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?