The correspondence published here took place after a meeting between members of the Committee for Public Justice and Clarence Kelley, the director of the FBI. The CPJ is a private group concerned with protecting civil rights and liberties. In 1971 it held a conference on the FBI at Princeton; in Investigating the FBI, the book based on that conference, it criticized the bureau on a number of grounds, including its political intelligence activities, its collection and use of private information about citizens, its lack of accountability to Congress and the public.
After Clarence Kelley became director of the FBI, he agreed to meet with committee members in Washington on May 21, 1974. The CPJ was represented by Charles Goodell, its chairman; Professor Norman Dorsen of the NYU Law School; Stephen Gillers, a New York lawyer; and Leon Friedman, then executive director of the committee.
Mr. Kelley had with him a group of high FBI officials including Edward S. Miller, associate director and chairman of the Domestic Intelligence Division; Robert E. Gebhardt, assistant director and chief of the General Investigating Division; William V. Cleveland, assistant director and chief of the Special Investigative Division (organized crime); Ray Wannall, assistant director; John Mintz, assistant director, Office of Legal Counsel; Jack Herrington, inspector; and Thomas Smith, inspector.
The two main topics discussed were the FBI’s political intelligence activities and its handling of arrest records. Leon Friedman explained that the committee was concerned about FBI infiltration and surveillance of political groups. No one, he said, doubted the bureau’s authority to infiltrate criminal groups such as the SLA, but there is much evidence that FBI agents have infiltrated and kept watch on peaceful political groups not engaged in any kind of criminal behavior.
Mr. Miller, the head of the Domestic Intelligence Division, then explained the FBI’s position as follows, according to the CPJ’s notes of the meeting:
The FBI has a duty to gather intelligence before crimes are committed in order to prevent later violent actions.
The SLA itself was an outgrowth of four other groups. Had the FBI infiltrated the original group out of which the SLA sprung, it might have prevented what has lately occurred.
If a citizen reports that a neighbor is engaged in revolutionary talk, the FBI has a duty to investigate.
As far as the Vietnam antiwar groups are concerned, these groups were a target of communists and revolutionaries. They often infiltrated these groups with a view to taking them over. Thus, the FBI has a duty to get their people in to determine what is happening and prevent it. The communists want to use these groups for their purposes or revolutionaries use them for well-publicized attacks on our government.
The FBI must determine the people behind these groups and get some sense of the numbers involved. That is why the FBI reported on matters such as the Earth Day meeting in April, 1970, where Senator Muskie spoke. The bureau was not concerned with him but rather with others sharing the platform who were revolutionaries. There are many such individuals who want to get rid of our form of government, who are planning insurrection or seditious conspiracy.
Citizens’ complaints about revolutionaries must be followed up. The FBI cannot close its eyes to groups that talk revolution. The SLA started out as a Maoist group which should have been investigated at the earliest possible point. The FBI missed the boat on the Weatherpeople fugitives because it did not get into the parent organizations, such as the SDS, early enough.
One member of the CPJ said that it was very dangerous to investigate a group just because it is a possible target of communists. Almost every group can qualify.
Mr. Miller said that the FBI doesn’t investigate PTA groups or anything like that.
Mr. Friedman asked whether the FBI had the authority to investigate anything other than the commission of a federal crime. Harlan Fiske Stone said in 1924 that the FBI was limited to investigating federal crimes and should not engage in political intelligence.
Mr. Miller said we cannot wait for an overt act; communist infiltration must be stopped.
Stephen Gillers pointed out that there is nothing illegal or wrong about carrying on revolutionary talk. The Supreme Court has said that people have a right to talk about revolution as long as they do not immediately incite others to direct action. Our democratic system, he said, depends upon persons having the right to say anything they want.
Leon Friedman cited the Socialist Workers Party and the Women’s International League for Peace and Freedom as two examples of peaceful political groups that have been infiltrated by the FBI. The first is a long established political party which is on the ballot in many states and has only 1,200 members. When the FBI intercepted the mail of this group, it caught within its net a sixteen-year-old New Jersey high school student who was writing a civics paper for her class.
Mr. Smith then responded: “We consider the Socialist Workers Party a part of the world-wide Communist conspiracy.”
The discussion then turned to arrest records. Charles Goodell pointed out that there have been serious abuses by the FBI in giving out these records. Even when all charges against some people arrested were dismissed, their records have been circulated. Too many people have access to such information, which can be used to deprive people of jobs and injure them in other ways.
Norman Dorsen suggested that the FBI propose its own plan for eliminating the arrest records in its own files that are “inactive.” This would be a solid first step to improving the FBI’s practice. If the bureau feels that it needs some arrest records to properly do its work, it should take this into account as it formulates its plan. But the public at large would surely appreciate some effort by the FBI to prevent the misuse of these records.
Two of the FBI officials insisted that arrest records were useful tools for law enforcement purposes. Mr. Kelley then told the committee that there was certainly room for some reform in the handling of arrest records. When he was police chief in Kansas City, Missouri, he said, arrest records were generally available to almost anyone who asked for them. But he changed the policy so that arrest records alone could not be made public unless final disposition of the arrest was also available. He had then expected opposition to his new policy but it was accepted almost without question.
The meeting lasted for two hours. Subsequently, the committee wrote to Mr. Kelley and he responded in the two letters that follow.
June 18, 1974
Clarence M. Kelley, Director
Federal Bureau of Investigation
Department of Justice
Washington, D.C. 20535
Dear Mr. Kelley:
On behalf of the delegation from the Committee for Public Justice which met with you on May 21, 1974, I want to thank you for the courtesy and good will which you and your associates showed us. I know we benefited from the frank exchange of views and I hope that you did also.
We would very much like to continue the dialogue that we started. In this regard we believe it might be helpful for us to present in more detail some of the points we raised at the meeting.
Among the matters the Committee was concerned about were the following:
I. Political Intelligence by the Bureau, including:
A. FBI surveillance of Members of Congress and leading political figures, and,
B. FBI infiltration and surveillance of unpopular political groups, who have not committed a crime.
II. Misuse of FBI Records:
A. Dissemination of arrest data to non-law enforcement agencies.
B. Dissemination of other information to unauthorized persons.
C. Retention of files with inaccurate information.
III. Political Accountability (to Congress, the Attorney General and the public at large).
In addition we were concerned about the following matters:
IV. Wiretapping and Electronic Surveillance.
V. FBI Actions in Civil Rights Cases against Local Law Enforcement Officers.
VI. Resistance to Political Pressure on the FBI by the Party in Power.
VII. FBI Practice of Lending Agents to Congressional Committees.
VIII. FBI Statistics and Crime Reports.
Our concern in each of these areas relates to the following activities of the Bureau:
I. Political Intelligence by the Bureau.
A. FBI Surveillance of Members of Congress:
As you may recall, L. Patrick Gray revealed that there had been a practice of FBI agents gathering information on potential members of Congress. Included in the material collected was information from local investigative files. In addition, published reports indicate that files or memoranda on leading political figures were regularly maintained under the Director’s control.
We believe an approach along the lines of the Koch bill, (H.R. 10548, 93rd Cong. 1st Sess.), would be desirable to eliminate this practice and provide for review of existing FBI files and memoranda on Members of Congress.
We consider this practice totally inconsistent with the Bureau’s functions and role, and would like to have your views of the problem.
B. FBI Infiltration and Surveillance of Political Groups:
We consider it fundamental that the FBI has the authority to investigate the commission or attempted commission of a federal crime. We also think it is fundamental that the FBI does not have the authority to investigate persons or groups engaged in peaceful political activities. We understand that last year then Deputy Attorney General, William D. Ruckelshaus, was reviewing with the Bureau its statutory basis for intelligence gathering.
At our meeting we mentioned the fact that the FBI had been investigating and gathering intelligence on what appeared to be purely political groups such as the Socialist Workers Party, despite the fact that the organization had committed no federal crime and was on the ballot in many states. It has been admitted that a mail cover had been placed on this group. At our meeting with you, one of your associates defended this investigation on the ground that the Socialist Workers Party was “part of the world-wide communist conspiracy.” The Media documents indicated that other political groups (such as the Women’s International League for Peace and Freedom and the Black Economic Development Council) have been investigated and infiltrated by FBI informants.
As you know, the President has abolished the Attorney General’s list (Executive Order 11785, June 4, 1974), and the Supreme Court has specifically held that political groups are within their legal rights to advocate any course of action including the “use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)
Accordingly, we believe the FBI has no right to investigate any political group unless it falls outside the limits of the Brandenburg case. This would appear to require that there be substantial evidence that the group is preparing to commit a crime. What the group advocates, in itself, is under no circumstances a crime. We would like to know what efforts the FBI has made to limit its intelligence activities to only those persons or groups not covered by the Brandenburg decision. What was the result of the Ruckelshaus review of this problem last year?
II. Misuse of FBI Records.
A. Dissemination of Arrest Data to Non-Law Enforcement Agencies.
President Nixon has himself expressed concern that arrest record data may be “inaccurate and has resulted in the withholding of credit or jobs for deserving individuals.” He also said that in some cases “obsolete information has been used, such as arrest records which have not been updated…in many cases the citizen is not even aware of what information is held on record.”
As you know the Nixon administration has endorsed corrective legislation in the form of S. 2964, 93rd Cong. 2d Sess., introduced by Sen. Hruska on February 5, 1974. In addition, Sen. Ervin has introduced more comprehensive legislation (S. 2963, 93rd Cong., 2d Sess.) relating to control of arrest data. The legislation tries to deal with the following problems:
The fact that arrest data from FBI files finds its way into non-law enforcement agencies such as credit companies, private employers, etc.
The fact that arrest data is often incomplete and sometimes inaccurate.
The fact that the FBI data system continues to maintain inactive arrest information for many years after the information is no longer useful for law enforcement purposes. The District of Columbia Circuit in Menard v. Saxbe, No. 71-1768 (D.C. Cir., April 23, 1974), held that “the FBI had no authority to retain [an active arrest] record [when it was not clear that a crime had been committed] in its criminal files along with the mass of arrest records.”
We believe that some of these problems can be relieved administratively through such steps as a strong warning to all agencies receiving FBI arrest data that information must not be disclosed to unauthorized individuals.
We would like to know what ideas the Bureau has for dealing with each of these problems and with respect to the solutions suggested in the legislation noted above.
B. Dissemination of Other Information to Unauthorized Agencies.
There have been well-substantiated charges that information from FBI files (not involving arrest data) has been given to persons unauthorized to receive them. For example, law suits have been filed in federal court in Brooklyn, New York charging that FBI agents gave information to Congressman John J. Rooney relating to his opponents in two separate primary elections. In addition, there have been allegations that FBI material has been regularly leaked to Congressmen and columnists for political purposes. We believe that the FBI files should be inviolate and we would like to know what controls have been established to protect against unauthorized disclosures.
C. Retention of Files with Inaccurate Information.
As you know there have been charges over the years about the data collection system of the FBI which relies in part on unverified informant disclosures, often containing false charges, gossip and other questionable data.
The Bayh bill (S. 2542, 93rd Cong. 1st Sess.) and the Koch bill (H.R. 667, 93rd Cong. 1st Sess.) would require the government to notify an individual that a record on him or her exists and would permit him or her to inspect the record and to challenge erroneous or misleading information from his or her files.
We would like to know the Bureau’s position on this legislation.
III. Political Accountability.
Questions have arisen about the Bureau’s responsibility to, and control by, Congress, the Executive branch and the public. William D. Ruckelshaus said that he was quite surprised during his brief tenure as Acting Director of the FBI that Congress showed very little interest in FBI operations. In addition, there has been a long-standing problem about the lump-sum budget of the Bureau which does not permit the detailed budgetary control that exists in the other agencies.
We would like to know the Bureau’s position on the desirability of a line budget and on the adequacy of existing Congressional control. The Senate Oversight Committee has done very little since it was established last summer.
Do you also not feel that some kind of citizens’ review of Bureau operations would increase the public’s confidence in the Bureau? As you may know, Mr. Ruckelshaus suggested the possibility “of a Civilian Review Board for the intelligence gathering activities of the FBI.” Has anything been done about Mr. Ruckelshaus’ suggestion?
These are the matters which have caused us the greatest concern about the Bureau’s activities. Rather than unnecessarily burdening you any further we will reserve our comments on the other issues mentioned above for a future meeting.
However, we would be grateful for a response from you or one of your associates with respect to the questions noted above….
It was a great personal pleasure to meet with you and your associates and I hope to hear from you again shortly.
Charles E. Goodell
United States Department of Justice
Federal Bureau of Investigation
Washington, DC 20535
June 27, 1974
Honorable Charles Goodell
Committee for Public Justice
22 East 40th Street
New York, New York 10016
Dear Mr. Goodell:
You will recall our meeting of May 21, 1974, wherein discussion concerning the operation of this Bureau covered a rather wide range of topics. Some of the matters dealt with expungement of and dissemination of identification records and it was generally agreed that such records are needed in maintaining effective law enforcement.
As stated during our meeting, we have followed the policy of returning fingerprint cards upon request of the submitting agency or upon receipt of a court order accompanied by sufficient identifying data to enable us to locate the correct arrest card in our files. Since each arrest entry appearing on the FBI identification record is supported by a fingerprint card in our files, the return of the fingerprint card results in the automatic expunction of all data related to that arrest from our files. We, of course, notify all agencies to whom such data was disseminated that the particular information has been deleted from our files. We believe our expunction policy is sound and fair, and the administration of this expunction program involving fingerprint cards from the various states has proven to be practical and effective.
I firmly believe that the police officer is entitled to receive all lawful information which may assist him in the prevention of crime or in making a non-violent arrest and, consequently, am inclined to resist restrictions upon dissemination of arrest information between police agencies for law enforcement purposes. However, the use of arrest information in the areas of employment and licensing has admittedly resulted in some inequities against particular individuals. Our dissemination procedures heretofore were handled in the same manner for law enforcement and for those state and local agencies authorized to receive arrest information for employment and licensing purposes. I thought you would like to know that all fingerprint contributors have been advised of a new policy to become effective July 1, 1974. This policy permits dissemination of only arrest data accompanied by dispositional information unless the arrest is less than one year old to banking institutions and to state and local agencies for employment and licensing purposes. A statement of policy concerning this matter is scheduled for publication in the Federal Register prior to the effective date.
We are also considering publication in the Federal Register of other policy statements relating to rules and procedures for handling records maintained by our Identification Division. I trust that such action will merit your support.
Clarence M. Kelley
United States Department of Justice
Federal Bureau of Investigation
Washington, DC 20535
July 3, 1974
Mr. Charles E. Goodell
1225 Nineteenth Street, Northwest
Washington, D.C. 20036
Dear Mr. Goodell:
I am in receipt of your letter of June 18, 1974, concerning the recent meeting in my office between you and your associates and me and members of my staff. I am glad to hear that you benefited from the exchange of views. I must say that we were enlightened by views expressed by your group.
I think that a dialogue between groups with divergent views is healthy and I intend to continue to listen to views expressed from all segments of our society.
I expressed my basic philosophy during our recent meeting, and I want to re-emphasize that philosophy now, because I strongly feel that it is a basic tenet under which we in the FBI have operated in the past and will continue to operate in the future. What is good for the American people is good for the FBI.
Views expressed by your group on May 21st, and those set forth in your letter of June 18th, are not only critical of the FBI, but in many instances stand as an indictment based, I think, on misinterpretation, misunderstanding and misinformation. While I respect your right to express your views, I do not intend to engage in polemics concerning the various issues raised during our meeting or in more detailed form in your letter of June 18th. I will, however, offer some observations concerning matters referred to in your letter.
I think you should know that since our meeting in May, I have appeared before the Senate Subcommittee on Oversight of the FBI on three occasions. On June 25, 1974, the Subcommittee held its first public hearing and more are being scheduled during the next several weeks. I have pledged to the Subcommittee that testimony will be given in complete candor, with no reservations whatever, concerning any issue bearing on the operation and functions of the FBI.
For this reason alone I have no intention of engaging in a debate with any public or private group concerning operation and functions of the FBI.
I think I can safely state, however, without getting into a debate, that the FBI receives thousands of letters every year in which views are expressed that are diametrically opposed to those expressed by your group on May 21st and in your letter of June 18th. Your critical views, which incidentally are shared to an extent by some persons writing to the FBI, are heavily outweighed by views expressing confidence in the FBI or which deplore lack of action along the lines your group has criticized. As I read the sentiment expressed by the American people—and this includes your own sentiment and that of those who support your views—the FBI has the overwhelming support of the citizens of this country.
Please do not misunderstand what I say in this regard. I certainly do not dismiss the expressions of those whose opinions are contrary to ours. We in the FBI are most sensitive to opposing views and opinions. We think this is a healthy thing. It keeps us on our toes and ever mindful of our responsibility to the American people and especially our obligation to protect the rights and privileges which are guaranteed to all Americans by the Constitution and Bill of Rights.
The FBI is very conscious of the rights of individuals, and we can appreciate concern of civil libertarians such as yourselves regarding situations or circumstances which appear to impinge on those rights. But we also have a broad responsibility to protect the society we live in—a society made up of individuals who must accept the responsibility of obeying the laws of the land, even the laws which may be unpopular in their individual judgment.
One of your group, during the May 21st meeting, questioned the FBI’s authority to investigate the activities of a certain subversive organization because he considered this organization to be really nothing more than a political group and, on the basis of limited membership, not really a threat to the national security. For the record, the FBI has never made a secret of its investigation of this particular group. As a matter of fact, our investigation of the organization has been well publicized for many years.
In your letter of June 18th, you again raise the issue of FBI investigation of what you choose to call political groups. You quote from the Supreme Court’s decision in the Brandenburg case and evidently you support the principle expressed or implied in this decision that political groups are within their legal rights to advocate any course of action including the “use of force or of law violation….” Although I will not offer a detailed reply, I would like to quote from a 1948 opinion in Barsky v. United States, 167 F2d 241. Judge Prettyman said, “…it would be sheer folly as a matter of governmental policy for an existing government to refrain from inquiry into potential threats to its existence or security until danger was clear and present.” This philosophy was expressed by Chief Justice Vinson in Dennis v. United States (341 U.S. 494). Among other very pertinent views, the Chief Justice stated, “We reject any principle of Governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy.”
My personal feeling is that when political activities get into the realm of sedition, seditious conspiracy, treason, and advocacy of unlawful acts which threaten the existence of our Government, investigation by the FBI is called for. Political groups should not feel that they can negotiate from an attitude of violence.
You have expressed concern regarding the dissemination of arrest data to non-law enforcement agencies. I share your concern in this regard. You have also raised questions concerning dissemination of other information to unauthorized agencies and the retention of so-called inaccurate information in FBI files.
All of those matters are also being discussed in the Congress at this time. As you are undoubtedly aware, several bills are pending in Congress at this moment which deal with the issue of privacy. Perhaps one or more of these bills will serve to ease your concern. The FBI makes every effort to protect the privacy of every individual with respect to information contained in FBI records. We will continue in these efforts.
Your group raised the issue of establishing a Civilian Review Board to oversee operations of the FBI. I feel that the FBI Oversight Subcommittee, which has been established by the Senate Judiciary Committee, is sufficient to accomplish any purpose which could possibly be served by such a Civilian Review Board. In addition, Appropriation Committees of both the House of Representatives and the Senate are kept knowledgeable concerning the expenditure of funds by the FBI.
At some time in the future, perhaps when the FBI Oversight Subcommittee has had an opportunity to explore many of the issues raised by you, and after Congressional action has been finalized with respect to privacy legislation now being considered, we can again meet and share views concerning matters of mutual interest.
I have furnished a copy of your letter, along with my response, to the Attorney General for his information.
Clarence M. Kelley
Mr. Kelley’s replies and the meeting that preceded them seem remarkable in several ways:
On matters such as arrest records, the bureau appears to be open to persuasion, particularly at a time when political pressure is building up to protect the right of privacy. The change in policy on arrest records discussed in Mr. Kelley’s letter of June 27 is a small step toward reform taken by the FBI on its own initiative.
The bureau’s attitude toward political intelligence is far more rigid. The FBI’s leading officials appear to be zealous advocates of the cold war ideology of the 1950s.
Bureau officials have completely ignored, in FBI intelligence activities, the constitutional decisions made by the Supreme Court in the past decades. The two cases cited, by Mr. Kelley in his July 3, 1974, letter (Barsky and Dennis) have been largely repudiated and are not considered by any reputable constitutional scholar to represent the Supreme Court’s view. In a series of cases beginning in the late 1950s the Court made clear that abstract advocacy of any idea, even revolution, is protected by the First Amendment (Yates v. United States, 364 US 298 ; Noto v. United States, 367 US 290 ; Albertson v. Subversive Activities Control Board, 382 US 70 ; Brandenburg v. Ohio, 395 US 444 ).
Furthermore, the courts have indicated in other decisions that official infiltration, with surveillance, of peaceful political groups may itself be a violation of the First Amendment (NAACP v. Alabama, 357 US 449 ; Handschu v. Special Services Division, 349 F. Supp. 766 [SDNY 1972]). Thus, FBI surveillance of political groups, in the absence of substantial evidence of imminent criminal activity, is not only beyond its statutory and jurisdictional authority, but itself may be a violation of the Constitution. But leading FBI officials speak—and some FBI agents have behaved—as if law decided by these cases simply does not exist.
—Leon Friedman and Stephen Gillers, for the Committee for Public
CONTROLLING THE FBI
Is there a way to control the FBI, to restrain it from disregarding the constitutional rights of citizens? Presidents have not been willing to do so. Neither has Congress. In 1973 Senator James Eastland, chairman of the Judiciary Committee, appointed an FBI Oversight Subcommittee. It is composed almost entirely of conservative senators and has no permanent staff. As Mr. Kelley states in his letter to Charles Goodell, the subcommittee has now begun to hold hearings, but it has shown no serious intention of looking into charges of the kind made in the correspondence published here.
Two other methods for controlling the FBI have been proposed; both were discussed at the Committee for Public Justice conference at Princeton in 1971. First, an ombudsman could be appointed specifically to hear and investigate the claims of those who feel their rights have been abused by the bureau. Second, a board of overseers, composed of both public officials and private citizens, could be set up with powers to review FBI policies, to guard against threats to civil liberties, and to inform the public.
Both proposals need to be worked out in detail. But the appalling performance of the FBI under Patrick Gray during the Watergate affair only confirmed what should have been clear since the regime of J. Edgar Hoover: that public scrutiny of this agency’s abuses is badly needed, and that neither the Congress nor the executive branch has been willing to undertake it. As William Ruckelshaus, who also served briefly as the director, recently stated:
…as long as we keep asking ourselves questions of legitimacy, the chances are…we’re going to avoid the real excesses…when you end up with the kind of secret police they had in Nazi Germany…. Congressional oversight is so crucial…. [T]hey ought to keep asking questions so that the person who is running the FBI is asking himself these questions, too, rather than saying, “We’ll do whatever we want because nobody is ever going to ask us about it or know about it.”
One of the most urgent questions for the preservation of constitutional liberties is whether the FBI can be made accountable to the public. It is not now.
Former Chairman, Committee for Public Justice