CASE : WARRANTLESS SURREPTITIOUS ENTRIES : FBI “BLACK BAG” BREAK-INS AND MICROPHONE INSTALLATIONS

SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS

BOOK III /// FINAL REPORT

OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES UNITED STATES SENATE

APRIL 23 (under authority of the order of April 14), 1976

WARRANTLESS SURREPTITIOUS ENTRIES: FBI "BLACK BAG" BREAK-INS AND MICROPHONE INSTALLATIONS

I. INTRODUCTION

Since 1948 the FBI has conducted hundreds of warrantless surreptitious entries to gather domestic and foreign intelligence, despite the questionable legality of the technique and its deep intrusion into the privacy of targeted individuals. Before 1966, the FBI conducted over two hundred "black bag jobs." 1 These warrantless surreptitious entries were carried out for intelligence purposes other than microphone installation, such as physical search and photographing or seizing documents. Since 1960, more than five hundred warrantless surreptitious microphone installations against intelligence and internal security targets have been conducted by the FBI, a technique which the Justice Department still permits. Almost as many surreptitious entries were conducted in the same period against targets of criminal investigations. 1a

Although several Attorneys General were aware of the FBI practice of break-ins to install electronic listening devices, there is no indication that the FBI informed any Attorney General about its use of "black bag jobs."

Surreptitious entries were performed by teams of FBI agents with special training in subjects such as "lock studies." Their missions were authorized in writing by FBI Director Hoover or his deputy, Clyde Tolson. A "Do Not File" procedure was utilized, under which most records of surreptitious entries were destroyed soon after an entry was accomplished.

The use of surreptitious entries against domestic targets dropped drastically after J. Edgar Hoover banned "black bag jobs" in 1966. In 1970, the relaxation of restraints on domestic intelligence techniques such as surreptititous entries was proposed in the Huston Plan. Hoover opposed this proposal, although he expressed a willingness to follow the Huston Plan, if directed to do so by the Attorney General. 2

B. The Legal Context: United States v. Ehrlichman

The legality of warrantless surreptitious entries for intelligence puroses is highly questionable. An FBI official who administered "black bag" operations in the 1960s expressed the opinion that they were "clearly illegal," 3 even though a 1954 memorandum from Attorney General Herbert Brownell to J. Edgar Hoover had provided the color of legal authority for surreptitious entries to install microphones. 4

U.S. v. Ehrlichnwn is the only judicial decision on the legality of a warrantless surreptititous entry and physical search where the action was justified by the claim that it was "in the national interest." 5 In that case — which did not involve intelligence agencies — President Nixon’s assistants, John Ehrlichman and Charles Colson, were among five defendants accused of conspiring to deprive a Los Angeles psychiatrist of his Fourth Amendment rights "by entering his offices without a warrant for the purpose of obtaining the doctor’s medical records relating to one of his patients, Daniel Ellsberg, then under Federal indictment for revealing top secret documents." 6

Ruling on the defendant’s discovery motions, Federal District Judge Gerhard Gesell found the break-in and search of the psychiatrist’s office "clearly illegal under the unambiguous mandate of the Fourth Amendment" because no search warrant was obtained:

[T]he Government must comply with the strict constitutional and statutory limitations on trespassory searches and arrests even when known foreign agents are involved. . . . To hold otherwise, except under the most exigent circumstances, would be to abandon the Fourth Amendment to the whim of the Executive in total disregard of the Amendment’s history and purpose. 7

Gesell also pointed to a passage in the landmark "Keith" case to emphasize that surreptitious entries should be viewed by the courts as more intrusive than other forms of search such as wiretapping:

physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. 8

Despite the national security defense raised by the defendants, Judge Gesell concluded that "as a matter of law . . . the President . . . lacked the authority to authorize the Fielding break-in." Gesell commented that break-ins in the interest of "national security" cannot be excepted from the requirement of a judicial warrant; the Fourth Amendment cannot be obviated, he wrote,

. . . whenever the President determines that an American citizen, personally innocent of wrongdoing, has in his possession information that may touch upon foreign policy concerns. Such a doctrine, even in the context of purely information-gathering searches, would give the Executive a blank check to disregard the very heart and core of the Fourth Amendment and the vital privacy interests that it protects. Warrantless criminal investigatory searches — which this break-in may also have been — would, in addition, undermine vital Fifth and Sixth Amendment rights." 10

Judicial decisions on electronic surveillance have encompassed surreptitious entries for the purpose of installing electronic listening deices. The leading case, Katz v. United States," abandoned previous judicial decisions in which the legality of microphone surveillance depended upon whether or not a "constitutionally protected area," such as a home or office, had been physically invaded. 12 Instead, the Court declared that "the Fourth Amendment protects people, not places," wherever they have a "reasonable expectation of privacy." 13 In Katz the Court recognized a possible exception to the warrant requirement for "a situation involving the national security" — an exception which might apply to all forms of electronic surveillance, including surveillance accomplished by trespass to install a microphone 14

The possible exception to the warrant requirement, articulated by the Supreme Court and sustained by some lower courts in electronic surveillance cases, 15 probably would not apply to surreptitious entries conducted for the purpose of physical search. As Attorney General Edward H. Levi testified:

The nature of the search and seizure can be very important. An entry into a house to search its interior may be viewed as more serious than the overhearing of a certain type of conversation. The risk of abuse may loom larger in one case than the other. 16

II. OPERATIONAL PROCEDURE, AUTHORIZATION, AND TARGETING

A. Internal Procedure and Authorization

The only internal FBI memorandum located by the Select Committee which discussed the policy for surreptitious entries stated:

We do not obtain authorization for "black bag" jobs from outside the Bureau. Such a technique involves trespassing and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it. Despite this, "black bag" jobs have been used because they represent an invaluable technique in combating subversive activities of a clandestine nature aimed directly at undermining and destroying our nation. 17

The FBI described the procedure for authorization of surreptitious entries as follows:

When a Special Agent in Charge (SAC) of a field office considered surreptitious entry necessary to the conduct of an investigation, he would make his request to the appropriate Assistant Director at FBIHQ, justifying the need for an entry, and assuring it could be accomplished safely with full security. In accordance with instructions of Director J. Edgar Hoover, a memorandum outlining the facts of the request was prepared for approval of Mr. Hoover, or Mr. Tolson, the Associate Director. Subsequently, the memorandum was filed in the Assistant Director’s office under a "Do Not File" procedure, and thereafter destroyed. In the field office, the SAC maintained a record of approval as a control device in his office safe. At the next yearly field office inspection, a review of these records would be made by the Inspector to insure that the SAC was not acting without prior FBIHQ approval in conducting surreptitious entries. Upon completion of this review, these records were destroyed. 18

One FBI agent who performed numerous "black bag jobs" stated that he obtained approval from some officer at FBI headquarters, although not always the Director, before performing a study of the feasibility of an entry. 19 He said that a feasibility study was intended to determine: whether the entry could be accomplished in a secure manner, who owned the building and whether a key could be obtained. Floor plans of the building were often procured. If a building owner appeared to be a "patriotic citizen," FBI agents would approach him for assistance in entering a unit of his building – – —- "show our credentials and wave the flag." 20 If the FBI agents decided that they would be unable to obtain the building owner’s consent to enter the target’s promises, the agents would examine the building and the area to determine the feasibility of a break-in. 21

The FBI agent stated that if an entry was considered feasible he would write a memorandum to "Director, FBI" and, in response, would invariably receive an authorizing memorandum from headquarters initialled "JEH" [J. Edgar Hoover]. 22 Another FBI agent who frequently participated in break-ins, stated that the directives for such operations were sometimes initialled by Hoover and usually initialled by the Assistant Director in charge of the Domestic Intelligence Division. 23

One agent, who served on a special squad responsible for installing electronic surveillance devices, stated that in the majority of cases he was able to obtain a key to the target’s premises, either from a landlord, hotel manager, or neighbor. In other cases, he simply entered through unlocked doors. He stated that only in a small proportion of the cases to which he was assigned was it necessary to pick a lock. 23a Once a bug was planted, it was generally necessary for Bureau agents to monitor the conversations from a location close to the targeted premises.

Selected FBI agents received training courses in the skills necessary to perform surreptitious entries. An FBI technician provided formal instruction in "lock studies" as in-service training for experienced agents; "specialized lock training" was also provided to each agent who received training in electronic surveillance at "sound school." 24 These courses were conducted at the direction of the Assistant Director in charge of the Bureau Laboratory. The Unit Chief who taugh the courses stated that he had participated in numerous "black bag jobs" in which his only role was to open locks and safes; all other activities were performed by other agents accompanying him. He said that he would ordinarily receive an incentive award for a successful entry. 25

One agent involved in surreptitious entries stated that he never knowingly conducted an entry for, or with the assistance of, a local police force; nor was he aware of any information being provided by the FBI to local police about an entry. 26

The agent said that he performed two microphone installations against CIA employees at the request of the CIA. He also stated that he was never accompanied on an entry operation by a CIA officer. 27

B. Targets: Counterintelligence and Domestic Subversives

The FBI has identified two broad categories of targets for surreptitious entries from 1942 to April 1968: (1) groups and individuals connected with foreign intelligence and espionage operations; and (2) "domestic subversive and white hate groups." 28

A Domestic Intelligence Division memorandum summarized the fruits obtained from surreptitious entries against domestic groups:

We have on numerous occasions been able to obtain material held highly secret and closely guarded by subversive groups and organizations which consisted of membership lists and mailing lists of these organizations. 29

The memorandum also cited a warrantless surreptitious entry against the Ku Klux Klan as an example of the utility of the technique:

Through a "black bag" job, we obtained the records in the possession of three high-ranking officials of a Klan organization…. These records gave us the complete membership and financial information concerning the Klan’s operation which we have been using most effectively to disrupt the organization and, in fact, to bring about its near disintegration. 30

A former FBI agent has stated that the locations of break-in operations included the residences of targets of investigation as well as organizational headquarters. 31

The FBI was "unable to retrieve an accurate accounting" of the number of warrantless surreptitious entries from their files: "there is no central index, file, or document … no precise record of entries" due to the "Do Not File procedure." 32 Relying upon a general review of files and upon the recollections of FBI agents at headquarters, the Bureau estimated that, in the "black bag job" category (warrantless surreptitious entries for purposes other than microphone installation):

There were at least 239 surreptitious entries conducted against at least fifteen domestic subversive targets from 1942 to April 1968…. In addition, at least three domestic subversive targets were the subject of numerous entries from October 1952 to June 1966. 33

"An entry against one white hate group" was also reported .34 One example of a "domestic subversive target" against whom numerous entries were conducted is the Socialist Workers Party, which may have been targeted for as many as ninety-two break-ins during the period from 1960 to 1966. 35

To have a more complete picture of the extent of "black bag" operations, two other FBI estimates, also based on incomplete records, must be considered along with this partial accounting of the number of "black bag job" entries against domestic subversive groups. First, the Bureau estimated that between 1960 and 1975, 509 surreptitious microphone installations took place against 420 separate "targets of counterintelligence, internal security, and intelligence collection investigations." 36 It is impossible to determine from the FBI estimates exactly how many of these installations involved a surreptitious entry because other techniques were also utilized, such as installing a microphone prior to the occupancy of the target or encapsulating it in an article which was sent into the premises. It is also impossible to determine the number of these targets who were American citizens.

Second, the FBI estimated that between 1960 and 1975, there were 491 surreptitious entries to install electronic surveillance devices against 396 targets of criminal investigations. 37

C. Operations Directed Against the Socialist Workers Party

Recently disclosed FBI memoranda pertaining to surreptitious entries directed at the Socialist Workers Party (SWP) in 1960-1966 provide additional details on FBI procedures. 38 Most of the documents were to be filed in the "Personal Folder" of the Special Agent in Charge of the New York field office. 39

The "purpose of assignment" for surreptitious entries against an SWP affiliate, the Young Socialist Alliance (YSA), was described as follows:

To locate records and information relating to the national organization of the YSA, [and] the identity of national members located throughout the country. Also it is anticipated that records of the local organization will be made available. 40

To carry out this assignment, the FBI prepared memoranda which contained detailed plans for post-midnight burglarizing of YSA headquarters. The FBI’s entry plans included descriptions of "security aspects" such as building floor plans, locks, lighting, surrounding streets, entrances, and the occupants’ living habits. 41

The FBI’s Los Angeles field office obtained "photographs of material maintained in the office of James P. Cannon, National Chairman of the SWP," including letters to and from Cannon. 42 The field office reports about this material carried the warning:

EXTREME CAUTION SHOULD BE EXERCISED IN UTILIZING INFORMATION FURNISHED BY [DELETED] IN ORDER THAT THE IDENTITY OF THIS HIGHLY CONFIDENTIAL SOURCE IS NOT COMPROMISED. 43

Several of the reports were "classified" because disclosure could "compromise effectiveness of the source." 44 Moreover, upon receipt of this information, FBI headquarters advised the Los Angeles field office:

Due to the sensitive nature of [deleted], which may become a further source of valuable information concerning the Socialist Worker’s Party, any data obtained from that source should be paraphrased when submitted to the Bureau or other offices in memorandum form suitable for dissemination. 45

The Bureau apparently required such paraphrasing because it contemplated the dissemination outside the FBI of data obtained from surreptitious entries.

The material photographed by the FBI included membership lists, photographs of members, contribution lists, and correspondence concerning members’ public participation in United States presidential campaigns, academic debates, and civil rights and antiwar organizing. For example, the following items were among those photographed by Bureau agents at the national offices of the Socialist Worker’s Party:

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