"Domestic Spying": The Constitutional Imperative
Methvin, Eugene H.
"Domestic Spying" Eugene H. Methvin "DOMESTIC SPYING": THE CONSTITUTIONAL IMPERATIVE The proposed FBI charter would give every terrorist one free blast. In 1975 a Federal Bureau of Investigation informant...
...Whenever someone itched to throw a firebomb, he would ridicule the notion and propose "something really powerful--I can get some next week...
...In September 1977 the chairmen of two important Senate committees overseeing intelligence, Senators Frank Church andEdward Kennedy, called for new legal restrictions that would end all such FBI intelligence investigations: "No American should be investigated unless the Bureau has probable cause to believe that a crime has been, is being or is about to be committed," they declared...
...Such a role is appropriate for Congress acting through its committees and the 'power of the purse...
...one Justice Department lawyer asks...
...As Justice Thurgood Marshall said in upholding FBI informant penetration of the Socialist Workers Party: "Our abhorrence for abuse of governmental investigative authority cannot be permitted to lead to an indiscriminate willingness to enjoin undercover investigation of any nature, whenever a countervailing First Amendment claim is raised...
...The Justices have refused to allow legislatures and courts to jail advocates of violence for "mere words" until they present "a clear and present danger" or an "imminent threat of lawless action...
...When newsmen asked in 1977 how a band of Hanafi Muslims could seize 110 hostages in three buildings within blocks of the White House, they got a simple answer: An informant within the group had been withdrawn to appease political critics of "government spying...
...Navy bus in Puerto Rico, which killed two, underlines the point...
...Viola Liuzzo...
...Further investigation revealed that he had cob lected diagrams of the sewer and water systems of Washington, D.C., and had targeted the Internal Revenue Service headquarters...
...But by dumping such decisions in the laps of judges, Congress would be authorizing a gigantic shift of power away from the executive and legislative branches, both answerable to the electorate, and toward the judicial, which is not...
...Does not this historical record present reasonable "probable cause" at least to watch such groups...
...The print was quickly traced to militant Teamsters Union organizer Miguel Cabrera, who more than four years previously had quit as too mild the Cubanfinanced Puerto Rico Socialist Party...
...Such operations obviously require risks and trade-offs...
...To penetrate the screen requires intelligence of a surgical precision that can be obtained only with the full arsenal of modern clandestine operations: informant networks, electronic surveillance, covert action...
...In return, the terrorists demanded that the "veterans" show them how to shoot...
...People who don sheets or swastikas or proclaim themselves "Marxist-Leninist" espouse genocidal philosophies that have produced millions of dead in this century...
...I n 1975 a Federal Bureau of Investigation informant assigned to infiltrate the "Black Guerrilla Family," a terrorist group closely linked with the Symbionese Liberation Army kidnappers of Patty Hearst, caught wind of a chilling plot...
...In other words, our concern for individual privacy and political freedom must be balanced against the need for effective intelligence about terrorist conspiracies which threaten the rights of everyone...
...As one intelligence official recently warned, "We ~ire in some instances attempting to cure a sore throat by decapitating the patient...
...Further investigation showed that her neXt-door neighbor, another young radical woman, had recently acquired two "assassination special" automatic pistols plus a powerful military rifle...
...It can play its classic role of calling the responsible officials to account for their stewardship and ventilating mistakes for future correction...
...Tracing it was impossible--until an FBI analyst studied files on Puerto Rican extremists based on informants' reports and made up a list of 400 possible suspects...
...Today, many in Congress propose legislation designed expressly to prohibit any FBI covert counteraction...
...If it is to give the FBI that capability, Congress must address itself to several important questions about domestic intelligence, lest it enact a charter that, like the draft now being debated, would emasculate the FBI in the name of civil liberty...
...3. What role should informants play ? In 1977 Attorney General Bell found himself deciding whether to let FBI agents teach would-be assassins how to shoot...
...Ultimately, a grand jury investigation exonerated the informant, and the firebombers were convicted...
...In writing an FBI charter, Congress would do well to follow Justice Robert H. Jackson's wise injunction that an open society must continually struggle to "reject as false claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend the existence of our society and reject as false claims in the name of security which would undermine our freedoms and open the way to oppression...
...It largely accepts the "criminal standard" sought by the American Civil Liberties Union and its congressional allies...
...Ultimately, the FBI arrested five members of the terrorist group hours before they planned to bomb the California senator's office...
...An all-out investigation eventually produced sufficient evidence to arrest the ringleaders on unrelated criminal charges...
...Ultimately, he found himself riding in the car with the Klansmen who shot and killed a civil-rights worker, Mrs...
...They threw a 24-hour guard around the governor's sister and her family, and mounted a tight surveillance on six suspected plotters whose prison records included sentences for murder, r-ape, and kidnapping...
...THE AMERICAN SPECTATOR JANUARY 1980 23...
...Instead, more than 500 agents were transferred to doling out FBI files under the Freedom of Information Act--allowing outsiders to identify informants, at least one of whom was later murdered by Mafia gangsters...
...BGF members were talking of kidnapping Governor Jerry Brown's sister and holding her hostage until the governor freed the two SLA killers serving life sentences for murdering Oakland's black school superintendent, Dr...
...A jury found them not guilty last March--but since their arrests the "Labor Commandoes" have not been heard from since...
...1. Whom do we watch...
...incredibly, however, that bill failed to authorize equal coverage of the domestic variety, so that the stricter criminal warrant criteria remain in place...
...The fall-off THE AMERICAN SPECTATOR JANUARY 1980 21 in intelligence has been so severe that the Secret Service director has warned Congress that there is now growing doubt about his agency's ability to protect the President, Vice President, and visiting heads of state...
...As literally scores of criminal cases demonstrate, such "intelligence" files based on informants' reports are crucial to stopping terrorist campaigns as soon as they begin, if not before...
...9 In June I974 two FBI informants at a meeting of a white hate group in New Jersey learned that a Klan activist planned a bombing in an unidentified city...
...Two FBI agents, posing for four and seven years as disgruntled Vietnam veterans, penetrated 22 THE AMERICAN SPECTATOR JANUARY 1980 the Weather Underground and met fugitive radicals who taught them how to make bombs...
...Does it matter to American citizens whether the bomb or bullet that kills them is aimed by a Palestinian or Ku Kluxer, by domestic or international terrorists...
...Under Attorney General Edward Levi's 1976 guidelines, pending investigations were slashed in two years from 9,814 to 642, and the number of special agents assigned dropped from 788 to 143...
...On one such communiqu6 police found a single fingerprint...
...Consider how this "criminal standard" would cripple law enforcement...
...Capitol or the support apparatus that helped him and his fellow terrorists evade the FBI for so long...
...Their proposed victims: a judge, a California senator, and the leaders of antibusing protests...
...That way, as Senator Kennedy argues, it would be "the courts, not the Executive, that would ultimately rule...
...In this atmosphere Congress is now moving to write into law a "charter" that would further restrict the FBI's domestic intelligence and anti-terrorist activities...
...The charter would permit investigation only after the FBI already has "facts or circumstances that reasonably indicate" a group or person has engaged in criminal activity...
...Miraculously, the two officers were only wounded...
...A nation horrified at the brutal killing had the satisfaction of seeing the FBI jail the murderers within hours, and the swift arrest served warning to Klan types everywhere...
...9 In June 1970 an FBI informant within the Black Panther Party warned of a planned ambush on Detroit police, and named the designated attackers...
...Bell instructed the undercover agents to go ahead, but to use techniques worked out by FBI academy instructors that would ensure that the terrorists would be atrocious marksmen...
...By "next week" either the wouldbe terrorist would have cooled off, or the FBI informant would think up new excuses...
...Yet, to apply such stringent criminal formulas to prohibit merely watching the radical milieu in which extremists grow and organize means that, as one judge pointed out, "we give every terrorist one free blast...
...Brennan, the FBI Assistant Director who ran the program, told me...
...The proposed Carter charter would require the FBI to instruct informants that they shall "not participate in crimes of violence...
...But as the Senate Select Committee to Study Intelligence Activities rightly concluded, "The excesses of the past do not justify depriving the United States of a clearly defined and effectively controlled domestic intelligence capability...
...Inside two years, they had "turned" more than 2,000 Klansmen into informants...
...In 1972 the Supreme Court itself warned against this trend: "Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of executive action...
...D e s p i t e such past success, when a provision for strictly limited covert action was included in Attorney General Levi's 1976 guidelines, it stirred such Capitol Hill opposition that he withdrew it...
...This would be a grave mistake, as would adopting the FBI charter in its present form...
...Congress can no more tell the executive branch how to wage internal war "to preserve, protect, and defend the Constitution" than it can write a handbook telling Air Force fighter pilots how to defend against Soviet bombers...
...Three other named Panthers scouting another section of Detroit for a diversionary target were nailed with illegal weapons in hand, convicted, and sent to jail...
...Thus, while on the FBI payroll, one Klan informant in the company of other Kluxers beat civil-rights demonstrators, boarded buses and kicked people, and charged into restaurants and beat blacks with blackjacks, chains, and pistols...
...Police caught the would-be killers with their weapons when they returned to their nearby residence--and sent them away with long prison terms...
...Many of the charter's advocates are still reacting against the abominable excesses of J. Edgar Hoover...
...And since 1976 the number of domestic intelligence informants has been cut from 1,100 to fewer than 50...
...At the same time, the Justices urged Congress to enact a law establishing more lenient standards for such court orders than those applied to criminal warrants, in order to meet the special needs of intelligence-gathering...
...Senator Church's own Select Committee to Study Intelligence Activities: _9 In September 1974 Japanese Emperor Hirohito paid a state visit to the United States...
...Our Constitution is not a covenant of nonresistance toward organized efforts at disruption and betrayal...
...We had the Klansmen looking in their own pockets," C.D...
...Not a single agent was assigned to investigate the Weather Underground itself...
...The FBI has always done so...
...On September 22, 1977, terrorists murdered a prominent San Juan labor lawyer in his own home...
...During the maelstrom of campus violence in the late 1960s, for inStance, one FBI informant played a daring but adept game of deterring violence by "one-upmanship...
...In Mississippi FBI agents identified 5,000 Klan members and interviewed every single one...
...Two informants strategically placed within extremist organizations reported to the Bureau that there was indeed a plot afoot to assassinate the Emperor...
...it is not the role of the judiciary...
...That these committee chairmen could make such a demonstrably erroneous claim and go unchallenged is a measure of the unrealism in Washington o,;,er "government spying...
...Yet that kind of general background intelligence has not been collected since Levi's guidelines were imposed in 1976...
...Through the years, the FBI's domestic intelligence operations have aborted many such terrorist plots...
...He and a number of associates were caught redhanded with an arsenal of weapons and chemical explosive components, and were put behind bars...
...Though the informant had no chance to prevent the killing without jeopardizing his own life, he reported to his FBI controller at the first opportunity...
...Do we prosecute one or two terrorists and leave a dozen or so unwatched...
...If the Congress does its job of oversight, it can confidently arm our peace officers with the weapons of law enforcement-electronic surveillance, informant networks, surreptitious searches, and covert action--necessary for waging war on terrorists without seeming to sanction the kinds of abuses that have brought intelligence-gathering into disrepute...
...Due to congressional inaction, the U.S...
...four of them pleaded guilty...
...Eventually, however, one group slipped away from the counselor of delay and firebombed an ROTC headquarters...
...In 1972 the Supreme Court required, for the first time, prior judicial authorization for all such surveillances of strictly domestic terrorist groups...
...Not until last year did Congress act...
...For 60 years American legislators and Supreme Court Justices have struggled with this problem...
...Instantly, the FBI tipped the Los Angeles police...
...Lawmen controlling informants within extremist groups face a classic dilemma...
...On the appointed day, two unseen snipers riddled a police cruiser with armor-piercing bullets...
...Indeed, the FBI's domestic intelligence operations have already been virtually destroyed...
...Indeed, the delicacy of the intelligence task springs from the unprecedented nature of 20th.century extremist movements operating on the principle "Kill one, frighten ten million...
...By a narrow margin, the legislators passed a bill permitting warrants to be issued under less stringent standards for surveillance of foreign spies and terrorists...
...Through our top-level infiltrators, we issued instructions to all Klaverns: 'No Klansmen are to engage in any violence because that's just what the "feds" want, and we have to "outwit" them instead.' " That effectively ended the Klan threat...
...The informant promptly turned them in, only to be accused by the defendants of having initiated the episode himself as an "agent provocateur...
...This was "preventive intelligence" at its best...
...The December attack On a U.S...
...The alternative is to leave informants "in place" and exploit every opportunity to disrupt, expose, and disintegrate the extremists or turn their violence inward, thus accomplishing the ultimate purpose of law: keeping the peace...
...The applicant, a Japanese-American woman living in Los Angeles, had been closely associated with the violent American Indian Movement and had been in touch with the Black Panther Party...
...Six times from 1956 to 1971 the FBI launched covert counteraction campaigns --"dirty tricks"--against a wide range of groups...
...Prosecution requires "surfacing" the informant as a witness, ending his usefulness...
...At the end of three years, we were virtually funning seven of the 17 Klan groups...
...The social fact of 20thcentury extremism is that violent words tend to produce violent deeds...
...government for the past six years has been denied the ability to use bugs and wiretaps for intelligence against domestic terrorists...
...Yet the Carter administration's draft charter goes a long way toward doing just that...
...An FBI file check on press-pass applicants turned up disturbing secret informant reports about one...
...What would the ACLU and Congress do in such a case...
...But agents working against Ku Klux Klan terrorists had to shut their eyes because, as one testified, "You can't be an angel and be a good informant in the Klan...
...The killers distributed clandestine "press releases" proclaiming the victim was "condemned to death and executed by Labor Commandoes" for "crimes against the working class...
...4. lVill we allow covert counteraction...
...When Mark Rudd, an original Weather Underground organizer, surrendered in 1977 after seven years on the FBI's "Ten Most Wanted" list, the Carter Justice Department did not even call him before a grand jury to be questioned about the 1971 bombing of the U.S...
...2. What about electronic surveillance...
...Then witnesses to the killing identified a photograph, and Cabrera and two others were arrested and tried on murder charges...
...At the time, Attorney General Griffin Bell had a dozen lawyers pursuing top FBI officials who had authorized electronic surveillance and surreptitious break-ins against the Socialist Workers Party...
...Hours before his New York appearances, federal authorities raided the terrorists' apartment and found a cache of illegal weapons...
...Communist Party...
...The open society's predicament in the face of terrorism is symbolized by the infamous snapshot of President Kennedy's assassin, Lee Harvey Oswald, proudly holding his sniper-rifle in one hand and the Trotskyite Communist newspaper the Militant in the other...
...So the courts have repeatedly overruled civil libertarians' claims that the mere existence of a governmental data-gathering and "spy" apparatus "chills" free speech and political activity...
...In September 1964, after civilrights'Workers were murdered in Mississippi, Attorney General Robert Kennedy proposed and President Johnson approved an all-out "secret war" on the Klan modeled on the FBI's first such disruption campaign, against the U.S...
...Many in Congress would prefer to cede the responsibility for such difficult decisions to the judiciary, by requiring the Justice Department to apply to a judge for a warrant before infiltrating informants into a suspicious group...
...Marcus Foster...
...Intelligence operations of the sort that thwarted these three plots would be impossible under the restrictions Senators Kennedy and Church now urge Congress to write into law in order to stop "government spying...
...To avoid identifying the informants and ending their usefulness, the Justice Department prosecuted the two occupants on firearms charges in lieu of pressing an assassination conspiracy case...
...The public record is devoid of any evidence that intelligence investigations are an effective tool in protecting the public from terrorist violence...
...We might thereby expose innocent people to worse violence...
...Declared Leon Trotsky, "No underground group can function without a screen of sympathizers...
...The gun-buyer had then moved to New York, where Hirohito was scheduled to make several public appearances...
...Consider these episodes revealed in the published reports of Eugene H. Methvin is a senior editor of Reader's Digest andthe author of The Riot Makers and The Rise of Radicalism...
...Yet these successes have been overshadowed and forgotten in a drumfire of news media and congressional criticism of "government spying...
Vol. 13 • January 1980 • No. 1
