Notes Toward a Definition of National Security
Cotter, Richard D.
Notes Toward a Definition of National Security by Richard D. Cotter The hearings by Senator Frank Church’s Select Committee on Intelligence Activities have focused on the use of illegal methods...
...In replying, Assistant Director Miller pointed out that it was unlikely anyone would challenge prior FBI investigations and that, in any event, the decisive factor was for the Bureau to develop a sound basis for existing and future investigations...
...On occasions the Bureau has been badly burned .as a result of such strategy...
...World War I1 was succeeded by a tense and extended period of confrontation with the Communist bloc, during which the country was shocked by revelations of successful Soviet-organized espionage against U. S. defense programs, including nuclear weapons secrets...
...In most cases the inquiry develops little information of value, other than what was available to the FBI before investigation commenced, e. g., that John Doe is a member of SDS...
...Colonel Abel) is not that easy...
...Simultaneously, there were allegations of widespread infiltration of the government and other key institutions by Communist agents...
...Perhaps most remarkable was the fact that the FBI’s heavy commitment to intelligence investigations-despite the lack of statutory authority-took place almost imperceptibly, with no one taking official recognition of what was happening...
...In his testimony before the Church committee, former Assistant Director Brennan came perilously close to admitting that the need to sustain a high “caseload” in the Intelligence Division had been a factor in his decision to open 10,500 cases on student and black militants in August 1970...
...Nor...
...President Roosevelt reissued the directive verbatim in 1943...
...This rarely produces significant results, and field agents are reluctant to conduct them, since they have no clear-cut answers if the subject is curious about the basis of the inquiry...
...At this point neither Kennedy nor the Justice Department knew that Section 87, dealing with subversive investigations, had been under revision by the Bureau...
...The Bureau’s independence in internal security affairs was not challenged by a succession of Attorneys General, although nominally they were responsible for FBI operations...
...I am quite sure that a majority of field agents were skeptical about Cointelpro, or even regarded it as downright silly, but each office had to go through the motions at least of complying with the directives from headquarters...
...Roughly the same breakdown prevailed at the time of my retirement last December, and applies today...
...Cointelpro instructions were issued in circular letter form to all 56 field offices (including such surprised recipients as Anchorage and Butte), and each division was required to submit a progress letter at 6Oday intervals summarizing recent counter-intelligence activities and projecting future plans...
...And the FBI itself has grown gradually more autonomous in deciding whether the “national securityyy area overlaps with federal law...
...A lengthy “position paper” was prepared which, in effect, concluded that the 1939-1954 presidential directives on which the Bureau has relied constituted a doubtful, and probably invalid, legal basis for “intelligence” inquiries...
...There was no requirement that the Bureau consult the Attorney General, the White House or other outside authority-nor was this done...
...The predication might show, for example, that the inquiry is based on information indicating that the subject’s activities may lead to a violation of Sections 2383 and 2384 of Title 18, U. S. Code (rebellion and seditious conspiracy...
...He was asked to explain the basis for FBI authority to investigate domestic groups and individuals and also to furnish the committee with a summary of any “standing orders” or other guidelines the various Attorneys General had issued to the Bureau in this field...
...In the typical case, the investigation centers on the acquisition of background data (birth records, education, employment, residences, military service, motor vehicle information, etc...
...As far as the FBI is concerned, mail openings and break-ins were discontinued in the late 1960s and have never been resumed (although these facts may not have emerged clearly during the televised hearings...
...Maude White particularly liked the “educationals,” when half a dozen members would get together and discuss the writings of Marx...
...The first “intelligence” investigations were under way...
...During his questioning of C.D...
...The statutory approach has had surprisingly little impact on either the quality or number of cases opened...
...It appears to me that three fundamental steps need, to be taken: First, Congress should enact a statute enabling the FBI to conduct intelligence investigations of domestic groups and individuals, even where a particular federal offense is not involved, whenever available information indicates such groups or individuals are planning to engage in or are actively encouraging the use of violent methods against the orderly functioning of the U. S. government and its subdivisions...
...Rewriting the Manual Following the death of J. Edgar Hoover in May 1972, FBI headquartersat the prompting of Acting Director Gray-undertook a reassessment of many of the agency’s basic policies, including its role in covering subversive activities...
...It was a precedent even to make Manual chapters available to the Department...
...Cointelpro was abruptly teminated by Bureau headquarters in May 1970 with a terse two-paragraph directive to all offices...
...No information is reported that would establish a connection between the subject in Buffalo and any rebellious or seditious actions (or even with the VVAW actions in Florida or New York City) or that would support a conclusion that mere membership in the VVAW implied a readiness to engage in such offenses...
...From the outset Cointelpro was a complete aberration of the FBI’s investigative function and a breach of a cardinal article of faith: that the Bureau was strictly .a fact-finding agency...
...It did not confer any additional authority on the FBI...
...But the only information adduced to support this statement is the identification of the subject as an officer of a chapter of the Vietnam Veterans Against the War at Buffalo, New York...
...groups which are reported to be acquiring arms or explosives or engaged in paramilitary training, such as the “Minutemen...
...Unfortunately, the detection of deep cover Soviet or Chinese Communist intelligence agents in the United States (e.g...
...The meeting had been called to consider a suggestion I had made to streamline the reporting of rank-and-file subversive and extremist cases...
...which is largely superfluous-but which at least is available-as contrasted with information concerning the subject’s subversive or “extremist” activities, which is usually scarce, or nonexistent...
...The effort is a failure in my view...
...In addition the 1960s saw the growth of two forces that were perceived as threats to national security: a rebellious black power movement, which contributed to widespread urban riots and violent attacks upon the police, and a militant student movement, ranging from largely peaceful anti-war or anti-pollution protests to a campaign of terror and bombings by groups such as the “Weathermen...
...They remained in Felt’s office for the next five months, although they were returned briefly on one occasion with a lengthy informal note voicing misgivings on Felt’s part...
...The Editors Richard D. Cotter spent 26 years with the FBI, becoming Chief of the Research Section of the Intelligence Division...
...This is the question of the FBI’s basic jurisdiction and authority in the domestic security field...
...I often wonder what might have happened if Wannall had pursued the point...
...Current FBI files contain no explanation for this misreading of P r e s i d e n t Roosevelt’s earlier directives, but the FBI did not raise any objections...
...The Cointelpro project required only the recommendation of the Assistant Director in charge of Intelligence Division and the approval of the FBI Director...
...The children Maude White taught were only four years old, and so they certainly, never discussed politics...
...Only Congress can do this through the enactment of statutes...
...On September 6, 1939, five days after the German invasion of Poland and the outbreak of World War TI, Roosevelt issued a directive alerting all citizens and law enforcement agencies to the urgency of reporting espionage, sabotage or neutrality violations, and designating the FBI to “take charge” of the investigations and to coordinate the information which was developed...
...In addition, the revised guidelines ordered that all investigative reports be prefaced with a “statutory predication”-a statement listing the specific statute or statutes on which the inquiry was based...
...A 1 5-year-old high-school student in New Jersey who had corresponded with an office of the Young Socialist Alliance learned she was under investigation following FBI interviews with school officials...
...Such a statute, supplementing the FBI’s existing authority, would provide the Bureau with ample grounds to identify and track the activities of the groups and individuals which constitute a realistic threat...
...In essence, Cointelpro was a systematic effort on the part of the FBI to disrupt the activities of a variety of groups regarded as subversive or extremist, including the Communist Party, the Socialist Workers Party, the Ku Klux Klan, the Black Panthers, and Students for a Democratic Society...
...Attorney could then authorize the FBI to arrest the suspects under conspiracy statutes...
...The Grey Area The Bureau’s jurisdiction in criminal matters is fairly precise...
...In addition the 1960s saw the growth of two forces that were perceived as threats to national security: a rebellious black power movement, which contributed to widespread urban riots and violent attacks upon the police, and a militant student movement, ranging from largely peaceful anti-war or anti-pollution protests to a campaign of terror and bombings by groups such as the “Weathermen...
...Brennan, former Assistant Director of the FBI’s Intelligence Division, Senator Church noted that in August 1970 the Bureau ordered investigations of 6,500’members of the Students for a Democratic Society and 4,000 members of black student unions, with the aim of identifying those with a “propensity for violence...
...The letter writer described himself as a resident of the apartment building where Maude White lived, but in fact it was the FBI...
...The broad “intelligence” approach with its uncertain guidelines had other disadvantages...
...They might have lain dormant for a long time but for an unexpected development...
...Notes Toward a Definition of National Security by Richard D. Cotter The hearings by Senator Frank Church’s Select Committee on Intelligence Activities have focused on the use of illegal methods by the FBI and CIA to acquire information: the unlawful opening of mail and illegal trespassing upon private premises...
...One wonders how many other employers were written similar letters and did not ignore them...
...The report showed that this group had expressed verbal support for an international black power organization, some of whose leaders had urged an end to white imperialist oppression by “any means necessary...
...If Senator Church and his colleagues proved susceptible to these pressures, allowances should probably be made for the nature of the beast...
...Then, during the 1961-68 period, .FBI headquarters decided to launch Cointelpro efforts against the Klan, the Socialist Workers Party, black militant groups such as the Panthers and eventually against the whole melange of organizations falling within the broad orbit of the “New Left...
...Cointelpro No discussion of FBI jurisdiction in this field would be complete without some mention of the highly pub1 i c i z e d Coin t elp ro (Counterintelligence Program) operations...
...A “statutory predication” now appears at the outset of all investigative reports, but frequently it bears only a dim resemblance to the subject’s activities...
...The temptation to oversimplify, and to sacrifice accuracy for hyperbole, is almost irresistible in the format of a televised congressional hearing, where complex issues and compli-cated events must be compressed and made meaningful in a few short hours...
...A Conspiracy of Silence The Bureau’s caseload in this area climbed steadily, reaching the 20,000 level by the end of 1972...
...But this legal nicety became all but invisible as the FBI responded to a succession of events which seemed to threaten the national security...
...The rewritten Manual chapters were completed and sent through for the approval of Associate Director W. Mark Felt in January 1973...
...But at the same ,time, many agents-especially the younger onesare dissatisfied with the vagueness and lack of substance of a large percentage of intelligence investigations and are reluctant to handle them...
...Kevin Maroney, the chief of the Justice Department’s Internal Security Section-probably the most knowledgeable individual on the Department’s staff regarding FBI security operations-was designated to represent the Attorney General...
...The revamped Manual provisions did not represent a full-scale return to statutory limits...
...They did not restrict investigations to instances where an actual crime has been committed or is in the making, but required only that information be on hand indicating a subject’s activities “may lead” to a violation...
...But in actual practice, the story is somewhat different...
...he extent of investigation follows a predictable course aimed at proving the elements of the violation as spelled out in the statute...
...Church was seeking to establish another point at the time, and the fact that the FBI had launched more than 10,000 security investigations in one fell swoopstrictly on its own initiative and without any evidence of a federal vie lation-seemed to pass virtually unnoticed...
...In the 1960s the focus shifted to black and student elements...
...By the early 1960s the “cold war’’ had thawed noticeably and the national preoccupation with internal security, as personified by Senator McCarthy, seemed ready to subside...
...The relative ease with which a whole category of domestic security cases can be opened also serves as a constant temp tation for Bureau officials to add new work rather than to reduce their staffs...
...By the early 1960s the “cold war’’ had thawed noticeably and the national preoccupation with internal security, as personified by Senator McCarthy, seemed ready to subside...
...Overnight the revised Manual chapters became a “sFecia1...
...as by monitoring an illegal agent’s mail and examining his personal effects is a delusion...
...Again, had these posts been occupied by individuals other than W. C. Sullivan, assistant director of Intelligence Division, and Hoover, there might never have been a Cointelpro effort...
...Before then the Bureau had operated on a strict statutory basis and domestic security cases represented only a small fraction of its workload...
...But a few offices took the instructions more seriously and undertook actions aimed at creating employment problems or family difficulties for particular subjects...
...To suggest that the FBI can penetrate such operations just as readily through “clean” investigative techniques (interviews, checks of public records, etc...
...During the 1950s, the emphasis was on preSoviet groups, notably the Communist Party, USA...
...In my view, the Church panel should tackle a far more fundamental issue, one which the Congress has ignored for many years and which is increasingly plaguing the FBI’s efforts...
...The FBI was charged with having engaged in unlawful activities on a large scale and in “shotgun” fashion...
...This term, however, has gradually grown to encompass an area far broader than that covered by the federal criminal statutes...
...Nor do I have any major misgivings about the Church committee inquiry in general, although the televised sessions painted a highly oversimplified and niisleading picture on several points...
...In a span of less than five years, President Kennedy was assassinated by an obscure repatriate from the Soviet Union, his brother Robert shot to death by a pro-Arab fanatic, and Dr...
...Steps were also taken to disrupt Party meetings and other functions by such tactics as disconnecting the loudspeaker or air conditioning systems or putting out misleading information as to the time and place of an event...
...I am sure, in fact, that if these sections were quoted verbatim in tomorrow’s New York Times, they would draw widespread approval from the public, Congress and the majority of the news media...
...And there is no doubt that Cointelpro did damage the Communist Party, although to .what extent it is hard to say...
...Actually, Cointelpro proves little about FBI jurisdiction...
...But it also reflected the unwillingness of a long succession of Presidents, Attorneys General and congressional committees to grapple with the difficulties involved in resolving the problem of FBI jurisdiction...
...Several senators, for example, asserted that U. s. intelligence agencies had no need to employ questionable tactics and could develop all the information they required through standard investigative methods...
...This would cover groups which are known to be involved in terrorist efforts, such as the Symbionese Liberation Army and the “Weathermen...
...The girl’s family subsequently sued the government and was awarded a settlement...
...and put them under White House supervision...
...The proposed new guidelines were returned to Felt’s office, only to be filed away once again...
...How the FBI Tried to Fire a Schoolteacher...
...Through anonymous letters, the planting of rumors, and in other ways, efforts were made to sow discord, suspicion and rivalry between various Party factions or leaders...
...He should ask that the Justice Department be consulted prior to the opening of any major category of cases or in any sensitive areas...
...The ensuing survey in the Intelligence Division, which I coordinated, disclosed that of some 20,000 current domestic security cases only about 2,150, or eleven per cent, dealt with matters in which there was probable cause that a crime had been, was being, or was about to be committed...
...and groups alleged to be planning to provoke public riots and civil violence...
...But this trend was sharply reversed by new shocks to domestic tranquillity...
...Included in this material was an intra-office memorandum prepared in the Philadelphia office which discussed a possible Cointelpro project...
...I am certain that a responsible school administrator would not allow a revolutionist to indoctrinate the fertile minds of grade school children...
...In the absence of clear boundaries it is almost inevitable that an intelligence agency-anxious to be as fully informed as possible regarding potential threats to national security-will carry its investigations too far...
...The coverage was tightly supervised by FBI headquarters, involved.only three field offices, and was aimed solely at identifying Soviet or Chinese Communist intelligence agents operating here...
...Thus, through the years Hoover and his successors have been able to claim, with apparent justification, that the FBI’s wide range of “intelligence” inquiries in the area of subversive (or “extremist” or “violence-prone”) activities bas been in response to presidential directives...
...The conclusion was inescapable that the “statutory approach,” with its more...
...The issue seems simple enough: those government agencies created to protect and uphold the law have admitted to deliberate violations of the law and of constitutional guarantees of privacy...
...Superintendent Manning says today that.he “pretty much ignored anonymous letters...
...organizations whose literature or pronouncements represent an incitement to violence against law enforcement personnel or other authorities, such as the Black Panther Party during the late 1960s...
...The problem may be stated this way: If investigations are restricted to instances where information is on hand indicating a particular crime has been, or will be, committed, the government will handicap itself in planning effective counter-action against disruptive or revolutionary groups and individuals...
...The new statute would not, however, authorize investigations of groups and individuals which have only a derivative or highly indirect connection with violent activities (e...
...It is an issue for the Congress to resolve, working in conjunction with the Attorney General and with the advice of knowledgeable FBI representatives...
...The FBI is probably as tightly administered and as efficient as other government agencies, but its supervisors are subject to the same bureaucratic pressures which affect any large organization...
...all individuals shown on a mailing list of a youth group affiliated with the Socialist Workers Party...
...Throughout this period the FBI steadily expanded the volume and scope of its “intelligence” investigations, the prime purpose of which was not to prosecute actual violations of the federal statutes but to keep authorities informed, to anticipate possible violence and to identify potential revolutionaries...
...On the surface, everything looks fine...
...In addition, the senators frequently indulged in overkill-sometimes at the expense of the facts...
...Nor did it extend the jurisdiction of the Bureau, which already was charged with responsibility to investigate espionage, sabotage and neutrality violations...
...I have no quarrel with this denouementpainful as it is for someone whose assignments included a hectic three weeks in the summer of 1970 helping to prepare the “Huston Plan,” a proposal to increase the scope of intelligence activities in the U.S...
...On the other hand, statutory limits should be drawn somewhere...
...The independence of the FBI in internal security matters was, in part, a measure of the unlimited confidence the American public had in J. Edgar Hoover...
...The opening and closing of domestic security cases-or an entire bloc of investigationsdepends to a marked degree upon the judgment of individual FBI supervisors and officials, as well as on its constantly changing perception of the internal security picture...
...Kennedy directed his request to the Justice Department which, in the first week of June 1973, advised the Bureau that it felt Kennedy’s request should be granted, but that they, the Justice Department, would like to look at the FBI Manual, too...
...Although headquarters officials are probably not aware of it, agents assigned to “subversive” or “extremist” squads, especially in the larger offices such as New York...
...It was entirely unrelated to investigations of domestic groups or individuals...
...Even the FBI and CIA witnesses called before the televised hearings offered no serious rebuttalprobably a wise choice under the circumstances...
...In fact, she was not connected with the group but had only written to ask for material she planned to use in a high-school course...
...Unfortunately, with any program judged successful, there is often a temptation to enlarge and extend it.‘ Cointelpro was no exception...
...The addition of the “subversive activities” phrase to White House orders gave the Bureau the illusion of a much broader mandate than the narrow reference to espionage, sabotage and neutrality violations...
...It was reiterated by President Truman in 1950 and repeated again by President Eisenhower in 1954...
...William R. Manning...
...Most agents, I think, would like the Bureau to enjoy considerable latitude in determining its domestic security coverage...
...If suspects are developed, the facts are presented to the Justice Department for a decision as to prosecution...
...The Growth of ‘Intelligence’ The virtual independence of the FBI in matters relating to domestic security can be traced to the late 1930s...
...Simultaneously, there were allegations of widespread infiltration of the government and other key institutions by Communist agents...
...Yet, somehow, the 1939 Roosevelt directive gradually emerged as the prime legal support of the FBI’s rapidly expanding activities in the field of domestic security...
...None of the senators asked where the Bureau derived authority for such a major undertaking...
...It was apparent that the assembled chiefs had given little, if any, thought to the issue, and it produced an uncomfortable silence...
...In fact, the Department was not furnishedand presumably never requesteda copy of the FBI Manual of Instructions until 1973...
...Attorney...
...It should be apparent by now that the problem of clearly defining FBI jurisdiction and authority in the domestic security area-of allowing sufficient leeway for the Bureau to cope effectively with potential terrorists while avoiding the flaws of a broad “intelligence” approach-is not one the FBI can, or should, be expected to solve on its own...
...These examples do not represent isolated cases, but are fairly typical of a large number of the FBI’s current investigations...
...He retired from the Bureau in December, 1974...
...He should require that the FBI periodically furnish the Department a summary of FBI domestic security activities, including estimates of the number of cases in each category, the resources and manpower expended and the results achieved...
...It tends to encourage opening large blocs of cases en massefor example, all persons listed in an address book found on a Black Panther Party leader at the time of his arrest by local police...
...He could find no standing orders whatever with respect to domestic security investigations, and the best he could cite in the way of general instructions was one obscure directive issued by a previous Attorney General relating to the administrative format of electronic surveillance requests...
...From their inception, these programs were a total departure from the Bureau’s normal policies and disciplines, and even those officials who supported the effort did not suppose that the FBI could claim any legal authority for them...
...The Justice Department was regularly furnished with copies of all investigative reports in domestic security cases, but only rarely did it raise questions or offer guidance either in individual cases or on overall policy...
...A teletype was sent to all field offices (which had received no forewarning of these major changes in investigative policy and reporting procedures) ordering prompt implementation...
...Nonetheless, the statutory predication cited the rebellion and seditious conspiracy statutes as a basis for investigation...
...No explanation was provided to the field, but the reason for the project’s sudden demise was obvious: several months earlier the FBI Resident Agency in Media, Pennsylvania, had been burglarized, probably by student or anti-war militants, and hundreds of Bureau communications taken...
...Most significant of all, the GAO report found that in only two per cent of the cases did the FBI investigation develop advance knowledge of the activities of subversive elements and slightly more than half of the time (51 per cent) the investigation failed to establish that the subject was even affiliated with a subversive organization or its activities...
...The U.S...
...But curiously, in the 1950 order issued by Truman, Roo sevel t ’ s earlier directives were misquoted as having commissioned the FBI to take charge of matters i nv ol vi ng sabotage, neutrality violations and subversive activities...
...What Cointelpro does plainly demonstrate is the astonishing degree of independence the FBI had gained in the domestic security area, The Bureau was able to initiate an extensive, risky, and highly questionable operation without consulting with the Attorney General...
...During the 1950s, the emphasis was on preSoviet groups, notably the Communist Party, USA...
...was she fired, as it turned out...
...The FBI was not alone in this perception: there were heavy public, congressional and administration pressures to counter such threats...
...Sections 87 and 122 of the Manual of . Instructions require explicitly stated statutory grounds for each investigation and there are pointed cautions against investigating any individual merely on the grounds that he opposes government policies...
...The FBI is still conducting a large number of “intelligence” inquiries-although under a statutory veneer...
...The session was uneventful until Wannall, who had been listening thoughtfully, suddenly spoke UP...
...In January 1973, Acting Director Patrick Gray inquired about the extent of FBI security investigations which did not involve an actual or imminent crime...
...Members of the Church panel as well as representatives of the news media have unanimously condemned these practices...
...Finally, someone recovered sufficiently to offer some generalities about the need for the Bureau to fulfill its internal security obligations and the conversation drifted into safer waters...
...Nevertheless, the new instructions were a major step in the direction of a statutory basis as opposed to the broader “intelligence” approach which required no statement whatever of the legal grounds for investigation...
...In many cases the investigation concludes with an interview of the subject...
...The flaw in this position-and the overriding factor to bear in mind-is that no President can simply assign expanded jurisdiction to the executive branch or to any of its agencies...
...school system from the menace of a teacher who does not have the interests of the children or the country at heart...
...Copies of the stolen documents were mailed anonymously to newspapers and public officials and subsequently published...
...This directive was aimed at avoiding conflicting or overlapping action among the numerous federal, state and local agencies which had varying degrees of interest and jurisdiction in internal security matters...
...Aside from any legal or constitutional questions involved, such investigations are open to serious challenge on practical grounds...
...As I hope to show in the course of this article, the FBI itself has increasingly recognized this problem in recent years, but the Congress, which has the greatest responsibility in this area, has turned a blind eye, preferring instead to make occasional sensational disclosures to demonstrate its concern about FBI activities...
...At a minimum, the Attorney Gen...
...That meant they were also watching Maude White...
...In early 1974 the House Committee on Internal Security held several hearings on the subject of FBI jurisdiction...
...Reminded that this would involve a departure from normal FBI procedures, since no federal violations were alleged, Roosevelt solved the legal problems raised by having Secretary of State Cordell Hull request the investigations under a seldom-used provision of the Appropriations Act...
...It began to include the harassment of individual Communist Party members, through tactics designed to cause employment, family or other personal difficulties...
...Throughout this period the FBI steadily expanded the volume and scope of its “intelligence” investigations, the prime purpose of which was not to prosecute actual violations of the federal statutes but to keep authorities informed, to anticipate possible violence and to identify potential revolutionaries...
...They were watching the apartment where she lived, the literature in the hallway, the occasional groups of youths who came for meetings, the one or two men who came alone and stayed the night...
...At times, the Department’s lack of direction and its failure to inform itself of basic FBI policies was almost embarrassing...
...In any event, the ultimate successor failure-of the Church committee will not depend on its handling of unlawful activities by government agencies...
...But this trend was sharply reversed by new shocks to domestic tranquillity...
...The Bureau’s use of covert mail coverage, for instance, was limited to communications between this country and the Soviet Union as well as Communist China...
...He expressed concern that the “peremptory” discarding of the presidential directives as a basis for jurisdiction might be viewed as an admission that many of the FBI’s past investigations were not warranted...
...Generally, investigation began with coverage of a group national head quarters and its top leaders but was gradually expanded to include its various chapters and affiliates and, eventually, virtually the entire membership...
...In the 1960s the focus shifted to black and student elements...
...I recall one report from a Midwest office concerning a black whose sole activity was affiliation with a local group whose stated objective was to promote the image and welfare of the black community...
...In 1969 23-year-old Maude White was teaching pre-school children at Maury Elementary School in Washington, D. C. She had joined the Socialist Workers Party a year earlier while an undergraduate at American University...
...g., the VVAW officer in Buffalo) or which urge major political changes but do not advocate violent means to attain their objectives...
...Martin Luther King slain by what appeared to be a hired gunman...
...At the present stage, this is a fairly open-and-shut matter...
...When there are allegations of, or the facts indicate, a violation of certain federal statutes (e.g ., kidnapping), investigation is undertaken and followed to a logical conclusion...
...No specific actions of a subversive or violent character were listed, either on the part of the subject, his .local group or the international black power organization...
...This is evident from a recent survey made by the General Accounting Office...
...Generally, investigation began with coverage there were heavy public, congressional and administration pressures to counter such threats...
...The important issue is not how many cases the FBI might have at any given time, or whether they belong either in the “intelligence” or “prosecutable” category, but whether they are of real value in safeguarding national security...
...In 30 per cent of the cases such evidence was judged to be “medium,” and 36 per cent of the time it was characterized as “soft...
...This I know to be untrue...
...Only three per cent of the investigations were referred to the Justice Department for prosecution...
...Following rapidfire approval by both Felt and the Acting Director, typists and print shop employees worked overtime to prepare and issue the new guidelines in final form...
...These are not hypothetical, but represent actual cases...
...The report then relates that members of the VVAW in New York City had previously engaged in a sit-down protest at the Statue of Liberty premises and that VVAW members in Florida had reportedly threatened violence during the 1972 national political conventions...
...Supporters of the proposals, however, included E. S. Miller, who had recently replaced Brennan as assistant director of the Division...
...By this time Cointelpro was in full swing, and so the FBI was watching the Socialist Workers Party...
...Bearing in mind the heavy commitment of FBI resources to such investigations, these figures should raise questions even among those who support a broad “intelligence” approach on the part of the Bureau...
...This episode has been recounted in some detail because it typifies the dilemma confronting the FBI...
...which handles hundreds of these cases, make frequent requests for transfer to other work...
...So she joined the group and they would get together for occasional meetings...
...But in its early stages Cointelpro was at least limited to actions aimed at curtailing the effectiveness of the Communist Party-a group which in the atmosphere of the Cold War was regarded as a major threat to U. S. security...
...It only remains for the Church committee, if it chooses, to pinpoint the blame for past actions or to recommend controls which would preclude their future use...
...The addition of the vague word “subversive” was picked up by Eisenhower and included in his 1954 directive...
...A majority of Intelligence Division supervisors and officials were strongly opposed to these recommendations and felt that the suggested “statutory approach” would cripple essential domestic intelligence coverage...
...However, when no crime has yet been committed, there is a “grey area” as far as FBI jurisdiction is concerned, ranging from cases in which the FBI plainly has no legal sanction to arrest a suspect or conduct an investigation (for example, an agent observing a man loitering near a bank would not be justified in concluding that a bank robbery was about to take place) to clearer situations...
...Both of these goals are limited, and essentially negative, in character...
...Secondly, the Attorney General and appropriate Justice Department officials should take a far greater interest in FBI operations in the domestic security arena than has been the case for some 40 years (dating back to 1936 when President Roosevelt by-passed the Attorney General in ordering the first intelligence inquiries...
...It was a casual remark aimed at no one in particular, but for a few seconds at least it had the effect of a bolt from the blue...
...The Pseudo-Statutory Approach The uncertainty of the FBI in domestic security matters can also be seen in its handling of such cases since June 1973, when the statutory approach was officially adopted...
...The system is so capricious that if someone other than Brennan had been serving as Assistant Director at the time, then none of these cases might have been opened, or an additional 10,000 might have been added...
...In a span of less than five years, President Kennedy was assassinated by an obscure repatriate from the Soviet Union, his brother Robert shot to death by a pro-Arab fanatic, and Dr...
...The majority of current investigations do not involve the commission of a specific offense, but are aimed at judging the extent to which the subject threatens “national security...
...If, for example, the FBI received a tip from a reliable source advising that a bank robbery was going to take place, detailing how, where and when the robbery would occur, the FBI would turn the information over to local law enforcement authorities and notify the U.S...
...Martin Luther King slain by what appeared to be a hired gunman...
...The FBI is a disciplined, professional agency with a tradition of respect for constitutional rights and an acute concern for its public image...
...I remember a conference held during early 1974, in the office of Assistant Director W. R. Wannall, who had succeeded Miller as head of the Intelligence Division...
...But during the summer of 1936, in response to growing fears that the United States would soon find itself the target of Nazi and Communist-inspired sabotage, espionage and propaganda campaigns, President Roosevelt ordered the FBI to commence discreet investigations of the Fascist and Communist movements in this country...
...In practice, a large number of Cointelpro activities consisted of nothing more drastic than posting an anti-New Left article on some college bulletin board or anonymously mailing a critique of radical student activities to school administrators...
...These were, chiefly, violations of the bombing, sabotage and anti-riot laws...
...They wanted to do away with the military budget and spend the money on schools and hospitals instead, and that seemed like a good idea to her...
...For a number of months Senator Edward Kennedy had been trying to get hold of a copy of the FBI’s Manual of Instructions, especially the provisions covering subversive investigations, for an inquiry his Senate subcommittee was conducting concerning electronic surveillance...
...But with Senator Kennedy coming into possession of parts of it, there was concern that the material might soon thereafter be made public...
...Fleeting as it was, the incident struck me as a revealing glimpse of the complacency with which many FBI officials viewed existing policies in the domestic security area...
...era1 should issue general guidelin’es covering the scope and extent of FBI investigations...
...In fact, within the FBI itself, there is a growing awareness of the fuzzy nature of the agency’s jurisdiction in the domestic security area and of the ineffectiveness of investigation in a high proportion of these cases...
...World War I1 was succeeded by a tense and extended period of confrontation with the Communist bloc, during which the country was shocked by revelations of successful Soviet-organized espionage against U. S. defense programs, including nuclear weapons secrets...
...Maroney had a wretched enough time with the questions regarding FBI jurisdiction and the scope of its investigations, but when it came to the matter of “standing orders” or Justice Department instructions to the FBI, the questioning became painful...
...To make matters worse, the selective approach which had characterized Cointelpro operations against the Communist Party (for the most part involving only a handful of field offices and seasoned agents) was virtually abandoned...
...On the whole, the testimony offered a fairly accurate picture of the extent of the Justice Department’s knowledge of, and impact on, FBI policies in domestic security matters...
...In short, about nine out of every ten domestic security inquiries have no direct statutory foundation and are based on the FBI’s own initiatives in meeting what it regards as its internal security responsibilities...
...References to the 1939-1954 White House directives as a basis of jurisdiction were dropped and the new chapters instructed that investigations would be initiated only where information was available indicating that a subject’s activities “may lead to a violation of’ particular federal statutes...
...They represent an effort to graft a statutory basis onto purely “intelligence” type cases...
...I bring this information to your attention,” the letter read in part, “in order to protect the D.C...
...After reviewing 676 of the FBI’s domestic security cases, the study concluded that in only 34 per cent of the cases was there “hard” evidence that the subject was a leader of a “subversive” group or was otherwise known to be prone to violence on behalf of a political cause...
...But operating virtually without oversight, the Bureau has expanded its intelligence gathering beyond what is necessary in a number of instances...
...Finally, FBI Director Clarence Kelley and senior Intelligence Division officials should be encouraged to continue the critical reappraisal of Bureau policies begun in 1972, which has generated the first useful discussion of these policies within the FBI itself in many years...
...But with the Department’s advice about granting Kennedy’s request, any uncertainty about whether the revised chapters should be adopted was swept away...
...He may adopt measures to change or improve executive branch policies and procedures in fulfilling existing jurisdiction, but he cannot create new jurisdiction...
...Eventually the FBI decided that the best thing would be to get Maude White fired from her job...
...The study proposed that an effort be made to align the agency’s domestic security investigations more closely with existing statutes and recommended that the Attorney General seek expanded statutory authority...
...As a result of my experience at FBI headquarters, I am convinced that keeping up the caseload level was an important factor in other instances as well...
...Under Miller’s direction, the basic policy guidelines in the FBI Manual of Instructions covering domestic security matters were completely rewritten...
...all black cabdrivers in a Southern city to determine those with informant potential...
...The FBI’s immediate halt to all Cointelpro programs came too late, however, to prevent a persistent and ultimately successful effort by CBS newsman Carl Stern to acquire considerable detail about Cointelpro under the Freedom of Information Act...
...And the Attorney General should strengthen and professionalize the Justice Department’s Internal Security Section...
...Cointelpro was initiated in 1954, at the height of the Cold War, as a highly confidential and selective program aimed solely against the Communist Party and its leaders...
...restrictive guidelines, had won the approval of top FBI officials chiefly because of the possibility that the Bureau’s procedures might soon become public...
...I sometimes wonder,” he remarked, “whether it would have made any real difference if ,the Bureau had not conducted all of these investigations on individual rank-and-file members...
...Key officials and supervisors, both in the Intelligence Division and in the field, have not shown much desire to enforce the new approach...
...So on May 29, 1969, a letter was sent out to D. C. School Superintendent...
...Domestic security cases typically fall into just this “grey area” between potential and actual crime...
...Thus, when Assistant Director Brennan decided in August 1970 that it was a good idea to open 10,500 cases on student militants, he only needed the approval of Director Hoover...
...The remaining 89 per cent involved coverage of groups or individuals known or suspected of being engaged in “extremist, violenceprone, and subversive-type activities,” without any specific indication of‘ a crime under FBI jurisdiction...
Vol. 7 • December 1975 • No. 10
