Google Inc. et al v. Egger et al

Filing 441

Google Inc. et al v. Egger et al

Doc. 441 Att. 4

Exhibit 5

Dockets.Justia.com

94TH 2d

CONQBEES Session

>

SENATE

REPORT

h-0. 94-755

INTELLlGENCE ACTIVITIESAND THE RIGHTSOFAMERICANS
BOOK II

FINAL
OF

REPORT
THE

TO STUDY

SELECT COMMITTEE GOVERNMENTAL OPERATIONS
WITH RESPECT TO

INTELLIGENCE

ACTIVITIES

UNITED
ADDITIONAL,

STATES
TOGETHER WITH

SENATE
AND SEPARATE

SUPPLEMENTAL, VIEWS

APRIL

26

(legislative

day,

APRIL

14),

1976

U.S. 68-786 0

GOVERNMENT WASHINGTON

PRINTING : 1976

OFFICE

For sale

by the Superintendent Washington,

of Documents, DC. 20402

U.S. Government - Price $3.60

Printing

Office

12 don his supposed `obedience' to white liberal doctrines (non-violence) .:' i" In short, a non-violent man was to be secretlv attacked and destroyed as insurance, against his abandoning non-biolence. (6) 177egal 01' Improper Ncn,,s.-The surveillance which we investigated was not' onlv vnstlg excessive in breadth and a basis for degrading counterinteliigenrc actions, but, was also often conducted by illegal or improper means. For example : (1) For approximately 20 years the CL4 carried out. a program of indiscriminatelv opening citizens' first class mail. The Rnrenu also had a mail opening program. but cancelled it in 1966. The Bureau continued. however. to receive the illegal fruits of CL4's program. In 1970, the heads of both agencies signed a document for President Xixon, which correctly stated that mail opening was illegal, falsely stated that it had been discontinued, and proposed that the illegal opening of mail should be resumed because it would provide useful results. The President approved the program, but withdrew his approval five days later. The illegal opening continued nonetheless. Throughout, this period CIA officials knew that mail opening was illegal, but expressed concern about the "flap potential" of exposure, not about the illegality of their activity.71 (2) From 1947 until May 1975, NSA received from international cable companies &llions of cables which had been sent by American citizens in the reasonable expectation that they would be kept private.72 (3) Since the early 1930's. intelligence agencies have frequently wiretapped and bugged American citizens without the benefit of judicial warrant. Recent court decisions have curtailed the use of these techniques agninst domestic targets. Rut, past subjects of these surveillances have included a United States Congressman. a Congressional staff member, journalists and newsmen. and numerous individuals and groups who engaged in no criminal activity and who posed no genuine threat, to the national security, such as two White House domestic affairs advisers and an anti-Vietnam War protest group. While the prior written approval of the Attorney General has been required for all warrantless wiretaps since 1940, the record is replete with instances where this requirement was ignored and the Attorney General gave only after-the-fact authorization. Until 1965. microphone surveillance by intelligence agencies was wholly nnremllated in certain classes of cases. Within weeks after a 1954 Supreme Court decision denouncing the FBI's installation of a microphone in a defendant's bedroom, the nttorney General informed the Bureau that he did not believe the decision applied to national security cases and
to all SACS, 3/4/M. `I See Mail Opening Report. : Section II, "Legal Considerations Pntentinl." % SW SSA Report : Section I. "Introduction and Summary."

" Memorandnm from FBI Headquarters

and the `Flap'

II.

THE

GROWTH

OF DOMESTIC 1936 TO 1976

ISTELLIGEKCE

:

1. The Lesson: aistol,yRepecrtsZtself During and after the First World JYar, intelligence agencies, including the predecessor of the FBI, engaged in repressive activit:y.' ,I new Attorney General, Harlan Fiske Stone, sought to stop the mvestigation of `apolitical or other opinions." 2 This restraint was embodied only in an executive l~ro11o1111celllellt, however. So statutes wtr~ passed to prevent the kind of improper activity which had lwcn esposed. Thereafter, as this narrative will show. the abuses returned ,in a new form. It is now the responsibility of all three branches of gorernment to ensure that the pattern of abuse of domestic intelligence activity does not recur. 2. TAe Patte'm: R~~oaclcning Thv-ough Time 8ince the re-establishment of federal domestic intelligence programs in 1936, there has been a steady increase in the government's capabilit? and willinylwss to pry into, and even disrupt, the political activities and personal lives of the people. The last forty years have witnessecl a relentless expansion of domestic intelligence activity beyond investigation of criminal conduct toward the collection of politlcal intelligence ancl the launching of secret offensive actions against Americans. The initial incursions into the realm of ideas and associations were relatetl to COIK~~M about the influence of foreign totalitarian powers.
`Repressive practices during World War I included the formation of a voluntwr auxiliary force. known as the American Protective League, which assisted the Justice Denartment and militarr intrllieence in the inrestieation of "ml-.bierican activities" and in the mass ronnd-up of 50,000 persons to discover draft evaders. These so-called "slacker raids" of 1918 inrolved xvarrantless arrests ~vithout sufficient probal~le wuse to l)r!ieYc that crime had been or was about to be committed (FBI Intellieence Division memorandiim. "An Analysis of FRI Ikmiestic Srckitr Intelli~&ce Investigations." 10/%/7;T.) The American Protective League also contributed to the 1)ressnrw which resulted in near1.v 2.000 Drosecutinns for disloral utterances and activities durinr World War I, h policy-described br .John I&l O'Brien, Attorney General Orei: nry's Sl,rcial Assistant. as one of "wholesale repression and restraint of public ol)ininn." (Zrchariah Chafer. I;`wP Spcwh iu the TTnitcd Stntcs (Cambridge : Hnrwrtl T'niversitF Press. 1941) 1,. 69.1 Shortly after the war the Justice Department and the ISurmml of Inrestigatinn jointly l)lanned the notorious "Palmer Raids". named for Attorney Benrral I\. Mitchell I'nlmcr who ordered the overnight round-111, and detention of snmc IO.000 prrsnns who w?re thought to lw "anarchist" or "rernlntionary" alielis sulkjwt to deportation. (William Prcstnn. Alims cfntl Disse~~frra (CamIbritlw : IT:irrard l'niwrsity Press. 1963). c+is. `i-S : Stanley (`nlwl. -1. Mitchc7Z Pfclwrr: Politiciccil (Sew York : Cnlnmlbia I'nirrrsity Press. 1063), chs. 11-12.) ' See L\ttoriiey Gciit~rnl Stone's full statement. 1,. 23.

(21)

22
Ultimatrlg, howver. intelligcmx activity vx3 directed against domestic groups ad\-orating chnngre in Ameiicn, partic.nlarly those who most vigorously opposed the Vietnam war or sought to improve the contlitions of racial minorities. Similarly. the targets of intelligence investigations wcrc hrondened from groups perceived to be violence prone to include groups of ordinary protesters. .?. Th we Z'e7-ior78 of Gowth fo7. Domestic II-zfe77igence The expansion of domestic intelligence activity can nsefnlly he divided into three broad periods: (a) the pre-war and World \TTnr II period; (b) the Cold War era; rind (c) the period of domestic dissent beginning in the mid-sixties. The main developments in each of these stages in the evolution of domestic intelligence may be summarized as follows : CI.LO.?&7-19.$.5 Bv presidential directire-rather than statute-the FBI and militar!- intclligcnc<e :Igcncics wrc anthorized to conduct domestic intelligcnw inrcstigntions. These inrcstipations included n vaguely defined mission to collect intcllipencc about "subversive Rctirities" which were sometimes nnrclated to law enforcement. JJxrtime exigencies cncourngwl the, nnrcgiilated use of intmsire intrlligence techniques; and thr FIST brgnn to resist supervision by the Attorney General. Colt1 Var frnrs nnd danprrs nurtured the domestic intelligence programs of the FBI and military. and they became permanent features of gorcrnmrnt. Con,cress rlcferwd to t.hr rsecntire branch in the orersi,qht of these programs. The. FBI became increasingly isolatrd from effective outside control. even from the Attorne,vs Grnrral. The scope of investigations of "subversion" wirlrncd gently. Iynder the clank of vcrecv. thr ITT institntecl its COINTET,PRO operations to "disrupt" and "neutralize" "snbrersires". The National Security Agency, the FBI, and the CIA1 re-instituted instrusire wartime SLWveillance techniques in contravention of lam. c. 19&-197s Tntrllipence techniques Khich previonslv had been concentrated up011foreign threats rind domestic grollps s&d to be under Communist influence n-we applied with incrrnsing intensity to n wide range of domrstic activity lx A2mericnn citizens. These trchniqnrs were utilized against pencefnl `civil rights and a&war protest nctiritv. nnd thereafter in reaction to civil unrest. often without rrgnrd for the consequences to .\mcricnn liberties. The intelligrnce aqencics of the United Stntcs-sometimes abetted by public opinion and often in rrsponsr to pressure from ndministrntion officials or the Con,rrrrss-fI.eclnentlv disregnrtlrtl thr law in their conclnct of massive snrrrillance and wgrrssire coilnterintelli,~e~~ce oprrntions nqainst A1merican citizens. Tn the past frx ywrs. somr of tlirsr actiritles werr ciirtnilrd. pnrtl~ in rrsponsr to tlir motlrration of the domestic crisis: hiit all too often impropri. pi~ogrnms wrrr terminntrcl only in rrsponse to rsposnrr. tlw threat of tsposiiw. or n clinngr in thr climate of public opinion. snch as that triggered l,- thr Wntergnte affair.

36

`I'llis iucitlent provitlrs :~n cs:~nll)lc of thr FI3T's ability to rondwt domrstic intelligencr operations in opposition to the policirs of a11 .\ t toriiry G.~nc~~al. I )c..pitr _\ ttornry (;rnrrnl I<itltllc'a ortlrr. thr "tlnll.grroii~nrss" list continurtl to br krpt. aid iiiwstigations in snpport of tli:ltj list. continiicd to bc a significant part of thr 13nrenn's work.
7. Ztittvsiw TecAt~iy1ir.s: Quexfioifd7c
:lufllol'i~"NfiO~l

This or&r was issurd in thr facr of the Frdrral Commllnicntions Act of 1934, which had prohibited wiretnppinp.69 Howerer, thr .ittornev General interpreted thr _1ct of 1934 so as to permit powmmrllt wT-i;*rtnpping. Sincr tlir ,\ct made it unlawful to "intciwpt~ n77d tlivulp" comnllulicntions, A1ttorncy Gtneral ,Jncl~~on contrndrtl that it did not. npplg if thrw K~F no tlirulgrnce oufsidc~ the ~~ovrixmrnt. ~TGnplinsis nclclrcl.~ T0 A\ttorney Genrml ,J~~lmm~s q~wstionnble intrrprctntion was accepted by sncceeding ,\ttorneys Grncrnl (until lN23) hit iirw'1'1y the milds.il .Jaclrson informed thr Congrrss of his intrrpretation. Congress considrrrd rnncting an exception to the 19.34i\ct, and lirld hearings in which Director IIoorer said wiretapping was "of consitlerable importance" bccanse of the "gravity" to "national safety" of snc11 of" JItm~ornndnn~ from .J. Edgar Hoover to ITRI Ficiltl Offices. Rc : Dnngero77sness Clnssiflcxtion. S/14/-J3. This is tile n7llr tlocnmcnt 77crtaini71-z to Dircctnr IInnvrr`s tlwisiotl \vhicll :7l,lwnrs i11 thr 171:7terinl prnvidctl IIF tl1<> FRI tn the Sckct Committfv covering I<nreau lwlicics for the "Sec77rity 1~1~s." The FBI interpreted the .\ttnrnr,v Grnr~ml's ortlfr ns npplyiug nnlr to "thr d:lngc~rnn`: cl:7ssificxtio71s p?rinnsly mndv by the Special War Pniicirs I'nit" of the Justicr Depart771cnt. (The frill test of tl1c Attor11ey Gnirrnl's nrtlr>r and tlit? FI'.I directive nlrpmr iii II~nrings. Vol. 6. pl? 412-415.) Bs Confidential m(Lmora7ld77777 fro711 President Rnnwrelt to &\ttnr71cy General OD47 U.S.C. 605. The Snpreme Cnnrt 11rld that this Act mndr wiretap-obtained rl-idcnw or the fr77its thereof innd717issihle in fedrrnl crimi71al caws. Sn,doiic r. r~?l.itccl. stotcn. 302 T'.S. 379 (1937) : 308 T'.S. 338 (1030). " J,etter from Attorney General .Jncltson to Rep. IIntton Snmmers. 3/10/41. 71E.g.. L',literZ A'tnte.? T. Brcfmko. -1% F.2d 593 (3d Cir. 1074). cert. t7ert8ierl sub no771. I?.n)loz: v. linifctl Stnten. 419 T7.S. 881 (1X4). The Conrt of .\ppenls held in this (we that warrantless wirctnpping co17ld mrly Iw jnstifird 077 n theory of i77hfwnt I'residefiti:71 power. :intl qncstinned the stnti7tc~r.v intrrl)rrtntin71 relied qmn since .4ttomcy Gcnf~rnl .J;~cksc~n's timrl. I'ntil l!Hii. thr S77l)rrwlc Co77rt did 11nt r77lc that n-irctnppin g vinlntwl tl7p Fnnrth A711rnd7nc~nt. [ Ol~~~.stcrrrl v. T.uitctl Sffftf'?, 35 V.S. 5Si (19X) ; Zi~t: T. U~itcd States. 3SD 1J.S. 317 Cl!Ifji).j

for the subsequent adoption of the Fourth Amendment in 1'791,1O' and this technique is certainly no less intrusive today. Subfunding (c) The imprecision and manipulation of labels such as "national seactivities" and "foreign incurity," "domestic security, " "subversive telligence" have led to unjustifiecl use of these techniques. and `bforeign intelligence", Using labels such as `*national security" intelligence *agencies have directed these highly intrusive techniques against individuals and organizations who were suspected of 110 criminal activity and who posed no genuine threat to the national security. In the absence of precise standards and effective outside control, the selection of American citizens as targets has at times been predicated on grounds no more substantial than their lawful protests or their non-conformist philosophies. Almost any connection with any perceived danger to the country has sufficed. The application of the "national security" rationale to cases lacking a substantial national security basis has been most apparent in the area of warrantless electronic surveillance. Indeed, the unjustified use of wiretaps and bugs under this and related labels has a long history. Among the wiretaps approved by Attorney General Francis Biddle under the standard of `Lpersons suspected of subversive activities"' for example, was one on the Los Angeles Chamber of Commerce in 1941.`Os This was approved in spite of his comment to J. Edgar Hoover that the target organization had "no record of espionage at this time." log In 1945, *4ttorney General Tom Clark authorized a wiretap on a former aide to President Roosevelt.110 According to a memorandum by J. Edgar Hoover, Clark stated that President Truman wanted "a very thorough investigation" of the activities of the former official so that "steps might be taken, if possible, to see that [his] activities did not interfere with the proper administration of government." I11 The memorandum makes no reference to "subversive activities" or any other national securit,v considerations. The "Sugar Lobby" and Martin Luther King, Jr., wiretaps in the early lR6Os both show the elasticity of the "domestic security" standard which supplemented President Roosevelt's "subversive activities" formulat,ion. Among those wire`tapped in the Sugar Lobby investigation, as noted above, was a Congressional staff aide. Yet the documentary record of this investigation reveals no evidence indicating that the target herself represented any threat to the "domestic security." Similarly, while the FBI may properlv have been concerned with the activities of certain advisors to Dr. King, the direct wiretapping of Dr. King sho\vs that the "domestic security" standard could be stretched to unjustified lengths. The microphone surveillances of Congressman Cooley and Dr. King under the "national interest" standard rstablishcd by ,jttorncv General Brownell in 1954 also reveal the relative ease with which electronic bugging devices could he used against, American citizens who
lol SW P ,g. Olmntend v. T7nited Rtntcn. 277 U.S. 4.18, (192n8). lo8M&norindum from Francis Biddle to Mr. Hoover, 13/19/41. xoa Ibid. `lo Unaddressed Memorandum from .I. Edgar Hoover, 11/X/45, Director Hoover's "Official and Confidential" files. n1 Ibid.

found

in`

208 ccrning domestic revenue sharing and welfare reform.lZ2 The rcinstatrment of another wiretap in this series was requested by H. R. Hnltlrman simply because "they may have a bad n,pl)lc and hare to pet, him out of the basket." ly3 The last four requests in this series that were sent to the ,4ttorney General (including t,he requests for a tap on the "bad apple") did not) mention any nnt,ionnl security justification at all. As former Deputy At.torney General 1Yilliam Ruckelshaus has testified : I think some of the individuals who were tapped, at least to the extent I have reviewed the record, had very htt,le, if any, relationship to any claim of national security . . . I think that as the program proceeded and it became clear to those who could sign off on taps how easy it was to institute a wiretap under the present procedure that these kinds of considerations [i.e., genuine national security justifications] were considerably relaxed as the program went on.lZ4 None of the "seventeen" wiretaps was ever reauthorized by t,he Attorney General, although 10 of them remained in operation for periods longer than 90 days and although President Nixon himself stated privately that "[t]he tappin g was a very, very unproductive thing. . . it's never been useful to any operation I've conducted . . ." *Z In short, warrantless electronic surveillance hasbeen defended on the ground that it was essential for the national securit,y, but the history of t,he use of this technique clearly shows that the imprecision and manipulation of this and similar labels. coupled with the absence of any outside scrutiny, has led to its improper use against American citizens who posed no criminal or national securit,y threat to the country.lZ6 Similarly, the terms "foreign intelligence" and "counterespionage" were used by the CL4 and the FBI to justifv their cooperation in the CIA's New York mail opening project,. but this project was also used to target entirelv innocent. American citizens. AS noted above, the CIA compiled a "UTatch List" of names of persons and organizations whose mail was to be oprnrd if it pnsserl throngh the Kew York facility. In the earlv days of the project. the names on this list-which then numbered fewer than twenty-might reason*ZZ Memorandum from W. C. Sullivan to C. D. DeLoach, 8/l/69. 121Memorandum from J. Edgar Hoover to Messrs. To&on, Sullivan and D. C. Brcnnan. 10/15/70. * Ruckdshaus testimony before the Senate Subcommittee on Administrative Practice and Procedure. 5/g/74. pp. 311-12. lzF, Transcript of the Presidential Tapes, 2/28/73 (House .Judiciary Committee Statement of Information Book VII, Part W, p. 17.54.) ya The term "national securitv" was also used hv John Ehrlichman and Charles Co&n to justify their roles in the break-in of Dr. Fielding's office in 1971. A March 21,1973 tape recording of a meeting hetween President Sixnn. John Dean. and H. R. Haldeman surgests. however. that the national security "justification" may have heen developed long after the event for the purpose of ohscuring its impropriety. When the President asked what could he done if the break-in was revealed publicly, *John Dean suggested. "You might put it on a national security grounds hasis." Later in the conversation. President Nisnn stated "With the hnmhing thinr coming nut and everything coming nut. the whole thing was national security," and Dean said, "I think we could get by on that." (Transcript of Presidential tapes, 3/21/73.)

The findings which have wnergctl from our investigation convince us that the Go\ .crnment's domestic intelligence policies and practices require funtlamcntal reform. We have attcmptrtl to set out the basic facts: now it is tinlr for (longi~rss to turn its attention to IegisI,ating restraints upon intelligence activities which may endanger the constitutional rights of Americans. The Conm~ittrr's fundamental conclusion is that intelligence activities hare untlermined the constitutional rights of citizens and that they have done so primarilp because checks and balances designed by the framers of the Constitution to assure accountability have not been applied. Before examining that conclusion, we make the following observations. --While nearly all of our findiq focus on excesses and things that went wrong, we do not question the need for lawful domestic inteIIiprncc. We recognize that, certain intelligence activities serve perfectly proper anal clearly necessary ends of government. Surely, catching spies and stopping crime, including acts of terrorism, `is essential to insure "domestic tranquility" and to "provide for the common defense." Therefore, the power of government to conduct p7*ope7' domestic intelligence activities under effective restraints and controls must be preserved. -We are aware that the few earlier efforts to limit domestic intelligence activities have proven inef&ctual. This pattern reinforces the need for statutory restraints coupled with much more effective oversight from all branches of the Government. -The crescendo of improper intelligence activity in the latter part of the 1960s and the early 1970s shows what we must watch out for: In time of crisis, the Government will exercise its power to concluct domestic inteIIi.gence activities to the fullest extent. The distinction between lqal dissent and criminal conduct is easilv forgotten. Our job is tn recommend means to help ensure that the disiinction will always be observed. -In an era where the technological capability of Government relentlessly increases. we must be. wary abollt the drift toward "big The potential for abuse is awesome and rebrother government." quires special attention to fashioning restraints which not only cure past problems but anticipate and prevent the future misuse of technology. --We cannot dismiss n-hat we have found as isolated acts which were limited in time and confined to a few willful men. The failures to obey the law and. in the words of the oath of office. to "preserve, protect, and defend" the Constitution, have occurred repeatedly throughout administrations of both political parties going back four decades. (289)

290
-We must acknox-ledge that the asaipnment which the C2orernment has given to the intelligence communit\has. in many ways. been impossible to fulfill. Tt has been expected to predict or prevent every crisis. resl~on~l imniediatyly with information on an? qiicstion, act to meet all threats. and anticipate the special needs of Presidents. A\nd then it. is chastisetl for its zeal. Certainly, a fair assessment must plare a major part of the blame upon the failures of senior executive officials ant1 collplws.

In the final analysis, hoverer. the purpose of this Committee's work is not to allocate blame among individuals. Indeed. to focns on personal culpability may divert attention from the underlying institntional causes and thus nia~ become an excuse for inaction. Before this investigation. domestic intelligence had never been systematically siwve\-etl. For the first time, the Gorernment's domestic sur\-eillance programs. as they have developed over the past forty years, can be measured against the values which our Constitution seeks to preserve arid protwt. hsed iipo~i 0771' full record, and the findings which we hare set fortll in Part TIT above. the Committee concludes that :

Our findings and the detailed reports which supplement this rolullle set. forth a massire record of intelligence abuses over the years. Through a vast network of informants. and through the uncontrolled or illegal use of intrusive teclinicIi7es-raJigilig from simple theft t0 sophisticated electronic surrrillance-the Go\-ernment has collected, and then used iniIn~operlr. huge aniounts of information about the private lives. political beliefs and associations of numerous Americans. Affect L'pow Comfitutiow/7 Rights.-That these abuses hare adversely affected the constitutional rights of particular Americnns is beyond question. nut we believe tlw IMJ-JJI cstends far beyond the citizens directly affected. Personal privacy is protected becauseit is essential to liberty and the pursuit of happiness. Our Constitution checks the power of Gorernment for the pqose of protecting the rights of individuals. in order that all our citizens may live in a free and decent society. T'nlike totalitarian states. we do not beliew that any go\-ernnient has a moJiopol\011 t rnt11.

When Government, infringes those rights instead of nurturing. and protecting them. the injury sprea~lsfar beyond the particular crtizrns targeted to untold numbers of other Americans who map be intimidated. Free gorernment depends 711'0~1 the ability of all its citizens to speak their JlliJlds Kitlloiit fcaJ. of official sanction. The ability of ordinary people to be heard by their Icntlcrs JJw~J~s that they must be free to join in groups in order nio~`e tffrctivcly to express their grievances. Constit7rtior7:7l snfcg77:7Jds :~JT ncetlccl to protect the timid as well as the courageous, the weak as well as the strong. 1Yliilt niany -\mcricans hare been willmg to assert their beliefs in the face of possible govern-

291

mental reprisals, no citizen should hare to weigh his or her desire to winst the risk of liar-ing la1vfnl esprrss an opinion, or join a group. a,, speech or association used against him. Persons most intinlidatetl may well not be those at the extremes of the political spectrum, but rather those ne:irer the mitldle. Yet voices of moclcrntion are vital to balance public debate and al-oid polarization of our socirtv. The fede& gorernment has recently been looked to for answers to nearly every problenl. The result has been a vast centralization of power. Plwh power can be turned against the r&hts of the people. 37aii~ of the restraints iniposed by the Constitiitlon were designed t'0 guar'd a?ainst sncll 11s~ of power by tile gorcrnment. Since the end of World War IT . gowrnmentnl power has been increasingly escrcisrd through a proliferation of federal intelligence programs. The Vera size of this intelligence system. multiplies the ol~portnnities for misuse. Esposiire of the excesses of this huge structure has bcfn necessary. Americans are now aware of the capability and proven willingness of their Government to collect intelligence about their lawful activities and associations. What some siispectrcl and others feared has turned oiit to be largely true-vigorous expression of unpopiilar views. association with dissenting groups. participation in peaceful protest actirities. liaw pi~o~oltcd both gorcrnmtnt surveillance and retaliation. Over twenty years ago. Supreme Court ,Justicr Robert dackcon. previously an -1ttornry G3ieral. warned against growth of a cent.ralizetl power of inwstigation. Without clear limits, a frdcral investlgatil-e agency would "haw rnonpli on enough pcoplr" so that "even if it tlocs not rlwt to prosecute thrm " the Go\-ernmrnt would. he wrote. still "find no opposition to its l,olicies". Jackson added, "Even those who arr snl)l,osed to suprrrisr ~intrlliprnce agencirs] are likely to fear [them]." His adrice speaks directly to our responsibilities today : I belicw that the saf~gnnrd of our librrty lies in limiting any national police or investigative organization. first of all to a small numbrr of strictly fedrral offrnses. and secondly to nonpolitical onrs. Tllr fact that we may haw confidence in the administration of a fetlrral inrrstipa'tirc agency under its existing head does not mean that it may not revert again to the dars n-hrn the Department of ,Justice was headed by men to whom the investigative power n-as a weapon to be used for their own p~irposes.~ Fnilwc fo 9p7)7?/ PJlecfis cr?w? Rn7~~~cr,s.-Thr natural tendency of Government is toward abuse of power. Men entriistrd with power, even those aware of its dangers. tend. particularly when pressured, to slight librrty. Our constitutional svstrm guards against this tendency. It establishes many different checks npnn polyer. It is those wisp restraints which keep mrn frre. In the fieltl of intelligence those rrstraints havr too often been ignored.

292

The three main depnrtnrrs in the intelligence field from tile constitutional plan for cnntrnllin,g ab~iw of power have been : (II) l?mcssi7~ l?nwt~fiw POIWI-.-Tn a sms:cthe ,yrnwth of domestic intelligence activities mirrnrcd the ,rrrnwth of presidential powc1 generally. But more than any other activity. n10rc t\-rn than eserciw of thr war pn~er. intelligence activities have been left to the control of the l?secntire. For decades Conrrrrss and the cnnrts as n-cl1 ns the press and the public have accepted the notion that the control of intelligence actirities was tllc rxcliisirc i2rero,~atirr of the Chief Esccntiw and his stirro,r"ates. The exrrciw of this pnvcr KCISnot cluestinned or cl-en inqnired into hr outsiders. Indeed. at times the poGr was seen as flowing not from the law. but as inherent in the Presidencv. Ihntcrer the throrr. the fact was that intclli,~encr activities were cssentinllr exempted from the normal srstem of ~~hccl~s balances. and Qwh Ewcntiro powr, not, founded in law or checked bv Congress or the courts, contained the seeds of abuse and its growth was to be t?xp,rctra. (71) Bwcssiw Srrwo~.-Abner thrires on secrccv. ObvinnslT, public disclncllrc of matters snrh as the names of intellikence awnts nr the technolngi~rnl details of collection methnrls is inapprnpriwtr. T3iit in the field of intelliwncc. secrcw has been extended to inhibit rcriew of the basic l>rn,yranis and prRcticestliemselres. Those within the Execntirr branch and the Congress who wmld exercise their responsibilities n-iwly must be flllk informed. The r\mcricnn public. as well. shnnlrl know c~noiighabout intelli,~enrr nctivities to bn able to apply its pond scnscto the imdcrl!-ing issncsof policy and morality. Knnwledpc is the kev to control. Sccrccy shnnlrl no 1n1qcr be alinn-cd to shield the existence nf constitutional. lc~al and moral prnblcms from the scrutinv of all thrrc branches of gnvcrnmrnt or from the ~~mrricwn jwnplr thrmsclws. (c) A47~oi~n7~rc the Z?117p of L;n7c~.-Tln~rlrssnrss hr Gnmrnmrnt of hrcrds corrosive crnicism among thr prnplr and crndrs the trust upon which gnl-rmment. deprnds. Herr. thrre is no snrrreipn who stands abnrr thr law. Each of 11s. from prrsidents to thr most rlisadrantaped citizen. must obry the law. ,\s intc~lligence operations dcl-elnj-wrl, hnwerer. rntinnnlixntions wrr fnshinned to immnnizc them from the restraints of the Bill of Rights and thr snecific prohibitions of the criminal cndr. The rxperience of our investi~ntinn lends iis to cnnclndr that such rationalizations nrc a dangerous drlnsinn.

Althnng4~ our i~ecnmmrndatiniis 2i.c niimeiws and detililrrl. they flow nnturnllu from our basic conclusion. Escrssiw intrlligrnrr activity which ukdrrmines individnnl ri,&ts must encl. The systrm for cnntrolling intelligrnre must be brnnght bark within the cnnstitiitional schrmr. Snmr of our prnj,nsnls nw stark and siiilple. R~cnnsc rrrtnin dnmrs1:~ intc~lli~cncr nrtiritirs were clrarl\- wrnnr, thr nbviniis solution is to prohibit thrm nltnpcthcr. Thaw. M-C wnuld ban tactics slwh asthnsr nsrtl

293
in the FBI's COTSTT3T,PRO. Put other activities present mow complcs problems. We see a clear need to safeguard the constitutional rights of speech, assembly, and privacy. ,it the same time? we do not want to prohibit or unduly restrict necessary and proper intelligence activity. In seeking to ncconnnoclatc those sometimes conflictins inter&s we have been guided by the earlier efforts of those who originally shaped our nation as a republic under law. The Constitutional amendments protecting speech and assembly and indiT-idunl pri\-acr seclcto prcscrve ~alncs at the core of our herltagc and vital to our fntnrr. The Bill of Rights, and the Supreme Court's decisions interpreting it suggest thrtc principles which we hare followed : (1) Gowrnmcntwl action which directlr infrinpes the rights of free speech and association must be prohibited. The First Amendinent rcrog-nizcs that even if ustful to a proper end. certain gorernmrntal actions are simply too dangerous to permit at all. It. commands that `Yongrrss shall make 710law" abridging freedom of speech or assembly. (2) The Supreme Court, in intrrprcting that command, has required that any go\-ernmcntal action which has a collateral (rather than rlirect) impact upon thr rights of speech and assembly is permissible onlr if it meets two tests. First. the action must be undertaken 0111y to fulfill a compellin, v ~ governmental need. and second, the govcrnment must use the least restrictive means to meet that need. The effect upon protected interests must be minimized.2 (3) Procedural safeguards--"auxiliary precautions" as t.hey were characterized in the Federalist Papers 3-must. be adopted along with substantive restraints. For esamplr. while the Fourth Amendment prohibits only 5inreasona1~1e"searches and seizures. it requires a procedural checlr for rrnsonnblcness-the obtaining of a judicial warrant upon probable cause from a neutral magistrate. Our proposed procedural checks ranpe from indicial review of intelligence Iactivity before or aftrr the fact. to formal and high level Executive branch approval. to greater disclosure and more effective Congressional oversight. The Committee believes that its recommendations should be embodied in a comprchensiw lecislntire charter defining and controlling the domestic. security activities of the Federal Government. ACcortlingly, Psart i of the recommendations provides that intelligence agencies must be made subject to the rule of law. In addition, Part i nlaltes clear that no theory, of "inherent constitutional authority" or otherwise. can justify the violation of any statute. Starting from the conclusion, based upon our record, that the Constitnt.ion and our fundamental values require a substantial cnrtailmentj
V.S. 539. 546 (1962)
: &`hrltw v. T?rrkcr. 364 U.S. 479,488 (1960). ' Madison, Federalist No. 51. Madison made the point with grace : "If men Two angels:. no government would he necessary. If angels were to govern men. neither external nor internal controls on government would he necessary. In framing a government. whirh is to he administered hy men over men. the great difficnlty lies in this: you must first enable the gnrernmrnt to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government ; hut experience has taught mankind the necessity of auxiliary precautions."

294 of the scope of domestic surveillance, we deal after Part i with five basic questions : 1. Which ap'ncics should conduct domestic security inresti,rrations? The FBI should be primarily responsible for such investigations. Vnder the minimization principle, and to facilitate the control of domestic intelligence operations, only one agencv should be involved in investigative activities which. even when limited as we propose, could give rise to abusr. Accordin@y, Part ii of these reconlmendations reflects the Committee% position that foreign intelligence agencies (the CTAL XSA. and the military agencies) should be precluded from domestic security activity in the Vnited States. Moreover, they should only become involved in matters involving the rights of Americans abroad where it is impractical to use the FBI, or where in the course of their lawful foreign intelligence operations 4 they inadrertently collect, information relevant to domestic security investigations. Tn Part iii the Committee rcconiniends that non-intelligence agcnties such as the Internal Revenue Service and the Post Office be reqired, in the, course of any incidental involvement in domestic security investigations, to protect the privacy which citizens expect. of first class mail and tax records entrusted to those agencies. 2. When should an American be the subject of an investigation at all; and when can particularly intrusive covert techniques, such as electronic surveillance or informants, be used? In P'art iv. which deals with the FRI. the Committee's recommendations seek to prevent, the excessively broad, ill-defined and open ended investijintions showi to have been conducted over the past four decades. We attempt to change the focus of investigations from constitutionally protected advocacy and association to dangerous conduct. Part iv also sets forth specific. substantive standards for. and procedural controls on, particular intrusive techniques. 3. Who should be accountable within the Executive branch for ensuring that intelligence apcncies comply with the law and for the investiration of alleged abuses bv employees of those agcncics? In Parts v and vi, the Committee recommends that these responsibilities fall initially upon the agency heads, their general counsel and inspectors general, but ultimately upon the Attorney General. The information necessary for control must be made available to those responsible for control, oversight and review; and their responsibilities must be made clear, formal. and fixed. 4. V7hat is the appropriate role of the courts8 Tn Part vii. the Conmlittce recomincnds tht enactment of a comprehensive civil remedy providing the courts with jurisdiction to entertain legitimate complaints by citizens injured by unconstitutional or illegal activities of intclligcnce agencies. Part viii suggests that criminal penalties should attach in casesof gross abuse. In addition, Part iv prnvi~les for judicial warrants befot% certain intrusive techniques can be used. 5. What is the appropriate role of Congress : In Part xii the, Comnrittee reiterates its position that the Senate create a permanent, intelligence oversight committee. The recommendations deal with nnmcrons other issuessuch as the proposed repeal or amendment of the Smith ,I&, the proposed mod' Directed primarily at foreigners abroad.

295
ernization of the Espionage Act, to cover modern forms of espionage srriouslv detrimental to the national interest. the use of the GA40 to assist C'ongrcssionnl ovcrsi.ght of the intelligence community, and rtnlctlinl n~casurcs for l)a.+ \-lctims of inll)roper intclligcncf activity. ~C~opc of h'croml72.cnc~nfiol,.~.-Tlle scope of our recommendations coincides \iTith the scolw of 0111`investigation. We examined the FI31, which has lwen rcspon~ible for most domestic security investigations. as well as foreign and military intclligcncc agencies. the IRS, and the Post Office, to the extent they became in\.olwd incidentally in domestic intelligence functions. While there are undoubtedly activities of other agencies which might legitimately be addressed in these recommcndntiol~s. the Committee simple dicl not hare the time or resources to conduct a broader investigation. Furthermore, the mandate of Senate Resolution 21 required that the Committee exclude from the coverage of its recommendations those activities of the federal government which are directed at organized crime and narcotics. The Committee believes that American citizens should not 10~ their constitutional rights to be free from improper intrusion by their Gowrnment, when they trawl overseas. ,Qccordingly, the Committee proposes recommendations which apply to protect the rights of Americans abroad as well as at home. 1. ,4rti7*iti~s Porn-ed The Domestic Intelligence Recommendations pertain to : the domestic security activities of the federal government; 5 and any act.ivities of military or foreign intelljgence agencies which affect the rights of Americans F and any intelligence activities of any non-intelligence agency working in concert with intelligence agencies, which affect those rights. 2. Activities Not Cowred The recommendations are not, designed to control federal investigatire activities directed at organized crime, narcotics, or other law enforcement investigations unrelated to domestic security activities. 3. Agmcies Co?-ered The agencies whose activities are specifically covered by the recommendati&s are : (i) the Federal Bureau of Investigation; (ii) the Central Intelligence Agency ; (iii) the Kat.ional Security Agency and other intelligence agencies of the Department, of De' "Domestic security activities" means federal gorernmental activities, directed ncrainst ,Ymericans conductedwithin the United States or its territories, or inclncling enforcementof the criminal lay intended to (a) protect the IJnited

States from hostile foreign intelligence activity, including espionage ; (1)) protect the federal, state, and local governments from domestic violence or rioting ; and (c) protect Americans and their government from terrorist activity. See Part xiii of the recommendations and conclusions for all the definitions used in the recommendations. ' "Americans" means U.S. citizens, resident aliens and unincorporated associations, composed primarily of U.S. citizens or resident aliens; and corporations. incornorated or having their nrincinal nlace of business in the TJnited Stat& or having. majority o&ership ily U.S. citizens, or resident aliens, including foreign subsidiaries of such corporations, provided, however, Americans does not include corporations directed by foreign governments or organizations.

296 fense; (iv) the Internal Revenue Service: and (v) the I-nited States Postal Service. TT'hile it might be approprisate to provide siniilar detailed trratmcnt to the activities of other agencies. sllch as the Sccrct Service. Customs 8ervice. and Alcohol, Tobacco. and Firearms T)i\-Lion (Treasury Department), the Committee did not study these agencies intensively. .4 permanent oversight comniit'tec should in\-rstigate and stud\- the intcllipcncr functions of those agencies'and the effect of their actlr-ities on the rights of Americans. 4. Indiwct P~~ohibitionn Except, as specifically pro\-ided herein, these Reconllnrndatiolls are intended to prohibit an\- agency from doing indirectly that which it n-onld bn prohibited front doing dircctl>-. Specifically, no agency COVerctl by these Recollllllelldntiolls should request or mduce an: other agency. or laiiv person. whether the agency or person is Amcrlcan or foreign, to en-gage in any activitv which the requesting or inducing agency is prohibited from doing i&elf. 5. Indi7*iclun7.s rind Groups A'ot Covered Xscept, as spccificallv provided hrrein, these Recommendations do not apply to investigation of foreigners i who are oficels or employees of a forGign power, or foreigners who? pursnant to the direction of a foreign pan-er, are engaged in or about to engage in %ostilt foreign intelligence a&&y" or "terrorist activity".8 6. Gcogmphic scope Theso Recommelldatiolls apply to intelligence actirities which affe.ct, the r$hts of ,1mericans \I-hether `at home or abroad, including all domcst lc security `activities within the TTnited Sltatrs. 7. LegkZatiw E~znctmwt of Recomme~zdations Most of these Recomnlendatiolls are designed to be implemented in the form of lcgisla~tion and others in the forni of regulations pursuant to statute. (Rt~conllllentlations 85 and 90 are not proposetl to be impjemented by statute. (7. r~:rcomnmrt7rrtiom Pursuant to the requirements of Senate Resolution 21. these recommendations set forth the new congressional legislation [the Committee] tlecnls necessary to `%afrguard the rights of -1nierican citizens." 9 We bcliew these rccollllrlendatiolls are the ~appropriate conclusion to a traumatic year of disclosures of abuses. We hope they will prevent such abusesii1 the future. i. Intelligence Agencies Are Subject to the Ru7e of Law E.s+ablishin,n a legal frnmcn-ark for agencies engaged in domestic security investigation is the most fundanlcnt~al reform needed to end the long history of violating ant1 ignoring the law s& forth in Finding A. The legal framework can be created by a two-stage process of enabling legislation and ,atlnlinistratire regulations promulgated to implement the legislation.
fined abore. ' These terms. which authorizing prerentire 8S.Res.21,Sec.5;?(12).

' "Foreigners" means persons and

organizations

who

are

not

Americans

as de-

corer `the tn-o areas in which the Commilttee recommends intelligence investigations, are defined on pp. 340-341.

297
Hoverer, the Committee proposes that the Congress, in developing this mix of legislative and administrative cha.rters, make clear to the Rsecutivo branch that it n-ill not condone, and does not accept., any theory of inherent or implied authority to violate the Constitution, the proposed new chtarters, or any other stsatutes. We do not believe the Executive has, or should hlave, the inherent constitutional authority to violate the l,aw or infringe the legal rights of Americans, whether it be a, warrantle,ss break-in into the ,home or office of an American, warrantless electronic surveillance, or `a President,? authorization to the FRI to create a massive domestic security program based upon secret oral directives. Certainlv7 there would be no such authority after Congress has, as we propose iIt. should, covered the field by enactment of a comprehensive legislative charter.`O Therefore statutes enacted pursuant to these recommendations should provide the exclusive legal authority for domestic security activities. Xecommendation I.--There is no inherent constitutional authority for the Presidenk or any intelligence agency to viol,ate the law. Recomm.endation, .Z.-It is the intent of t.he Committee that statutes implementing these recommendations provide the exclusive legal authority for federal domestic security activities. (n) No intelligence agency ma,y engage in such lart.ivities unless anthorizecl by statute, nor may it, permit its employees. informants, or other covert human sources l1 to engage in such act'ivit.ies on its beh'alf. (6) No executive directive or order may be issued which would conflict v&h such statutes. Recommendation 3.-In authorizing intelligence agencies to engage in certain activities, it is not intended that, such aut,hority empower agencies: their informants, or covert human sources to violat.e, any prohibition enacted pursulant to these Recomendat,ions or cont.ained m the Const.itutzion or in any other Ijaw. ii. C&ted Staies Foreign ami i!liliitar?/ dgen.cies Shouki Be Preduded from Domestic Secu.rity Act6~itks Part iv of these RecommendaGons centralizes domestic security investigations mit,hin the FBI. Past abuses also make it necessary that the Central Intelligence Agency, the Xa'tional Security Agency, the Defense Intelligence Agency, and the military departments be prec,luded expressly? except. as specifically. provided herein, from investigat,ivr activity which is conducted within the United States. Their act.ivities abroad should also be controlled as provided herein to minimize their impa& on the rights of Americans. a. CPntrd Intelligence Agency The CT*4 is responsible for foreign intelligence and counterintelligence. These recommendations mnnmize the impad of CIA operations on Americans. They do not affect, CTA investigations of foreigners outside of the United States. The main thrust is to prohibit pa& a&ions revealed as excessive. and to transfer to the FBI otller ac'tivities which might involve the CIA in internal security or law enforce( 10.5"

" See,
)

c.g.,

Youngstow?L

Sheet

and

Tube

Company

v.

Snzcuer,

343

C.S.

579

I1 "Corert human s011rces" means undercover agents or inforrilants who are paid or otherwise controlled by an agency.

309

domestic communications, even for forei,? intelligence purposes. Second, the Committee recommends that, KSA should not select messages for mollitorinp. from those foreign communications it, has intercepied, because the messageis to or from or refers to a particular ,4merican, nnlrss the I~cpartmrnt of ,Justice has first obtained a search n-arrant, or the particular dmcrican has consented. Third, the Committee recommends that SSA be required to make every practicable effort to eliminate or minimize the extent to which the communications of Americans are intercepted, selected! or monitored. Fourth, for those communications of L4mericans -rrhlch are nerertheless incidentally selected and monitored, the Committee recommends that, NSA be prohibited from disseminating such communicat,ion, or information derived therefrom, Thich identifies an America?! unless t.he communication indicates eridence of hostile foreign intelligence or terrorist actiritv, or felonious criminal conduct, or contains a threat of deat,h or se&&bodily harm. In these cases.the Committee recommends that the ,4ttorney General approve any such dissemination as being consistent with these policies. In summary, the Committee's recommendations reflect its belief that NSA should hare no greater latitude to monitor the communications of Americans than anv other intelligence agency. To the extent that other agencies are req&red to obtain a ITarrant, before monitoring the communications of ,4mericans, KSh should be required to obtain a warrant.34 Reco~mmendation 14.-NSAi should not engage in doniest.ic security activities. Its functions should be limited in a precisely drawn legislatire charter to the collection of foreign intelligence from foreign communications.35 Recommendntion 15.-NSA should take all practicable measures consistent v-it11 its foreign intelligence mission to eliminate or minimize the interception, selection, and monitoring of communications of Americans from the foreign communications.3F Recommendation 16.-NSA should not be permitted to select for monitoring any communication to! from, or about, an American without. his consent, escept for the purpose of obtaining information about, hostile foreign intelligence or terrorist activities, and then only if a warrant approving such monitoring is obtained in accordance with procedures similar 37to those contained in Title III of the Omnibus Crime Control and Safe Streets ,4ct of 1068. 3L None of the Commibtee's recommendations pertaining to NRA should he conas inhibiting or preventing ,X8.4 from protecting U.S. communications againstinterception or monitoring hy foreign intelligenceservices. es "Foreign communications," used in this section, refers to a communicaas tion Iwtn-eenor amonLtn-o or more Dartiesin which at least one Darts is outside the rnited States,-ora communication transmitted between points within the T'nited States only if transmitted over a facility which is under the control of,
strued

or exclunirely used by, a foreign government 88 In order to ensure that this recommendation is implemented, both the Attorney General and the appropriate oversight committees of the Congress should be continuously apprised of. and periodically review, the meawres taken by SSA pursuant to this recommendation. mThe Committee believes that in the case of interceptions authorized to oblain information about hostile foreign intellieence. there should be a nresumntion that notice to thp auhjrct of such intwcepts,~ which would nrdinarilySbe required under Title III (18 V.S.C. 2518(S) (d) ), is not required, unless there is evidence of gross abuse.

336
hhlcnzakiny a.nd Increased Disc7osure Xho?17d He Rcqui,yed a. Administ~*atire Ru,7emaking Z:ccm?l.?n,cncJati017,R(i.-The Attorney General should approve all administrative rcgnlations rcquircd to implement. statutes civatrd purslwnt to tl1esc recommendations. ZZ~com~nzc~iclnfiot~~87.~Such regulations. except for regulations concerning investigations of liostilc foreign intelligtncr activity 01' other i11attws which arc properly classified. slionld be issued pursuant to the Administrative Procedures hct and should bc subject to the apln+oral of tlic A\ttoi71ey Ge~irral. /:~~0.1)7771~lln~1tiol/ 88.-The effective date of regulations prtiaining to tlio following matters should be delayed ninety days. during which time Congress would have the opportunity to review sncli rcgulations : 66 (n) Any CL4 activities against Smericans. as permittrtl in ii.a. above.; (6) Military activities at. the, time of a civil disorder; (c) The. authorized scope of domestic security inrest.ipations, autl1orized investigat.irc techniques, maintenance ant1 dissemination of information by the FBI ; `and (n) The terminat.ion of investigations and covert, techniques as described in Part iv. h. Zliw704ure RccommCndntion, 89.-Each year t,he FBI and other intelligence agencirs affected by these recommendations should be required to seek annual statutory authorization for their programs. Rccommendnfion SO.-The Freedom of Informat.ion Act (5 V.&C. 552(b) ) and the Federal Privacy Act. (5 I-7.S.C. 552(a) ) provide important mechanisms by xyhich individuals can gain awes t.o information on intelligence activity directed against them. The Dome&k Intelligence Recommendations assume that these statutes will continue to be vigorously enforced. In addition, the Department, of Justice should notify all readily identifiable targek of past. illegal surveillance trchniques, and all COIKTELPRO vi&ims. and tl1ird parties who had received `anonvn1ous COINTELPRO communications. of the nature of the activities directed against them, or the source of the anonymous communication to them.6Sa vii. Civil Remedies Xhou7d Be Expanded Recommendation 91 expresses the Committee's concern for establishing a legislative schemewhich will afford effective redress to people who are injured by improper federal inkllipence a&i&y. The rwommended provisions for civil remedies are also intended to deter iml~l'opcr intelligence activity without restricting the sound exercise of tliwrrtion by intelligence officers at headquarters or in the field. As t,he Committee's investigation has shown, many Americans hare suffered injuries fron1 domestic intelligence activity. ranging from deprivation of constitutional rights of pr'ivacy and free speech to the loss of a job or professional standing, break-up of a marriage, and impairment of physical or mental health. But. the extent,, if `any, to vi. Adnuhistrative

spectto the promlllgation of the Federal Rules of Criminal and Civil Procedure. 85L is not proposedthat this recommendation It be enacted as a statute.

esThis review

procedure

would

be similar

to the procedure

followed

with re-

337 which an injured citizen can seek relief-either monetary or injunctive-from the govcriiincnt or from an indiritlunl intelligence officer is far fro111 cle:llulltlcl~ t11c plY?"c"t state of the law. One major disparity in the current, state of the law is that? under the Reconstrac-tion era Civil Hights Act of 1871, the deprivation of constitutional rights b;\' an officer or agent of a state government provides the basis for a suit to redress the, injury incurred; 66but there is no statute x-hich extends the same remedies for identical injuries when they hare,caused by a federal officer. In the landmark Ricens case, the Supreme Court held that a federal officer could be sued for money damages for violat,ing a citizen's Fourth Amendment. rights.G: Whether monetary damages can be obtained for violation of other constit.utional rights by federal officers remains unclear. While we believe that any citizen with a substantial and specific claim to injury from intelligence activity should have standing to sue, the Committee is aware of the need for judicial protection against legal claims which amount to harassment or distraction of government officials, disruption of legitimate investigations, and wasteful expenditure of government resources. We also seek to ensure that the creation of a civil remec!y for `aggrieved persons does not impinge upon the proper exercise of cllscretion by federal officials. Therefore. we recommend that where a government official-as opposed to the government itself-acted in good faith and with the reasonable belief that his conduct was lawful. he should have an affirm`atire defense to a suit. for damages brought under the proposed statute. To tighten the system of accountability and control of clomestic intelligence activity, the Committee proposes that this defense be structured to encourage intelligence officers to obtain written authorization for questionable activities and to seek legal advice about them.6s To avoid penalizing federal officers and agents for the exercise of discretion, the Committee believes that the government should indemnify their attorney fees and reasonable litigation costs when they are held not to be liable. To avoid burdening the taxpayers for the deliberate misconcluct of intelligence officers and agents, we believe the government should be able to seek reimbursement from those who willfully and knowingly violate statutory charters or the Constitution. Furthermore, we believe that the courts will be able to fashion discovery procedures. including inspection of materilal in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, whiln protecting the secrecy of governmental information in which there is a legitimate security interest.. The Committee recommends that a legislative scheme of civil remedies for the victims of intelligence activity be established along the
Fed. Narcoticn Agents, 403 11.8. 388 (1971). =One means of structuring such a defense vnild he to create a rebuttable presumption that an indiridd defendant acted so as to avail himself of this defense when he proves that he acted in good faith reliance upon : (1) a written order or dirpctire by a gorernment officer empowered to authorize him to take action ; or (2) a written assurance by an appropriate legal officer that his action is lawful.
66 42 U.S.C.

" Bicms v. Six Unknomt

19B.

68-186

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338 following lines to clarify the state of the law, to encourage the responsible execution of duties created by the statutes recommended herein to regulate intelligence agencies, and to provide relief for the victims of illegal intelligence activity. Recomrnendat7b.v .91.-C ongress should enact a comprehensive oivil remedies statute which would accomplish the following: 69 (a) Anv American n-ith a substantial and specific claim 7oto an actual or threatened injury by a violation of the Constitution by federal intelligence officers or agents i1 acting under color of law should have a federal cause of action against. the government and the individual federal intelligence officer or agent responsible for the violation, withOut regarcl to the nlonetlary amount in controversy. If actual injury is proven in court, the Committee believes that the injured person should be entitled to equitable relief, actual, general, and punitive damages, and recovery of the costs of litigationTz If threatened injury is proven in court, the Committee believes that equitable relief and recovery of the costs of litigation should be available. (6) Any American vith a substantial`and specific claim to actual or threatened injury by violation of the st.atutory charter for intelligence activity (as proposed by these Domestic Intelligence Recommendations) should have a cause of action for relief as in (a) above. (c) Because of the secrecy that surrounds intelligence programs, the Committee believes that a plaintiff should have two years from the date upon which he discovers, or reasonably should have discovered, the facts which give rise to a cause of action for relief from a constitutional or statutory violation. (d) Whatever statutory provision may be made to permit an individual defendant to raise an affirmative defense t.hat he acted within the scope of his official duties, in good faith, and with a reasonable belief that the action he took was lawful, the Committee believes t,hat to ensure relief to persons injured by governmental intelligence activity, t,his defense should be available solely to individual defendants and should not extend to the government. Moreover, the defense should not be available to bar injunctions against individual defendants. viii. Crimimd Penalties Should Be Enacted Recommendation 92.-The Committee believes that criminal penalties should apply, where appropriate, to willful and knowing
B Due to the scope of the Committee's mandate, we have taken evidence only on constitutional violations by intelligence officers and agents. However, the anomalies and lack of clarity in the present state of the law las discussed above) and the breadth of constitutional violations revealed by our record, suggest to us that a general civil remedy would be appropriate. Thus, we urge consideration of a statutory civil remedy for constitutional violations by any federal ofllcer; and we encourage the appropriate committees of the Congress to take testimony on this subject. 7oThe requirement of a substantial and specific claim is intended to allow a judge to screen out frivolous claims where a plaintiff cannot allege specific facts which indicate that he was the target of illegal intelligence activity. n "Federal intelligence officers or agents" should include a person who was an intelligence officer, employee, or agent at the time a cause of action arose. "Agent" should include anyone acting with actual, implied. or apparent authority. @The right to recover "costs of litigation" is intended to include recovery of reasonable attorney fees as well as other litigation costs reasonably incurred