MAY MAINTAIN OUR CAPABILITIES INTACT TO FULLY

DISCHARGE OUR RESPONSIBILITIES.

ALL LEGATS ADVISED SEPARATELY.

END

NW 54956 DocId: 32989495 Page 13

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Department off Justice

TESTIMONY

OF

THE HONORABLE EDWARD H. LEVI

ATTORNEY GENERAL OF THE UNITED STATES

BEFORE

THE SUBCOMMITTEE ON CIVIL AND

CONSTITUTIONAL RIGHTS

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

9:30 A.M.

WEDNESDAY, FEBRUARY 11, 1976

WASHINGTON, D. C.

PREPARE

SUPERVIS

2376-4

62-85

SEARCHEL

• 1076

3 THIN

+ to so i am

NA 54956

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I welcome the opportunity to talk again with this

Subcommittee. During the months since I last testified

here there has been much discussion about various incidents

which I described to you last February 27 involving the

Federal Bureau of Investigation.

The FBI's domestic security investigations have

received the most attention. And much of it has centered on

COINTELPRO, which was

revealed to this Subcommittee before I

arrived at the Department of Justice and about which I

provided further details by letter on May 17, 1975, when they

came to my attention.

From the beginning, this Subcommittee has been interested

in the FBI's domestic security investigations. But it has

also been concerned with the whole range of FBI practices.

During my last appearance before this Subcommittee I promised

to start work preparing guidelines to govern FBI practices in

the future. The preparation of those guidelines has been slow

and difficult--much slower and more difficult than I had

realized. The problems are complex and important--as important

as any now facing the Department of Justice. I had hoped when

I first appeared before this Subcommittee that I would be

able to present to you at my next appearance a complete set

NW 54956 DocId: 32989495 Page 15

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of guidelines. This has proven impossible. But progress

has been made in drafting guidelines in several areas. You

have been provided with the most recent drafts of proposed

guidelines covering White House inquiries, investigations for

congressional staff and judicial staff appointments, the handling

of unsolicited mail, and domestic security investigations.

These draft guidelines cover many of the areas that have been

of greatest concern to this Subcommittee.

Because the statutory base for the operation of the

FBI is not satisfactory, I know the members of this Subcommittee

have been considering what changes it should enact. The

guidelines may be helpful in these deliberations. Before

discussing briefly each of the draft guidelines you have seen,

I would like to make

a few points about the question of

statutory changes.

• The basic statutory provision concerning the FBI is

28 U.S.C. 533 which provides that the Attorney General may

appoint officials "(1) to detect and prosecute crimes against

the United States; (2) to assist in the protection of the

President; and (3) to conduct such investigations regarding

official matters under the control of the Department of Justice

and the Department of State as may be directed by the Attorney

General." In addition, 28 U.S.C. 531 declares that the Federal

Bureau of Investigation is in the Department of Justice. There

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are other statutes, such as the Congressional Assassination,

Kidnapping and Assault Act, which vest in the Bureau certain

special responsibilities to investigate particular criminal

violations. There are also Executive Orders and Presidential

statements and directives placing investigatory responsibility

upon the Bureau.

In some areas--such as domestic security--the simple

statutory base I have just described is overlaid with a

series of executive orders (for example, Executive Order 10450

concerning the federal loyalty program) and directives dating

back decades. The simplicity of the statute vanishes when

placed in this setting. Moreover, the authorized work of the

Bureau in terms of crime detection must be seen in the context

of statutes passed by Congress such as the Smith Act, 18 U.S.C.

2385, the seditious conspiracy law, 18 U.S.C. 2384, and the

rebellion and insurrection statute, 18 U.S.C. 2383. I would

like to begin the discussion today by suggesting a few

considerations that should be taken into account in deciding

what statutory changes should be made to define more clearly

the areas of the Bureau's jurisdiction and the means and

methods which the Bureau is permitted to use in carrying out

its assigned tasks.

First, there is a temptation to resort to having the

courts make many difficult day-to-day decisions about investigations.

When a Fourth Amendment search or seizure is involved, of

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course,

recourse to a court for a judicial warrant is in most

circumstances required. But the temptation is to extend the use

of warrants into areas where warrants are not constitutionally

required.

For example, as you know it has been suggested

that the FBI ought to obtain a warrant before using an informant.

Extending the warrant requirement in this way would be a major

step toward an alteration in the basic nature of the criminal

justice system in America. It would be a step toward the

inquisitorial system in which judges, and not members of the

executive, actually control the investigation of crimes. This

is the system used in some European countries and elsewhere,

but our system of justice keeps the investigation and

prosecution of crime separate from the adjudication of criminal

charges. The separation is important to the neutrality of the

judiciary, a neutrality which our system takes pains to protect.

There is another, related consideration. To require

judges to decide whether particular informants may be used in

particular cases would bring the judiciary into the most

important and least definable part of the investigative process.

Even disregarding the problem of delay to investigations and

the burden that would be placed upon courts, we must ask our-

selves whether the control of human sources of information--

which involves subtle, day-to-day judgments about credibility

and personality--is something judges ought to be asked to

undertake. It would place an enormous responsibility upon courts

which either would be handled perfunctorily or, if handled with

care, would place a tremendous burden of work on federal judges.

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In drafting statutory changes, it must be remembered

that rigid directions governing every step in the investigative

process

could sacrifice the flexibility that is necessary if

an investigative agency is to adapt to the diverse

factual

situations it must face.

Rigid statutory provisions would

invite litigation at every step in the investigative process.

Such litigation could very well be used by clever individuals

to frustrate legitimate law enforcement efforts without

achieving the measure of control for which the statutes were

enacted. As Lord Devlin has said, "As soon as anything has

been codified, there is a lawyer-like--but sometimes unfortunate --

tendency to treat the written word as if it were the last

word on the subject and to deal with each case according to

whether it falls on one side of the other of what may be a

finely drawn boundary."

These considerations do not in any way mean that Congress

ought not act to clarify the FBI's statutory base. I want

to emphasize my belief that Congress should do so. The

problems I have mentioned are surmountable. The Department of

Justice is ready to work with Congress in drafting statutes

that will meet the issues that have been raised about the

responsibilities of the FBI.

The proposed guidelines are part of our effort to

cooperate with Congress in meeting its legislative responsibility.

Some of what has been proposed in the guidelines may be useful

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in drafting statutes. Other parts of the guidelines may

best be left to regulations or Executive Orders, As I said

in my earlier testimony before this Subcommittee, consultation

with you and with other Congressional committees is an

important part of the process by which these guidelines can

be perfected. There will not be complete agreement about what

has been proposed--indeed, within the Department of Justice

there is some disagreement about some provisions--but this is

inevitable and is a necessary part of the road we must travel.

We welcome discussion, which is also essential. Let me then

briefly describe the four proposed guidelines that have been

substantially completed and have been provided to you. Others--

which will cover criminal investigations, use of informants,

counter-intelligence investigations and other areas--are

currently being drafted by a committee within the Department

chaired by Mary Lawton, Deputy Assistant Attorney General in

the Office of Legal Counsel, and composed of representatives

of the Civil Rights and Criminal Divisions, the Office of

Policy and Planning, the Federal Bureau of Investigation, and

..

the Attorney General's Office. As new guidelines are drafted

in these areas they, too, will be made available to you.

When I testified before this Subcommittee last

February I described a number of incidents which occurred

in a period dating back more than a decade in which the

FBI was misused for political purposes. I noted that in

most cases we discovered where the White House was involved

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the initiation of an improper request was made by a White

House staff member--acting in the President's name--to a

counterpart in the FBI. These requests were often made

orally. White House staff members in a number of different

positions were involved.

As you know, the FBI conducts background investigations

of persons being considered for appointment by the President

either to positions in government departments or agencies or

to the White House staff. The FBI also checks it files and

sometimes conducts

further investigations of persons who will

be in contact with the President or who will be given access

to classified information. The guideline concerning White

House inquiries sets up a procedure--which is already

substantially being followed--which requires that requests

for all such investigations be made in writing by the President

or the Counsel or Associate Counsel to the President. Under

the proposed guidelines the request for an investigation would

have to certify that the person to be investigated has

consented to the investigation with the knowledge that information

gathered in the investigation would be retained by the FBI.

The consent provision is important as a mechanism for preventing

investigations in fact sought for political or other purposes

from being initiated in the use of background investigations.

It is also important as a protection of the privacy interests

of persons to be investigated. There are provisions requiring

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that access to information provided to the White House be

strictly limited to those directly involved in the matter

for which the investigation was initiated. Custodians of

the files in the White House would be required to keep a

list of all persons who were given access.

The proposed

guidelines concerning congressional staff and judicial staff

appointments take the same basic approach as the guidelines

concerning White House inquiries.

In addition the White House has been following the

practice, which perhaps should be embodied in the guidelines,

of directing through the Attorney General's Office all requests

for investigation or for material from Bureau files except

routine background checks. This was not the policy in the

past. It reflects the Attorney General's role, which I

described to you last year,

as a lightning rod to deflect

improper requests.

The proposed guidelines on the White House inquiries

and on other matters accept the proposition that FBI files

should be destroyed after a reasonable period of time.

The

deadlines for destruction of files have not yet been specified,

however, because for administrative reasons these deadlines

must be coordinated throughout the FBI file system.

The last time I appeared before this Subcommittee many

members were concerned about the handling of unsolicited

derogatory information received by the FBI. Unsolicited

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information can be very valuable in law enforcement, as you

know,

but the concern has been that allegations about the

private lives and habits of individuals have found their way

into FBI files where they may remain for great lengths of

time as a silent but troublesome invasion of individual

privacy. In my testimony of last February 27, I suggested

that on balance it would be desirable to devise some procedure

under which some information in Bureau files would be destroyed.

The guidelines concerning unsolicited information set up a

procedure for the early destruction of such information when

it does not relate to matters within the jurisdiction of the

federal government or does not make an allegation of a serious

crime within the jurisdiction of state or local police agencies.

The draft guidelines provide for destruction of such unsolicited

information within 90 days. The period after which other files

would be required to be destroyed may vary. Information collected

in background investigations might be retained long enough

to avoid the need to repeat investigative steps as an individual

moves from job to job within government or out of government

and later back in.

On the other hand, destruction of files

developed in preliminary domestic security investigations may

be required quite quickly if information indicating criminal

conduct is not developed.

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Finally I come to the proposed guidelines concerning

the controversial area of domestic security investigations.

I have already testified about these guidelines before the

Senate

Select Committee on Intelligence.

Since that testimony,

several changes have been made in the draft. You have been

provided with the latest draft of these guidelines. There

are several important features I would like to describe.

First, the proposed domestic security guidelines

proceed from the proposition that government monitoring of

individuals or groups because they hold unpopular or controversial

political views is intolerable in our society. This is the

meaning of the warning issued by former Attorney General

Harlan Fiske Stone, as I read it. Stone said, "There is always

the possibility that a secret police may become a menace to

free government and free institutions, because it carries with

it the possibility of abuses of power which are not always

quickly apprehended or understood. ..It is important that

its activities be strictly limited to the performance of those

functions for whichit was created and that its agents themselves

be not above the law or beyond its reach. ..The Bureau of

Investigation is not concerned with political or other opinions

of individuals. It is concerned only with their conduct and

then only with such conduct as is forbidden by the laws of

the United States. When a police system passes beyond these

limits, it is dangerous to the proper administration of justice

and to human liberty, which it should be our first concern to

cherish."

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The proposed guidelines tie domestic security

investigations closely to the violation of federal law.

I realize there is an argument as to whether the guidelines

tie domestic security investigations closely enough or too

closely to the detection of criminal misconduct. But the

main thing in my opinion is that the purpose of the investigation

must be the detection of unlawful conduct and not merely the

monitoring of disfavored or troublesome activities and surely

not of unpopular views. This is accomplished in the guidelines

by requiring some showing that the activities under investigation

involve or will involve the use of force or violence and the

violation of federal law. I must admit there is a problem--

in part a drafting problem but perhaps more than that--of how

• to describe or set forth a standard which further specifies what

is meant by "some showing."

Because investigations into criminal conduct in the

domestic security area may raise significant First Amendment

issues, the proposed guidelines provide for compendious reporting

on such investigations to the Department of Justice. In general

the guidelines provide for a much greater involvement by the

rest of the Department of Justice and the Attorney General in

reviewing FBI domestic security investigations. The emphasis

upon departmental and congressional review is important, but

it must be recognized that the Bureau must have primary

responsibility for controlling itself. The guidelines

attempt

to strike an appropriate balance. Periodic reports by the

Bureau of preliminary investigations would be required. All

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full investigations would have to be reported to the Attorney

General or his designee within one week of their opening. The

Attorney General or his designee could close any investigation.

FBI Headquarters would be required to review the results of

full investigations periodically and to close any when it

appears that the standard for opening a full investigation is

not satisfied and all logical leads have been exhausted or are

not likely to be productive. Each open case would be reviewed

annually in the Department of Justice and would be closed if

no longer justified under the standards. The personal approval

of the Attorney General would be required when such sensitive

techniques as Title III electronic surveillance or preventive

action are to be used, and the Attorney General would be

required to report to Congress periodically on the instances,

if any, in which preventive action was taken.

Preliminary investigations--which would not involve

the infiltration of informants into organizations or groups

or such techniques as electronic surveillance or mail covers--

would be authorized only on the basis of information or

allegations that an individual, or individuals acting in

concert, may be engaged in activities which involve or will

involve the use of force or violence and the violation of federal

law for one of five designated purposes.

Those criminal

purposes are:

(1) overthrowing the government of

the United States or the government

of a State;

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(2) interfering, in the United States,

with the activities of a foreign

government or its authorized represen-

tatives;

(3) impairing for the purpose of

influencing U.S. government policies

or decisions:

(a) the functioning of the

government of the United States;

(b) the functioning of the

government of a State; or

(c) interstate commerce.

(4) depriving persons of their civil

rights under the Constitution, laws,

or treaties of the United States; or

(5) engaging in domestic violence of

rioting when such violence or rioting

is likely to require the use of the

federal militia or other armed forces.

Preliminary investigations would be limited to inquiries of

public record and other public sources; FBI files and indices;

federal, state and local records; and existing informants

and sources. Interviews and physical surveillance undertaken

for the limited purpose of identifying the subject of the

investigation would be allowed, but interviews or surveillance

for any other purpose would require the written authorization

of the Special Agent in Charge of the appropriate Bureau field

office:

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The draft guidelines provide that such intrusive

investigative techniques as infiltration of informants into

organizations and use of electronic surveillance and mail

covers may only be initiated as a part of full investigations.

The guidelines set out the following standard for the opening

of a full investigation:

"Full investigations must be

authorized by the FBI Headquarters.

They may only be authorized on the

basis of specific and articulable

facts giving reason to believe that

an individual or individuals acting

in concert are or may be engaged in

activities which involve or will

involve the use of force or violence

and the violation of federal law for

one or more"' of the five purposes I

mentioned. earlier.

A provision is also included to allow the FBI to

investigate for limited periods of time in situations in which

domestic violence or rioting not violating federal law is

likely to result in a request by a governor or legislature of

a state under 10 U.S.C. 331 for the use of federal troops.

You will recognize that the standard for opening a

full investigation proposed in the guidelines is the equivalent

of the standard for a street stop and frisk enunciated by

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the Supreme Court in Terry v. Ohio. There the Supreme Court

wrote that in justifying a street search a police officer "must

be able to point to specific and articulable facts which,

when taken together with rational inferences from those facts,

reasonably warrant the intrusion." In his summation of the

holding of the Court, Chief Justice Warren wrote:

We. hold today that where a police

officer observes unusual conduct which leads

him reasonably to conclude in light of his

experience that criminal activity may be

afoot and that persons with whom he is

dealing may be armed and presently dangerous,

where in the course of investigating this

behavior he identifies himself as a police-

man and makes reasonable inquiries, and

where nothing in the initial stages of the

encounter serves to dispel his reasonable

fear for his own of others' safety, he is

entitled for the protection of himself

and others in the area to conduct a

carefully limited search of the outer

clothing of such persons in an attempt to

discover weapons which might be used to

assault him.

(emphasis added) (392 U.S. 1, 30)

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This standard was adopted because it requires a

strong showing of criminal conduct before a full investigation

is authorized. I should point out that a change was made

in this part of the guidelines since my testimony before

the Senate Select Committee. Originally the standard had

required a showing of specific and articulable facts giving

reason to believe that the subjects of the investigation are

engaged in activities that involve or will involve force and

violence and the violation of federal law. The change to the

phrase "are or may be" brings the formulation of the

standard more closely in line with the Terry standard. The

previous language of the guidelines proved to be too close

to the arrest standard--that is, too restrictive as a

standard for the opening of an investigation. The close

correspondence of the revised draft's standard with the Terry

language gives the guidelines' formulation a foundation in the

Supreme Court's analysis of an analagous constitutional problem

which, while it involves a different area of law enforcement,

does provide a definition for the standard which is to control

Bureau activities.

The proposed guidelines go on to require an additional

consideration before a full investigation is opened. The

guidelines state:

[T]he following factors must be

considered in determining whether a

full investigation should be undertaken:

(1) the magnitude of the threatened

harm;

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(2) the likelihood it will occur;

(3) the immediacy of the threat;

and

(4) the danger to privacy and free

expression posed by a full investi-

gation.

This listing of factors, which has been added in the latest

draft, gives the standard a dimension and explicitness it

did not have in earlier drafts. For example, the balancing

of the factors would require officials of the FBI and the

Department of Justice to close any full investigation even

if there is clear threat of a violation of federal law if

the threatened harm is de minimus or unlikely or remote in

time.

Finally, the draft guidelines provide a procedure to

be followed in emergency situations when action by the FBI to

"Intervene to prevent the use of illegal force and violence

may be required. This section of the proposed guidelines

has proven to be controversial, in part for fear that it

seeks to allow the FBI to engage in activities of the sort

that were involved in COINTELPRO. As I have said many times

before, the activities that went under the name COINTELPRO

were either foolish or outrageous, and the preventive action

section of the guidelines was not intended to legitimize

such activities, nor would it do so. It was included in the

draft guidelines in the recognition that emergency situations

may arise in which human life or the essential functioning

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of government may be threatened, In such situations law

enforcement officials would be expected to act to save life

or protect the functioning of government. Indeed, law

enforcement officials would be condemned if they did not act.

The preventive action section of the guidelines was designed

to provide a procedure for the Attorney General to authorize

and report to Congress such activities. It was designed to

set up an orderly and careful procedure to be followed in

the case of emergency. It could be supplemented by further

rules developed by the Attorney General. Under the proposed

guidelines the Attorney General could authorize a preventive

action only when there is probable cause to believe that

illegal force or violence will be used and that it threatens

life or the essential functioning of government. The Attorney

General could authorize preventive action only when it is

necessary to minimize the danger, that is, when other techniques

will not work. In the latest draft of the guidelines several

specific prohibitions were included. to make clear that new

COINTELPRO are not to be sanctioned. Prohibited are the

commission or instigation by the FBI of criminal

acts; the

dissemination of information for the purpose of holding an.

individual or group up to scorn, ridicule, or disgrace; the

dissemination of information anonymously or under false

identity; and the incitement of violence.

It may be that Congress will choose to prohibit any

FBI efforts to intervene to prevent force or violence. But

to do so carries with it a risk and a responsibility.

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The proposed guidelines are still in the process of

revision. They are tentative. As the guidelines have

been developed they have

• been shown to the Chairman of this

Subcommittee.

We must

enunciate the differences among us

about the best words to use and then seek to resolve those

differences.

But the main thrust of the guidelines is surely

the most important thing, their recognition of the need for a

program for destruction of files

in the interest of privacy,

their requirement of consent from the subject of background

investigations, their requirement of progressively higher

standards

and higher levels of review for more intrusive

investigative techniques, their requirement that domestic

security investigations be tied closely with the detection

of crime, and their safeguards against investigations of

activities that are merely troublesome or unpopular. Upon

these main themes I hope we all agree.

The Department of Justice has undertaken other steps

to meet some of the issues of concern to this Subcommittee.

We have created an Office of Professional Responsibility to

investigate allegations of improper conduct by Department

personnel and to review the investigations done by internal

inspection units of agencies within the Department. We have

been trying to work out a legislative proposal to bring

national security wiretapping and microphone surveillance

under a judicial warrant procedure.

On June 24, 1975, I

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provided the Chairman of the House Judiciary Committee with

statistics concerning the use of national security electronic

surveillance instituted without prior judicial approval.

Before the Church Committee I recounted the history of

national security electronic surveillance since 1940, revealing

a year-by-year count of the number of telephone and microphone

surveillances. The latest figures in this area show that in

1975 a total of 122 telephone wiretaps and 24 microphone

devices were used to overhear conversations.

We have tried to be cooperative with this and other

committees of Congress about other aspects of the past history

of the FBI and other agencies within the Department.

We have

tried to reveal as much as possible about the past out of a

sense of comity and a feeling that the past problems must be

discussed in the process of creating new policy. But we have

tried also to recognize that the past is not always the best

guide to the future. As we review recent history we may be so

overwhelmed by it--and by our failure of memory about the social

and political forces that shaped recent history--that we will

read. its lessons more broadly than we ought to. If there was

a lack of humility in the past about the perfection of our

vision of what was proper, I hope we cannot fail to recognize

the flaws in our vision about the past and the future today.

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It is a challenging and interesting time, and I hope

together we can prepare ourselves wisely for the future. We

cannot escape from the responsibility of looking at the problems

we face today and are likely to face in the future.

When I testified almost one year ago I stated to this

committee--and I want to emphasize most strongly again today--

that I have both a personal and official concern for the issues

which face us in this area. Those issues are close to the basic

duties of the Attorney General to protect the society--its

values, and the safety of its members. I am sure that

Director Kelley will agree with me that we must clarify for

the present and for the future the kind of course to be

followed, meticulously and candidly. I believe we have already

made considerable progress in this regard. Together with

Congress legislation can be worked out and wise policy achieved.

DOJ-1976-02

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