INTELLIGENCE ACTIVITIES AND THE

RIGHTS OF AMERICANS

_______

BOOK II
_______

FINAL REPORT

OF THE

SELECT COMMITTEE
TO STUDY GOVERNMENTAL OPERATIONS

WITH RESPECT TO

INTELLIGENCE ACTIVITIES
UNITED STATES SENATE

TOGETHER WITH

ADDITIONAL, SUPPLEMENTAL, AND SEPARATE
VIEWS

APRIL 26 (legislative day, April 14), 1976

II. THE GROWTH OF DOMESTIC INTELLIGENCE:
1936 TO 1976

A. SUMMARY
1. The Lesson: History Repeats Itself

During and after the First World War, intelligence agencies, including the predecessor of the FBI, engaged in repressive activity. 1

A new Attorney General, Harlan Fiske Stone, sought to stop the investigation of "political or other opinions." 2 This restraint was embodied only in an executive pronouncement, however. No statutes were passed to prevent the kind of improper activity which had been exposed. Thereafter, as this narrative will show, the abuses returned in a new form. It is now the responsibility of all three branches of government to ensure that the pattern of abuse of domestic intelligence activity does not recur.

2. The Pattern: Broadening Through Time

Since the re-establishment of federal domestic intelligence programs in 1936, there has been a steady increase in the government's capability and willingness to pry into, and even disrupt, the political activities and personal lives of the people. The last forty years have witnessed a relentless expansion of domestic intelligence activity beyond investigation of criminal conduct toward the collection of political intelligence and the launching of secret offensive actions against Americans.

The initial incursions into the realm of ideas and associations were related to concerns about the influence of foreign totalitarian powers.

Ultimately, however, intelligence activity was directed against domestic groups advocating change in America, particularly those who most vigorously opposed the Vietnam war or sought to improve the conditions of racial minorities. Similarly, the targets of intelligence investigations were broadened from groups perceived to be violence prone to include groups of ordinary protesters.

3. Three Periods of Growth for Domestic Intelligence The expansion of domestic intelligence activity can usefully be divided into three broad periods: (a) the pre-war -and World War II period; (b) the Cold War era, and (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:

a. 1936-1945

By presidential directive -- rather than statute -- the FBI and military intelligence agencies were authorized to conduct domestic intelligence investigations. These investigations included a vaguely defined mission to collect intelligence about "subversive activities" which were sometimes unrelated to law enforcement. Wartime exigencies encouraged the unregulated use of intrusive intelligence techniques; and the FBI began to resist supervision by the Attorney General.

b. 1946-1963

Cold War fears and dangers nurtured the domestic intelligence programs of the FBI and military, and they became permanent features of government. Congress deferred to the executive branch in the oversight of these programs. The FBI became increasingly isolated from effective outside control, even from the Attorneys General. The scope of investigations of "subversion" widened greatly. Under the cloak of secrecy, the, FBI instituted its COINTELPRO operations to "disrupt" and "neutralize" "subversives". The National Security Agency, the FBI, and the CIA re-instituted instrusive wartime surveillance techniques in contravention of law.

c.1964-1976

Intelligence techniques which previously had been concentrated upon foreign threats and domestic groups said to be under Communist influence were applied with increasing intensity to a wide range of domestic activity by American citizens. These techniques were utilized against peaceful civil rights and antiwar protest activity, and thereafter in reaction to civil unrest, often without regard for the consequences to American liberties. The intelligence agencies of the United States -- sometimes abetted by public opinion and often in response to pressure from administration officials or the Congress -- frequently disregarded the law in their conduct of massive surveillance and aggressive counterintelligence operations against American citizens. In the past few years, some of these activities were curtailed, partly in response to the moderation of the domestic crisis; but all too often improper programs were terminated only in response to exposure, the threat of exposure, or a change in the climate of public opinion, such as that triggered by the Watergate affair.

B. ESTABLISHING A PERMANENT DOMESTIC INTELLIGENCE STRUCTURE: 1936-1945
1. Background. -- The Stone Standard

The first substantial domestic intelligence programs of the federal government were established during World War I.

The Justice Department's Bureau of Investigation (as the FBI was then known), military intelligence, other federal investigative agencies, and the volunteer American Protective League were involved in these programs. 3 In the period immediately following World War I, the Bureau of Investigation took part in the notorious Palmer Raids and other activities against persons characterized as "subversive." 4

Harlan Fiske Stone, who became Attorney General in 1924, described the conduct of Justice Department and the Bureau of Investigation before he took office as "lawless, maintaining many activities which were without any authority in federal statutes, and engaging in many practices which were brutal and tyrannical in the extreme." 5

Fearing that the investigative activities of the Bureau could invade privacy and inhibit political freedoms, Attorney General Stone announced:

There is always the posibility that a secret police may become a menace to free government and free institutions, because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood. ... It is important that its activities be strictly limited to the performance of those functions for which it was created and that its agents themselves be not above the law or beyond its reach. ... The Bureau of Investigation is not concerned with political or other opinions of individuals. It is concerned only with their conduct and then only with such conduct -as is forbidden by the laws of the United States. When a police system passes beyond these limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to cherish. 6

When Stone appointed J. Edgar Hoover as Acting Director of the Bureau of Investigation, he instructed Hoover to adhere to this standard:

The activities of the Bureau are to be limited strictly to investigations of violations of law, under my direction or under the direction of an Assistant Attorney General regularly conducting the work of the Department of Justice. 7

Nevertheless, beginning in the mid-thirties, at White House direction, the FBI reentered the realm of collecting intelligence about ideas and associations.

2. Main Developments of the 1936-1945 Period

In the years preceding World War II, domestic intelligence activities were reinstituted, expanded, and institutionalized. Based upon vague and conflicting orders to investigate the undefined areas of "subversion" and "potential crimes" related to national security, the FBI commenced a broad intelligence program. The FBI was authorized to preempt the field, although the military engaged in some investigation of civilians.

The FBI's domestic intelligence jurisdiction went beyond investigations of crime to include a vague mandate to investigate foreign involvement in American affairs. In the exercise of this jurisdictional authority, the Bureau began to investigate law abiding domestic groups and individuals; its program was also open to misuse for political purposes. The most intrusive intelligence techniques -- initially used to meet wartime exigencies -- were based on questionable statutory interpretation, or lacked any formal legal authorization.

The executive intentionally kept the issue of domestic intelligence-gathering away from the Congress until 1939, and thereafter the Congress appears to have deliberately declined to confront the issue. The FBI generally complied with the Attorney General's policies, but began to resist Justice Department review of its activities. On one occasion, the Bureau appears to have disregarded an Attorney General's policy directive.

However important these developments were in themselves, the enduring significance of this period is that it opened the institutional door to greater excesses in later years.

3. Domestic Intelligence Authority: Vague and Conflicting Executive Orders

The executive orders upon which the Bureau based its intelligence activity in the decade before World War II were vague and conflicting. By using words like "subversion" -- a term which was never defined -- and by permitting the investigation of "potential" crimes, and matters "not within the specific provisions of prevailing statutes," the foundation was laid for excessive intelligence gathering about Americans.

a. The Original Roosevelt Orders

In 1934, according to a memorandum by J. Edgar Hoover, President Roosevelt ordered an investigation of "the Nazi movement in this country." In response, the FBI conducted a one-time investigation, described by FBI Director Hoover as "a so-called intelligence investigation." It concentrated on "the Nazi group," with particular reference to "anti-racial" and "anti-American" activities having "any possible connection with official representatives of the German government in the United States." 8

Two years later, in August 1936, according to a file memorandum of Director Hoover, President Roosevelt asked for a more systematic collection of intelligence about:

subversive activities in the United States, particularly Fascism and Communism.

Hoover indicated further that the President wanted:

a broad picture of the general movement and its activities as [they] may affect the economic and political life of the country as a whole.

The President and the FBI Director discussed the means by which the Bureau might collect "general intelligence information" on this subject. 9 The only record of Attorney General Homer Cummings' knowledge of, or authorization for, this intelligence assignment is found in a memorandum from Director Hoover to his principal assistant. 10

b. Orders in 1938-39: The Vagueness of "Subversive Activities" and "Potential" Crimes

In October 1938, Director Hoover advised President Roosevelt of the "present purposes and scope" of FBI intelligence investigations, "together with suggestions for expansion." His memorandum stated that the FBI was collecting:

information dealing with various forms of activities of either a subversive or so-called intelligence type. 11

Despite the references in Director Hoover's 1938 memorandum to "subversive-type" investigations, an accompanying letter to the President from Attorney General Homer Cummings made no mention of "subversion" and cited only the President's interest in "the so-called espionage situation." 12 Cummings' successor, Attorney General Frank Murphy, appears to have abandoned the term "subversive activities." 13 Moreover, when Director Hoover provided Attorney General Frank Murphy a copy of his 1938 plan, he described it, without mentioning "subversion," as a program "intended to ascertain the identity of persons engaged in espionage, counterespionage, and sabotage of a nature not within the specific provisions of prevailing statutes." 14 [Emphasis added.] Murphy thereafter recommended to the President that he issue an order concentrating "investigation of all espionage, counterespionage, and sabotage matters" in the FBI and military intelligence. 15

President Roosevelt agreed and issued an order which, like Murphy's letter, made no mention of "subversive," or general intelligence:

It is my desire that the investigation of all espionage, counter espionage, and sabotage matters be controlled and handled by the Federal Bureau of Investigation of the Department of Justice, the Military Intelligence Division of the War Department, and the Office of Naval Intelligence in the Navy Department. The directors of these three agencies are to function as a committee to coordinate their activities.

No investigations should be conducted by any investigative agency of the Government into matters involving actually or potentially any espionage, counterespionage, or sabotage, except by the three agencies mentioned above. [Emphasis added.] 16

Precisely what the President's reference to "potential" espionage or sabotage was intended to cover was unclear. Whatever it meant, it was apparently intended to be consistent with Director Hoover's earlier description of the FBI program to Attorney General Murphy. 17

Three months later, after the outbreak of war in Europe, Director Hoover indicated his concern that private citizens might provide information to the "sabotage squads" which local police departments were creating rather than to the FBI. Hoover urged the Attorney General to ask the President to request local officials to give the FBI all information concerning "espionage, counterespionage, sabotage, subversive activities, and neutrality regulations." 18

The President immediately issued a statement which continued the confusing treatment of the breadth of the FBI's intelligence authority. On the one hand, the statement began by noting that the FBI had been instructed to investigate:

matters relating to espionage, sabotage, and violations of the neutrality regulations.

On the other hand, the President concluded by adding "subversive activities" to the list of information local law enforcement officials should relay to the FBI. 19

c. Orders 1940-43: The Confusion Continues

President Roosevelt used the term "subversive activities" in a secret directive to Attorney General Robert Jackson on wiretapping in 1940. Referring to activities of other nations engaged in "propaganda of so-called 'fifth columns" and "preparation for sabotage." He directed the Attorney General to authorize wiretaps "of persons suspected of subversive activities against the Government of the United States, including suspected spies." The President instructed that such wiretaps be limited "insofar as possible" to aliens. 20 Neither the President nor the Attorney General subsequently clarified the scope of the FBI's authority to investigate "subversive activity."

The confusion as to the breadth of President Roosevelt's authorization reappeared in Attorney General Francis Biddle's description of FBI jurisdiction in 1942 and in a new Presidential statement in 1943.

Biddle issued a lengthy order defining the duties of the various parts of the Justice Department in September 1942. Among other things, the FBI was charged with a duty to "investigate" criminal offenses against the United States. In contrast, the FBI was to function as a "clearing house" with respect to "espionage, sabotage, and other subversive matters." 21

Four months later, President Roosevelt renewed his public appeal for cooperation by police and other "patriotic organizations" with the FBI. In this statement, he described his September 1939 order as granting "investigative" authority to the FBI for "espionage, sabotage, and violation of the neutrality regulations." The President did not adopt Attorney General Biddle's "clearing-house" characterization, nor did he mention "subversion." 22

4. The Role of Congress

a. Executive Avoidance of Congress

In 1938, the President, the Attorney General, and the FBI Director explicitly decided not to seek legislative authorization for the expanding domestic intelligence program.

Attorney General Cummings cautioned that the plan for domestic intelligence "should be held in the strictest confidence." 23 Director Hoover contended that no special legislation should be sought "in order to avoid criticism or objections which might be raised to such an expansion by either ill-informed persons or individuals with some ulterior motive." [Emphasis added.] Hoover thought it "undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counter-espionage drive of any great magnitude" because the FBI's intelligence activity was already "much broader than espionage or counterespionage." 24

Director Hoover contended that the FBI had authority to engage in intelligence activity beyond investigating crimes at the request of the Attorney General or the Department of State. He relied on an amendment to the FBI Appropriations Act, passed before World War I, authorizing the Attorney General to appoint officials not only to "detect and prosecute" federal crimes but also to:

conduct such other investigations regarding official matters under the control of the Department of Justice, or the Department of State, as may be directed by the Attorney General. 25

After conflicts with the State Department in 1939, however, the FBI no longer relied upon this vague statute for its authority to conduct intelligence investigations, instead relying upon the Executive orders. 26

b. Congress Declines to Confront the Issue

Even though Executive officials originally avoided Congress to prevent criticism or objections, after the President's proclamation of emergency in 1939 they began to inform Congress of FBI intelligence activities In November 1939, Director Hoover told the House Appropriations Committee that the Bureau had set up a General Intelligence Division, "by authority of the President's proclamation." 27 And in January 1940, he told the same Committee that the FBI had authority, under the President's September 6, 1939 statement to investigate espionage, sabotage, neutrality violations, and "any other subversive activities." 28

There is no evidence that the Appropriations Committee objected or inquired further into the meaning of that last vague term, although members did seek assurance that FBI intelligence could be curtailed when the wartime emergency ended. 29

In 1940, a joint resolution was introduced by New York City Congressman Emmanuel Celler which would have given the FBI broad jurisdiction to investigate, by wiretapping or other means, or "frustrate" any "interference with the national defense" due to certain specified crimes (sabotage, treason, seditious conspiracy, espionage, and violations of the neutrality laws) or "in any other manner." 30 Although the resolution failed to reach the House floor, it seems likely that, rather than opposing domestic intelligence investigations, Congress was simply choosing to avoid the issue of defining the FBI's intelligence jurisdiction. This view is supported by Congress' passage in 1940 and 1941 of two new criminal statutes: the Smith Act made it a crime to advocate the violent overthrow of the Government; 31 and the Voorhis Act required "subversive" organizations advocating the Government's violent overthrow and having foreign ties to register or be subject to criminal penalties. 32

Although, as indicated, the Executive branch disclosed the fact that the FBI was doing intelligence work and Congress generally raised no objection, there was one occasion when an Executive description of the Bureau's work was less than complete. Following Director Hoover's testimony about the establishment of an Intelligence Division and some public furor over the FBI arrest of several Communist Party members in Detroit, Senator George Norris (R. Neb.) asked whether the Bureau was violating Attorney General Stone's assurance in 1924 that it would conduct only criminal investigations. Attorney General Jackson replied:

Mr. Hoover is in agreement with me that the principles which Attorney General Stone laid down in 1924 when the Federal Bureau of Investigation was reorganized and Mr. Hoover appointed as Director are sound, and that the usefulness of the Bureau depends upon a faithful adherence to these limitations.

The Federal Bureau of Investigation will confine its activities to the investigation of violation of Federal statutes, the collecting of evidence in cases in which the United States is or may be a party in interest, and the service of process issued by the courts. 33

The FBI was, in fact, doing much more than that and had informed the Appropriations Committee of its practice in general terms. Attorney General Jackson himself stated later that the FBI was conducting "steady surveillance" of persons beyond those who had violated federal statutes, including persons who were a "likely source" of federal law violation because the were "sympathetic with the systems or designs of foreign dictators." 34

5. Scope of Domestic Intelligence

a. Beyond Criminal Investigations

According to Director Hoover's account of his meeting with President Roosevelt in 1936, the President wanted "a broad picture" of the impact of Communism and Fascism on American life." Similarly, the FBI Director described his 1938 plan as "broader than espionage'' and covering "in a true sense real intelligence." 36 Thus it appears that one of the first purposes of FBI domestic intelligence was to perform the "pure intelligence" function of supplying executive officials with information believed of value for making policy decisions. This aspect of the assignment to investigate "subversion" was entirely unrelated to the enforcement of federal criminal laws. The second purpose of FBI domestic intelligence gathering was essentially "preventive," in compliance with the President's June 1939 directive to investigate "potential" espionage or sabotage. 37 As war moved closer, preventive intelligence investigations focused on individuals who might be placed on a Custodial Detention List for possible internment in case of war. 38

Both pure intelligence about "subversion" and preventive intelligence about "potential" espionage or sabotage involved investigations based on political affiliations and group membership and association. The relationship to law enforcement was often remote and speculative; the Bureau did not focus its intelligence gathering solely on tangible evidence of preparation for crime.

Directives implementing the general preventive intelligence instruction to investigate "potential" espionage or sabotage were vague and sweeping. In 1939, for instance, field offices were told to investigate persons of German, Italian, and Communist "sympathies" and any other persons "whose interests may be directed primarily to the interest of some other nation than the United States." FBI offices were directed to report the names of members of German and Italian societies, "whether they be of a fraternal character or of some other nature," and members of any other groups "which might have pronounced Nationalistic tendencies." The Bureau sought lists of subscribers and officers of German, Italian, and Communist foreign language newspapers, as well as of other newspapers with "notorious Nationalistic sympathies." 39 The FBI also made confidential inquiries regarding "various so-called radical and fascist organizations" to identify their "leading personnel, purposes and aims, and the part they are likely to play at a time of national crisis." 40

The criteria for investigating persons for inclusion on the Custodial Detention List was similarly vague. In 1939, the FBI said its list included persons with "strong Nazi tendencies" and "strong Communist tendencies." 41 FBI field offices were directed in 1940 to gather information on individuals who would be considered for the list because of their "Communistic, Fascist, Nazi, or other nationalistic background." 42

b. "Infiltration," Investigations The FBI based its pure intelligence investigations on a theory of subversive "infiltration" which remained an essential part of the rationale for domestic intelligence after the war: anyone who happened to associate with Communists or Fascists or was simply alleged to have such associations became the subject of FBI intelligence reports. 43 Thus, "subversive" investigations produced intelligence about a wide variety of lawful groups and law-abiding citizens. By 1938, the FBI was investigating alleged subversive infiltration of:

the maritime industry;
the steel industry;
the coal industry;
the clothing, garment, and fur industries;
the automobile industry;
the newspaper field;
educational institutions;
organized labor organizations;
Negroes;
youth groups;
Government affairs;
and the armed forces. 44

This kind of intelligence was transmitted to the White House. For example, in 1937 the Attorney General sent the President an FBI report on a proposed pilgrimage to Washington to urge passage of legislation to benefit American youth. The report stated that the American Youth Congress, which sponsored the pilgrimage, was understood to be strongly Communistic. 45 Later reports in 1937 described the Communist Party's role in plans by the Workers Alliance for nationwide demonstrations protesting the plight of the unemployed, as well as the Alliance's plans to lobby Congress in support of the federal relief program. 46

Some investigations and reports (which went into Justice Department and FBI permanent files) covered entirely legal political activities. For example, one local group checked by the Bureau was called the League for Fair Play, which furnished "speakers to Rotary and Kiwanis Clubs and to schools and colleges." The FBI reported in 1941 that:

the organization was formed in 1937, apparently by two Ministers and a businessman for the purpose of furthering fair play, tolerance, adherence to the Constitution, democracy, liberty, justice, understanding 'and good will among all creeds, races and classes of the United States.
A synopsis of the report stated, "No indications of Communist activities." 47

In 1944, the FBI prepared an extensive intelligence report on an active political group, the Independent Voters of Illinois, apparently because it was considered a target for Communist "infiltration." The Independent Voters group was reported to have been formed:

for the purpose of developing neighborhood political units to help in the re-election of President Roosevelt, and the election of progressive congressmen. Apparently, IVI endorsed or aided Democrats for the most part, although it was stated to be "independent." It does not appear that it entered its own candidates or that it endorsed any Communists. IVI sought to help elect those candidates who would favor fighting inflation, oppose race and class discrimination, favor international cooperation, support a "full employment" program, oppose Facism, etc. 48

Thus, in its search for subversive "influence," the Bureau gathered extensive information about the lawful activities of left-liberal political groups. At the opposite end of the political spectrum, the activities of numerous right-wing groups like the Christian Front and Christian Mobilizers (followers of Father Coughlin), the American Destiny Party, the American Nationalist Party, and even the less extreme "America First" movement were reported by the FBI. 49

c. Partisan Use

The collection of pure intelligence and preventive intelligence about "subversives" led to the inclusion in FBI files of political intelligence about the President's partisan critics. In May 1940, President Roosevelt's secretary sent the FBI Director hundreds of telegrams received by the White House. The attached letter stated:

As the telegrams all were more or less in opposition to national defense, the President thought you might like to look them over, noting the names and addresses of the senders. 50

Additional telegrams expressing approval of a speech by one of the President's leading critics, Colonel Charles Lindbergh, were also referred to the FBI. 52 A domestic intelligence program without clearly defined boundaries almost invited such action.

d. Centralized Authority: FBI and Military Intelligence

The basic policy of President Roosevelt and his four Attorneys General was to centralize civilian authority for domestic intelligence in the FBI. Consolidation of domestic intelligence was viewed as a means of protecting civil liberties. Recalling the hysteria of World War I, Attorney General Frank Murphy declared:

Twenty years ago, inhuman and cruel things were done in the name of justice; sometimes vigilantes and others took over the work. We do not want such things done today, for the work has now been localized in the FBI. 53

Centralization of authority for domestic intelligence also served the FBI's bureaucratic interests. Director Hoover complained about attempts by other agencies to "literally chisel into this type of work." 54 He exhorted: "We don't want to let it slip away from us." 55

Pursuant to President Roosevelt's 1939 directive authorizing the FBI and military intelligence to conduct all investigations of "potential" espionage and sabotage, an interagency Delimitation Agreement in June 1940 assigned most such domestic intelligence work to the FBI. As revised in February 1942, the Agreement covered "investigation of all activities coming under the categories of espionage, subversion and sabotage." The FBI was responsible for all investigations "involving civilians in the United States" and for keeping the military informed of "the names of individuals definitely known to be connected with subversive activities." 56

The military intelligence agencies were interested in intelligence about civilian activity. In fact, they requested extensive information about civilians from the FBI. In May 1939, for instance, the Army G-2 Military Intelligence Division (MID) transmitted a request for the names and locations of "citizens opposed to our participation in war and conducting anti-war propaganda." 57 Despite the Delimitation Agreement, the MID's Counterintelligence Corps collected intelligence on civilian "subversive activity" as part of a preventive security program using volunteer informers and investigators. 58

6. Control by the Attorney General: Compliance and Resistance

The basic outlines of the FBI's domestic intelligence program were approved by Attorney General Cummings in 1938 and Attorney General Murphy in 1939. 59 Director Hoover also asked Attorney General Jackson in 1940 for policy guidance concerning the FBI's "suspect list of individuals whose arrest might be considered necessary in the event the United States becomes involved in war." 60

The FBI Director initially opposed, however, Attorney General Jackson's attempt to require more detailed supervision of the FBI's role in the Custodial Detention Program. To oversee this program and others, Jackson created a Neutrality Laws Unit (later renamed the Special War Policies Unit) in the Justice Department. When the Unit proposed to review FBI intelligence, reports on individuals, Director Hoover protested that turning over the FBI's confidential reports would risk the possibility of "leaks." He argued that if the identity of confidential informants became known, it would endanger their "life and safety" and thus the Department would "abandon" the "subversives field." 61

After five months of negotiation, the FBI was ordered to transmit its "dossiers" to the Justice Department Unit. 62 To satisfy the FBI's concerns, the Department agreed to take no formal action against an individual if it "might interfere with sound investigative techniques" and not to disclose confidential informants without the Bureau's "prior approval." 63 Thus, from 1941 to 1943, the Justice Department had the machinery to oversee at least this aspect of FBI domestic intelligence. 64

In 1943, however, Attorney General Biddle ordered that the Custodial Detention List should be abolished as "impractical. unwise, and dangerous." His directive stated that there was "no statutory authority or other present justification'' for keeping the list. The Attorney General concluded that the system for classifying "dangerous" persons was "inherently unreliable;" the evidence used was "inadequate;" and the standards applied were "defective." 65 Biddle observed:

the notion that it is possible to make a valid determination as to how dangerous a person is in the abstract and without reference to time, environment, and other relevant circumstances, is impractical, unwise, and dangerous.

Returning to the basic standard espoused by Attorney General Stone, Attorney General Biddle declared:

The Department fulfills its proper function by investigating the activities of persons who may have violated the law. It is not aided in this work by classifying persons as to dangerousness. 66

Upon receipt of this order, the FBI Director did not in fact abolish its list. The FBI continued to maintain an index of persons "who may be dangerous or potentially dangerous to the public safety or internal security of the United States." In response to the Attorney General's order, the FBI merely changed the name of the list from Custodial Detention List to Security Index. Instructions to the field stated that the Security Index should be kept "strictly confidential," and that it should never be mentioned in FBI reports or "discussed with agencies or individuals outside the Bureau" except for military intelligence agencies. 67

This incident provides an example of the FBI's ability to conduct domestic intelligence operations in opposition to the policies of an Attorney General. Despite Attorney General Biddle's order, the "dangerousness" list continued to be kept, and investigations in support of that list continued to be a significant part of the, Bureau's work.

7. Intrusive Techniques: Questionable Authorization

a. Wiretaps: A Strained Statutory Interpretation

In 1940, President Roosevelt authorized FBI wiretapping against "persons suspected of subversive activities against the United States, including suspected spies," requiring the specific approval of the Attorney General for each tap and directing that they be limited "insofar as possible to aliens. " 68

This order was issued in the face of the Federal Communications Act of 1934, which had prohibited wiretapping. 69 However, the Attorney General interpreted the Act of 1934 so as to permit government wiretapping. Since the Act made it unlawful to "intercept and divulge" communications, Attorney General Jackson contended that it did not apply if there was no divulgence, outside the Government. [Emphasis added] 70 Attorney General Jackson's questionable Interpretation was accepted by succeeding Attorneys General (until 1968) but never by the courts. 71

Jackson informed the Congress of his interpretation. Congress considered enacting an exception to the 1934 Act, and held hearings in which Director Hoover said wiretapping was "of considerable importance" because of the "gravity" to "national safety" of such offenses as espionage and sabotage. 72 Apparently relying upon Jackson's statutory interpretation, Congress then dropped the matter, leaving the authorization of wiretaps to Executive discretion, without either statutory standards or the requirement of a judicial warrant. 73

The potential for misuse of wiretapping was demonstrated during this period by several FBI wiretaps approved by the, Attorney General or by the White House. In 1941, Attorney General Biddle approved a wiretap on the Los Angeles Chamber of Commerce with the caveat:

There is no record of espionage at this time; and, unless within a month from today there is some evidence connecting the Chamber of Commerce with espionage, I think the surveillance should be discontinued. 74

However, in another case Biddle disapproved an FBI request to wiretap a Philadelphia bookstore "engaged in the sale of Communist literature" and frequented by "important Communist leaders" in 1941. 75

Materials located in Director Hoover's "Official and Confidential" file indicate that President Roosevelt's aide Harry Hopkins asked the FBI to wiretap his own home telephone in 1944. Additional reports from "technical" surveillance of all unidentified target were sent to Hopkins in May and July 1945, when he served as an aide to President Truman. 76

In 1945 two Truman White House aides, E. D. McKim and General H. H. Vaughn, received reports of electronic surveillance of a high executive official. One of these reports included "transcripts of telephone conversations between [the official] and Justice Felix Frankfurter and between [the official] and Drew Pearson." 76a

From June 1945 until May 1948, General Vaughn received reports from electronic surveillance of a former Roosevelt White House aide. A memorandum by J. Edgar Hoover indicates that Attorney General Tom Clark "authorized the placing of a technical surveillance" on this individual and that, according to Clark, President Truman "was particularly concerned" about the activities of this individual "and his associates" and wanted "a very thorough investigation" so that "steps might be taken, if possible, to see that such activities did not interfere with the proper administration of government." Hoover's memorandum did not indicate what these "activities" were. 76b

b. Bugging, Mail Opening and Surreptitious Entry.

Intrusive techniques such as bugging, mail opening and surreptitious entry were used by the FBI without even the kind of formal Presidential authorization and requirement of Attorney General approval that applied to warrantless wiretapping.

During the war, the FBI began "chamfering" or surreptitious mail opening, to supplement the overt censorship of international mail authorized by statute In Wartime. 77 The practice of surreptitious entry - or breaking-and-entering - was also used by the FBI in wartime intelligence operations. 78 The Bureau continued or resumed the use of these techniques after the war without explicit outside authorization.

Furthermore, the installation of microphone surveillance ("bugs"), either with or without trespass, was exempt from the procedure for Attorney General approval of wiretaps. Justice Department records indicate that no Attorney General formally considered the question of microphone surveillance involving trespass, except on a hypothetical basis, until 1952. 79

C. DOMESTIC INTELLIGENCE IN THE COLD WAR ERA: 1946-1963
1. Main Developments of the 1946-1963 Period

The domestic intelligence programs of the FBI and the military intelligence agencies, which were established under presidential authority before World War II, did not cease with the end of hostilities. Instead, they set the pattern for decades to come.

Despite Director Hoover's statement that the intelligence structure could be "discontinued or very materially curtailed" with the termination of the national emergency, after the war intelligence operations were neither discontinued nor curtailed. 80 Congressional deference to the executive branch, the broad scope of investigations, the growth of the FBI's power, and the substantial immunity of the Bureau from effective outside supervision became increasingly significant features of domestic intelligence in the United States. New domestic intelligence functions were added to previous responsibilities. No attempt was made to enact a legislative charter replacing the wartime emergency orders, as was done in the foreign intelligence field in 1947.

The main developments during the Cold War era may be summarized as follows:

a. Domestic Intelligence Authority

During this period there was a national consensus regarding the danger to the United States from Communism; little distinction was made between the threats posed by the Soviet Union and by Communists within this country. Domestic intelligence activity was supported by that consensus, although not specifically authorized by the Congress.

Formal authority for FBI investigations of "subversive activity" and for the agreements between the FBI and military intelligence was explicitly granted in executive directives from Presidents Truman and Eisenhower, the National Security Council, and Attorney General Kennedy. These directives provided no guidance, however, for controlling such investigations.

b. Scope of Domestic Intelligence

The breadth of the FBIs investigation of "subversive infiltrationcontinued to produce intelligence reports and massive files on lawful groups and law-abiding citizens who happened to associate, even unwittingly, with Communists or with socialists unconnected with the Soviet Union who used revolutionary rhetoric. At the same time, the scope of FBI intelligence expanded to cover civil rights protest activity as well as violent "Klan-type" and "hate' " groups, vocal anticommunists, and prominent opponents of racial integration. The vagueness of the FBI's investigative mandate and the overbreadth of its collection programs also placed it in position to supply theh White House with numerous items of domestic political intelligence apparently desired by Presidents and their aides.

In response to White House and congressional interest in right-wing organizations, the Internal Revenue Service began comprehensive investigations of right-wing groups in 1961 and later expanded to left-wing organizations. This effort was directed at identifying contributions and ascertaining whether the organizations were entitled to maintain their exempt status.

c. Accountability and Control

Pervasive secrecy enabled the FBI and the Justice Department to disregard as "unworkable" the Emergency Detention Act intended to set standards for aspects of domestic intelligence. The FBI's independent position also allowed it to withhold significant information from a Presidential commission and from every Attorney General, and no Attorney General inquired fully into the Bureau's operations.

During the same period, apprehensions about having a "security police" influenced Congress to prohibit the Central Intelligence Agency from exercising law enforcement powers or performing "internal security functions." Nevertheless, in secret and without effective internal controls, the CIA undertook programs for testing chemical and biological agents on unwitting Americans, sometimes with tragic consequences. The CIA also used American private institutions as "cover" and used intrusive techniques affecting the rights of Americans.

d. Intrusive Techniques

The CIA and the National Security Agency illegally instituted programs for the interception of international communications to and from American citizens, primarily first class mail and cable traffic.

During this period, the FBI also used intrusive intelligence gathering techniques against domestic "subversives" and counterintelligence targets. Sometimes these techniques were covered by a blanket delegation of authority from the Attorney General, as with microphone surveillance; but frequently they were used without outside authorization, as with mail openings and surreptitious entry. Only conventional wiretaps required the Attorney General's approval in each case, but this method was still misused due to the lack of adequate standards and procedural safeguards.

e. Domestic Covert Action

In the mid-fifties, the FBI developed the initial COINTELPRO operations, which used aggressive covert actions to disrupt and discredit Communist Party activities. The FBI subsequently expanded its COINTELPRO activities to discredit peaceful protest groups whom Communists had infiltrated but did not control, as well as groups of socialists who used revolutionary rhetoric but had no connections with a hostile foreign power.

Throughout this period, there was a mixture of secrecy and disclosure. Executive action was often substituted for legislation, sometimes with the full knowledge and consent. of Congress and on other occasions without informing Congress or by advising only a select group of legislators. There is no question that Congress, the courts, and the public expected the FBI to gather domestic intelligence about Communists. But the broad scope of FBI investigations, its specific programs for achieving "pure intelligence" and "preventive intelligence" objectives, and its use of intrusive techniques and disruptive counterintelligence measures against domestic "subversives" were not fully known by anyone outside the Bureau.

2. Domestic Intelligence Authority

a. Anti-Communist Consensus

During the Cold War era, the strong consensus in favor of governmental action against Communists was reflected in decisions of the Supreme Court and acts of Congress. In the Korean War period, for instance, the Supreme Court upheld the conviction of domestic Communist Party leaders under the Smith Act for conspiracy to advocate violent overthrow of the government. The Court pinned its decision upon the conspiratorial nature of the Communist Party of the United States and its ideological links with the Soviet Union at a time of stress in Soviet-American relations. 81

Several statutes buttressed the FBI's claim of legitimacy for at least some aspects of domestic intelligence. Although Congress never directly authorized Bureau intelligence operations, Congress enacted the Internal Security Act of 1950 over President Truman's veto. Its two main provisions were: the Subversives Activities Control Act, requiring the registration of members of communist and communist "front" groups; and the Emergency Detention Act, providing for the internment in an emergency of persons who might engage in espionage or sabotage. In this Act, Congress made findings that the Communist Party was "a disciplined organization" operating in this nation "under Soviet Union control" with the aim of installing "a Soviet style dictatorship." 82 Going even further in 1954, Congress passed the Communist Control Act, which provided that the Communist Party was "not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States." 83

In 1956, the Supreme Court recognized the existence of FBI intelligence aimed at "Communist seditious activities." 84 The basis for Smith Act prosecutions of "subversive activity" was narrowed in 1957, however, when the Court overturned the convictions of second-string Communist leaders, holding that the government must show advocacy "of action and not merely abstract doctrine." 85 In 1961. the Court sustained the constitutionality under the First Amendment of the requirement that the Communist Party register with the Subversive Activities Control Board. 86

The consensus should not be portrayed as monolithic. President Truman was concerned about risks to constitutional government posed by the zealous anti-Communism in Congress. According to one White House staff member's notes during the debate over the Internal Security Act:

The President said that the situation . . . was the worst it had been since the Alien and Sedition Laws of 1798, that a lot of people on the Hill should know better but had been stampeded into running with their tails between their legs.

Truman announced that he would veto the Internal Security Act "regardless of how politically unpopular it was -- election year or no election year." 87 But President Truman's veto was overridden by an overwhelming margin.

b. The Federal Employee Loyalty-Security Program

(1) Origins of the Program. -- President Truman established a federal employee loyalty program in 1947. 88 Its basic features were retained in the federal employee security program authorized by President Eisenhower in public Executive Order 10450, which, with some modifications, still applies today. 89

Although it had a much broader reach, the program originated out of well-founded concern that Soviet intelligence was then using the Communist Party as a vehicle for the recruitment of espionage agents. 90 President Truman appointed a Temporary Commision on Employee Loyalty in 1946 to examine the problem. FBI Director Hoover submitted a memorandum on the types of activities of "subversive or disloyal persons" in government service which would constitute a "threat" to security. As Hoover saw it, however, the danger was not limited to espionage or recruitment for espionage. It extended to "influencing" government policies in favor of "the foreign country of their ideological choice." Consequently, he urged that attention be given to the associations of government employees with "front" organizations, including "temporary organizations, 'spontaneous' campaigns, and pressure movements so frequently used by subversive groups." 91

The President's Commission accepted Director Hoover's broad view of the threat, along with the view endorsed by a Presidential Commission on Civil Rights that there also was a danger from "those who would subvert our democracy by ... destroying the civil rights of some groups." 91 Consequently, the Executive Order included, as an indication of disloyalty, membership in or association with groups designated on an "Attorney General's list" as:

totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force, or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means."

The Executive Order was used to provide a legal basis for the FBI's investigation of allegedly "subversive" organizations which might fall within these categories. 94 Such investigations supplied a body of intelligence data against winch to check the names of prospective federal employees. 95

(2) Breadth of the Investigations. -- By the mid-1950s, the Bureau believed that the Communist Party was no longer used for Soviet espionage; it represented only a "potential" recruiting ground for spies. 96 Thereafter, FBI investigations of Communist organizations and other groups unconnected to espionage but falling within the standards of the Attorney General's list frequently became a means for monitoring the political background of prospective federal employees by means of the "name check" of Bureau files. These investigations also served the "pure intelligence" function of informing the Attorney General of the influence and organizational affiliations of socalled "subversives." 97

No organizations were formally added to the Attorney General's list after 1955. 98 However, the FBI's "name check" reports on prospective employees were never limited to information about listed organizations. The broad standards for placing a group on the Attorney General's list were used to evaluate an employee's background, regardless of whether or not lie was a member of a group on the list. 99 If a "name check" uncovered information about a prospective employee's association with a group which might come within those standards, the FBI would report the data and attach a "characterization" of the organization relating tothe standards. 100

(3) FBI Control of Loyalty-Security Investigations -- President Eisenhower's 1953 order specifically designated the FBI as responsible for "a full field investigation" whenever a "name check" or a background investigation by the Civil Service Commission or any other agency uncovered information indicating a potential security risk. 101 President Truman had refused to give the Bureau this exclusive power initially, but he fought a losing battle. 102

Director Hoover had objected that President Truman's order did not give the FBI exclusive power and threatened "to withdraw from this field of investigation rather than to engage in a tug of war with the Civil Service Commission." 103 President Truman was apprehensive about the FBI's growing power. The notes of one presidential aide on a meeting with the President reflect that Truman felt "very strongly anti-FBI" on the issue and wanted "to be sure and hold FBI down, afraid of 'Gestapo.' " 104

Presidential assistant Clark Clifford reviewed the situation and came down on the side of the FBI as "better qualified" than the Civil Service Commission. 105 But the President insisted on a compromise which gave Civil Service "discretion" to call on the FBI "if it wishes." '106 Director Hoover protested this "confusion" about the FBI's jurisdiction. 107 When Justice Department officials warned that Congress would "find flaws" with the compromise, President Truman noted on a memorandum from Clifford:

J. Edgar will in all probability get this backward looking Congress to give him what he wants. It's dangerous. 108

President's Truman's prediction was correct. His budget request of $16 million for Civil Service and $8.7 million for the FBI to conduct loyalty investigations was revised by Congress to allocate $7.4 million to the FBI and only $3 million to Civil Service. 109 The issue was finally resolved to the FBI's satisfaction when the President issued a statement declaring that there were "to be no exceptions" to the rule that the FBI would make all loyalty investigations." 110

c. Executive Directives: Lack of Guidance and Controls

Two public presidential statements on FBI domestic intelligence authority -- by President Truman in 1950 and by President Eisenhower in 1953 -- specifically declared that the FBI was authorized to investigate "subversive activity," electing the broader interpretation of the directive of conflicting Roosevelt directives. Moreover, a confidential directive of the National Security Council in 1949 granted authority to the FBI and military intelligence for investigation of "subversive activities." In 1962 President Kennedy issued a confidential order shifting supervision of these investigations from the NSC to the Attorney General, and the NSC's 1949 authorizations were reissued by Attorney General Kennedy in 1964.

As with the earlier Roosevelt directives, these statements, orders and authorizations failed to provide guidance on conducting or controlling "subversive" investigations.

Under President Truman, the Interdepartmental Intelligence Conference (IIC) 111 was formally authorized in 1949 to supervise coordination between the FBI and the military of "all investigation of domestic espionage, counterespionage, sabotage, subversion, and other related intelligence matters affecting internal security." 112 [Emphasis added.]

The confidential Delimitations Agreement between the FBI and the military intelligence agencies was also revised In 1949 to require greater exchange of "information of mutual interest" and to require the FBI to advise military intelligence of developments concerning "subversive" groups who were "potential" dangers to the security of the United States. 113

In 1050, after the outbreak of the Korean war and in the midst of Congressional consideration of new internal security legislation, Director Hoover recommended that Attorney General J. Howard McGrath 114 and the NSC draft a statement which President Truman issued in July 1950 providing that the FBI:

should take charge of investigative work in matters relating to espionage, sabotage, subversive activities and related matters."' [Emphasis added.]

Despite concern among his assistants, 115a President Truman's statement clearly placed him on the record as endorsing FBI investigations of "subversive activities." The statement said that such investigations had been authorized initially by President Roosevelt's "directives" of September 1939 and January 1943. However, those particular directives had not used this precise language. 116

Shortly after President Eisenhower took office in 1953, the FBI advised the White House that its "internal security responsibility" went beyond "statutory" authority. The Bureau attached a copy of the Truman statement, but not the Roosevelt directive. The FBI again broadly interpreted the Roosevelt directive by saving that it had authorized "investigative work" related to "subversive activities." 117

In December 1953 President Eisenhower issued a statement reiterating President Truman's "directive" and extending the FBI's mandate to investigations under the Atomic Energy Act. 118

President Kennedy issued no public statement comparable to the Roosevelt, Truman, and Eisenhower "directives." However, in 962 he did transfer the Interdepartmental Intelligence Conference to "the supervision of the Attorney General;" 119 and in 1964 Attorney General Robert Kennedy reissued the IIC charter, citing as authority the President's 1962 order and retaining the term "subversion." The 'charter added that it did not "modify" or "affect" the previous "Presidential Directives" relating to the duties of the FBI, and that the Delimitations Agreement between the FBI and military intelligence "shall remain in full force and effect." 120

None of the directives, orders, or charters provided any definition of the broad and loose terms "subversion" or "subversive activities;" and none of the administrations provided effective controls over the FBI's investigations in this area.

3. Scope of Domestic Intelligence

a. "Subversive Activities"

The breadth of the FBI's investigations of "subversive activity'' led to massive collection of information on law abiding citizens. FBI domestic intelligence investigations extended beyond known or suspected Communist Party members. They included other individuals who regarded the Soviet Union as the "champion of a superior way of life" and "persons holding important positions who have shown sympathy for Communist objectives and policies." Members of "non-Stalinist" revolutionary socialist groups were investigated because, even though they opposed the Soviet regime, the FBI viewed them as regarding the Soviet Union "as the center for world revolution." 121 Moreover, the FBI's concept of "subversive Infiltration" was so broad that it permitted the investigation for decades of peaceful protest groups such as the NAACP.

(1) The Number of Investigations. -- By 1960 the FBI had opened approximately 432,000 files at headquarters on individuals and groups in the "subversive" intelligence field. Bet Between 1960 and 1963 an additional 9,000 such files were opened. 122 An even larger number of investigative files were maintained at FBI field offices. 123 Under the Bureau's filing system, a single file on a group could include references to hundreds or thousands of group members or other persons associated with the group in any way; and such names were indexed so that the information was readily retrievable.

(2) Vague and Sweeping Standards.--The FBI conducted continuing investigations of persons whose membership in the Communist Party or in "a revolutionary group" had "not been proven," but who had "anarchistic or revolutionary beliefs" and had "committed past acts of violence during strikes, riots. or demonstrations." Persons not currently engaged in "activity of a subversive nature" were still investigated if they had engaged in such activity "several years ago"' and there was no "positive indication of disaffection." 124

The FBI Manual stated that it was "not possible to formulate any hard-and-fast standards for measuring "the dangerousness of individual members or affiliates of revolutionary organizations." Persons could be investigated if they were "espousing the line" of "revolutionary movements". Anonymous allegations could start an investigation if they were "sufficiently specific and of sufficient weight." The Manual added,

Where there is doubt an individual may be a current threat to the internal security of the nation, the question should be resolved in the interest of security and investigation conducted. 125

The FBI Manual did not define "subversive" groups in terms of their links to a foreign government. Instead, they were "Marxist revolutionary-type" organizations "seeking the overthrow of the U. S. Government." 126 One purpose of investigation was possible prosecution under the Smith Act. But no prosecutions were initiated under the Act after 1957. 127 The Justice Department advised the FBI in 1956 that such a prosecution required "an actual plan for a violent revolution." 128 The Department's position in 1960 was that "incitement to action in the foreseeable future" was needed. 129 Despite the strict requirements for prosecution, the FBI continued to investigate "subversive" organizations "from an intelligence viewpoint" to appraise their "strength" and "dangerousness." 130

(3) COMINFIL. -- The FBI's broadest program for collecting intelligence was carried out under the heading COMINFIL, or Communist infiltration. 131 The FBI collected intelligence about Communist "influence" under the following categories:

Political activities
Legislative activities
Domestic administration issues
Negro question
Youth matters
Women's matters
Farmers' Matters
Cultural activities
Veterans' matters
Religion
Education
Industry 132

FBI investigations covered "the entire spectrum of the social and labor movement in the country." 133 The purpose -- as publicly disclosed in the Attorney General's Annual Reports -- was pure intelligence: to "fortify" the Government against "subversive pressures," 134 or to "strengthen" the Government against "subversive campaigns." 135

In other words, the COMINFIL program supplied the Attorney General and the President with intelligence about a wide range of groups seeking to influence national policy under the rationale of determining whether Communists were involved. 136 The FBI said it was not concerned with the "legitimate activities" of "nonsubversive groups," but only with whether Communists were "gaining a dominant role." 137 Nevertheless, COMINFIL reports inevitably described "legitimate activities" totally unrelated to the alleged "subversive activity." This is vividly demonstrated by the COMINFIL reports on American's leading civil rights group in this period, the NAACP. 138 The investigation continued for at least twenty-five years in cities throughout the nation, although no evidence was ever found to rebut the observation that the NAACP had a "strong tendency" to "steer clear of Communist activities." 139

(4) Exaggeration of Communist Influence. -- The FBI and the Justice D partment justified the continuation of COMINFIL investigations, despite the Communist Party's steady decline in the fifties and early sixties, on the theory that the Party was "seeking to repair its losses" with the "hope" of being able to "move in" on movements with "laudable objectives." 140

The FBI reported to the White House in 1961 that the Communist Party had "attempted" to take advantage of "racial disturbances" in the South and had "endeavored" to bring "pressure to bear" on government officials "through the press, labor unions, and student groups." At that time the FBI was investigating "two hundred known or suspected communist front and communist-infiltrated organizations. " 141 By not stating how effective the "attempts" and "endeavors" of the Communists were, and by not indicating whether they were becoming more or less successful, the FBI offered a deficient rationale for its sweeping intelligence collection policy.

William C. Sullivan, a former head of the FBI Intelligence Division, has testified that such language was deliberately used to exaggerate the threat of Communist influence. "Attempts" and "influence" were "very significant words" in FBI reports, he said. These terms obscured what he felt to be the more significant criterion - the degree of Communist success. The Bureau "did not discuss this because we would have to say that they did not hit the target, hardly any." 142

A distorted picture of Communist "infiltration" later served to justify the FBI's intensive investigations of the groups involved in protests against the Vietnam War and the civil rights movement, including Dr. Martin Luther King, Jr., and the Southern Christian Leadership Conference.

b. "Racial Matters" and "Hate Groups"

In the 1950s, the FBI also developed intelligence programs to investigate "Racial Matters" and "hate organizations" unrelated to "revolutionary-type" subversives. "Hate organizations" were investigated if they had "allegedly adopted a policy of advocating, condoning, or inciting the use of force or violence to deny others their rights under the Constitution." Like the COMINFIL program, however, the Bureau used its "established sources" to monitor the activities of "hate groups" which did not "qualify" under the "advocacy of violence" standard. 143

In 1963, FBI field offices were instructed to report "the formation and identities" of "rightist or extremist groups" in the "anticommunist field." Headquarters approval was needed for investigating "groups in this field whose activities are not in violation of any statutes." 144

Under these, programs, the FBI collected and disseminated intelligence about the John Birch Society and its founder, Robert Welch, in 1959. 145 The activities of another right-wing spokesman, Gerald L. K. Smith, who headed the Christian Nationalist Crusade, were the subject of FBI reports even after the Justice Department had concluded that the group had not violated federal law and that there was no basis for including the group on the "Attorney General's list." 146

The FBI program for collecting intelligence on "General Racial Matters" was even broader. It went beyond "race riots" to include "civil demonstrations" and "similar developments." These "developments" included:

proposed or actual activities of individuals, officials, committees, legislatures, organizations, etc., in the racial field. 147

The FBI's "intelligence function" was to advise "appropriate" federal and local officials of "pertinent information" about "racial incidents." 148

A briefing of the Cabinet by Director Hoover in 1956 illustrates the breadth of collection and dissemination under the racial matters program. The briefing covered not only incidents of violence and the "efforts" and "plans" of Communists to "influence'" the civil rights movement, but also the legislative strategy of the NAACP and the activities of Southern Governors and Congressmen on behalf of groups opposing integration peacefully. 149

C. FBI Political Intelligence for the White House

Numerous items of political intelligence were supplied by the FBI to the White House in each of the three administrations during the Cold War era, apparently satisfying the desires of Presidents and their staffs. 150

President Truman and his aides received regular letters from Director Hoover labeled "Personal and Confidential" containing tidbits of political intelligence. The letters reported on such subjects as: inside information about the negotiating position of a non-Communist labor union; 151 the activities of a former Roosevelt aide who was trying to influence the Truman administration's appointments; 152 a report from a "confidential source" that a "scandal" was brewing which would be "very embarrassing" to the Democratic administration; 153 a report from a "very confidential source" about a meeting of newspaper representatives in Chicago to plan publication of stories exposing organized crime and corrupt politicians; 154 the contents of an in-house communication from Newsweek magazine reporters to their editors about a story they had obtained from the State Department, 155 and criticism of the government's internal security programs by a former Assistant to the Attorney General. 156

Letters discussing Communist "influence" provided a considerable amount of extraneous information about the legislative process, including lobbying activities in support of civil rights legislation 157 and the political activities of Senators and Congressmen. 158

President Eisenhower and his aides received similar tid-bits of political intelligence, including an advance text of a speech to be delivered by a prominent labor leader, 159 reports from Bureau "sources" on the meetings of an NAACP delegation with Senators Paul Douglas and Everett Dirksen of Illinois; 160 the report of an "informant" on the role of the United Auto Workers Union at an NAACP conference, 161 summaries of data in FBI files on thirteen persons (including Norman Thomas, Linus Pauling, and Bertrand Russell) who had filed suit to stop nuclear testing, 162 a report of a "confidential source" on plans of Mrs. Eleanor Roosevelt to hold a reception for the head of a civil rights group, 163 and reports on the activities of Robert Welch and the John Birch Society. 164

The FBI also volunteered to the White House information from its most "reliable sources" On purely political or social contacts with foreign government officials by a Deputy Assistant to the President, 165 Bernard Baruch, 166 Supreme Court Justice William 0. Douglas, 167 and Mrs. Eleanor Roosevelt. 168

Director Hoover sent to the White House a report from a "confidential informant" on the lobbying activities of a California group called Women for Legislative Action because its positions "paralleled" the Communist line. 169

As in the prior administrations, requests also flowed from the Eisenhower White House to the FBI. 170 For example, a presidential aide asked the FBI to check its files on Rev. Carl McIntyre of the International Council of Christian Churches. 171

The pattern continued during the Kennedy administration. A summary of material in FBI files on a prominent entertainer was volunteered to Attorney General Kennedy because Hoover thought it "may be of interest." 172 Attorney General Kennedy sent to the President an FBI memorandum on the purely personal life of Dr. Martin Luther King, Jr. 173 Director Hoover supplied Attorney General Kennedy with background information on a woman who told an Italian newspaper that she had once been engaged to marry President Kennedy 174 and on the husband of a woman who was reported in the press to have stated that the President's daughter would enroll in a cooperative nursery with which she was connected. 175 The FBI Director also passed on information from a Bureau "source" r egarding plans of a group to publish allegations about the President's personal life. 176

In 1962 the FBI complied unquestioningly with a request from Attorney General Kennedy to interview a Steel Company executive and several reporters who had written stories about the Steel executive. The interviews were conducted late at night and early in the morning because, according to the responsible FBI official, the Attorney General indicated the information was needed for a White House meeting the next day. 177

Throughout the period, the Bureau also disseminated reports to high executive officials to discredit its critics. The FBI's Inside information on plans of the Lawyers Guild to denounce Bureau surveillance in 1949 gave the Attorney General the opportunity to prepare a rebuttal well in advance of the expected criticism. 178 When the Knoxville Area Human Relations Council charged in 1960 that the FBI was practicing racial discrimination, the FBI did "name checks" on members the Council's board of directors and sent the results to the Attorney General. The name checks dredged up derogatory allegations from as far back as the late thirties and early forties. 179

d. IRS Investigations of Political Organizations

The IRS program that came to be used against the domestic dissidents of the 1960s was first used against Communists in the 1950s. As part of its COINTELPRO against the Communist Party, the FBI arranged for IRS investigations of Party members, and obtained their tax returns. 180 In its efforts against the Communist Party, the FBI had unlimited access to tax returns: it never told the IRS why it wanted them, and IRS never attempted to find out. 181

In 1961, responding to White House and congressional interest in right-wing organizations, the IRS began comprehensive investigation of right-wing groups to identify contributors and ascertain whether or not some of them were entitled to their tax exempt status. 182 Left-wing groups were later added, in an effort to avoid charges that such IRS activities were all aimed at one part of the political spectrum. Both right- and left-wing groups were selected for review and investigation because of their political activity and not because of any information that they had violated the tax laws. 183

While the IRS efforts begun in 1961 to investigate the political activities of tax exempt organizations were not as extensive as later programs in 1969-1973, they were a significant departure by the IRS from normal enforcement criteria for investigating persons or groups on the basis of information indicating noncompliance. By directing tax audits at individuals and groups solely because of their political beliefs, the Ideological Organizations Audit Project (as the 1961 program was known) 184 established a precedent for a far more elaborate program of targeting "dissidents." 185

During the Cold War period, there were serious weaknesses in the system of accountability and control of domestic intelligence activity. On occasion the executive chose not to comply with the will of Congress with respect to internal security policy, and the Congressiona attempt to exclude U.S. foreign intelligence agencies from domestic activities was evaded. Intelligence agencies also conducted covert programs in violation of laws protecting the rights of Americans. Problems of accountability were compounded by the lack of effective congressional oversight and the vagueness of executive orders, which allowed intelligence agencies to escape outside scrutiny.

a. The Emergency Detention Act

In 1946, four years before the Emergency Detention Act of 1950 was passed, the FBI advised Attorney General Clark that it had secretly compiled a security index of "potentially dangerous" persons. 186 The Justice Department then made tentative plans for emergency detention based on suspension of the privilege of the writ of habeas corpus. 187 Department officials deliberately avoided going to Congress, advising the FBI in a "blind memorandum:"

The present is no time to seek legislation. To ask for it would only bring on a loud and acrimonious discussion. 188

In 1950, however, Congress passed the Emergency Detention Act which established standards and procedures for the detention, in the event of war, invasion or insurrection "in aid of a foreign enemy," of any person:

as to whom there is reasonable ffround to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.

The Act did not authorize the suspension of the privilege of the writ of habeas corpus, and it provided that detained persons could appeal to a review board and to the courts. 189

Shortly after passage of the Detention Act, according to a Bureau document, Attorney General J. Howard McGrath told the FBI to isregard it and to "Proceed with the program as previously outlined." Department officials stated that the Act was "in conflict with" their plans, and was "unworkable." FBI officials agreed that the statutory procedures - such as "recourse to the courts" instead of suspension of habeas corpus - would "destroy" their program. 190 Moreover, the Security Index used broader standards to determine "potential dangerousness" than those prescribed in the statute; and, unlike the Act, Department plans provided for issuing a Master Search Warrant and a Master Arrest Warrant. 191 Two subsequent Attorneys General endorsed the decision to ignore the Emergency Detention Act. 192

b. Withholding Information

Not only did the FBI and the Justice Department jointly keep their noncompliance with the Detention Act secret from Congress, but the FBI withheld important aspects of its program from the Attorney General. FBI personnel had been instructed in 1949 that :

no mention must be made in any investigative report relating to the classifications of top functionaries and key figures, nor to the Detcom and Comsab Programs, nor to the Security Index or the Communist Index. These investigative procedures and administrative aides are confidential and should not be known to any outside agency. 193

FBI documents indicate that only the Security Index was made known to the Justice Department.

In 1955, the FBI tightened formal standards for the Security Index, reducing its size from 26,174 to 12,870 by 1958. 194 However, there is no indication that the FBI told the Department that it kept the names of persons taken off the Security Index on a Communist, Index, because the Bureau believed such persons remained "potential threats." 194a The secret Communist Index was renamed the Reserve Index in 1960 and expanded to include "influential" persons deemed likely to "aid subversive elements" in an emergency because of their "subversive associations and ideology." Such individuals fell under the following categories:

Professors, teachers, and educators, labor union organizers and leaders; writers, lecturers, newsmen and others in the mass media field; lawyers, doctors, and scientists; other potentially influential persons on a local or national level; individuals who could potentially furnish financial or material aid.

Persons on the Reserve Index would receive "priority consideration" for "action" after detention of Security Index subjects. The breadth of this list is illustrated by the inclusion of the names of author Norman Mailer and a professor who merely praised the Soviet Union to his class. 195

In addition to keeping these programs secret, the FBI withheld information about espionage from the Justice Department on at least two occasions. In 1946 the FBI had "identified over 100 persons" whom it "suspected of being in the Government Communist Underground." Neither this number nor any names from this list were given to the Department because Director Hoover feared "leaks," and because the Bureau conceded in its internal documents that it did "not have evidence, whether admissible or otherwise, reflecting actual membership in the Communist Party." 196 Thus the Bureau's "suspicions" were not tested by outside review by the Justice Department and the investigations could continue. In 1951 the FBI again withheld from the Department names of certain espionage subjects "for security reasons," since disclosure "would destroy chances of penetration and control."

Even the President's Temporary Commission on Employee Loyalty could not get highly relevant information from the Bureau. FBI Assistant Director D.M. Ladd told the Commission in 1946 that there was a "substantial" amount of Communist "infiltration of the government." But Ladd declined to answer when Commission members asked for more details of FBI intelligence operations and the information which served as the basis for his characterization of the extent of infiltration. 198 The Commission prepared a list of questions for the FBI and asked that Director Hoover appear in person. Instead, Attorney General Clark made an "informal" appearance and supplied a memorandum stating that the number of "subversives" in government had "not yet reached serious proportions," but that the possibility of "even one disloyal person" in government service constituted a "serious threat." 199 Thus, the President's Commission chose not to insist upon making a serious evaluation of FBI intelligence operations or the extent of the danger.

The record suggests that executive officials were forced to make decisions regarding security policy without full