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The FBI's domestic intelligence

operations: Domestic security in limbo
a
W. Raymond Wannall
a
Assistant Director of the Federal Bureau of Investigation ,
Published online: 09 Jan 2008.

To cite this article: W. Raymond Wannall (1990) The FBI's domestic intelligence operations:
Domestic security in limbo, International Journal of Intelligence and CounterIntelligence, 4:4,
443-473, DOI: 10.1080/08850609008435156

To link to this article: http://dx.doi.org/10.1080/08850609008435156

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 W. RAYMOND WANNALL

The FBI's Domestic

Intelligence Operations:
Domestic Security in Limbo
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In recent years, domestic intelligence (DI) powers and authorities conferred upon
the Federal Bureau of Intelligence (FBI) beginning in 1936 by presidential
directives have been severely diluted by attorney general guidelines and
excessive legislative influence by anti-intelligence factions. Today, the United
States has no mechanism to gather intelligence regarding subversive activities or
activities in the domestic field which do or may impact on the secure operations
of the federal government and those of the states. Domestic security
investigations are now based on criminal, not intelligence, predications.
Subversion has become nothing more than an abstract dialectic.
Webster's New Collegiate Dictionary defines subversion as: "A systematic
attempt to overthrow or undermine a government or political system by persons
working secretly within the country involved." Since 1976, the six attorneys
general who have headed the Department of Justice, the three successive FBI
directors, and the five congressmen, ideologues all, who on behalf of the House
of Representatives conduct oversight of all FBI domestic operations, have
seemingly ignored the possibility that such secret activity may occur in a nation
of more than 250 million inhabitants.

W. Raymond Wannall is retired Assistant Director of the Federal Bureau of

Investigation. The opinions expressed herein are those of the author and not of
the agency for which he served.

443
 444 W. RAYMOND WANNALL

HISTORICAL BASIS FOR FBI'S Dl JURISDICTION

In March 1924, during a White House visit, Harlan Fiske Stone, former dean of
the Columbia University School of Law, consented to President Calvin
Coolidge's request that he accept appointment as Attorney General of the United
States. That same month the president demanded, and received, the resignation of
the incumbent Harry M. Daugherty. According to historian Samuel Hopkins
Adams, the Department of Justice under Daugherty had "reached its lowest ebb
in morale, morals, and efficiency." Stone agreed to take on the job of
reorganizing the department, particularly its Bureau of Investigation, later known
as the Federal Bureau of Investigation.
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One of Stone's first moves was to accept the resignation of Bureau Director
William J. Burns on 9 May 1924. The next day he appointed the 29-year-old J.
Edgar Hoover as acting director. Seven months later Hoover was designated
director, the position he occupied until his death nearly a half century later,
having served under eight presidents and sixteen attorneys general.
Stone and Hoover reached agreement on a half-a-dozen points of basic policy.
Four related to the appointment and type of personnel to make up the bureau
under Hoover. Two of them, germane here, were:
• The bureau would be a fact-gathering organization, and its activities would
be limited strictly to the investigation of violations of federal laws.
• Investigations would be made at and under the direction of the attorney
general.1
These conditions were meticulously followed until President Franklin D.
Roosevelt added another dimension to the bureau's jurisdiction.
During two visits to the White House in August 1936, Roosevelt told Hoover
that he wished to discuss the question of subversive activities in the United
States, "particularly Fascism and Communism," and that he was interested in
obtaining "a broad picture," particularly in regard to their effect on the economic
and political life of the country as a whole.
According to the 1975 report of the U.S. Senate's Church Committee, after
briefing Attorney General Homer S. Cummings of Roosevelt's desires, Hoover,
in a communication to all FBI offices, stated:
The Bureau desires to obtain from all possible sources information
concerning subversive activities being conducted in the United States by
Communists, Fascisti, and representatives or advocates of other organizations
or groups advocating the overthrow or replacement of the government of the
United States by illegal methods... 7-

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NEW INTELLIGENCE DUTIES

In the early 1950s author Don Whitehead began to gather material for a book on
the FBI. In his preface to The FBI Story (1956), Whitehead wrote: "When
Hoover agreed to permit a look behind the scenes, a tremendous amount of
unpublished material was made available to me." The 1936 discussions between
Roosevelt and Hoover were publicly revealed for the first time. Whitehead
reported that the investigation requested by Roosevelt was to be for intelligence
purposes only, and "not the type of investigation required in collecting evidence
to be presented to a court."3
Two of the basic policies agreed upon by Stone and Hoover in 1924 were thus
altered by Roosevelt. The bureau's activities were no longer to be confined to
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investigations of violations of law. This new intelligence jurisdiction flowed

directly from the president to the FBI head; accordingly, the activities would not
be under the direction of the attorney general.
The president's authority to call for action to assess and neutralize an
immediate or potential threat to the nation's security is hardly open to question.
That he is charged not just with this authority but with specific duties in this
respect under various provisions of the Constitution has been widely argued and
sustained.4
In its analysis of the authority for the FBI's domestic intelligence activities,
issued 3 October 1973, the House Committee on Internal Security stated:
(T)he authority, powers, and duties which may be delegated to and
imposed upon the FBI by directives and orders of the Attorney General and
the President are of great extent. They are, and continue to be, the possible
source of a plenary authority for the conduct of domestic intelligence
investigations in relation to subversive activities . . . . If there was any
question as to the President's constitutional power to delegate a duty or
discretion to the heads of departments and agencies, such doubt has been
largely laid to rest by the act of October 31, 1951 (3 USC 301-303). By the
provisions of this act the President is authorized to designate and empower
the head of any department or agency in the executive branch . . . to perform
any function . . . which is vested in the President by law . . . . On the issue of
chain of command and chain of authority, it is clear that by virtue of this act
the President may, in general, delegate such function to the Attorney General
or directly to the Director of the FBI.5
Three separate authorities have attested to the president's direct delegation to
Hoover of the powers and authority regarding domestic intelligence
investigations: Herbert Brownell, U.S. attorney general from January 1953 to
November 1957; Robert Blakey, professor of law at the Notre Dame Law School,
who had previously served in the Department of Justice, on two congressional
committees, and on two presidential commissions; and Robert Keuch, associate

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 446 W. RAYMOND WANNALL

deputy attorney general of the United States. All three were witnesses in the 1981
trial of the civil action designated Socialist Workers Party (SWP), et al. v.
Attorney General of the United States, et al.6

DOMESTIC INTELLIGENCE DEFINED

Much oversimplified, "Domestic Intelligence Operations" concerns the
collection, evaluation, and collation of information relating to threats to
government, including threats to the orderly conduct of government business,
posed by the activities of U.S. persons.7 Not included are activities and/or threats
which are the subject of U.S. foreign counterintelligence (usually referred to as
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FCI) operations.
The application of this definition to investigative activity by either the
Executive Branch or Legislative Branch of the United States government is
influenced by ideological and political considerations. The Church committee's
members 8 abundantly illustrated this on page 24 of Book II, the committee's
Final Report, dated 26 April 1976:
The executive orders upon which the Bureau based its intelligence activity
in the decade [sic] 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 statues," the foundation was laid for
excessive intelligence-gathering about Americans.
In conflict with this statement was footnote 14 on page 26 of this report,
referring to a memorandum from J. Edgar Hoover to Attorney General Frank
Murphy dated 16 March 1939: "Murphy was aware that the FBI contemplated
investigation of subversive activities, since Hoover enclosed his 1938 plan with
this memorandum."
This Hoover plan was set forth in Exhibit PC, introduced by the defense in the
SWP civil action. By letter dated 20 October 1938, Attorney General Cummings
forwarded to President Roosevelt a memorandum in which Hoover outlined the
general scope of the FBI intelligence effort in the area of subversion and the
coverage being afforded:
In the Federal Bureau of Investigation as a part of its Investigative
Division, there is a General Intelligence Section. The function of the General
Intelligence Section is to collect through investigative activity and other
contact and to correlate for ready reference information dealing with various
forms of activities of either a subversive or a so-called intelligence type....
In order that there may be a clearer view of the detailed information
covered, there is set forth the following break-up of the various subjects that
appear in the files of the Intelligence Section: Maritime; Government;

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industry (steel, automobile, coal mining, and miscellaneous); general strike;

armed forces; educational institutions; Fascisti; Nazi; organized labor;
Negroes; youth; strikes; newspaper field; and miscellaneous. Any information
of a subversive or general intelligence character pertaining to any of the
above is received at FBI headquarters at the Seat of Government and is
reviewed, summarized, and placed upon editorial cards which are filed by
name of the subject matter, as well as by name of the individual
Complying with a presidential request, Hoover met with Roosevelt on 2
November 1938. The president advised Hoover that he had approved the plan the
FBI director had prepared, and which had been sent to him by the attorney
general.9
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After the Church committee reference to the use by Roosevelt and Hoover of
the word "subversion" (which, it said, was "a term which was never defined"), on
six separate occasions mention was made of Hoover's 1938 plan of operation
which the president approved. Apparently, the 17 specific categories and
subcategories under which "information of a subversive or general intelligence
character" would be compiled were intentionally disregarded. This showed the
wide basis for what Senator Church and the members of his committee decried to
the public as being "excessive intelligence gathering about Americans." To do
otherwise would not have served what became the obvious purpose of the Church
committee: to pillory the U.S. intelligence community and build on its sullied
image a road to the White House for the committee chairman, Senator Frank
Church (D., Idaho), and/or five of his associate senators. Neither would it have
served the same purpose merely to take "judicial notice" of the fact that any
standard dictionary adequately defines "subversion."
The president's complete concurrence with the action the FBI was taking make
it obvious that Hoover's interpretation of Roosevelt's 1936 instructions was clear
and correct. These instructions, the original foundation for the domestic
intelligence jurisdiction of the FBI, are still preserved today, although not
implemented.
While dictionaries agree on the meaning of "subversion," there was not in
1936 any definition of "domestic intelligence" or any clear understanding of how
this differed from what now is called "foreign counterintelligence."
Professor Robert Blakey, when testifying in the S WP civil action, brought this
out:
For a long time no distinction was drawn between domestic and foreign.
What happened was when the President, this is Roosevent in 1936, authorized
this intelligence program, there was an ambiguity in it in the extent of the
authorization. It clearly covered foreign but it also dealt with domestic fifth
columns.10

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 448 W. RAYMOND WANNALL

Robert Keuch, the witness from the Department of Justice, confirmed this,
noting that prior to the June 1972, Keith decision,11 a case relating to domestic
security wiretapping, "The concept of National Security responsibilities,
investigations, powers, etc. was thought to include Domestic Intelligence and
Domestic Security issues and Foreign Security and Foreign Counterintelligence
issues; but," he explained, "they were really not broken down into neat categories
or classifications or departments, because, again, the view was that National
Security involved both of those issues, and I think it does." 12
Coming to an easy definition of "domestic intelligence" is still no simple task.
In October 1982, more than 75 people met in Washington, D.C. for a two-day
conference entitled "Colloquium on Domestic Intelligence," a project of the
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National Strategy Information Center. The participants represented the concerns

and perspectives of universities and research organizations, the media, current
and former senior intelligence practitioners, the White House, congressional
intelligence specialists, and officials in state and local public safety programs.13
Even this diverse group of specialists could develop no precise, dictionary-
type definition. It was proposed that "domestic intelligence" means "information
useful to controlling political crime" — controlling to include not just
apprehension and prosecution, but also preventive action. The general feeling
was that investigation of subversion should not be predicated on a criminal basis;
that subversion is not constitutionally protected against inquiry either by the
government or by private individuals. However, the climate that had developed in
both the bureaucracy and the judiciary had indicated that while the application of
the criminal standard may not be the law of the land, it might as well be. 14

IMPLEMENTATION OF ROOSEVELT'S DIRECTIVE

Hoover reported to Roosevelt in October 1938 on what had been done and what
was planned. Three intelligence services — military, naval, and FBI — had
developed a close and coordinated plan of cooperation, both at the headquarters
level in Washington and in many FBI field divisions covering corps areas and
Naval districts.15
The efforts of these three agencies were coordinated by a committee headed by
Hoover, the Interdepartmental Intelligence Conference (IIC). To facilitate
coordination, the IIC adopted a series of "delimitation agreements," the first on 5
June 1940, and subsequent ones on 9 February 1942, and 23 February 1949.
These agreements specifically defined the areas within which each of the three
organizations would operate.16
On 6 September 1939, five days after World War II erupted in Europe,
Roosevelt issued a public directive which for the first time openly revealed that
the FBI was handling matters related to subversion. 17 Subsequent public

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directives were issued by Roosevelt on 8 January 1943; 18 by President Harry S

Truman on 24 July 1950; 19 and by President Dwight D. Eisenhower on 15
December 1953.20
Coordination and control over domestic intelligence matters falling within the
purview of the plan accepted by President Roosevelt in 1938 were exercised by
the IIC directly under the president until passage of the National Security Act of
1947. 21 Section 101 (a) of the act established the National Security Council
(NSC) as a part of the Executive Office of the President with the president,
himself, as presiding officer. The function of the council is "to advise the
President with respect to the integration of domestic, foreign, and military
policies relating to the national security "
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On 18 July 1949, a charter was issued to the IIC by the National Security
Council.22
The NSC added a new member to the IIC: the Director of the Office of Special
Investigations, U.S. Air Force. When the IIC was first established, there was no
third military arm of the U.S. government.
In all other respects, the NSC left the IIC intact, neither adding to its functions
and authority nor diminishing them. Notably, the attorney general was not added
to the chain of authority between the president and the IIC, proving once again
that the committee functioned under direct presidential delegation of
responsibilities and duties.

ENTER ATTORNEY GENERAL KENNEDY

On 9 June 1962, President John F. Kennedy issued National Security Action
Memorandum 161, captioned "Subject: U.S. Internal Security Programs." It read
as follows:
1. In line with my continuing effort to give primary responsibility for the
initiative on major matters of policy and administration in a given field to
a key member of my Administration, I will look to the Attorney General to
take the initiative in the government in ensuring the development of plans,
programs, and action proposals to protect the internal security of the
United States. I will expect him to prepare recommendations, in
collaboration with other departments and agencies in the government
having the responsibility for internal security programs, with respect to
those matters requiring Presidential action.
2. Accordingly, I have directed that the two interdepartmental committees
concerned with internal security — the Interdepartmental Intelligence
Conference (IIC) and the Interdepartmental Committee on Internal
Security (ICIS) — which have been under the supervision of the National
Security Council, will be transferred to the supervision of the Attorney
General. The continuing need for these committees and their relationship

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 450 W. RAYMOND WANNALL

to the Attorney General will be matters for the Attorney General to

determine.
By this memorandum, President Kennedy indicated no intent to cancel powers
and authorities delegated by his predecessor to the FBI nor to disband the IIC, its
continuance being left to the discretion of the attorney general.
A copy of the Action Memorandum was designated for J. Edgar Hoover as
chairman of the IIC. Nearly two years (21 months) passed before Attorney
General Robert F. Kennedy (on 5 March 1964) issued a "Memorandum for J.
Edgar Hoover, Chairman, Interdepartmental Intelligence Conference"
implementing the provisions of National Security Action Memorandum 161. The
attorney general directed that the IIC "shall continue in operation with the present
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organizational structure and terms of reference." A concluding paragraph of the

attached charter stated, "Nothing herein shall be construed as modifying or
affecting the Presidential Directives issued to the members of the IIC relating to
their individual responsibilities and duties."23
Robert Keuch testified that President Kennedy's Action Memorandum 161
delegated to the attorney general in 1962 "responsibility for programs and plans,
et cetera, for internal security purposes," and thereafter the line of authority from
the president "was simply dual." He emphasized that the presidents' directives
had never been rescinded. Indeed, responding to a specific question propounded
by the court as to whether the Truman and Eisenhower directives confirmed the
authority given by President Roosevelt, Keuch said:
Yes, sir, and the Department of Justice pointed out the [Code of Federal]
Regulations indicate that it has been our belief from the very beginning that
those directives continued in force and effect and indeed continue in force
and effect today.24
Professor Robert Blakey's conclusion appeared similar when he told the court
in the SWP civil action that, in authorizing the domestic intelligence program,
Roosevelt delegated to the FBI all powers incident thereto. Certain powers (e.g.,
over wiretaps and surreptitious entries) had subsequently been withdrawn or
relinquished, but any left untouched remained with the FBI. 25
Even today, the Code of Federal Regulations gives the FBI authority, as
defined by the attorney general, to "[c]arry out the Presidential directives of 6
September 1939, as reaffirmed by Presidential directives of 8 January 1943, 24
July 1950, and 15 December 1953, designating the Federal Bureau of
Investigation to take charge of investigative work in matters relating to
espionage, sabotage, subversive activities and related matters."26

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THE LEVI GUIDELINES

Following the promulgation of the attorney general's Charter to the IIC, a number
of developments led eventually to Attorney General Edward H. Levi's issuing,
under the date of 5 April 1976, a set of guidelines for "Domestic Security
Investigations."
Among these developments were the Watergate scandals; a 1967 Supreme
Court decision27 holding that conversations overheard through technical means
could be subject to Fourth Amendment privilege; the Keith case, 28 drawing a
distinction between domestic intelligence and foreign counterintelligence; a
General Accounting Office report on FBI domestic intelligence operations; 29
and, perhaps, most influential of all, the hearings conducted by the politically and
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ideologically motivated Church committee of the United States Senate.30

The 1976 Levi guidelines made no reference to investigations under the
presidential directives regarding domestic intelligence; they solely addressed
domestic security investigations. A criminal predicate, required as a precondition
for opening an investigation, appeared in the introductory paragraph:
Domestic security investigations are conducted when authorized [under
certain cited sections of the Guidelines] to ascertain information on the
activities of individuals, or the activities of groups, which involve or will
involve the use of force or violence and which involve or will involve the
violation of federal law, for the purpose of:....
Four categories were then set forth: (1) overthrowing the U.S. government or a
state government; (2) substantially interfering in the U.S. with activities of a
foreign government or its authorized representatives; (3) substantially impairing
the functioning of the federal or a state government or of interstate commerce for
the purpose of influencing U.S. government policies; (4) depriving persons of
their civil rights.
Particular attention is directed to the word "and" in the introductory paragraph
of the guidelines. Investigations are to be conducted only when a criminal nexus
and force or violence is or will be present. Neither of these two requirements
alone will suffice. Additional factors must be considered "in determining whether
a full investigation should be undertaken":
(1) the magnitude of the threatened harm;
(2) the likelihood it will occur;
(3) the immediacy of the threat; and
(4) the danger to privacy and free expression posed by a full investigation.
Possibly as a test run, on 17 May 1976, the FBI prepared a communication
requesting Levi's opinion regarding the continuing investigation of the Socialist
Workers Party. 31 The bureau's question was considered by a group of top law

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 452 W. RAYMOND WANNALL

enforcement officials: the Solicitor General, an Associate Deputy Attorney

General, an Assistant Attorney General, the Attorney General's staff, and the staff
of the department's Investigative Review Unit. No unanimous decision was
reached. Attorney General Levi thereupon decided that his guidelines would not
support a continuing investigation of the SWP. By memorandum dated 9
September 1976, he directed that the investigation be terminated.32
Five days before 5 April 1976, the date of the Levi guidelines, 4868 domestic
security investigations were pending in the intelligence division of the FBI. Less
than six months later, on 20 September 1976, there were only 626. By August,
1982, this figure was reduced to 38. 33
In testimony before a subcommittee of the Committee on Appropriations of
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the House of Representatives on 16 March 1978, Judge William H. Webster, then

director of the FBI, said specifically that domestic security investigations in the
bureau "underwent a radical change, both in number and scope," as a result of the
adoption of the Levi guidelines.34
Domestic intelligence matters had been under the jurisdiction of the
intelligence division of the FBI. The criminal predicate established by the
guidelines for domestic security investigations resulted in the transfer of these
investigations to the General Investigative Division which handles criminal
matters. Investigations of some matters not concerned with law violations but
with national security ramifications (e.g., the case on the Communist Party, USA)
were retained in the intelligence division as part of its foreign counterintelligence
responsibilities.35

EFFECT OF THE LEVI GUIDELINES

The associate director of the FBI, on 20 and 25 April 1978, testified before the
U.S. Senate Committee on the Judiciary, which was conducting a series of
hearings on an FBI statutory charter. The associate director told senators about an
organization consisting of 71 members whose activities were of a purely non-
criminal nature, confined to recruiting adherents to their cause and publishing
their aims. The attorney general had determined that the intent of the group's
members was to overturn the government by force or violence, but no element of
violence had yet taken place. The FBI official explained:
We apply the magnitude of harm test. Sure, the magnitude is great if they
could carry out their threat, but the likelihood is not great and the immediacy
is not great.
All of these qualifying matters have to be applied. It was concluded that
we had no authority to continue the investigation under the domestic security
guidelines . . . . (B)y not being able to investigate the organization, we cannot
target informants against it. We would then not know if they move from 71

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individuals to 70,000 individuals unless at some point in time someone does

become aware of it and reports it to us.
The associate director made the point, "(W)e certainly do not want to give any
false assurances that we may be able to prevent certain types of activity which
could be prevented under broader guidelines."
A number of officials of U.S. agencies requiring domestic intelligence to carry
out their responsibilities testified before congressional committees regarding the
effect of the Levi guidelines on their operations. In November 1979, Secret
Service Director Stuart Knight told the Senate Judiciary Committee that because
of the guidelines his service was receiving only about 40 percent of its previous
information to assist in protecting the lives of the president, vice president, and
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members of their families. Because of this loss of intelligence, the service

advised against visits by the president to certain U.S. cities. He declined to name
them in a public hearing.36
John M. Walker, Jr., Assistant Secretary for Enforcement and Operations,
Department of the Treasury, on 11 August 1982, confirmed that the Levi
guidelines had unduly restricted the flow of vital domestic intelligence to the
Secret Service. He said, "(I)f the President is going to be taking a trip abroad, we
will be able to get intelligence of a much higher and more specific degree than
we can if he is going some place here in this particular country."37
Testifying before the Senate Subcommittee on Security and Terrorism on 11
August 1982, John R. Simpson, Knight's successor as Director of the Secret
Service, complained that the guidelines imposed an unreal and unnecessary
barrier to the collection of essential information.38
On the same day, Chief Lynn H. Herring of the U.S. Park Police, Department
of the Interior, told the subcommittee how the guidelines had had an impact on
his operations. In mid-November, 1977, his men had to use tear gas to bring
under control a group of demonstrators against the Shah of Iran, who attacked
them and an opposing group. A lack of prior intelligence obscured the violent
nature of the demonstrators.39
Virtually all the witnesses emphasized that domestic security guidelines were
necessary and desirable. The rules establish regular procedures by which
agencies can allocate the proper amounts and kinds of resources to domestic
security investigations. Without them, FBI agents would be reluctant to make use
of the full range of their authority and resources.40
On 4 February 1982, the FBI's Judge Webster said, "The guidelines are
important to law enforcement because they tell us if we function within those
parameters, we will not be the subject of successful lawsuits and prosecutions."41
But there is every evidence that after the Levi guidelines became effective, the
FBI did not work up to the level of its prior authority under the 1936 Roosevelt
and reaffirming presidential directives, which placed responsibilities on the

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 454 W. RAYMOND WANNALL

bureau in the domestic intelligence field. The need for a revision of the guidelines
became apparent. They were revised, but the problem was not corrected.

THE SMITH GUIDELINES

The Levi guidelines were superceded by "The Attorney General's Guidelines on
General Crimes, Racketeering Enterprise and Domestic Security/Terrorism
Investigations," to which Attorney General William French Smith affixed his
signature on 7 March 1983.
Section III B. covers domestic security/terrorism investigations. Its
introduction follows:
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This section focuses on investigations of enterprises, other than those

involved in international terrorism, whose goals are to achieve political or
social change through activities that involve force or violence. Like
racketeering enterprise investigations, it is concerned with the investigation of
entire enterprises, rather than individual participants and specific criminal
acts, and authorizes investigations to determine the structure and scope of the
enterprise as well as the relationship of the members.
Thus, the new guidelines were keyed to the RICO (Racketeer Influenced and
Corrupt Organizations) section of the Organized Crime Control Act of 1970.
Both good and bad features were incorporated in the Smith Guidelines.
Improvements
• A preliminary inquiry may be made even when there is no "reasonable
indication" of criminal activity but further scrutiny is required to determine
if there is a criminal basis for a full investigation.
• Certain investigative techniques not previously permitted by the Levi
guidelines in a preliminary or limited investigation (such as recruitment or
placement of informants or undercover agents in suspect groups) can now,
with prior approval of a supervisory agent, be utilized.
• When statements are made by anyone advocating criminal activity or
indicating an apparent intent to engage in crime, particularly crimes of
violence, an FBI investigation may be warranted, unless it is apparent from
the circumstances or the context in which the statements are made that
there is no prospect of harm.
• The authority for investigations of enterprises whose goals are political or
social change through force or violence is broad enough to support
investigations of "front" groups and support groups, not just the action
groups alone.
• "Low-level monitoring" of apparently dormant groups may be continued
by the FBI even when such groups do not show an immediate threat of
harm.

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Undesirable features
• The use of domestic security investigations as an investigative tool has
been eliminated, although the Levi guidelines recognized that domestic
security cases occupy a category separate from general crimes and that
individuals as well as groups can be subjects of such investigations.
• Separate domestic security investigations of individuals are eliminated;
such investigations are limited to enterprises (two or more persons) whose
goals are to achieve political or social change through activities that
involve criminal violence or force.
• A criminal standard for investigations, the principal basis for criticism of
the Levi guidelines, is retained.
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• The four factors which the Levi guidelines prescribed must be considered
"in determining whether a full investigation should be undertaken" are
retained.
• No provision is made for the FBI to carry out its domestic intelligence
responsibilities under the 1936 Roosevelt and reaffirming presidential
directives.
Summing up, the Smith guidelines have eased some of the restraints on the
FBI in the domestic security field but serious obstacles still lie in the way of
permitting the Bureau to perform its duties in that area.
The 20 and 25 April 1978 testimony of the FBI associate director before the
U.S. Senate Committee on the Judiciary highlighted a ludicrous situation which
still exists under the attorney general's guidelines, a so-called "Catch-22"
situation. To sustain the instituting of an investigation, the FBI must first receive
information indicating an apparent intent to engage in crime, or advocacy of
criminal activity plus violence, or an intent to commit violence. Such information
is usually obtained by conducting an investigation. Since groups contemplating
crime and violence conceal their intent, and would seldom hesitate to punish
someone who revealed it, a report to the FBI or police from a voluntary "walk-
in" is rather unlikely.
The domestic intelligence mechanism established by President Roosevelt to
surface and/or investigate subversive activities has fallen into disuse through rust.
Although not specifically declared inoperative by various attorneys general, the
guidelines requiring criminal and violence predications for domestic security
investigations have estopped its operation.
There have been five attorneys general since Edward H. Levi served President
Gerald R. Ford in this capacity: Griffin B. Bell, Benjamin R. Civiletti, William
French Smith, Edwin Meese, III, and Richard Thornburgh. Only one of them,
Smith, attempted to correct the damage inflicted by the Levi guidelines, and that
attempt fell far short of need. None seems to have considered the across-the-
board effect the guidelines have had on the intelligence-gathering capability of

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the Executive Branch of the United States government concerning subversion and
other matters within its purview. Neither has either of the last three, all in office
since 8 August 1984, appeared to have given any consideration to the decision of
the 7th U.S. Circuit Court of Appeals, rendered that date, upholding the domestic
intelligence authority of the FBI.

SUBVERSION: TO INVESTIGATE OR NOT?

"Subversion" is a derivative of "treason," the only crime described in the U.S.
Constitution.42 In Traitors,^ Chapman Pincher, Britain's leading investigative
journalist, expounded on the meaning of "subversion":
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[O]ffenses against the State regarded as falling short of treason are termed
"sedition." "Subversion" was redefined in 1984 by the then Home Secretary
as "activities which threaten the safety or well-being of the State and which
are intended to undermine or overthrow Parliamentary democracy by
political, industrial or violent means." Clearly it is intended to include any
undermining of the infrastructure of democracy and is not limited to criminal
acts, because in a free society it is easy to inflict damage within the existing
law. Politically motivated strikes and sit-ins may be as effective as explosives
in wrecking a factory. The main purpose of widening the definition was to
legitimize clandestine counter-measures against those planning or taking part
in acts to destabilize the government by the means described. When such
activities, usually claimed as "legitimate dissent," are proved to be responses
to the requirements of the Soviet Union or any other foreign power intent on
promoting disorder, instability and chaos, then subversives qualify as traitors.
[Emphasis added.]
Former Attorney General Herbert Brownell, in his 1981 testimony during the
SWP civil action, seemed to have subscribed to this view in holding that, in an
intelligence investigation, the subject's American citizenship would make no
difference. "The central question," he told the court, "would be whether or not
there is activity either in concert with or abetting the international action against
the United States government."44 The similarity of the rationale regarding threats
to the security evidenced in the late 1930s by Roosevelt and Hoover with regard
to the United States and that evidenced in the 1980s by the British Home
Secretary and Pincher, with regard to the United Kingdom, is notable. All
showed concern for threats issuing from (a) activities of a political or industrial
nature, (b) subversion not limited to criminal acts, and (c) strikes.
In both the United States and England, upon whose body of common law
America's common law was based, the right or duty of a nation to take action, not
necessarily supported by criminal law, to preserve itself has been affirmed.

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The concept of action beyond the bound of criminal law with this objective
was not peculiar to President Roosevelt. On 20 September 1810, Thomas
Jefferson, in a letter to J. B. Colvin, wrote:
The question you propose, whether circumstances do not sometimes occur,
which make it a duty in officers of high trust, to assume authorities beyond
the law, is easy of solution in principle, but sometimes embarrassing in
practice. A strict observance of the written laws is doubtless one of the high
duties of a good citizen, but it is not the highest. The laws of necessity, of
self-preservation, of saving our country when in danger, are of higher
obligation. To lose our country by a scrupulous adherence to written law,
would be to lose the law itself, with life, liberty, property and all those who
are enjoying them with us; thus absurdly sacrificing the end to the
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45
means [Original emphasis.]
Philip Selznick, in his 1960 study of Bolshevik strategy, wrote:
Subversion refers not only to a revolutionary program, but also to the
manipulation of social institutions for alien ends, this manipulation being
conducted covertly in the name of the institution's own values. It is this type
of subversion which is meant when fear is expressed of the effect of
communism in the schools, in the labor movement, and in liberal
organizations. Such activities, and ultimate overthrow of the government, are
of course related, but concern for the integrity of the institutions themselves
leads us to seek modes of self-defense long before any clear and present
danger to established authority is demonstrable.46
The legality of domestic intelligence investigations has been confirmed
recently and positively in the U.S. federal court system.
In 1973, a number of plaintiffs, including the American Civil Liberties Union
(ACLU) and a companion organization, the Alliance to End Repression,
instituted legal action against the FBI. They charged that the bureau had
investigated them "in the name of domestic security," the goal and consequences
of which were allegedly to harass and intimidate the plaintiffs. The subsequent
promulgation of the Levi guidelines set the stage for settlement of the suit.
Without going to trial, the FBI agreed that, in conducting domestic security
investigations in the Chicago area, it would be concerned only with conduct
forbidden by criminal law, as decreed in the guidelines.
In August, 1981, the judge in this case, in approving the consent degree
containing the FBI's commitment, included the extraordinary provision that every
resident of Chicago, not just the plaintiffs, could enforce the decree by
application to the District Court for an injunction.
Two years later the Smith guidelines of March 1983, established an earlier
threshold for the government's initiating domestic security/terrorism

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investigations, declaring they may be warranted when statements are made

advocating criminal activity or indicating an apparent intent to engage in crime.
Claiming these provisions violated the agreement terms, which dealt with
conduct only, the plaintiffs in the Alliance-ACLU case sought and received an
injunction prohibiting the FBI from following the 1983 federal guidelines in the
Chicago area. However, the 7th U.S. Circuit Court granted an appeals hearing
because of the sensitive issue of separation of powers raised by a judicial
decision invalidating in a major city a part of the FBI's nationwide investigatory
guidelines.
The Appellate Court, on 8 August 1984, invalidated the injunction, declaring it
"a remarkable judicial intervention in vital executive functions." In its findings,
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the court confirmed the legality of FBI domestic intelligence investigations and
cast aside as inapplicable the claim, so often used by anti-intelligence forces, that
such investigations have a "chilling effect" on their rights and activities.
Citing Socialist Workers Party v. Attorney General, 510 F.2d, 253, 256 (2d
Circuit 1974) (per curiam), the court ruled:
The FBI always has investigated people who advocate or threaten to
commit serious violations of federal law, even if the violations are not
imminent; and it always will. It "has the right, indeed a duty, to keep itself
informed with respect to the possible commission of crimes; it is not obliged
to wear blinders until it may be too late for prevention.. .." [Emphasis
added.]
Admittedly the repressive effect will not be zero. No one wants his name
in an FBI investigatory file; and the knowledge that the FBI investigates
groups that advocate violent change could deter some people from joining
such groups and deter the groups themselves from engaging in lawful though
minatory forms of advocacy. There would therefore be a cost to the values
protected by the First Amendment, if the groups never stepped over the
boundary that separates privileged from indictable speech. But we think the
cost would be outweighed by the benefits in preventing crimes of
violence . . . .47
Despite what presidents and home secretaries, journalists and writers, and even
courts have pointed out, a strong anti-intelligence force in the United States
resists all forms of domestic intelligence operations.48 Its adherents take all types
of action to frustrate these operations.
On 10 July 1975, writing in the Atlantic Journal and Constitution under the
caption "Zealots Feed 'Secret Police' Fears," Eugene H. Methvin, Senior Editor
of Reader's Digest, explained the objectives of three such organizations. The
ACLU, he wrote, had launched a broad legal-political assault in the courts and
Congress that would cripple intelligence. ACLU fund-raising depended entirely
upon pumping up a "police state" bogey to do battle against. In 1967, he

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continued, its members rescinded a rule barring from membership "Communists,

Fascists, or anyone else who supports totalitarian dictatorship in any country."
Regarding the National Lawyers Guild, Methvin stated that its purpose, as
declared by its president, was "to keep the road clear of legal roadblocks" for
revolutionaries, and "to preserve the freedom won by the first American
revolution to make possible the second." Its newspaper, The Conspiracy, was
said to plug the slogan, "When tyranny is law, revolution is order."
Mentioning Counterspy, a publication which billed itself as "an alternative
intelligence community, a Fifth Estate," Methvin described its purpose as, "To
focus mass resistance to Techno-fascism. We're watching Big Brother... the
activities of all government intelligence agencies."
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CALLS FOR INTELLIGENCE GATHERING

During the nearly ten-year period between the assassination of President John F.
Kennedy in November 1963, and January 1973, seven United States national
commissions issued reports emphasizing the vital role intelligence plays. 49 Their
recommendations, intended to be guidelines, were, in fact, utilized as such by the
FBI and federal, state, and local law-enforcement and intelligence agencies
throughout the country in developing intelligence-gathering capabilities to meet
the requirements of established authority.
The findings, recommendations, and standards proposed by these seven
national commissions represented approximately nine years of concentrated study
by hundreds of highly qualified persons who served as commission members,
advisors, consultants, and staff. They included leaders from all levels of
government, members of the clergy, doctors, psychologists, historians,
sociologists, lawyers, prosecutors, psychiatrists, as well as professional law-
enforcement personnel. Just about every intellectual discipline, every field of
learning, was represented on these commissions. Their work product represented
the best thinking available in the nation on matters under their study. Their
unanimous and unqualified endorsement of intelligence activities, including
intelligence in the so-called political area, is highly significant.
The seven commissions, with information extracted from each of their reports
as representative of the types of recommendations they made, were:
1. President's Commission on the Assassination of President John F.
Kennedy
Recommendation: The Secret Service should completely overhaul
its facilities devoted to the advance detection of potential threats
against the president (purely an intelligence operation).

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2. President's Commission on Crime in the District of Columbia

Recommendation: The Subversive Section of the D.C. Metropolitan
Police Department should develop information concerning the
structure, membership, and plans of organizations engaged in
subversive activities.
3. President's Commission on Law Enforcement and Administration of
Justice
Recommendation: Federal, regional, state, and local police
intelligence units should be established, all of which "must share
information and coordinate their plans."
4. National Advisory Commission on Civil Disorders
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Recommendation: The absence of accurate information both before

and during a disorder having created special control problems, police
departments must develop means to obtain adequate intelligence for
planning purposes.
5. National Commission on the Causes and Prevention of Violence
Recommendation: Departments should improve their intelligence
because their ability to anticipate or prevent riots is completely
dependent on intelligence, and specifically on what is referred to as
"political" intelligence.
6 President's Commission on Campus Unrest
Recommendation: "The best and sometimes the only means to
effect these purposes [referring to the apprehension of those guilty of
bombing, maiming, and killing] is by clandestine intelligence work."
7. National Advisory Commission on Criminal Justice Standards and Goals
Recommendation: Every police agency and every state should
immediately establish and maintain the capability to gather and
evaluate information and to disseminate intelligence in a manner
which protects every individual's right to privacy.

CHURCH COMMITTEE'S "FAIR FACTUAL BASIS"

The last commission study, indicating a cross-section of support throughout the
country for intelligence gathering and use, was issued just two years before the
Senate established the Church committee in January 1975. After 15 months, the
committee published its Final Report, Book II, stating on the very first page of
the preface, "Having concluded its investigation, the committee issues its reports
for the purposes of: providing a fair factual basis for informed Congressional and
public debate on critical issues affecting the role of governmental intelligence
activities in a free society; and recommending . . . legislative and executive
action "

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Its presentation of a "factual basis" was just about as fair (or unfair) with
regard to the commissions' studies as its accusation that Roosevelt and Hoover
never defined "subversion," while six times indicating it had access to Hoover's
1938 plan, which Roosevelt approved, stating specifically and in detail what was
intended. A footnote on page 68 of the Final Report, Book II, showed that the
reports of the commissions enumerated above as numbers 4 , 5 , and 6, dealing
respectively with civil disorders, violence, and campus unrest, all confined to
domestic activities, were reviewed by the Church committee. They were cited to
make the point, which served the committee's purpose, that the larger outbreaks
of violence "were most often spontaneous reactions to events." Not one single
hint was given that a solution to the problems, recommended after thorough
studies by the commissions, was increased intelligence gathering, including
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"political intelligence," and clandestine intelligence work. To reveal this would

have been repugnant to its determination to denigrate intelligence. So the
recommendation did not become a part of the "fair factual basis" presented for
congressional and public debate. Sadly, such points have been missed by those
citing the Church committee's reports as authoritative.
Many of the charges the Church committee leveled against the various
agencies that make up the U.S. Intelligence Community were but echoes of
information fed to it by vocal enemies of intelligence gathering and use. S.
Steven Powell, author of Covert Cadre: Inside the Institute for Policy Studies,
reported that, throughout 1975 and 1976, the Church committee was influenced
by a report, "The Abuses of the Intelligence Agencies," published by the Center
for National Security Studies (CNSS) and widely circulated on Capitol Hill. 50
Formerly a project of the Fund for Peace and the ACLU Foundation, the Center
was an Institute for Policy Studies "social invention." CNSS is influential with
Congress. Many of its associates were involved with the now defunct
Counterspy, whose orientation has been previously explained.51 The Church
report was a mixture of fact and fiction, with documentation ranging from KGB
agent Wilfred Burchett and CIA turncoat Philip Agee to government reports.52
The "fair factual" outpourings of the Church committee became hyped-up
exposes during the panel's life and have been the bases for frequent media
ruminations ever since its demise. Exposing the findings of the committee to the
same kind of intense investigation which it conducted of the U.S. Intelligence
Community's operations might be revealing.
On the need for domestic intelligence investigations, the committee adversely
influenced, perhaps intimidated would be more descriptive, the attorney general,
the director of the FBI, and those responsible for discharging the mandate to
pursue them. The committee members' attention became riveted upon the "fair
factual basis" of which they boasted. By the time the Final Report was issued,
hardly a need existed to provide a basis for public debate. The media had already

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done that. And as developments since have shown, neither was there need to
provide such a basis within the halls of Congress, particularly the House of
Representatives.

CONGRESSIONAL OVERSIGHT
On 20 November 1974, two months before the Church committee was set up by
Senate Resolution 21, the House Judiciary Subcommittee on Civil and
Constitutional Rights staked a claim to oversight of FBI operations by requiring
courtroom appearances by the Director of the FBI, the U.S. Deputy Attorney
General and the Assistant Attorney General of the Criminal Division of the
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Department of Justice. After the Church committee had run its course, oversight
of all FBI domestic operations, criminal, domestic security, and domestic
intelligence, was placed under the jurisdiction of this subcommittee. Its five
majority members, who for all practical purposes control the FBI responsibilities
(there are only three minority members), represent what must surely be the
extreme anti-intelligence wing in the House.
Senate oversight of FBI operations is exercised by the full Judiciary
Committee, principally through its budget authorization hearings. On 17 May
1988, William S. Sessions, who had served as FBI director for only six months,
was subjected to a grueling inquiry into FBI functions and cases which the
majority members felt had been mishandled over several years, such as the
investigation of the Committee in Solidarity with the People of El Salvador
(CISPES), and alleged discrimination cases involving two bureau agents. On only
one matter did the FBI director hold his own — an FCI operation known as the
Library Awareness Program over which the Senate Intelligence Committee
should have exercised oversight. And even here, a senator was allowed to insert
into the record a five-page article from The Nation critical of the program while a
report explaining why the program was pursued, offered by Sessions, was not
inserted.53
The House Judiciary Subcommittee on Civil and Constitutional Rights has, on
the other hand, conducted several specific hearings to direct severe criticism at
bureau operations, apparently finding it difficult to agree with almost anything
the FBI has done. These hearings ranged from the highly successful ABSCAM
case to FCI matters which should be under the oversight of the House
Intelligence Committee, such as the Library Awareness Program and a program
involving interviews with visitors to a communist country.
During the 101st Congress, the five Democrats who constituted the majority
on the House Judiciary Subcommittee on Civil and Constitutional Rights were:
Don Edwards, 10th District, San Jose, California, Chairman
Robert W. Kastenmeier, 2nd District, Madison, Wisconsin

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John Conyers, Jr., 1st District, Detroit, Michigan

Patricia Schroeder, 1st District, Denver, Colorado
George W. Crockett, 13th District, Detroit, Michigan
On 23 December 1975, Richard Welch, Central Intelligence Agency (CIA)
Bureau Chief in Athens, Greece, was gunned down following the revelation of
his identity and address in Philip Agee's publication Counterspy.5* As previously
noted, this publication proclaimed, "We're watching Big Brother... the activities
of all government intelligence agencies." The names of more than 1,000 alleged
CIA officers were disclosed in two books by former CIA officer Agee. Louis
Wolf, co-editor of the Covert Action Information Bulletin to which turncoat Agee
contributed, claimed it disclosed the names of more than 2,000 CIA officers over
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a six-year period. 55 Congress reacted, passing the Intelligence Identities

Protection Act of 1982 (PL-97-200), to outlaw the publication of information
which could lead to the murders of and attacks on U.S. intelligence agents.
In Covert Cadre, Steven Powell reported, on page 76, that Congressmen
Edwards, Conyers, Kastenmeier, and Schroeder
advocate policies that defy common sense and are probably contrary to the
interests of most of their constituents. They were, for instance, part of a tiny
minority who voted against the Intelligence Agents Identities Protection Act,
designed to prevent "Philip Agee types" from publicizing the names of CIA
officers and imperiling their lives in the process.
Powell reported that in June 1983, Representative Edwards, in a congressional
memo, said that he opposed FBI intelligence-gathering on any radical groups.56
His strong opinions in this matter became apparent early during his
subcommittee's sway over the bureau. On 15 December 1977, he introduced H.R.
10400, a bill "To define the investigative authority of the Federal Bureau of
Investigation, to create civil remedies for violations of rights under color of
Federal law, and for other purposes." Designed to wipe out all FBI intelligence
responsibilities, even in the FCI field, Edwards's bill made no provision for any
other agency to take over these vital functions. Fortunately, the bill died with the
95th Session of Congress.
Despite the fact that Edwards served in the FBI in 1940-1941, he has
demonstrated a continuing animosity toward the bureau and supports its strongest
critics. A most flagrant example occurred in June 1985, when he took charge of a
campaign to get a new trial for American Indian activist Leonard Peltier,
sentenced to two consecutive life terms for the 1975 murder of two FBI agents at
Pine Ridge Reservation in South Dakota while they were trying to serve an arrest
warrant. The agents were shot from a distance then finished off at close range by
bullets to the face. Peltier has become a household word in the Soviet Union,

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where his case was touted on state television as an "example" of the torment
inflicted on minorities in the United States.57
Another activity of Chairman Edwards is, if unexplained, much more thought
provoking. In 1957, Alfred and Martha Dodd Stern were indicted, charged with
having controlled a Soviet spy ring in the United States. Prior to the indictment
they fled the country, going first to Mexico, then Cuba and Czechoslovakia. In
1971, the Sterns began to show signs of wanting to return home to the United
States. In 1977, Edwards put pressure on the Department of Justice and the White
House to force the dismissal of the indictment. Despite FBI insistence that the
indicted spies submit to in-depth interviews before being allowed back into the
United States, and the Sterns's refusal to do so, the indictment was dismissed in
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March 1979. Among the first persons to be notified of this action was
Congressman Edwards. According to the 1 December 1980 issue of the AIM
Report, published by Accuracy In Media, "The Sterns were pleased and grateful,
and on 24 October 1979, the Don Edwards Congressional Campaign Fund logged
in a $500 contribution from Alfred Stern of Prague, Czechoslovakia."58
In June 1985, House Republicans and Democrats alike criticized Edwards
because he blocked bipartisan attempts to hire 191 more FBI agents to combat
domestic terrorism. Congressman F. James Sensenbrenner (R., Wisconsin), the
most vocal Republican on the Edwards subcommittee, stated, "Edwards is the
tool of the American Civil Liberties Union and other civil rights groups."59
Congressman John Conyers, Edwards's associate in FBI oversight
responsibilities, is Vice Chairman of the National Advisory Council of the
American Civil Liberties Union (ACLU).
The Church League of America, a conservative organization, reported in 1977
that the ACLU in its 1970-71 Annual Report, stated, "The ACLU has made the
dissolution of the Nation's vast surveillance network a top priority . . . . The
ACLU's attack on the political surveillance is being pressed simultaneously
through a research project, litigation, and legislative action."60 This may have
been what Eugene H. Methvin had in mind when he reported that the ACLU had
launched a "broad legal-political assault in the courts and Congress that would
cripple intelligence."
Methvin also noted the stated purpose of the National Lawyers Guild, as
pronounced by its president: "to keep the road clear of legal roadblocks" for
revolutionaries. Perhaps significantly, another Edwards associate on the oversight
committee was Congressman Crockett, who retired in 1990, a member of the
National Lawyers Guild.
In Covert Cadre, Powell also made an in-depth study of the Institute for Policy
Studies (IPS). In a 19 May 1988, memorandum Powell asserted that:
IPS has cooperated with the intelligence services of hostile foreign powers
to thwart U.S. policies; created news services, investigative reporting groups

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and journals that blow the cover off U.S. intelligence operations; exposed
classified information on U.S. defense plans; engaged in active measures to
break up U.S. alliances; raised money for communist governments and
produced propaganda on behalf of those governments; opposed every new
U.S. weapons system; and advocated unilateral steps toward disarmament.61
In Covert Cadre Powell also stated:
Astonishing as it is that a congressman of Edwards's views should oversee
the FBI, it is little short of stunning that the Democratic majority on
Edwards's subcommittee shares his political views — Kastenmeier, Conyers,
and Schroeder are all progressives who support IPS Schroeder finds IPS
stimulating. "I don't agree with everything they do...," she told a New York
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Times reporter, "but it's refreshing to have several points of view. The hardest
thing to do in this town is to find time to think."62
When, on 5 April 1983, IPS threw a large twentieth anniversary celebration to
raise funds, among congressmen serving on the committee were Edwards,
Crockett, Kastenmeier, and Schroeder.63
In the present, 102nd, Congress, Crockett, who did not run for reelection in
1990, and Kastenmeier, who ran but was defeated, were replaced on the Edwards
Subcommittee by Craig Washington and newcomer Michael Kopetski. Their
previous records would seem to assure Mr. Edwards that they will carry on in the
tradition of their predecessors.
According to Robert Keuch, an attorney general can change his guidelines but
"there would be consultation with or certainly oversight interest by the
appropriate House and Senate committees."64
If a United States Attorney General should revise the guidelines to restrict
further FBI operations, the Edwards subcommittee will very likely support such a
move. If, on the other hand, a change is attempted to relax the more stringent
features of the guidelines, there might well be fireworks. After the slight
relaxation effected by Attorney General Smith, Edwards prepared an article for
the California Lawyer.65 In "Too Much Power for the FBI," Edwards argued
strongly for utilization of the criminal basis for security investigations:
"(I)ntrusive techniques are now authorized for investigations where no criminal
conduct is involved." He continued; "The FBI had forgotten or overlooked a
fundamental principle necessary to a free society, best stated by Harlan Fiske
Stone . . .: The FBI must be concerned only with conduct, and then only with
conduct that violates the laws of the United States." He ignored President
Roosevelt's rejection of this premise.
Edwards, who is unswervingly dedicated to his own ideology, seems to
acknowledge no significant changes or upheavals in the United States since Stone
made that statement in 1924. He does not recognize the authorizations in several
presidential directives to cope with contemporary situations — authorizations

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which the attorney general still considers as the basis for FBI jurisdiction. To
Edwards, "subversion" is, indeed, nothing more than an abstract dialectic.

THE NEED TO RESTORE DI OPERATIONS

Domestic intelligence operations of the FBI and most big-city law enforcement
agencies have, for all practical purposes, been in limbo for well over a decade.
Missed opportunities to prevent damages, injuries, and deaths are hard to assess
— proving negatives is difficult. But three grievous events, some dating as far
back as the 1960s, might have been avoided had the investigations not been
discontinued. These are not certainties, of course, just possibilities.
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HANAFI MUSLIM SIEGE

In March 1976,12 Hanafi Muslims, wielding guns and machetes, laid siege in the
nation's capital on the District Building, the B'nai B'rith Building and the Moslem
Mosque and Cultural Center. One person was killed, another crippled for life, and
a third shot. The siege lasted two days before 137 hostages were released.
The 1978 Report of the Senate Subcommittee on Criminal Laws and
Procedures on "The Erosion of Law Enforcement Intelligence and Its Impact on
the Public Security" called this "perhaps one of the most dramatic examples of
the damage that can be done by the destruction of intelligence capabilities." (page
41) In the 1960s and early 1970s, as a result of pressures from the D.C. City
Council, the Metropolitan Police Department had destroyed all its intelligence
files, including one on the Hanafi Muslims, and discontinued all informants
including, again, one in the same cult. The Subcommittee concluded: "Had the
District of Columbia police been receiving reports on a regular basis from an
informant who had infiltrated the Hanafi ranks, the chances are 100 to 1 that they
would have had intelligence enabling them to take preventive action."

WUO MURDERS
On 20 October 1981, the Communist May 19 Coalition, made up of members of
a number of violence-prone groups, including the Weather Underground
Organization (WUO), robbed a Brinks truck in Nyack, New York, of nearly $1.6
million, killing one and wounding two of its guards. At a police roadblock five
miles away, the felons also killed two law-enforcement officers.
The FBI undertook a domestic intelligence investigation of the WUO at its
very inception in 1969 when it became a spin-off from its parent organization, the
Students for a Democratic Society. Because its members violated certain criminal
laws, the investigation continued after the Levi guidelines were issued. In
October 1981, an FBI official said that "federal intelligence reports" were
discontinued in 1979 because "the group has not been active since it claimed

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responsibility for the 1977 bombing of a Federal Building in Seattle."66 Between

1979 and 1981 this violent group, which had proudly claimed credit for bombing
the U.S. Capitol Building, the Pentagon, and more than a dozen and a half other
targets prior to March 1974, was not accorded FBI attention. 67 Without
information that it was currently violating any federal law, WUO did not qualify
for attention under guidelines restrictions. Had the FBI been discharging
responsibilities conferred upon it by presidential directives, could the loss of
three lives and the attendant tragedies to families left behind have been
prevented?
While FBI spokesmen declined to comment directly on what limiting effects
the guidelines might have had, they said that any investigations involving
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members of the WUO had been focused only on individuals suspected of specific
criminal acts. 68

HINCKLEY ASSASSINATION ATTEMPT

President Ronald Reagan was shot by John W. Hinckley on 30 March 1981, in
Washington. The would-be assassin had an apparent history of being drawn to
violence-prone groups. An official of the Chicago-based National Socialist Party
of America (NSPA) informed journalists that Hinckley had been a member of the
neo-Nazi NSPA but had been expelled in 1979 because he was a "nut." He said
Hinckley "wanted to shoot people and blow things up."
The NSPA was reported to be a militantly anti-Jewish, anti-Black
organization, many of whose members had been jailed and/or arrested for violent
acts. Its publication, New Order, advocated a "purifying" of the races in America
and warmly endorsed Hitler's Germany. When an FBI official, after stating that
the NSPA was not being investigated, was asked why not, he said, "Because of
the Attorney General's Guidelines, for one thing. We don't conduct investigations
of political groups unless they have committed a crime."
The conservative publication, Human Events, included a revealing comment
about the state of U.S. internal security: "[T]he FBI — the agency Americans
have for so long counted upon to protect us from subversion and organized
violence — is unable to tell us just who is and who is not a member of an outfit
like the NSPA." Its editorial remarked that the tragic event "in which the
President, a Secret Service agent, a D.C. policeman, and the White House press
secretary were almost fatally wounded by a single gunman should have set off
alarm bells somewhere. But it's not clear that anyone is really listening."69
Prior to March 1976, information such as Hinckley's connection with the
NSPA and his possibly unstable nature, when developed during an FBI domestic
intelligence investigation, was furnished to the Secret Service. If the attorney
general's guidelines had not been in effect in March 1981, would the attempt on
the president's life have been avoided?

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 46 8 W. RAYMOND W ANN ALL

ACTION TO RESTORE Dl OPERATIONS

The three examples are illustrative of many situations surely known to the FBI
and law enforcement agencies across the nation — where a neglect of
intelligence investigations has resulted in the failure of the federal and state
governments to insure domestic tranquility, promote the general welfare, and
secure the blessings of liberty for all. To alleviate these situations, there are steps
which should be considered by the director of the FBI, the attorney general, the
Congress, and the president.

The Director of the FBI

Authority for domestic intelligence investigations under presidential directives is
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still shared by the director of the FBI. A study should be conducted to determine
if the attorney general's guidelines on domestic security/terrorism investigations
do, in fact, abrogate the director's ability to order DI investigations. If so, he
should recommend to the attorney general that corrective action be taken.

The Attorney General

The attorney general should acknowledge the existing dichotomy by his
supporting the presidential directives as a basis for FBI operations on the one
hand and maintaining, on the other, a set of guidelines which, under the directives
have excluded investigations. This impasse should be corrected.
In the absence of a withdrawal by the president of powers and authorities,
which under the directives, now rest with both him and the FBI director, the
attorney general should take a strong stand with Congress. He should provide
evidence of the authority and the need for domestic intelligence and, after
consultation with the appropriate congressional committees as required, issue
guidelines for DI investigations.

The Congress
The director of the FBI and the attorney general would not likely continue to
neglect the responsibilities placed upon them by the directives except for the
intimidating pressure exerted by congressional forces. As it now stands, a Senate
committee having oversight of all FBI domestic operations has held the director's
feet to the fire in public hearings. The House of Representatives defers to the
small group of congressmen who exercise a mandate properly belonging to the
FBI director and control all domestic operations of the bureau, to the satisfaction
and delight of anti-intelligence and anti-law enforcement forces.
Congress should recognize the need for fairness and sound judgment. It should
take steps on its own initiative to see that anti-intelligence forces do not dictate
what the president and the executive branch require to discharge obligations
imposed by the Constitution, statutes, executive orders and presidential

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directives. Oversight should be exercised, not to dictate this requirement itself,

but to assure that these obligations are properly handled by those having the
responsibility to discharge them. Any such requirement, or action in pursuing it,
if questionable, should be referred to the judiciary branch for adjudication in
accordance with provisions of the U.S. Constitution. No single congressional
committee or subcommittee can take action which nullifies a presidential
directive, an executive order, a statute, or a constitutional power or duty. The
body of Congress must exercise oversight of its individual committees and
subcommittees.
Congress must also correct an existing situation that intimidates federal
investigators, causing them to shirk their responsibilities.
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When testifying before the Senate Subcommittee on Security and Terrorism on

4 February 1982, while Director of the FBI, Judge William H. Webster said:
My problem today is not unleashing the FBI, my problem is convincing
those in the FBI that they can work up to the level of our authority. Too many
people have been sued, too many people have been harassed and their
families and life savings tied up in litigation and the threat of prosecution. So
that we and others like us run the risk that we will not do our full duty in
order to protect our individual selves.70
Webster was referring to civil actions instituted against literally hundreds of
special agents and former special agents of the FBI in which millions of dollars in
damages were claimed for alleged violations of First Amendment rights. In 1971,
the Supreme Court decided a case filed by a Webster Bivens, who claimed that
his rights had been violated by six agents of the Federal Bureau of Narcotics and
sought money damages directly from them. 71 The Supreme Court held that the
suit stated a cause of action; since then more than 10,000 present and past U.S.
government employees have been similarly sued. Recoveries of monetary
damages have been granted in fewer than 1 percent of these civil actions,
showing their frivolous nature in most instances. But the actions themselves have
resulted in harassment of, and expenditures of personal funds by, the defendants,
as well as considerable anxiety and discomfort on the part of their families. Even
if an agent has not been sued, the fear of taking some action which will be
claimed as a basis for a suit might well cause him to forego performing his duty,
to fail to "work up to the level" of his authority.
Several bills have been introduced in Congress in the past decade to subrogate
the government itself as the sole defendant in Bivens-type actions, but anti-
intelligence organizations have succeeded in preventing their passage. These
organizations use the legislative process as a tool to control or prevent
intelligence operations.
To correct the inefficiency, cost, and neglect of responsibilities caused by
these civil actions, Congress should amend the Federal Tort Claims Act to make

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 470 W. RAYMOND WANNALL

the government itself the sole defendant in Bivens-type suits. Further, if an

employee of a particular agency is determined to have violated someone's first
amendment rights, the agency should mete out appropriate disciplinary action
against him, up to and including dismissal with prejudice. Until FBI agents are
relieved of this existing threat, the country's domestic intelligence protective
measures will continue to suffer from lack of application, whatever revision may
be made in guidelines applied to their work.

The President
The President should appoint a commission, such as those that have been utilized
in the past, to make a searching study of the entire field covered by the
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expression "domestic intelligence." The situation that existed within the United
States when President Roosevelt issued his 1936 directive to J. Edgar Hoover
should be reviewed. The changed internal situation since then should be
considered, and a conclusion drawn as to the conditions that prevail today and
whether they dictate a cancellation or revision of the original directive, or an
entirely new one to meet the challenges of the 1990s and the twenty-first century.
The commission should be empowered to take testimony from all factions: those
opposed to intelligence, those supporting it, federal officials and agencies, state
and local law enforcement bodies, and whoever else might contribute to the
discharge of its charter.
If such a commission is deemed not necessary or not feasible by the Chief
Executive, then he should issue directives or instructions which will (1) confirm
his desire to have domestic intelligence operations; (2) cancel them as being
unnecessary to support him in discharging his oath of office, or (3) otherwise
resolve the untenable situation that now exists.
This last recommendation for presidential action should perhaps be the very
first to be instituted. In all likelihood, it would tend to simplify guidelines
recommended for the FBI director, the attorney general, and Congress.

REFERENCES
1 hitehead, Don, 1956, The FBI Story, Random House, New York, pp. 65-68.
2 Hearings before the Select Committee to Study Governmental Operations with Respect
to Intelligence Activities of the United States Senate (hereinafter referred to as the
Church Committee); Vol. 6, pp. 560-562.
3 Whitehead, op. cit. pp. preface, 157, 159.
4
U.S. Constitution, Article II, Sections 1, 2, and 3; Article IV, Section 4.
5
Committee Print: Statutory Authority for the FBI's Domestic Intelligence Activities,
93rd Congress, 1st session, p. 32.

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6
73 Civ 3160 (TPG), Brownell testimony at pp. 5078-5079, 5083-5084, 5086-5087,
5128, 5154-5155; Blakey testimony at pp. 6907-6911, 7692-7693, 7695-7696; Keuch
testimony at pp. 4230-4231, 4247, 4330-4331, 4461-462, 4465, 5207.
7
"U.S. person" is described in 50 USC 1801 (i) as a citizen of the United States, an alien
lawfully admitted for permanent residence, an unincorporated association a substantial
number of members of which are citizens of the U.S. or aliens lawfully admitted for
permanent residence, or a corporation which is incorporated in the U.S., but does not
include a corporation or an association which is of a foreign power.
8
There were six Democrats and five Republicans on the Church Committee. Six of the
eleven, including the extremely liberal Frank Church, Walter Mondale, and Gary Hart,
had their sights set on the White House. Staff Director William G. Miller, a personal
choice of Senator Church, took note of the fact that problems arising within the
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committee derived from the "natural clash of egos and ambitions," especially as a result
of the "large group of aggressive litigators who are seeking in part glory and are prone
to the phototropism of televised hearings." See Johnson, Loch K., 1985, A Season of
Inquiry, The University Press of Kentucky, p. 97.
9
SWP Civil Action, Exhibit PC, pp. 7530, 7533-7536, 7542.
10
Ibid. p. 7744.
11 U.S. v. U.S. District Court, 407 U.S.297.
12
SWP Civil Action, p. 4281.
13
Godson, Roy, 1986, Intelligence Requirements for the 1980s: Domestic Intelligence,
D. C. Heath and Company, Massachusetts, pp. 3, 271-279.
14
Wannall, W. Raymond, review of Godson's Intelligence Requirements for the 1980's:
Domestic Intelligence, in Periscope, Vol. XI, No. 2, published by Association of
Former Intelligence Officers, Spring, 1986, p. 8.
15
Church Committee Report, Vol. 6, p. 565.
16
Ibid. p. 572.
17
Ibid. pp. 571-572.
18
Directive captioned "Report Security Matters to FBI."
19
Directive titled "Information Relating to Domestic Espionage, Sabotage, Subversive
Activities and Related Matters."
20
Directive captioned "Directive of the President of The United States."
21
50 USC 401 et seq.
22
Church Committee Report, Vol. 6, p. 573.
23
SWP Civil Action, Exhibit HS, pp. 4463-465.
24
Ibid. p. 4362.
25 Ibid. p. 7693.
2 62
28 CFR 0.85, (d).
21
Katz v. U.S. 389 US 347 (1967).
28
Keith, op. cit.

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 472 W. RAYMOND WANNALL

29
FBI Domestic Intelligence Operations — Their Purpose and Scope: Issues That Need
To Be Resolved," dated 24 February 1976.
30
SWP Civil Action, pp. 4329-4332.
31
It would appear that the FBI raised this question with Levi using as the subject of its
query an organization that was not just another socialist group, as it held itself out to
be, but the party founded by the Russian Marxist revolutionary Leon Trotsky. Had
Trotsky bested Joseph Stalin in the power struggle within the Soviet communist
hierarchy after Vladimir Lenin's death in 1924, the SWP rather than the Communist
Party, USA, would today be the conventional communist party in the United States.
This would certainly be among the cases with the most compelling reasons for
continuance.
32
SWP Civil Action, pp. 4270, 4272, 4324-4325, and Plaintiffs Exhibit 585.
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33
Report on "Impact of Attorney General's Guidelines For Domestic Security
Investigations (The Levi Guidelines)," issued 30 November 1983, by U.S. Senate
Subcommittee on Security and Terrorism, 98th Congress, 1st Session (hereinafter
identified as S. Prt. 98-134), p. 5.
34
Ibid. p. 7.
35
Ibid. p. 7.
36
Ibid. p. 11 and Report of the Senate Subcommittee on Criminal Laws and Procedures,
1978, re: The Erosion of Law Enforcement Intelligence and its Impact on the Public
Security, p. 41.
37
Hearings Before the Subcommittee on Security and Terrorism, Committee on the
Judiciary, United States Senate; Report No. J-97-124 covering hearings 24, 25 June, 11
and 12 August, 1982 (hereinafter referred to as Report No. J-97-124), pp. 133, 148.
38
Ibid. p. 137.
39
Ibid. p. 154.
40 S. Prt. 98-134, pp. 29-30.
41
Testimony before the Senate Subcommittee on Security and Terrorism, Report Serial
No. J-97-94, P. 19.
42
U.S. Constitution, Article III, Sec. 3.
43
Pincher, Chapman, 1987, Traitors, St. Martin's Press, New York, p. xvii.
44 SWP Civil Action, p. 5087.
45
"Jefferson's Letters," (undated) arranged by Willson Whitman, E. M. Hale and Co., Eau
Claire, Wisc, p. 265.
46
Selznick, Philip, 1960, The Organizational Weapon: A Study of Bolshevik Strategy and
Tactics, Free Press, Glencoe, Ill., p. 316 — as cited in S. Prt. 98-134, p. 32.
41
Alliance to End Repression v. City of Chicago, 742 F 2d 1007, 1014, 1016 (1984).
48
Wannall, W. Raymond, "The FBI: Perennial Target of the Left," in Nightwatch Special
Report, Vol. 3, No. 8, August, 1988, published by the Security and Intelligence
Foundation.

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49 Assassination of President Kennedy, report 24 September 1964; Crime in the District of

Columbia, report April, 1966; Law Enforcement and Administration of Justice, report
1967; Advisory Commission on Civil Disorders, Report, 1 March 1968; Causes and
Prevention of Violence, Report, 10 December 1969; Campus Unrest, Report,
September, 1970; and Criminal Justice Standards, Report, 23 January 1973.
50
Powell, S. Steven, 1987, Covert Cadre: Inside the Institute for Policy Studies, Green
Hill Publishers, Inc., Ottawa, Ill., pp. 69-70.
51
See Isaac, Real Jean and Erich, 1983, The Coercive Utopians, Regnery Gateway, Inc.,
Chicago, pp. 109, 118.
52
Powell, op. cit., pp. 69-70.
53
Hearings before the Senate Judiciary Committee on The Department of Justice
Authorization Act for Fiscal Year 1989, Serial No. J-100-63, pp. 51-109.
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54
Phillips, David Atlee, 1982, The Night Watch, Ballantine Books, New York, pp. 368-
369.
55
Quirk, John Patrick, 1986, The Central Intelligence Agency: A Photographic History,
Foreign Intelligence Press, Guilford, Conn., p. 203.
56
Powell, op. cit., p. 76.
57
Bennett, John, "FBI Nemesis on Capitol Hill Says He Keeps Agency in Line," Scripps
Howard News Service Release, 1 July 1985 and "Peltier, Celebrity for a crusade," The
Washington Times, 3 November 1987, p. F 3.
58
"Free the Spies: Punish the FBI," AIM Report, Vol. IX, No. 23, 1 December 1980.
59
Bennett, op. cit.
60 Protecting Traitors, Spies and Terrorists, published by National Laymen's Council of
the Church League of America, Wheaton, Ill. October, 1977, p. 10.
61
Memorandum dated 19 May 1988, addressed by Dr. Powell to Congressman Henry
Hyde, copy furnished to W. Raymond Wannall.
62
Powell, op. cit., p. 263.
63
Powell, op. cit., pp. 249-250.
64 SWP Civil Action, p. 4342-4343.
65 Vol. 3, No. 9, dated September, 1983, pp. 11-12.
66 Duca, Kathleen, and Chris Turkel, "FBI and Cops Eye Link of Radical Left Groups," in
The World News, 22 October 1981, p. 1, cont'd, p. 4 A.
67
"Prairie Fire, Political Statement of the Weather Underground," 1974,
Communications Co., Oregon, p. 16.
68 Sawyer, Kathy, "Brinks Shoot-Out Rekindles an Old Debate," in The Washington Post,
2 November 1981, p. A 11.
69
"The Nation's Enormous Security Gap," subtitled, "Again the 'Levi Guidelines,' " in
Human Events, 11 April 1981, p. 1, cont'd. pp. 8, 26.
70
Report Serial No. J-97-94, op. cit., p. 19.
71
403 U.S. 388.

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