REMARKS BY JOHN B. HOTIS INSPECTOR FEDERAL BUREAU OF INVESTIGATION BEFORE THE WILLIAM O. DOUGLAS INQUIRY CONVOCATION WASHINGTON, D.C.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81M00980R001400100006-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 16, 2016
• Document Release Date: December 3, 2004
• Sequence Number: 6
• Publication Date: December 7, 1978
• Content Type: REPORT

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twriCE OF THE DIRECTOR
UNITED STATES DEPALTMENT OF JUSTICE
FEDERAL BUREAU 01 INVESTIGATION
WASHINGTON, D.C. 20535
REMARKS
BY
JOHN B. HOTIS
INSPECTOR
FEDERAL BUREAU OF INVESTIGATION
BEFORE
THE WILLIAM O. DOUGLAS INQUIRY CONVOCATION
WASHINGTON, D. C.
DECEMBER 7, 1978
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I. am pleased to be here on this occasion as the
representative of Director Webster to join you in this tribute
to Justice William O. Douglas, a man whose devotion to civil
liberties is known to all of us. It is perhaps fitting that
this convocation comes at a time when there is widespread
concern that some of the major institutions of government have
been used in ways that are careless of the higher values of
our society.
I recall that Professor Paul Freund once began an
essay by quoting an ancient Chinese curse that carried, he
said, a terrible doom -- "May you live in a time of transition."
I thought that was an appropriate theme for my discussion today
because the FBI and, indeed, the entire intelligence community
is living in a time of transition. Old assumptions are being
questioned and the basic premises of our institutuions are being
challenged. It is charged that we have been allowed to edge
out of control, to be guided on occasion by partisan politics,
and to develop habits that are troublesome to a nation that
aspires to live by the rule of law. It has been a painful
experience particularly for institutions that have for so
long enjoyed a high measure of public esteem.
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But a transition can also mark a period of growth
and renewed vigor. The past five years have forced us to
rethink our missions, our methods and the limits of our
authority. If nothing else the process may highlight our
strengths and weaknesses and make it more likely that we will
do something about our shortcomings. In the long run, I believe
it will result in a new confidence in ourselves and the
rebuilding of the public's confidence in our agencies.
My own view is that the problems and excesses of
the past stemmed largely from our own failure to evaluate our
mission and responsibilities and the failure of government
itself to clarify the law and to provide adequate guidance in
difficult times. While this may be true of all government
agencies, to some extent, it is particularly true of agencies
with intelligence responsibilities. By their very nature,
those responsibilities are greatest at times of crises when
fundamental conflicts between public safety and individual
rights are sharpest. If the law does not address these conflicts,
intelligence agencies are left to deal with the problems as best
they can. Under those circumstances, it is not surprising that
there may be an occasional abuse of discretion or lapse of judgment.
Fortunately, our time of transition coincides with a period of
relative calm. We have the opportunity to clarify the law
governing our intelligence agencies and to define appropriate
limits of conduct without undue pressures of international or
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domestic disorder. The primary question is whether we have
the will to confront the fundamental issues at a time when
events do not demand immediate answers.
The problems are not simple. Evolving solutions
probably will and should come -- as they have in the past --
from a combination of legislation, executive orders, internal
procedures and court decisions. But the executive branch has
done much in the last few years to confront the important
issues of civil liberties and has taken several major steps,
on an interim basis, to define the proper scope and limits of
the activities of its intelligence agencies. I would like to
discuss some of these measures this afternoon and to share with
you some of our tentative thoughts on a legislative charter for
the FBI.
In 1976 President Ford issued an executive order on
U. S. foreign intelligence activities. That order replaced
Presidential directives and statements dating back to the
Roosevelt Administration and established an organizational
structure for the intelligence community. A new executive
order ?was signed last January by President Carter which further
defined the duties and responsibilities of the intelligence
agencies. It sets forth restrictions and limitations on
intelligence activities and requires each agency to adopt
procedures governing the use of certain collection techniques.
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These procedures must be approved by the Attorney General,
who is instructed to make sure that intelligence activities
directed against Americans are conducted by the least intrusive
means possible. Attorney General Bell called the new executive
order "the cornerstone of our efforts to construct better and
safer systems for intelligence activities."
The first major step in converting these interim
measures to permanent legislation was the enactment this year
of the Foreign Intelligence Surveillance Act, providing
legislative authority and judicial warrants for electronic
surveillance in the area of foreign intelligence.
An equally important development in the area of
FBI activities is the promulgation of Attorney General
guidelines. Shortly after he took office, Attorney General
Levi appointed a committee in the Department of Justice to
develop a comprehensive set of guidelines to cover the whole
range of the Bureau's investigative activities. The first
and most controversial set of guidelines drafted by the
committee dealt with domestic intelligence investigations.
For decades the FBI had been conducting investigations of groups
suspected of being involved in "subversive" activities. Unlike
criminal investigations they were not based on specific
criminal violations nor did they have an obvious termination
point. And since they focused on politically active individuals
or groups, these investigations involved values close to First
Amendment rights.
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The most important feaure of the guidelines is
that they tie domestic security 'investigations closely to a
violation of Federal law. The guidelines also provide for
much greater involvement by the Department of Justice and the
Attorney General in reviewing these investigations. They
have shifted the focus of domestic security investigations
from long-term monitoring of so-called "subversive groups"
to concentration on actual terrorist activities.
A separate set of guidelines regulates the FBI's
foreign intelligence collection activities and foreign
counterintelligence investigations. Some portions of these
guidelines are clar. fied, so I Cannot discuss them in detail.
Without being too specific, I can say that investigations of
citizens and resident aliens must be reviewed periodically by the
Department of Justice. These reviews are conducted by officials
designated by the Attorney General. With regard to foreign
visitors, distinctions are made on the status of their entry
into this country and the foreign power whose interest they
serve. Greater investigative attention is permitted with
regard to countries which engage in intelligence activities
contrary to the interests of the United States. Standards
are established for initiating investigations and for the
methods of collection which are permissible in a given
situation. Special rules are also applied to insure that
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A
domestic groups which are targeteci for infiltration by foreign
powers are not subjected to unwarranted intrusion by our own
government. Those techniques which may be particularly
intrusive require the Attorney General's personal authorization
These steps -- executive orders and guidelines
have been an important part of the transition period. But
they must be recognized as temporary measures. The final
decision on the role and authority of intelligence agencies,
and particularly of the FBI, must be made by Congress in the
form of permanent legislation. Two efforts are currently
underway. We are working on a charter to govern all agencies
involved in foreign intelligence activities, including the
intelligence components of the FBI. At the same time, the
Department of Justice is preparing legislation to define FBI
responsibilities in all areas outside the field of foreign
intelligence and counterintelligence. Today I would like to
concentrate on this latter area.
You should understand that presently the statutory
jurisdiction of the FBI rests on general legislation which
gives the Attorney General the power to appoint officials "to
detect and prosecute crime against the United States." Other
statutes vest in the Bureau specific responsibilities to
investigate particular types of violations. The same general
legislation which gives criminal investigative authority also
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allows the Attorney General "to ampoint officials to conduct
such other investigations regarding official matters under
the control of the Department of Justice and the Department
of State as may be directed by the Attorney General." This
provision and the authority of the President exercised through
executive orders, and presidential statements or directives
have been the foundation of the Bureau's counterintelligence
operations and of certain investigative activities that do
not necessarily relate to criminal prosecution.
It is important to bear in mind, at the outset,
that this is an unprecedented exercise in the legislative
process. We are, for the first time, trying to articulate
the circumstances in which the government may properly
initiate an inquiry concerning its citizens. Historically
these judgments have been left to the executive branch as
an exercise of administrative discretion so long as those
inquiries do not infringe on any statutory or Constitutional
right. This is certainly a proper subject of Congressional
interest but we are concerned about the possibility of
excessive legislative detail. If a charter imposes rigid
directions governing every step in the investigative process
it could sacrifice the flexibility that the FBI needs to
adapt to the diverse factual situations it must face. Rigid
statutory provisions would also invite litigation at every
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step in the investigative process and could well be used
by some to frustrate legitimate law enforcement efforts
without achieving the measure of control intended by Congress.
As Lord Devlin has said, "As soon as anything has been
codified there is a lawyer-like -- but sometimes unfortunate --
tendency to treat the written word as if it were the last word
on the subject and to deal with each case according to whether
it falls on one side or the other of what may be a finely
drawn boundary."
The effort to articulate a basis for investigation
raises the fundamental question of whether the FBI should
be authorized to conduct "intelligence" investigations. I
think the answer depends in large part on how we define the
term "intelligence." We certainly agree with former Attorney
General Levi that "Government monitoring of individuals or
groups because they hold unpopular or controversial political
views is intolerable in our society." With the exception of
background investigations for Federal employment purposes or
foreign counterintelligence responsibilities, the focus of
investigation must be on the detection and prosecution of
unlawful conduct.
But I think we should recognize that investigations
of criminal enterprises, whether in the organized crime or
domestic security field, differ in several important respects
from an ordinary *criminal investigation. As a practical matter,
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the organization provides life and continuity of operation
that are not normally found in regular criminal activity.
As a consequence, these investigations may continue for
several years. In addition, as Justice Powell noted, the
focus of domestic security investigations "may be less precise
than that directed against more conventional types of crime."
Unlike the usual criminal case there may be no completed
offense to provide a framework for the investigation. It
often requires the fitting together of bits and pieces of
information, many meaningless by themselves, to ascertain if
there is a mosaic of criminal activity. For'this reason,
the investigation is broader and less discriminate than usual,
involving "the interrelation of various sources and types
of information." When the term intelligence is used in this
context it refers to the process of information collection
rather than the end product of investigation. It is important
to bear these distinctions in mind and to have a common
understanding of the terms so that we do not enact a charter
that gives the Bureau both more and less Authority than it
needs to fulfill its investigative responsibilities.
This leads us then to the question of how we are
going to deal with domestic security investigations. There
are those who believe that these investigations should be
discontinued altogether and that the Bureau should accomplish
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its investigative needs through normal criminal investigations.
One of the problems with this approach is that it seems to
misconceive both the scope and purpose of an ordinary criminal
investigation. As I indicated earlier, the investigation of
A completed criminal act is normally confined to determining
who committed the act and with securing evidence to establish
the elements of the particular crime. It is, in this respect,
self-defining. An investigation of an ongoing criminal
enterprise, focused on a pattern of criminal activity, must
determine the size and composition.of the group involved,
its geographic dimensions, its past acts and intended criminal
goals, and its capacity for harm. While a standard criminal
investigation terminates with the decision to prosecute or not
to prosecute, the investigation of a criminal enterprise does
not necessarily end when one or more of the participants has
been prosecuted. Thus, limitations that are appropriate to the
usual criminal investigation could result in foreclosing
investigations directed at organized crime or terrorism.
I recognize, of course, that terrorism investigations
present special problems because they deal with politically
motivated acts. As Justice Powell pointed out, "There is
often a convergence of First and Fourth Amendment values not
found in cases of 'ordinary' crime." Thus, it is important to
sort out protected activities from those which may lead to
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violence and serious disruption of society. Drafting
legislation which draws this fine line is a difficult task.
A related problem concerns the authority of the
Bureau to investigate in advance of criminal activity. What
is at issue here is the early detection of crime. Preparatory
conduct has always been a matter of legitimate concern for
society. The conspiracy and attempt laws have been the
principal doctrinal devices by which the substantive criminal
law has attempted to deal with this problem. That may be
adequate for prosecutive purposes. Indeed it makes sense to
require a high order of proof before one can be convicted of
activities that fall short of the intended harm. But the
investigative process must begin well in advance of crime if
it is tc5 be effective. This is particularly true where the
objectives of investigation, as in domestic terrorism, are to
frustrate or minimize the intended acts of violence. The
problem comes in knowing how far in advance of crime the
government may properly initiate its inquiry. Should it begin
at the planning or conspiracy stage or when a crime is "soon
to be" or "about to be" committed? If the investigation
begins prematurely, it may deal with marginal or speculative
threats to society or with entirely innocent conduct. If
commenced too late, it becomes difficult if not impossible
to gather information which is needed for the government to
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respond effectively. It will no: be easy to find the right
combination of words in a charter to meet these competing
concerns.
Even if we succeed in defining the circumstances
in which investigations should be conducted, we face equally
difficult issues in deciding how a charter should address
the methods of conducting the investigation. One area of
particular controversy is the use of informants. I do not
believe that any serious consideration is being given to an
absolute prohibition against the use of informants, but it
has been suggested that the charter should bar using certain
categories of persons as informants, such as members of the
news media, attorneys, clergymen, and persons of minor age.
I think all of us understand the impulse that leads to such
proposals but I question whether the answer lies in a total
prohibition. Situations are certain to arise where persons
who are members of the news media, of the legal profession or
of certain religious sects are in a position to provide infor-
mation concerning planned acts of violence that could not be
obtained in any other way. It would be a mistake to let any
past misuse of informants mislead us regarding their importance
in solving crimes, or tempt us to put unworkable restrictions on
their use. "Their use creates risks," writes Professor Wilson,
"but their absence leads to failure."
The better approach is to deal with each case on
its own facts recognizing that there are special concerns to be
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considered. It is clear that members of the news media
should not be used in ways that might influence editorial
policies or news accounts, that attorneys should not provide
privileged information about their clients and that minors
should not be asked to give confidential information to the
government except under the most compelling circumstances.
The charter should highlight these concerns, but I am confident
that internal management controls and oversight can provide
adequate assurance that persons in those categories are not
used indiscriminately or in a manner that would conflict
with other important public interests.
It has also been suggested that the FBI ought to
obtain a warrant before using an informant. It is not clear
precisely what role the court would play but one can imagine
enormous difficulties in this approach. To begin with, I
question the wisdom'of bringing the judiciary into the most
important and least definable part of the investigative
process. At what point in the government's relationship with
an individual does one become an informant for the purposes
of the statute? What controls would the court exercise over
the operation of the informant? Would the judge influence the
course or direction of the investigation? Would he review
all informant reports, approve investigative leads and perhaps
make the subtle day-to-day judgments about credibility and
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personality that are necessary. iAttorney General Levi
cautioned against extending the warrant requirement in this
way, warning that it would be a major step toward an
alteration in the basic nature of the criminal justice
system in America. Unlike the inquisitorial system used
in some European countries and elsewhere, our system of justice
keeps the investigation and prosecution of crime separate from
the adjudication of criminal charges. "The separation is
important to the neutrality of the judiciary," he said, "a
neutrality which our system takes pains to protect."
The issues I have outlined are only some of the
questions we face in drafting a charter for the FBI. But
they are major issues reflecting the differences between
those whose primary focus is projecting the future of law
enforcement and those whose concentration is on preventing
a recurrence of the past. Both approaches have legitimacy
but they must reach a balance. Dr. Reinhold Niebuhr ,suggests,
"If the Democratic nations fail, their failure must be partly
attributed to the faulty strategy of idealists who have too
many illusions when they face realists who have too little
conscience." If we are to succeed in this charter effort
we must apply our ideals in a realistic fashion to decide
when and how the FBI is to investigate crimes. As these
choices are made it is our responsibility to see them in
perspective because they are matters of the greatest importance
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to the well being of our society and to the preservation
of essential freedoms. We welcome your help in this endeavor.
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