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ABSCAM (1 of 4)
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Records of the Office of Counsel to the President (Reagan Administration)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: ABSCAM (1 of 4)
Box: 1
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
October 10, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 82R
SUBJECT:
Request for Executive Review
of All Evidence in the Case
of Senator Harrison Williams
Jeanette Williams, wife of convicted Abscam figure Senator
Williams, has written the President requesting an "executive
review" of all the evidence in her husband's case and an
investigation of all who took part in the prosecution,
including former President Carter and Abscam trial judge
George Pratt (who, Mrs. Williams notes, was elevated to the
Court of Appeals after her husband's conviction). She
specifically does not request a pardon, since she maintains
her husband was guilty of no crime.
We also have outstanding an earlier letter from Mrs. Williams
to Mr. Baker, demanding that a Justice Department Office of
Professional Responsibility report on Abscam be made public.
You will recall that I submitted a draft reply for your
signature, advising Mrs. Williams that such reports are
internal Justice Department documents and are not available
for public dissemination, but that the report in question
contained nothing exculpatory. You sent the package back,
noting that you could not make such a statement without
reviewing the report. I sent back a revised reply, advising
Mrs. Williams that according to the Justice Department the
report contained nothing exculpatory. This too failed to
fly; you sent it back with the suggestion that Justice reply
to the letter.
At this point we should probably send both the letter to
Baker and the letter to the President to Justice for reply.
A memorandum to Dinkins accomplishing this is attached for
your review and signature.
Attachment
THE WHITE HOUSE
WASHINGTON
October 10, 1984
MEMORANDUM FOR CAROL E. DINKINS
DEPUTY ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
Orig. signed by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Request for Executive Review
of All Evidence in the Case
of Senator Harrison Williams
The attached letters from Jeanette Williams, wife of convicted
Abscam defendant Harrison Williams, are referred to the
Department of Justice for direct reply and whatever other
action you consider appropriate. The White House has not
responded to Mrs. Williams in any manner.
Many thanks.
FFF: JGR:aea 10/10/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
October 10, 1984
MEMORANDUM FOR CAROL E. DINKINS
DEPUTY ATTORNEY GENERAL
U.S. DEPARTMENT OF JUSTICE
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Request for Executive Review
of All Evidence in the Case
of Senator Harrison Williams
The attached letters from Jeanette Williams, wife of convicted
Abscam defendant Harrison Williams, are referred to the
Department of Justice for direct reply and whatever other
action you consider appropriate. The White House has not
responded to Mrs. Williams in any manner.
Many thanks.
FFF: JGR:aea 10/10/84
CC: FFFielding/JGRoberts/Subj/Chron
July 14, 1984
243314
Mr. James A. Baker III
2415 Foxhall Drive
Washington, D. C. 20007
Dear Mr. Baker,
I had the pleasure again of sitting next to Susan at
the White House luncheon. I asked her if I could communicate
with you in this manner and she kindly gave me your home
address. I also respect your position and the President of
the United States, which is why I am motivated to bring my
personal matter to your attention. It is a grave and serious
situation and has been for several years.
I also recognize that the buzz word "Abscam" might
have affected your thoughts of it. Abscam was created,
manufactured and choreographed by the Carter Administra-
tion. Having created it, there was a concerted effort to
protect it at all costs, at all levels by blocking any of
the evidence that would disclose it's illegal and immoral
unconstitutional methods. There are scores of ways this
could be illustrated. There is one aspect of abscam that
most clearly illustrates the wrongful actions of govern-
mental agents and that has been absolutely blocked from
being publicaly disclosed. The prosecutorial force oper-
ating out of Newark, New Jersey; observing the actions,
techniques and methods of the Brooklyn prosecutorial force,
after trying to correct abuses unsuccessfully reported the
abuses--illegal actions of the Brooklyn agents to superiors
in Washington. The Brooklyn - Washington response to this
was the filing of charges against the Newark prosecutors
for attempting to obstruct the abscam operations.
One of the most highly placed Washington individuals,
former Judge Renfreit directed the Office of Professional
Responsibility to review and fix the penalty to be imposed
on the Newark prosecutors. The Office of Professional
Responsibility investigated all of this and from a Con-
gressional statement included in the July 13th, 1983
Congressional Record by Congressman Lujan -- we learned
that Newark was not only cleared, but applauded and Wash-
ington and Brooklyn agents and officials were chastised.
The critical missing link is that report.
Mr. James A. Baker
page 2 of 2
Washington, D. C.
July 14, 1984
All efforts by Congress, by defendants and by the
press to obtain this report have been to no avail. This
missing vital report is still buried in the Attorney
General's locked file.
I feel a grave disservice has been done personally
to my husband, who is wrongfully imprisoned. It is a
tragedy for our country that all of our first principles
have been demolished by some evil operators operating from
positions of awesome power. Bit by bit, for instance, two
and a half years after my husband's trial, he has received
pertinent documents and affidavits which reveal his inno-
cence and governmental agents illegality.
The failure to disclose the findings of the Office
of Professional Responsibility report has come to symbolize
the total denial of the revelations of truth. The Carter
Administration carries the burdens of this cover up.
This Administration would serve the highest principles of
your nation by permitting it be known to the public.
I hope it will be possible for you, Mr. Baker, to
honor my heartfelt plea. With respect and best wishes
for a good year to you and Susan.
Respectfully Yours,
BanetteWilliams
Jeanette Williams
Box 2
Bediumster, 07921 nj
Jeanette S. Williams
Fuilding
Bedminster, N.J. 07921
September 10, 1984
President Ronald Reagan
The White House
Washington, D.C. 20500
Dear Mr. President:
As Chief Executive sworn to uphold the set of principles according to which our
country is organized; our Constitution, I call your attention to a most serious
offense - a violation of the Separation of Powers.
Your predecessor, in addition to other members of the executive branch of government,
namely the Attorney General and the Director of the F.B.I. attacked the legislative
branch of government, an act that imprisoned my beloved husband, a United States
Senator, who never committed a crime, but was convicted by an "illusion" of criminal
activity created by government agents.
As in all wrongs that go uncorrected, the consequences are menacing. The contagious
effect of "ABSCAM" as its adopted by every law enforcement agency in the country in
their quest to incriminate elected officials leaves a very serious question in its
wake. Are we now creating an institution for defamation and slander that is
producing perpetrators, whose egomania could destroy public confidence in our
ability to maintain a government of the people and for the people?
I cannot think of a more effective way of destroying a nation, than by removing it's
most respected leaders in a disgraceful manner, and consequently undermining the
confidence of it's people in the elective process. Do we now have an enemy within?
The methods used by government operatives and the criminals employed in operation
ABSCAM and in similar Sting operations around the country, not only put decent men
in peril, but may be, in fact, as much an enemy of the American people as any - ever
confronted.
Department 1984
Page Two
A fear now exists among many elected officials that prevents them from crying out
against some of the visible wrongs of the bureaucracy. A fear that is well founded
because my husband stands today, in Allenwood, as the most conspicuous example to
all who doubt the awesome power of unscrupulous agents - innocence offers no protection
to the elected target sighted for political destruction.
What prompted this letter, Mr. President is the outrage that you have shown recently,
and rightly so, of the dilemma that surrounds Soviet prisoner Andre Sakarov is in
that we in the United States are more aware of Mr. Sakharov's persecution than the
Premier of the Soviet Union? Wasn't Sakharov prosecuted during Brezhnev's tenure as
Premier? What do you know about my husband's involvement with ABSCAM? Aside from
rumors and speculation. Do you think it would be right for Chernenko to re-open
the Sakarov matter and to conduct a complete and through investigation to prove to
the world once and for all either the guilt or innocence of Sakarov?
Would it now also be fair to grant a former United States Senator who served his
country honestly and diligently for more than a score, and who also vigorously
maintains his innocence from his jail cell the same treatment.
No one knows any better the true character and integrity of a man than the woman
who shares his life. My husband is incapable of criminal activity. He is a gentle-
man who posesses a deep love and concern for his fellow man. The people of the
United States have been deprived of an extremely sensitive representative, whose
acts as a legislator made their lives a little richer.
Finally, Mr. President, it is not a pardon that I ask for my imprisoned husband, for
a pardon is a forgiveness; a cancellation of a punishment incurred as a result of
criminal activity; a kind of indulgence. My husband is not guilty of any crime,
therefore he needs no forgiveness.
I seek an executive review of all evidence in my husband's case, including evidence
that has been recently made available through the Freedom of Information Act.
Secondly, an investigation of all who took part in my husband's persecution, not
excluding former President Jimmy Carter and the trial Judge George C. Pratt who
received an immediate promotion to the Circuit Court of Appeals following my husband's
conviction.
September 10, 1984
Page Three
Mr. President, you are a fair and decent man. On behalf of liberty and justice
for all, I pray you will be the first to throw light upon the dark cloud of ABSCAM
that will set my husband free, just as Sakharov demands the truth to be told, SO
does my husband.
deamette S. Welliams
Jeanette S. Williams
/bs
ID# 248193
THE WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
DATE RECEIVED: SEPTEMBER 24, 1984
John
NAME OF CORRESPONDENT: MRS. JEANETTE S. WILLIAMS
SUBJECT: REQUESTS AN EXECUTIVE REVIEW OF ALL EVIDENCE
IN THE CASE OF SENATOR HARRISON WILLIAMS
ACTION
DISPOSITION
ROUTE TO:
ACT
DATE
TYPE C COMPLETED
OFFICE/AGENCY (STAFF NAME)
CODE YY/MM/DD RESP D YY/MM/DD
FRED FIELDING
ORG 84/09/24
/ /
WAT/8
NOTE:
584110106
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
COMMENTS:
ADDITIONAL CORRESPONDENTS:
MEDIA:L INDIVIDUAL CODES:
MI MAIL
USER CODES: (A)
(B)
(C)
*ACTION CODES:
*DISPOSITION CODES:
*OUTGOING
*
*
*
* CORRESPONDENCE:
*
*A-APPROPRIATE ACTION
*A-ANSWERED
*TYPE RESP=INITIALS
*
*C-COMMENT/RECOM
*B-NON-SPEC-REFERRAL
*
OF SIGNER *
*D-DRAFT RESPONSE
*C-COMPLETED
*
CODE = A
*
*F-FURNISH FACT SHEET
*S-SUSPENDED
*COMPLETED = DATE OF
*
*I-INFO COPY/NO ACT NEC*
*
OUTGOING
*
*R-DIRECT REPLY W/COPY *
*
*
*S-FOR-SIGNATURE
*
*
*
*X-INTERIM REPLY
*
*
*
REFER QUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE
(ROOM 75,OEOB) EXT. 2590
KEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING
LETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS
MANAGEMENT.
THE WHITE HOUSE
WASHINGTON
September 11, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JZR
SUBJECT:
Missing Report With Regard to ABSCAM
You will recall that Mrs. Harrison Williams wrote Mr. Baker,
urging that a Department of Justice Office of Professional
Responsibility (OPR) report related to the Abscam investi-
gation be released to the public. I prepared a draft
response for your signature, advising Mrs. Williams that OPR
reports are not available for public dissemination. The
letter did, however, go on to note that you were authorized
to inform her that the report contained nothing exculpatory
about any Abscam defendant. You objected to such phrasing
in light of the fact that you have not reviewed the report.
The attached redraft notes that, according to the Justice
Department, the report contains nothing exculpatory.
Attachment
THE WHITE HOUSE
WASHINGTON
John
July 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS 926
SUBJECT:
Missing Report With Regard to ABSCAM
Mrs. Harrison Williams has written Mr. Baker, to urge that a
report of the Justice Department Office of Professional
Responsibility (OPR) arising out of the Abscam investi-
gations be made public. In the early stages of the Abscam
investigation, two Federal prosecutors operating out of the
Newark Strike Force wrote a memorandum to Justice Department
headquarters, pointing out the problems involved in relying
on Mel Weinberg as a leading character in the "sting"
operation. The Criminal Division overreacted with an
unjustified personal attack on the two prosecutors, sug-
gesting that they be fired. This precipitated a bitter
internal dispute that was referred to OPR. OPR issued a one
and one-half page report concluding that the two prosecutors
were totally blameless and had acted properly in raising
sincere concerns, while the Criminal Division had acted
improperly in personally attacking the two. All of this
took place during the Carter Administration; Associate
Attorney General Rudy Giuliani later apologized to the two
prosecutors.
The OPR report has never been released; as a rule such
reports are considered internal Justice documents not
subject to disclosure. Senator Hatch asked for a copy of
this report and was turned down; we obviously cannot provide
Mrs. Williams what we have denied to Senator Hatch. Accor-
ding to Roger Clegg, however, OPR has no objection to
stating publicly that there is nothing whatsoever in the
]
con't
report that is exculpatory with respect to any Abscam
defendant.
? this w/o regul receive
the
A draft reply to Mrs. Williams is attached, for your signa-
ture. I think the reply should come from you rather than
why
not
have
Mr. Baker, since it concerns Justice Department matters
properly coordinated by our office. A reply from you might
DOS make
also ease any personal discomfort Mr. Baker may have in
dealing with someone with whom his wife appears to have some
states?
sort of personal acquaintance.
7/29
Attachment
THE WHITE HOUSE
WASHINGTON
September 11, 1984
Dear Mrs. Williams:
Mr. Baker has asked me to respond to your letter of July 14,
1984. In that letter you requested that a report of the
Department of Justice Office of Professional Responsibility
be made public. The report in question concerned certain
Federal prosecutors and the response of units within the
Department of Justice to particular actions taken by those
prosecutors.
I must advise you that such Office of Professional Responsi-
bility reports are internal Department of Justice documents
and are not available for public dissemination. According
to the Department of Justice, however, the report in question
contains nothing whatsoever that could be considered exculpatory
with respect to any of the Abscam defendants. I am sorry
that we cannot be more responsive to your request.
Sincerely,
Fred F. Fielding
Counsel to the President
Mrs. Jeannette Williams
Box 2
Bedminster, NJ 07921
FFF: JGR:aea 9/11/84
bcc: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
September 11, 1984
MEMORANDUM FOR JAMES A. BAKER, III
ASSISTANT TO THE PRESIDENT
CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Missing Report With Regard to ABSCAM
Attached for your information is a copy of my reply on your
behalf to Mrs. Harrison Williams, who wrote requesting that
an internal Department of Justice document be made public.
Attachment
FFF:JGR:aea 9/11/84
CC: FFFielding/JGRoberts/Subj/Chron
THE WHITE HOUSE
WASHINGTON
July 27, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS /s/
SUBJECT:
Missing Report With Regard to ABSCAM
Mrs. Harrison Williams has written Mr. Baker, to urge that a
report of the Justice Department Office of Professional
Responsibility (OPR) arising out of the Abscam investi-
gations be made public. In the early stages of the Abscam
investigation, two Federal prosecutors operating out of the
Newark Strike Force wrote a memorandum to Justice Department
headquarters, pointing out the problems involved in relying
on Mel Weinberg as a leading character in the "sting"
operation. The Criminal Division overreacted with an
unjustified personal attack on the two prosecutors, sug-
gesting that they be fired. This precipitated a bitter
internal dispute that was referred to OPR. OPR issued a one
and one-half page report concluding that the two prosecutors
were totally blameless and had acted properly in raising
sincere concerns, while the Criminal Division had acted
improperly in personally attacking the two. All of this
took place during the Carter Administration; Associate
Attorney General Rudy Giuliani later apologized to the two
prosecutors.
The OPR report has never been released; as a rule such
reports are considered internal Justice documents not
subject to disclosure. Senator Hatch asked for a copy of
this report and was turned down; we obviously cannot provide
Mrs. Williams what we have denied to Senator Hatch. Accor-
ding to Roger Clegg, however, OPR has no objection to
stating publicly that there is nothing whatsoever in the
report that is exculpatory with respect to any Abscam
defendant.
A draft reply to Mrs. Williams is attached, for your signa-
ture. I think the reply should come from you rather than
Mr. Baker, since it concerns Justice Department matters
properly coordinated by our office. A reply from you might
also ease any personal discomfort Mr. Baker may have in
dealing with someone with whom his wife appears to have some
sort of personal acquaintance.
Attachment
THE WHITE HOUSE
WASRINGTON
July 27, 1984
MEMORANDUM FOR JAMES A. BAKER, III
ASSISTANT TO THE PRESIDENT
CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Missing Report With Regard to ABSCAM
Attached for your information is a copy of my reply on your
behalf to Mrs. Harrison Williams, who wrote requesting that
an internal Department of Justice document be made public.
Attachment
FFF:JGR:aea 7/27/84
CC: FFFielding/JGRoberts/Subj/Chron
==
THE WHITE HOUSE
WAEHINGTON
July 27, 1984
Dear Mrs. Williams:
Mr. Baker has asked me to respond to your letter of July 14,
1984. In that letter you requested that a report of the
Department of Justice Office of Professional Responsibility
be made public. The report in question concerned certain
Federal prosecutors and the response of units within the
Department of Justice to particular actions taken by those
prosecutors.
I must advise you that such Office of Professional Responsi-
bility reports are internal Department of Justice documents
and are not available for public dissemination. I an
authorized to tell you, however, that the report in question
contains nothing whatsoever that could be considered exculpa-
tory with respect to any of the Abscam defendants. I am
sorry that WE cannot be more responsive to your request.
Sincerely,
Fred F. Fielding
Counsel to the President
Mrs. Jeannette Williams
Box 2
Bedminster, NJ 07921
FFF:JGR:aea 7/27/84
bcc: FFFielding/JGRoberts/Subj/Chron
243344
ID #.
CU
WHITE HOUSE
JL003
CORRESPONDENCE TRACKING WORKSHEET
the
o - OUTGOING
H * INTERNAL
R
review lev's
I * INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
decide who
Name of Correspondent:
Jeanette Williams
should This respond
MI Mail Report
User Codes: (A)
(B)
(C)
7/24
Subject:
insing report with hegard to ABSCAP
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHolland
ORIGINATOR DIE 84/107124
/
/
Referral Note:
WATIE
A DDV 84,07,25
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A . Appropriate Action
I Info Copy Only/No Action Necessary
A Answered
C Completed
C * Comment/Recommendation
R Direct Reply w/Copy
B . Non-Special Referral
S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments: Harrison Italliams
que 2384 Kathy Camalieumemoto FFF
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
THE WHITE HOUSE
WASHINGTON
7/23/84
Fred:
Jim Baker asked that your
office prepare a response
to the attached correspondence
from Senator Harrison Williams'
wife, Jeanette. Would it be
more appropriate if your office
responded or could you prepare
a draft for JAB's signature?
Please advise. Thanks.
Kathy Camalier
x6797
abscan
OF JUSHINGS
OM
Department of Justice
PUPTINA
ADDRESS
OF
THE HONORABLE WILLIAM FRENCH SMITH
ATTORNEY GENERAL OF THE UNITED STATES
TO
A PUBLIC FORUM
SPONSORED BY
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
7:00 P.M.
WEDNESDAY, JUNE 23, 1982
NEW YORK CITY
This evening I would like to outline my views on a law
enforcement issue of substantial importance and current interest
-- the use of undercover operations to investigate especially
secretive crimes, including public corruption. Although
undercover operations have evoked greater public attention
recently, they have for years been a staple of law enforcement
efforts against the most pernicious of crimes. The judicious use
of undercover techniques has often been the only way to detect and
deter the secretive activity that characterizes certain kinds of
very serious crime, like public corruption. In fact, the federal
effort against public corruption is older even than the FBI.
Seventy-three years ago, there was no Federal Bureau of
Investigation. Although some investigations of federal crimes
were undertaken by the Secret Service, they were few in number,
lacked coordination, and were restricted in scope. In 1909
President Teddy Roosevelt -- and his Attorney General Charles
Bonaparte -- determined that something had to be done to make
federal law enforcement more effective. Congress, however,
expressed reservations about expanding the use of the Secret
Service or other federal agents -- especially if that could result
in investigations of members of Congress. In typical fashion,
Teddy Roosevelt -- who had previously served as the President of
this city's Board of Police Commissioners -- responded directly to
that concern, in words that bear a full repeating today:
"It is not too much to say that [the
restriction on the use of Secret Service
agents] has been of benefit only to the
criminal classes
The chief argument
-2-
was that the Congressmen did not
themselves wish to be investigated by Secret
Service men. Very little of such
investigation has been done in the past;
but it is true that the work of the Secret
Service agents was partly responsible for
the indictment and conviction of a Senator
and a Congressman for land frauds in Oregon.
I do not believe that it is in the public
interest to protect criminals in any branch
of the public service, and exactly as we have
again and again
...
prosecuted and convicted
such criminals who were in the executive
branch
so
we should give ample
means to prosecute them if found in the
legislative branch. But if this is not
considered desirable a special exception
could be made in the law prohibiting
the use of the Secret Service force in
investigating members of Congress
"
Congress subsequently did approve a heightened federal effort that
in 1910 was designated the Bureau of Investigation -- and in 1935,
the FBI. It is worthy of note that Congress chose not to exempt
itself from the scrutiny of federal law enforcement.
In the nearly three quarters of a century since the
creation of the Bureau of Investigation, federal law enforcement
has compiled an impressive record of effective investigations and
enforcement. It is only during the last decade -- and especially
-3-
the last six years -- however, that federal resources have been
concertedly and effectively employed to fight the most secretive
of crimes like public corruption. The key to that effort has
largely been the refinement of undercover techniques.
To assess the need for undercover techniques, we must
first gauge the magnitude of the evil we seek to combat.
Drug-trafficking, organized crime, white-collar crime, and public
corruption are all serious threats to our society. They occur
beneath the surface of society and employ every imaginable device
to remain hidden from public view. There usually is little
incentive for the victims of these crimes to report their occurrence.
Only active, undercover law enforcement can penetrate that veil of
secrecy.
In recent years, the Department of Justice has dramatically
altered its enforcement program and its priorities to seek out
this type of crime. Late in 1975, the Attorney General's Committee
on White Collar Crime was established. The Committee recommended
an increased and improved effort -- including a less reactive
approach to ferret out violations. In January 1976, the Department
organized a new Public Integrity Section in its Criminal Division.
In early 1977, many of the recommendations of the White Collar
Crime Committee were implemented. In 1978 the FBI set up its
Criminal Undercover Operations Review Committee, and specific
written Guidelines on Undercover Operations were issued by the
Justice Department just eighteen months ago.
Much of this process was a response to growing public
concern -- and the public concern was fully expressed in the
United States Congress. In the mid-1970s the Subcommittee on
-4-
Civil and Constitutional Rights of the House Judiciary Committee
itself began to urge an enhanced effort against more sophisticated
kinds of crime. Harvard's James Q. Wilson -- in an article
reprinted in 1981 as part of that Subcommittee's record -- makes
the following observations about a 1977 staff report of the House
Subcommittee:
"The staff lamented the 'reluctance on the
part of FBI personnel, particularly at the
supervisory level, to get involved in more
complex investigations that may require
significant allocation of manpower for
long periods of time.' And the report
criticized the field offices for not
mounting more undercover operations."
The Federal Bureau of Investigation bore the brunt of
such criticism over the last five or ten years. Some said that
the largest and most sophisticated law enforcement agency in the
world was unable or perhaps unwilling to conduct the kind of
sensitive undercover investigations necessary to root out
drug-trafficking, organized crime, white-collar crime, and public
corruption. Moreover, cynics noted that such investigations were
unappealing to the Bureau because they did not produce striking
increases in the numbers of crimes "solved." It was a dirty,
lengthy, and risky business they said, not the stuff for which
higher appropriations are voted.
Through a bipartisan effort over the past three
Administrations, however, any inability or unwillingness to
conduct undercover investigations has been steadily and decidedly
-5-
eliminated. Under Attorney General Edward Levi and Deputy Attorney
General Harold Tyler, and later under Attorneys General Griffin
Bell and Benjamin Civiletti -- and under FBI Directors Clarence
Kelly and William Webster -- the FBI has demonstrated its
willingness and its ability to conduct the necessary kinds of
undercover investigations. The strides have been monumental. For
example, following a lengthy undercover investigation, the FBI
just yesterday apprehended the leaders of what appears to be a
large and sophisticated Japanese commercial espionage ring attempting
to pirate American computer technology. In the last two fiscal
years, using less than one percent of its total budget, the FBI's
undercover operations have netted illicit funds and property of
over $109 million. In just those two recent years, arrests
arising from FBI undercover operations alone have totaled more
than 2700 -- and resulted in nearly 1100 convictions.
The message is clear. Every corrupt public official,
drug-trafficker, or organized crime figure should recognize that
he is not beyond the reach of law.
In the course of our increased efforts against these
kinds of carefully concealed crime and corruption, the Department
of Justice quickly learned what must now be regarded as a fundamental
tenet. An enforcement program can never succeed without the
effective use of undercover investigations.
By their very nature, these are clandestine crimes.
Payment of a bribe is not a public event. Neither the person who
pays nor the person who takes a bribe heralds that fact from the
roof tops. The person who pays, even if regarded as a victim,
typically makes no report to the authorities.
-6-
In most cases, there is only one way for law enforcement
to apprehend such criminals and to deter such crimes. It must
interject its agents into the midst of corrupt transactions. It
must feign the role of corrupt participant. In short, it must go
undercover. If it does not, we as a society, as taxpayers, as
persons with respect for law, can do nothing but tolerate this
particularly pernicious and costly form of crime. And, to go
further, our undercover techniques -- although they must be
judicious and they must be controlled -- must also be innovative.
Otherwise, we must settle for apprehending only those at the lower
levels of corruption. Our techniques must be as sophisticated as
those we want to catch.
Of course, undercover operations present certain dangers.
The techniques are sensitive and by definition involve subterfuge.
There is a potential for mischief, for undue invasion of privacy,
for illegal activity committed by law enforcement agents themselves.
Although exceedingly unlikely, every potential injustice must be
considered and minimized. For that reason, the Department of
Justice and the FBI have built controls into the system.
Undercover operations must be approved by a separate
Review Committee made up of FBI specialists, members of the FBI's
Division of Legal Counsel, and Department of Justice officials.
The Committee reviews the propriety and legality of every operation
involving any "sensitive issue" before it is begun. It reviews
the continuation of every operation beyond six months -- and
monitors most investigations with even greater frequency.
All undercover operations are now conducted under
written guidelines that reflect the experience and insights gained
-7-
by the FBI and Department of Justice. These guidelines incorporate
numerous safeguards beyond those necessary to comply with the law.
No invitation to engage in an illegal activity may be offered
unless:
-- the corrupt nature of the activity is
reasonably clear to the target;
-- there are reasonable indications the
operation will reveal illegal activity; and
-- the character of the illegal transaction
justifies the inducements offered.
In addition, the authorization of the FBI Director is necessary
before any inducement may be offered to someone absent a reasonable
indication that the person already has engaged or is engaging in
the illegal activity being investigated. The Guidelines, which
also cover the other kinds of activities necessary in undercover
operations, are themselves reviewed against those lessons learned
from on-going investigations.
Although these Guidelines had not formally been issued
when the Abscam investigations were begun, the legality of the
practices employed have been substantially demonstrated in the
courts. It is most worthwhile to reflect upon the results of
those investigations -- and of the videotape record they presented
in court. Twenty-two individuals were indicted -- including six
members of Congress, one U.S. Senator, one state senator, three
city councilmen, one state official, and one federal employee. In
eight separate cases, jury verdicts resulted in the conviction of
eighteen persons -- while one defendant pleaded guilty. One
person is still awaiting trial -- and two defendants died before
-8-
being tried. Out of twenty-two persons indicted, no individual
was acquitted. To date, 96 jurors have found for the government,
and no juror has exonerated any of the defendants. Although
several cases are now on appeal, none of the eight defendants that
raised the issue of entrapment has been successful on appeal.
Only three of the eighteen defendants that raised due process
questions have had any success on that issue even at the district
court level. And the only two appellate courts that have thus far
ruled on these verdicts have ruled in the government's behalf.
When it comes to undercover investigations, no one would
claim that there could not be any mistakes. The subjects of such
investigations -- and the corrupt influence peddlers with whom our
agents must credibly deal -- are neither Boy Scouts nor regular
attendees in Sunday School. The work is difficult, and the risks
to federal agents are outweighed only by the seriousness of the
crimes being investigated. Human frailties inevitably affect any
government agency, and the pressures of undercover work multiply
the stress. We have, however, learned from our experience. And
we can learn further and improve upon practices and policies.
Before concluding, however, I want to emphasize one
further point. Our investigations of public corruption have
increased dramatically over the years in response to public and
congressional desires. During 1981, as the result of federal
prosecutions, over seven hundred public officials were convicted
of corrupt activities -- only a few of whom were involved in
Abscam. Since 1970 federal indictments have been returned against
over 5000 federal, state, and local officials -- plus other
individuals involved with them in corrupt activities. Nearly 80
-9-
percent of those indictments were returned in just the last six
years. All of those figures indicate the seriousness with which
the Department of Justice attacks public corruption.
In a democracy, it is essential for the public to have
confidence in the integrity of influential and powerful institutions
-- especially governmental institutions. And it is the effectiveness
of federal law enforcement in uncovering public corruption that
reassures the public in their belief in the high integrity of the
overwhelming majority of their government officials. Nothing
would do more to undermine public confidence than for federal law
enforcement to be denied the means necessary to detect, prosecute,
and deter crimes committed by the powerful.
In the case of the Abscam investigations -- and all
federal undercover operations -- there is much that should be
studied and improvements certainly can be made. Already, the
Undercover Review Committee has been improved and Undercover
Guidelines have been formally issued.
Clearly, Congress should itself review the propriety of
federal law enforcement efforts -- just as it should seek to
improve the effectiveness of those efforts. This Administration
welcomes -- and will join in -- such an effort by the Congress.
There cannot, however, be different rules of law enforcement for
the governed and for those who govern. Although law enforcement
techniques can always be improved -- both to protect those under
suspicion and to protect the public -- they must not be emasculated,
especially in a context that suggests special treatment for the
powerful. Although the Abscam investigations were not undertaken
or completed during this Administration, we are committed to the
-10-
use of effective law enforcement techniques of the kind Abscam
employed. We will work to make them more effective and to ensure
that they -- like all law enforcement procedures -- are fairly
employed. We will also resist any effort to weaken effective
federal law enforcement efforts aimed at detecting and deterring
drug, organized , or white-collar crime -- including public
corruption.
a
A foreign writer once observed that his homeland "fell
because there was corruption without indignation." After surveying
the federal effort against public corruption, I for one want to
express my indignation -- not at the techniques or aims of law
enforcement, but at the corruption uncovered. Let everyone who
seeks to improve the efforts of law enforcement in these areas
keep in mind that the American public itself is also indignant
about the kind of criminal activity uncovered and videotaped
during Abscam. The most important lesson is not that federal law
enforcement techniques can be improved, but that public corruption
clearly exists and must be effectively uncovered, prosecuted, and
deterred.
During 1981, the first year of this new Administration,
there were more federal indictments and convictions of corrupt
officials at all levels than in any previous year. Those efforts
-- and the undercover techniques they frequently require -- will
continue. We will pursue public corruption by every necessary and
legal means -- wherever the trail may lead. Weakening legitimate
undercover investigations would be tantamount to granting some of
the most virulent types of criminals a license to steal. That is
something this Administration will not do.
DOJ-1982-06
Mr. Chairman, I want to compliment you on the outstanding
As in all endeavors, we have experienced some significant suc-
manner in which you have conducted these most difficult hearings
cesses and we have suffered some setbacks in specific investiga-
to date. As usual, your diligence in bringing before this subcommit-
tions. The overall results seem to me to be very positive.
tee a witness with valuable testimony has not waivered.
An undercover activity, especially one of long-term duration, is
I am certain members of this committee agree that no one
more demanding than simple theater. There is no fixed script;
should be held above the laws of our land. I also hope we agree
indeed, our participating antagonists are not even aware of the
with Director Webster, who has previously testified, that law en-
plot. Considerable dexterity, ingenuity, and often courage are re-
forcement officials must act with scrupulous fairness, apolitically,
quired to deal with unexpected twists and turns in the road as the
and cautiously in carrying out their investigations. When this prin-
investigation progresses.
ciple is violated, the dangers to a democracy such as ours are very
Agents are required to conform to legal and operational limita-
grave.
tions and requirements and still maintain the credibility of the ap-
Unfortunately, with respect to the undercover operations on
proved scenario. We do not always succeed. Sometimes the subject
which this subcommittee has heard testimony, some of these pre-
becomes suspicious. Sometimes innocent third parties become in-
requisites apparently have been lacking. Previous witnesses have
volved in the activity, and sometimes a cooperating witness or in-
provided us with documented evidence which clearly shows that
formant does not or will not comply with our rules. These are some
certain of the undercover operatives might well have been not
of the problems with which we must deal.
under control.
As I hope my testimony will demonstrate today, we are getting
We have also received evidence of possible unprofessional and
an increasingly better handle on the byproduct problems of under-
unethical conduct. The President's new Executive order on domes-
cover operations. Certainly the very small percentage of our re-
tic spying will of course compound the difficulties of coordination
sources devoted to undercover work has proven to be both cost-ef-
and supervision which may presently exist. And a new policy of
fective and an indispensable tool in certain kinds of cases.
Government secrecy would make it difficult, if not impossible, for
The traditional approach to investigating crime is a direct one;
individuals and for the public to learn when abuses have taken
our agents knock on doors, identify themselves, and ask questions.
place.
In some cases they may request documents or records, in others
All of this greatly disturbs me and many other people because of
they may arrive on the scene of a crime and take fingerprints and
its susceptibility to political abuse and because it has a potential
collect other physical evidence. This approach is usually successful
for once again undermining public confidence in law enforcement
in bank robberies, embezzlements, kidnapings, and many other
agencies.
crimes, but certain criminal activity is not susceptible to these
Today we will hear what I anticipate to be very enlightening tes-
techniques.
timony from FBI Director William Webster. I am sure he is as
One of the problems we face is the organized crime figure who
eager to speak to us as we are to hear from him. I welcome him
directs the criminal activity of others but rarely exposes himself to
and look forward to this hearing with great gusto.
other than his criminal confederates. Another problem we face is
Thank you.
what I refer to as consensual crime. This includes cases where
Mr. EDWARDS. Thank you, Mr. Washington.
fences are accepting stolen property from thieves, situations where
We also welcome Mr. Hughes, a member of the Judiciary Com-
a broker knowingly assists narcotics dealers in laundering their
mittee who will sit with us today.
profits, or the public servant who accepts a bribe. These criminal
Mr. Hughes, do you have a statement?
acts are rarely documented or witnessed by outsiders. In each case
Mr. HUGHES. No, Mr. Chairman, I do not.
both parties to the transactions have a criminal interest in conceal-
Mr. EDWARDS. Judge Webster, you may proceed.
ing the relationship. In each case, the general public is the un-
knowing victim.
TESTIMONY OF HON. WILLIAM H. WEBSTER, DIRECTOR,
To reach beyond the streets and to develop evidence that will
FEDERAL BUREAU OF INVESTIGATION
lead to prosecutions of this kind of serious criminal activity, we can
Mr. WEBSTER. Thank you, Mr. Chairman.
and we do employ sensitive techniques from our investigative arse-
I am pleased to appear before you today to discuss the FBI's un-
nal. These techniques include the use of confidential informants,
dercover activities.
court-authorized electronic surveillance, undercover special agents,
I appeared before this subcommittee 2 years ago and testified on
and combinations of these. Of course, there are risks inherent in
the importance of undercover investigations in effective law en-
their use. We recognize that at the outset. Because of these risks
forcement. Many issues which could not be fully discussed at that
and the intrusive nature of these techniques, they must be careful-
time have become a matter of public record in subsequent trials.
ly controlled and monitored, and we must be publicly accountable
for their use.
Likewise, a number of new matters have been reported in the press
that, for the same reason, can only be discussed with deference to
Each of these techniques has its advantages and its disadvan-
pending litigation. Insofar as I can be properly responsive to your
tages. Electronic surveillance involves less danger to our personnel,
questions today, I intend to do so.
but it isn't as flexible as other techniques. If the subjects of our in-
vestigation have any idea that electronic surveillance is being used,
402
they simply move to other phones or other places, or they don't use
On April 28, 1981, simultaneous raids were carried out in the
greater Washington area by FBI agents and officers of the Metro-
their phones.
The traditional informant is still the most important tool in law
politan Police Department. A total of 22 individuals were arrested
enforcement although their reliability varies widely and they are
and charged in Federal and local complaints. Stolen property
often unwilling to testify. They usually provide us with specific in-
valued at approximately $2 million was seized.
formation as a result of their station within the criminal communi-
A public viewing of the property was conducted during a 3-day
ty. They may even be able to tell us something about the plans and
period in June 1981, and approximately 1,400 citizens participated.
structure of a criminal organization, but they have limitations. the
Over 30 percent were able to identify property which had been
Often they do not have the flexibility to move about within
stolen from them. To date, 35 persons have been convicted of Fed-
structure. We have to overcome these limitations.
eral and local charges; 13 additional subjects have been charged.
The use of the special agent in an undercover capacity answers
In another undercover operation entitled "Bancoshares," our un-
some of these problems and presents some additional advantages to
dercover agents posed as brokers willing to launder illicit drug
us. He or she is more disciplined and more reliable. After all, they
money through a fictitious corporation. Transactions which grew to
are our special agents, trained to know and respect the law. They
over $1 million per day were video taped. The primary services of-
can be trusted with large sums of money which today's operations
fered by the undercover corporation were the conversion of small
often require because we are dealing with and against those who
bills to large bills, the conversion of U.S. currency to cashiers'
have access to large sums of money. And they're more likely to rec-
checks, the maintenance of large quantities of U.S. currency in
ognize and acquire evidence concerning a major crime figure.
bank accounts of the undercover corporations, and the depositing
The bottom line for the undercover agent is discipline and stay-
of clients' U.S. currency in Miami area banks to protect them from
ing power. As a special agent of the FBI, he receives a basic course
being identified as the source of funds.
of legal instruction, periodic refresher courses, and additional guid-
Upon termination of the covert stage of this investigation in
ance in legal matters specifically connected with his undercover as-
August 1981, 61 arrest warrants were issued, and 31 subjects were
signment. His operation is planned in advance, and his work is con-
arrested. Property and cash recovered, seized, and/or frozen as a
tinually monitored. Therefore, the key to an undercover operation
result of this operation included numerous airplanes and vehicles,
is to maximize the use of the agent personnel.
large quantities of cocaine, a 4,600-acre ranch with an estimated
While statistics tell only part of our story, they are illuminating.
value in excess of $4 million, three residences, and $18 million in
In combined fiscal years 1980 and 1981, undercover operations
cash.
led to actual recoveries worth over $109 million. Arrests arising
In another undercover case known as "Corcom," our Oklahoma
from such operations in those fiscal years totaled 2,723, with 1,064
City office has conducted a joint investigation with IRS, aimed at
convictions. Our funding for undercover operations during this
county commissioners in Oklahoma who allegedly have been de-
period was about $7.5 million, less than 1 percent of our total
manding kickbacks from material and equipment vendors for years
budget. I do want to advise you that we have identified 10 undercover
and years. To determine if this was so, in December 1979 we cre-
operations that have resulted in the filing of 30 civil actions involv-
ated our own business to sell road- and bridge-building materials.
As a result of the efforts of undercover agents, almost 100 individ-
tions have been resolved, and the remainder are currently pending
ing the FBI and/or its employees. To date, nine of these civil ac-
uals have been convicted or have entered guilty pleas, approxi-
mately 180 more have signed agreements to plead guilty, and an-
in court.
I know the subcommittee is familiar with the operation which we
other 100 are under investigation.
call Frontload. I am informed that it is the only FBI undercover
While numerous other cases could be cited, Mr. Chairman, in in-
case to date which has resulted in payments being made to satisfy
vestigations ranging from simple sting operations to those involv-
civil liability to others. Frontload was one of our first undercover
ing terrorist organizations, these three examples suggest the range
efforts, approved and implemented well before the creation of our
and utility of the undercover technique. Let me turn now to the
undercover review committee. I can assure you that the lessons of
procedures by which undercover proposals are developed, approved,
and managed.
each lawsuit have not been lost.
A brief look at recent undercover cases illustrates the kinds of
Generally, undercover projects originate in our field offices and
crime that confront us and how effective investigations can be. I
are designed to investigate a particular crime problem or groups of
individuals suspected of participating in illegal activity. Prior to
will discuss three.
An investigation entitled "Greenthumb" was directed by our
the submission of an undercover proposal to FBI Headquarters
Washington field office against fences of stolen precious metals and
[FBIHQ], the proposal must be approved at the field office level by
their associates who cloaked their illegal activities with legitimate
the field supervisor, the principal legal advisor, the special agent in
second-hand businesses. Two undercover agents were able to inject
charge, and the concurrence of strike force attorney's or U.S. attor-
themselves into the distribution system. As a direct result of their
ney's office in that region. The approval must include comments
observations, we were able to engage in court-authorized surveil-
and observations regarding the legal and ethical considerations in-
lance of telephone and other conversations.
volved in the proposal.
404
405
In addition, the project's goals, the worthiness of its objectives,
matters as: Entrapment, due process, Federal jurisdiction, creation
its cost, and whether the tactics proposed might involve entrap-
of undercover companies, false identification, and numerous addi-
ment, due process violations, or create a unreasonable potential for
tional topics.
economic loss to either individuals or the general community must
The Attorney General's guidelines on FBI undercover operations
be addressed in a proposal.
were not issued until February 1, 1981; however, they were de-
Many projects are rejected in the field or by FBIHQ supervisors
signed to set forth practices that had developed out of our previous
after their initial review. Those that meet the basic requirements
experiences. These guidelines provide that in addition to complying
and which appear to offer potential to accomplish the objectives
with legal requirements, before approving an undercover operation
are submitted to the Criminal Undercover Operations Review Com-
involving an invitation to engage in illegal activity, the approving
mittee.
authority should be satisfied that:
The Committee includes FBI headquarters officials from the dis-
(a) The corrupt nature of the activity is reasonably clear to po-
ciplines involved, including representatives from the Legal Counsel
tential subjects;
Division and representatives from the Department of Justice who
(b) There is a reasonable indication that the undercover oper-
consider any legal issues. It was established by me in the fall of
ation will reveal illegal activity, and
1978 to provide an ongoing institutionalized method of evaluating
(c) The nature of any inducement is justifiable in view of the
proposals, recognizing potential pitfalls, and giving guidance on
character of the illegal transactions in which the individual is in-
such matters as avoiding injury to third parties.
vited to engage.
This committee has become my main advisory board in the ap-
The guidelines recognize that inducements may be offered to an
proval process for undercover operations. The committee thorough-
individual even though there is no reasonable indication that the
ly reviews the fields submission and attempts to look at the project
particular individual has engaged in or is engaging in illegal activi-
from other angles, including the general propriety of its approach.
ty that is properly under investigation. However, the guidelines
After this review, many proposals are sent back to the drawing
provide that no such undercover operation shall be approved with-
board.
out the authorization of the Director.
If the committee makes the determination that the legal and
Other circumstances which can be approved by the committee
ethical considerations as well as operational aspects warrant ap-
would include situations where there is reasonable indication based
proval of an undercover proposal, the committee will make such a
on information developed through informants or other means that
recommendation to the Assistant Director of the Criminal Investi-
the subject is engaging, has engaged, or is likely to engage in il-
gative Division or, when particularly sensitive circumstances are
legal activity of a similar type; or the opportunity for illegal activi-
involved, to me.
ty has been structured SO that there is reason for believing that
No operation is approved for more than 6 months, and many are
persons drawn to the opportunity or brought to it are predisposed
approved with the stipulation that an interim progress report be
to engage in contemplated illegal activity.
made to the committee. Undercover operations requiring a time
All long-term undercover projects must be closely coordinated
period of more than 6 months must be represented to the commit-
with U.S. attorney's or strike force offices. As I indicated earlier,
tee for subsequent approval.
the committee must be assured that the U.S. attorney is fully ad-
In addition, special agent supervisors at headquarters provide
vised of the proposed operation and that he or she concurs with the
continuing supervision of those operations which are approved.
proposal, its objectives and the legality of the operation.
Since the implementation of the committee problems which could
Once an operation is approved by FBIHQ, the contact with the
arise during the course of an undercover operation have been more
U.S. attorney's office or strike force office is intensified. For exam-
readily recognized, and the possibility of harm to other third par-
ple, Abscam was reviewed on a daily basis by the strike force in
ties as a result of an undercover operation has been greatly mini-
the eastern district of New York. Strike force attorneys personally
mized.
monitored on closed circuit television many of the transactions as
We recognize that undercover work places unusual stress upon
they were taking place. One purpose for this on-line monitoring
agents and their families. We carefully choose our undercover
was to guard against conduct amounting to entrapment. The attor-
agents from a pool of volunteers. We have instituted a training pro-
neys could pick up a telephone and call into the meeting room. The
gram, including undercover seminars at Quantico, which deal with
undercover agent would answer as receiving a business call and
many aspects of undercover operations. These seminars are de-
obtain instructions necessary to insure that all legal requirements
signed to train undercover agents, the handling agents, and the un-
were being followed.
dercover agents' supervisors.
It should also be emphasized that this investigation was closely
As an example, recent seminars have presented such diverse
monitored by the Department of Justice in Washington. Many in-
topics as legal matters, handling of informants, stress factors,
vestigative steps were taken at the recommendation of Department
money laundering, narcotics investigations, psychological aspects of
of Justice attorneys. Strike force and U.S. attorneys were not only
undercover work, and female undercover roles. In addition, our
in close touch with our undercover agents and their supervisors,
principal legal advisors have been given seminars at Quantico
but also with Department of Justice officials as the investigation
which address the developments in such legal issues and policy
progressed. Department of Justice officials viewed the more signifi-
406
and the word was spread in the network of con men that easy
provided legal guidance and exercised the ultimate for
money was available for shady transactions.
cant prosecutive tapes, discretion as to each Congressman considered pros-
In the early stages of the investigation, there was nothing unusu-
al about the undercover operation except perhaps the somewhat
ecution. Before turning to the specifics of the Abscam investigations, to it
elaborate cover story. Through the summer of 1978 there was no
be helpful to make some important distinctions that cases. go
political orientation to the operation which was aimed at the recov-
might much of the confusion and uncertainty about those and other crimi-
ery of stolen and forged property.
an undercover operation that is designed to identify co-
Things began to change slowly in the fall of 1978. One of the
First, normally requires the assistance of one or more of back-
groups which had sold Abdul Enterprises phony certificates of de-
nal practices witnesses. These individuals have a wide range victims of a
posit raised a new prospect. They offered to serve as a broker be-
operating and motives for cooperating. They may be of this
tween the mayor of Camden, Angelo Errichetti, and the fictitious
grounds of payoffs and kickbacks who want to be relieved in this
Arabs who had indicated some interest in investments, including
practice Our labor racketeering cases have often developed looking
the newly legalized gambling casinos in Atlantic City, N.J. These
burden. They may be in serious trouble with the law and are in the
individuals described in detail the corrupt relationship that they
way. for a to soften the blow. In such cases, their expertise familiar-
had with this politician and the influence he claimed he could com-
fraud way techniques of the area under investigation and their success
mand in the State. Errichetti was described as a corrupt politician
ity with the criminal actors are of vital importance to the
who could obtain an Atlantic City casino license in return for a
bribe.
of the
operation. credibility as a witness in a trial may be of uncertain value with
Meetings were held between Errichetti and the Abscam opera-
Their of their background, but their credibility in dealing credibility
tives. Errichetti boasted that with his assistance the operatives
in criminal view contacts provides our agents with access and wit-
could obtain a gambling license; however, without his assistance, it
might take years, if ever, to develop. The cooperating that the
would be impossible to obtain the needed licenses. Errichetti indi-
which knows, of course, that he is dealing with the FBI, and
cated that a cash payment would be necessary in order to obtain
ness FBI expects him to conform his conduct to FBI requirements. cases.
his assistance.
Melvin Weinberg was the cooperating witness in the Abscam corrupt
When Errichetti indicated that he would accept a bribe, the New
influence In peddlers did not know they were dealing with the them-
contrast to the cooperating witnesses in Abscam, the FBI,
York office of the FBI, with the concurrence of the strike force, fur-
nished FBIHQ with the details. They also requested the authority
to make a $25,000 cash payment to Errichetti, The request followed
but who were interested in achieving results by purchasing offi-
rather thought they were dealing with individuals like in-
the FBIHQ chain of command and was presented to the undercover
selves The influence peddler often fronts for a corrupt public were
review committee, where it was approved. At this time, the deci-
fluence. and is sometimes called a bag man. In Abscam they thought
sion was made that all bribes would be documented on video and
cial themselves the subjects of our investigations. In what they and
audiotape. This procedure was followed throughout Abscam.
confidential setting, they spoke of their political contacts of the
On January 20, 1979, a $25,000 payment was made to Errichetti.
was the political a corruption that could be utilized in the services
Meetings between the operatives and Errichetti continued, and
arrangements were made for a payment of a $100,000 bribe to Ken-
Arab shiek.
all that followed, these influence peddlers were not Govern-
neth MacDonald, vice chairman, New Jersey Casino Control Com-
In informants, cooperating witnesses, or Government operatives. and those
mission. With the concurrence of the strike force, our New York
ment as the courts have found, engaged in crime, important
office requested and received FBIHQ authority to make this pay-
ment.
They who have were, been tried have been convicted. I think it is
A meeting was set up with Errichetti and MacDonald. On March
that these distinctions be kept firmly in mind.
want to focus on a brief chronology of Abscam as reflected Abscam
31, 1979, Errichetti was furnished with a bribe payment of $100,000
in the in the Hauppauge office of the FBI on Long Island, swindler, N.Y.,
I now evidence adduced in various trials. The idea for in
in the presence of Kenneth MacDonald. At this time, Errichetti
demonstrated through words and actions that he was MacDonald's
intermediary.
arose 1978. Agents there began working with a convicted at the
Errichetti was also directly responsible for developing another
early Weinberg. The scope of the operation was limited forged
case, this one involving Senator Harrison A. Williams. As early as
Melvin to property crimes, including the recovery of stolen or to
January 10, 1979, Errichetti had mentioned Senator Williams and
outset securities or artwork. The operation was simple and similar one
his associates. It was determined on January 11, 1979, that Senator
which Weinberg had run illegally prior to being convicted.
Williams and his associates were looking for financing for a mining
Upon the hope of receiving a lenient sentence. He and agents busi-
conviction, Weinberg agreed to cooperate with the Govern- of
venture in Virginia. Subsequent investigation and meetings with
Senator Williams and his associates determined that Senator Wil-
ment FBI in posed as American representatives of wealthy Arab of
liams had a hidden interest in the mining venture. On June 28,
the interested in making shrewd investments, regardless the name
1979, Senator Williams met with our operatives and offered to use
nessmen Abdul Enterprises, Ltd., from which Island,
his influence and position to benefit the mining venture.
their Abscam legality. was derived, was established in an office on Long
In the spring of 1979, Errichetti, still believing the Abscam oper-
with the undercover operatives, and on October 20, 1979, he was
atives to be agents of wealthy and unscrupulous Arab sheiks, pro-
paid $50,000 in exchange for the commitments he made to assist in
vided them a written list of names of those who he claimed were
the immigration problem.
corrupt Federal and State politicians. It is important to note that
During October 1978, in a recorded telephone conversation with
Errichetti first brought up these names, not the operatives. This
Weinberg, John Stowe, a South Carolina businessman, advised that
became a pattern which followed throughout the operation. Erri-
he knew a Congressman who was as big a crook as he was-
chetti claimed he could put the operatives in touch with these al-
Stowe-and who would assist in transactions involving forged
legedly corrupt politicians should the need arise. An opportunity
certificates of deposit. In November 1979, recalling Stowe's repre-
soon presented itself.
sentations, he was recontacted by the Abscam operatives.
In late July 1979, aboard a yacht in Florida, a meeting was held
Stowe was asked if he was still dealing with the Congressman
with Errichetti and others to discuss a proposed casino transaction.
that he had previously mentioned. Stowe identified the Congress-
Also present at the meeting were individuals whom Errichetti had
man as John Jenrette, and indicated that he still had contact with
identified to the FBI operatives as being instrumental in the casino
him. Our operatives then asked if Congressman Jenrette would be
deal. These included Louis Johanson, a Philadelphia city council-
interested in assisting the sheik in his immigration problems in
man, and his law partner, Howard Criden. During the cruise, FBI
return for cash. Stowe indicated that Jenrette would be interested,
undercover Agent Anthony Amoroso, posing as the Arabs' right-
and that he would set up a meeting.
hand man Tony DeVito, remarked that the sheiks might have to
In December 1979, our operatives had several meetings with
flee their country and seek asylum in the United States. He said
Stowe and Jenrette, at which time Jenrette offered to assist us for
that the sheiks did not want to face a situation like that which had
$50,000. After two meetings and several phone calls with Stowe
recently confronted Anastasio Somoza, the deposed Nicaraguan
and Congressman Jenrette, Stowe accepted a $50,000 bribe on
leader who had been expelled from this country shortly after his
behalf of Congressman Jenrette. Congressman Jenrette confirmed
arrival. Errichetti, with the assistance of Criden, began to identify
this payment in a telephone conversation which was recorded. Sev-
U.S. Congressmen who, in return for cash, would take actions to
eral days later, Congressman Jenrette reconfirmed his receipt of
guarantee asylum for the fictitious sheiks.
the money in a video taped face-to-face meeting with our opera-
On March 30, 1979, Errichetti had supplied the name of Con-
tives.
gressman Myers as a corrupt politician. Errichetti, in a series of
During this period, William Rosenberg, a corrupt influence ped-
telephone conversations with Abscam operatives in July and
dler and con man from New York, who had been responsible for
introducing us to Mayor Errichetti, introduced us to Stanley Weisz,
August 1979, claimed—
Mr. HYDE. Judge Webster, would you mind giving Mr. Myers'
Eugene Cuizio, and Congressman Richard Kelly. Congressman
first name? We have another.
Kelly, in exchange for his offer of assistance in connection with the
Mr. WEBSTER. Ozzie Myers. Thank you. Congressman Ozzie
immigration problem, was paid a bribe of $25,000 in January 1980.
In January 1980, Howard Criden led our operatives to George
Myers. Mr. HYDE. We have another one still serving with distinction.
Schwartz, Philadelphia city council president; Harry P. Jannotti,
Mr. WEBSTER. I appreciate your drawing that to my attention.
Philadelphia city councilman, and Louis Johanson, Philadelphia
Errichetti in a series of telephone conversations with Abscam
city councilman. As you will recall, Johanson had attended the
operatives in July 1979, claimed to have commitments from Con-
July 1979, meeting held in Florida. It was now represented to our
gressmen Ozzie Myers and Lederer to meet with the sheiks' repre-
operatives that these individuals could assist in obtaining permits
sentatives in order to provide immigration assistance. He subse-
which would be necessary for construction work that the Arabs
quently advised the operatives that the support of each Congress-
wanted to finance in Philadelphia. Johanson was paid $25,000 on
man would cost $100,000. After consulting with FBIHQ, the opera-
January 21, 1980; Schwartz was paid $30,000 on January 23, 1980;
tives were able to reduce the demand to $50,000 each. Payments of
and Jannotti was paid $10,000 on January 24, 1980.
$50,000 were subsequently made to both Congressman Ozzie Myers
The corrupt influence peddlers talked at length about their polit-
and Congressman Lederer.
ical connections and in the course of their discussions many addi-
Howard Criden, with the assistance of Joseph Silvestri, intro-
tional names were mentioned. Some of these turned out to be mere
duced our agents to Congressman Thompson. Silvestri was involved
puffery.
in the construction industry in New Jersey and had strong political
While we could not eliminate the possibility that completely in-
ties. On October 9, 1979, our agents made a $50,000 payment to
nocent officials might come to an undercover meeting at the behest
sumed the role of a corrupt influence peddler and suggested that
Congressman Thompson. During the meeting Thompson himself as-
of a corrupt influence peddler, we sought to reduce the likelihood
in the following way:
he had a close friend who was a Congressman from New York who
First, the shiek's representative firmly and repeatedly instructed
could assist us. We later learned that he was referring to Congress-
the influence peddlers not to bring public officials who did not un-
man John Murphy.
derstand the purpose of the meeting and unless they were prepared
Acting upon the suggestion of Congressman Thompson, Howard
to make their promises of assistance and receive payment personal-
Criden made arrangements for Congressman John Murphy to meet
ly. This was couched in language consistent with the scenario.
While the corrupt influence peddler had a vested interest in not of-
Later on, again:
fending the shiek or exposing his corrupt operation by violating
this requirement, we nonetheless put in place a second or backup
Question. You kept no notes at all?
requirement. The undercover agents were instructed that no
Answer. No, not concerning that. Tape recordings is what was utilized.
money should pass until after the criminal representations had
Another question:
been made. The online monitoring by strike force attorneys pro-
vided an additional safeguard.
would require that you keep some type of notes or memoranda.
You know of no rule, regulations, memo or anything else written or oral which
The facts that I have presented received searching scrutiny in
Answer. No.
pretrial motions, in the trials themselves, and in extensive posttrial
Then later on:
hearings. The judicial process has thus far determined that those
charged and tried significantly violated the public trust. Of equal
vised these calls, was he not, in the spring of 1979?
You in left it with Mr. Weinberg and for the most part Mr. Weinberg was unsuper-
importance, the techniques employed by the Department of Justice
Answer. Correct.
have thus far withstood legal attack in the courts on review.
documentation. whereabouts from June 1979 to and through January of 1980 you have no written
Question. And his whereabouts, isn't that statement correct that Mr. Weinberg's
The responsibility does not stop there. Our undercover investiga-
tions are regularly reviewed in the helpful light of hindsight. Prob-
lem areas are eliminated and better ways to achieve worthy goals
And so forth. I believe you are acquainted with these facts.
are developed. I, therefore, approach these hearings with the hope
This FBI agent testified that over 50 percent of the time Wein-
that they will be helpful to your oversight function and to the FBI
that? berg was not supervised at all. Would you care to comment on
in the discharge of its significant law enforcement responsibilities.
In that spirit, I am now prepared to answer your questions, Mr.
Mr. WEBSTER. Yes, I would be glad to.
Chairman.
Mr. EDWARDS. Thank you very much, Judge Webster.
which ones you want me to address first.
You mentioned a few things and I am not sure, Mr. Chairman,
Pursuant to House rules, we will be operating under the 5-
minute rule.
Mr. WEBSTER. Yes.
Mr. EDWARDS. It is the supervision of Mel Weinberg?
Judge Webster, on page 4 of your report, the second paragraph,
First, as to Mr. Amoroso, I was aware of that statement when it
you point out how carefully the agents in these undercover activi-
was called to your attention, and you made a point of it and I made
ties were monitored, that the operations were planned in advance,
inquiry of Mr. Amoroso. The question related to guidelines on en-
and that all work was continually monitored. Back in February of
trapment. There were no written guidelines on entrapment until
1980, you said on TV, "The Abscam operation is probably the most
December 1980.
carefully monitored, the most carefully controlled, the most care-
In a trial where Special Agent Anthony Amoroso, the supervis-
inars and training and online instruction from principal legal advi-
with 18 years experience has had numerous seminars, specific sem-
So his statement was made in response to the question. An agent
fully scrutinized investigation in the history of the FBI."
ing FBI agent in charge of Mel Weinberg-I believe his undercover
sors in the field; 16 hours is given to every special agent in the
name was Tony DeVito-was testifying under oath, of course; he
field as well as the training that we have at Quantico.
was asked the question by defense counsel, Mr. Robinson:
I think that in terms of supervision, one has to recall the daily
Are there any written regulations or guidelines at all in the FBI there to give
agents cover guidelines to pursue an investigation?
with Thomas Puccio, the chief of the strike force in the eastern dis-
contact that Amoroso and John Good, who was his supervisor, had
Answer by FBI Agent Amoroso:
trict of New York and others, departmental attorneys with whom
Not in an undercover operation, no.
base, cluing in with each other on what was proper and appropri-
they were working. They were getting constant advice, touching
And then the questions continue:
ate and setting the next stages.
We've talked about the guidelines and that there were no written guidelines, no
the dates and I cannot tell you out of my own knowledge what was
So far as accounting for Mr. Weinberg, I did not make a note of
written-no recordings.
Did you make written reports on a day-to-day basis of what was happening with
you and Weinberg?
Answer. No.
and it is my understanding in talking to our agents that before
happening at that particular time. But this is over several months,
Question. Did you make them on a week-to-week, month-to-month basis?
meetings took place, Mr. Weinberg was in the company of our any un-
Answer. No, never made any reports. The tapes were what we were using.
dercover I operatives for as much as 48 hours before they took place.
Later,
Question. Weren't you told as part of your script, your role as an undercover offi-
who is-who is a relatively free agent, is a substantial amount of
the time. I think 50 percent of the time to keep track of somebody
think it is not too helpful to talk in terms of only 50 percent of
cer. Tony DeVito, to get the man to talk about taking the money and get one?
Answer. I was not given any script or I was not told what to say.
keeping track of.
It was all what I felt.
Question. You were given no guidelines at all as to what was expected of you?
The issues have to do with what Weinberg did or did not do, it
Answer. No.
seems to me, when he was under supervision or when he was not
under supervision. And it is my impression that all of those issues
94-384 0 83
412
work had gotten wind of what was going on and were getting very
searchingly examined in the due process hearings and monitor- to date
close to us and very close to writing about it. So that had to be
were no fault has been found by the courts with that degree of
taken into account.
As a matter of fact, I authorized the extension of the Abscam in-
ing. EDWARDS. Well, in the same hearing, the same trial, Mr. at
vestigation for an additional 10 days after we had originally
Mr. said Mr. Weinberg was, as I have said before *
planned to close it, in order that the strike force attorney, the U.S.
Amoroso liberty to operate in a manner he saw fit." But naturally, I accept
attorney rather, in Philadelphia and FBI agents there might have
your response doesn't and those thank statements you for by it. the supervising agent for Mel
an opportunity to follow some leads into the Philadelphia City
council. So it really ran 10 days longer than we had expected.
Weinberg ation is probably the most carefully monitored, the most
But call into question what you said, that "the Abscam carefully oper-
Mr. HYDE. Was there a fear expressed that you were being too
successful, that you were getting too many political figures and
controlled, most testified carefully that scrutinized?" over 50 percent of the time he did not
that enough is enough; was that fear ever expressed in your confer-
Amoroso what Weinberg was doing and there were no notes kept he on
ences with Mr. Heymann?
Mr. WEBSTER. No; not by Mr. Heymann and--
know what Weinberg was doing and he really did not know what was
Mr. HYDE. By you?
doing. WEBSTER. That had to do with his relationship with courts Wein-
Mr. WEBSTER. By me?
Mr. If would care to be specific, as I said before, the
I have always been of the view, and I apply this not just to public
berg. you what Weinberg did or did not do and what evidence was
corruption but corruption in supporting industries and so forth,
looked involved. at I do know that it was our policy that when Weinberg- He
that you follow your leads, you do not turn away from something
that Weinberg was not to meet separately with public officials. with
that you hear about and you resolve it quickly, but you do not try
did it on one occasion, for which we remonstrated with him,
to keep going on and on and on. The point gets made. The deter-
rent effect gets made at some reasonable point.
the manner was in very which early he in handled the investigation, it. Mr. Chairman, I think came
That point, it seemed to me, is when our leads that we had were
That was in the spring of 1979, before any of the other cases him
resolved and we were running the risk that the corrupt influence
that on. And we made a point of trying to stay in close touch Now with we could
peddlers were going beyond their string of associates and beginning
when him from accepting telephone calls in any place
he was dealing with any of the public officials. where he
to bring in people who were not—
Mr. HYDE. Not good prospects?
not keep receive them, but those that came into Abdul recorded Enterprises con-
Mr. WEBSTER. Not good prospects.
might were largely taped. I think we had over 1,000 tapes of
Mr. HYDE. For the enterprise?
Mr. WEBSTER. Exactly.
versations. did not have-he was as you know, he had his own home indi- and
Mr. HYDE. There was no political pressure brought on you, and
we cates that any damage was done by his activity during periods
We could not sequester him and I do not think that the case
there was no discussion then I take it between you and the Justice
Department about this-the repercussions? As I take it, there were
when he was not under lock-step with us.
12 Congressmen approached and only 5 refused and 7 took the
Mr. EDWARDS. Thank you, Judge Webster.
bait?
Mr. WEBSTER. I am not sure of those figures. I think two came
Mr. Hyde.
and went away, one accepted money under ambivalent circum-
Mr. HYDE. Webster, Thank I you, would Mr. like Chairman. to take you in a different direction
stances, ambiguous circumstances; a few were named who did not
entirely. Members of Congress, Two were committee chairmen,
Judge Some of the fish that you landed were very and important one was
come and the rest came and took the money.
Mr. HYDE. Now, I did not hear you mention Joseph Meltzer and I
am very interested in Mr. Meltzer and his operations. What was
a
Senator. I am interested in knowing why the process stopped. Did you do or
his relationship with the entire Abscam operation?
so on your own or were you directed by the Justice Department
Mr. WEBSTER. Meltzer did not have a direct relationship with the
others and desist the Abscam operation?
Abscam operation. He was involved as a cooperating witness in an-
cease or by me and by Assistant Attorney General force Philip attorneys
Mr. desist. The decision to conclude the operation was Hey-
to WEBSTER. cease Congressman Hyde, we were never directed made to
other case which we called Palmscam. It was intended to look into
a number of corruption-type activities in southern Florida. And it
was an operation that was open for about 2 months in the summer
primarily mann, at a time when, after consulting with strike determined
of 1978.
and our own executives at FBI headquarters, we had
During that time he was to set up an office as a sort of a real
that had leads.
estate place from which he could approach some rezoning matters
There we is always run our the possibility of keeping an ongoing investiga- of those
and other things. And he had a lead that a person responsible for
It has some risks that had to be balanced. One
rezoning was interested in taking money for that type of activity.
tion the open. risk of imminent disclosure of the covert part of the oper- net-
And he needed some credibility.
was ation by the press. At least one newspaper and one television
A decision was made which in the benefit of 20-20 hindsight I
rate, and he asks for a payment in advance as good faith. It does
hink we could have done better, a decision was made to provide
not make much sense to you or me as to why someone would do
im with a letter from Abdul Enterprises on Abdul Enterprises sta-
that unless they were very anxious to get some money and very
tionery, which I believe has been made a part of the record, and
hopefully knew what he was talking about; sort of like a financial
certainly if it hasn't it can be; it was in the courts that talked
pigeon drop confidence scheme.
about two deals that Abdul was interested in.
We have quite a few of those in the country, just an enormous
It was not a letter of reference, it was not a letter of credit, it
amount, victimized American citizens who are in need of money or
was simply saying we are interested in those two deals and would
looking for money under those circumstances.
like to explore this further with you, words to that effect.
So he engaged apparently in a series of advance fee schemes and
That letter was apparently utilized by Meltzer after the Palms-
activities, working with other associates. We were not aware of his
cam investigation had closed on the west coast with another letter
activities until after many of these people that have appeared
that was apparently forged by Meltzer or someone working with
before you had actually paid their money to Meltzer.
Meltzer for which we had no participation of any kind, to use as
Meltzer was not a part of Abscam. But he apparently, by being a
bait for what we call an advance fee scheme.
good con man, knew that Abscam was our operation-Abdul Enter-
[The letter referred to follows:]
prise was our operation and knew enough about it, apparently, to
U.S. DEPARTMENT OF JUSTICE,
observe or get the idea about Arabs. He was also dealing with a
OFFICE OF LEGISLATIVE AFFAIRS,
figure-and this was part of the purpose of Palmscam-he was
Washington, D.C., May 19, 1982.
dealing with a figure in New York associated with organized crime
Attention: Michael Tucevich.
with whom we in turn were dealing out of the Abscam-Abdul En-
CATHERINE LEROY,
terprise operation. It appears from what we have been able to
Counsel, Committee on the Judiciary,
learn that he picked up some of the information about the Arabs
House of Representatives, Washington, D.C.
DEAR Ms. LEROY: I am returning the transcript of the testimony for William H.
and their money and that scenario in talking not just with us but
Webster, Director, Federal Bureau of Investigation, before the Subcommittee on
with a person under our scrutiny. That is where he comes in.
Civil and Constitutional Rights, on April 29, 1982, concerning FBI Undercover Oper-
Now there have been a lot of lawsuits filed recently, they are in
ations. Also enclosed for the record is a copy of a letter dated July 7, 1978, addressed
to H & J Realty, c/o Joseph Meltzer, and signed John McCloud. Reference to this
the court and I am sure you can appreciate that I can only respond
letter occurs on page 38 of the corrected transcript.
to your questions in a rather limited way because the Government
Further information regarding (1) complaints to the FBI of Joseph Meltzer's ad-
is entitled to its day in court. A great deal of money damages have
vance fee scheme, page 54; (2) the tracing of gifts which were allegedly provided to
been claimed. The actual amounts that Meltzer took from these
Mel Weinberg, page 56; and (3) an approach to Congressman James Howard by a
corrupt influence peddler, page 86, will be provided to the Subcommittee as soon as
various victims was relatively small by our standards, certainly not
by theirs. But we are talking in $5,000, $10,000 increments.
possible.
Sincerely,
Undoubtedly some of those people were-I can't say because I do
ROBERT A. McConnell,
Assistant Attorney General.
not know, but there is a good indication that some of these people
came in off the street, were not involved in any illegal activity of
Enclosure.
ABDUL ENTERPRISES, LTD.,
their own. Whether that is the responsibility of the FBI, whether it
New York, N.Y., July 17, 1978.
is the responsibility of the Department of Justice, or the Govern-
H. & J. Realty,
ment remains to be seen. They have a remedy in court and if it
care Joseph Meltzer,
proves that the FBI was the-or the Government was the cause of
P.O. Box 413, Delray Beach, Fla.
their loss, I would hope and expect that they would be made whole.
DEAR MR. MELTZER: Regarding our conversation of June 23, 1978, I am consider-
ing the purchase of the 160 acre Longmeadow Development owned by Allison Mort-
Mr. HYDE. Judge, I do not want to prejudice any litigation that is
of Los Angeles, California. I believe the price you mentioned was $1,900,000.
pending because there is a lot at stake. It just appeared to me,
gage Additionally, the adjacent parcel of land owned by John Rochman which is for sale
from the testimony of a great number of these people, that they
for $250,000 also looks interesting. Further, the purchase of Lighthouse Foods in
Miami for $500,000 appears to be a good business venture which could be mutually
were not greedy, they needed financing for some enterprise, legiti-
mate enterprise and that Meltzer was credentialed by the FBI in
profitable. 1 feel confident, Mr. Meltzer, that you will be able to handle the legal problems
the sense that these people checked with the FBI, and of course the
concerning the use of the land in the appropriate way.
FBI is no Dunn & Bradstreet but it is funny, as soon as they would
As soon as you assure me that the property can be used for the purposes I speci-
talk to the FBI about Meltzer, Meltzer knew about it almost imme-
fied, we can proceed quickly in making arrangements for final closing.
diately and would remonstrate with these people about why were
Sincerely,
JOHN M. McCLOUD,
they going to the FBI?
Chairman of the Board.
Also, the Chase Manhattan Bank credentialed Meltzer's oper-
Mr. WEBSTER. An advance fee scheme is when a con man offers
ation. It called the Chase Manhattan, Oh, yes, the shiek has a lot
to do something for someone who is either naive or greedy and
of money on deposit here.
wants something that he would not be able to get from convention-
I just am interested to know if the FBI stood by with knowledge
al financing sources such as a big loan or a reasonable interest
that he was scamming a lot of people, Meltzer, and out of a fear of
blowing his cover let these people go down the drain, as some of
one individual, late in the investigation, when we were in fact
aware of Meltzer, who called, I believe from Denver-and I have
them did.
We have had some weeping at those tables, and justifiably SO. Is
his name, it is Harlow-who called the FBI and, as a result of his
it your view that going into that in detail might compromise that
conversation, he did not invest. All these other people who called
had already lost their money. This was not a question of keeping
litigation? Mr. WEBSTER. I think so, Congressman Hyde. And besides, what I
them from losing their money, they had already lost it.
am and searching questions to find out where we were. I was
saying is information that has come to me by my own questions not
It will be the testimony of the one agent at Abdul who received a
call that he told the one person who called, and I do not remember,
of Mr. Meltzer until the spring of 1980. He was not consid- those
I do not recall whether he left a name or not, to call the FBI if he
aware ered part of our Abscam activity and I do not believe that
had some question about it.
around were-talking to me were generally aware of the Meltzer
Mr. HYDE. We had a Joel Chasen who wanted to buy a soccer
team, who was led to believe that he could. He contacted, he said,
problem. I can say a few generalizations and I say them only because-on
the Bureau in New York and Washington. He testified he was told
the basis of what I know or I have been told and believe.
that Meltzer was fine, everybody was good as gold. He said he con-
First is with regard to the Chase Manhattan Bank, that was a
tacted the Bureau in August 1979 and was not recontacted until
credibility cover for Abscam. Our arrangements were made with
December, at which time he was told to be quiet and not tell
Mr. Elzay of that bank, that if persons called he would acknowl- in
anyone anything.
the Chase Manhattan Bank under Abdul Enterprises, that is all;
edge that there was a substantial amount of money on deposit
Mr. WEBSTER. Those are disturbing reports. But as you know and
I know, those are allegations that will be developed in the court-
that is all he would say. He kept a log. And it is my understanding
room. The FBI keeps fairly meticulous logs and presumably this
that the log reveals no such inquiries by any of the people who tes-
person had a record of a long-distance call that he can establish if
tified here. That will all come out in the courts.
he has one. So I would rather avoid the issue of the facts of the
With respect to contact to the FBI, when in May and June 1979
case other than to assure you in response to a reasonable question
two people called the San Diego office to complain and then to go
that in this case it is my view that the FBI did not let people go
in, an investigation was promptly opened on Meltzer. Meltzer was
down the drain in order to protect Meltzer or in order to protect
not recognized as a former FBI informant. He had been closed as
Abscam. There may be other types of situations in the future,
informant several months-I do not have the exact date, several
there have been terrorism-type cases in the past, there have been
months-before an that. He was not recognized. That is a question,
all kinds of questions where that hard philosophical issue comes
whether we should have recognized Meltzer as an informant in the
up.
Should Winston Churchill have let Coventry be bombed at the
San Diego office.
I am not trying to buy off on that question, but he was not recog-
risk of giving up the code? I do not think that is the issue in the
Abscam-Meltzer case. I do not think that happened.
nized. When we finally did recognize Meltzer and began to talk to our
Mr. HYDE. I thank you.
own people, then his former handler in Florida contacted him to
Mr. EDWARDS. Mr. Kastenmeier.
find out what he was doing and why these calls were coming in,
Mr. KASTENMEIER. Thank you, Mr. Chairman. I want to con-
the being to get him to behave himself.
gratulate you for having these hearings. I think the interest with
Meltzer purpose apparently, and I am only getting it as you have ex-
which this hearing has been received is evidence that the policy
plained it to me, apparently used that information then to imply
questions and the interest generally in the subject have not been
that he had some kind of FBI credibility.
exhausted.
Mr. HYDE. One of the witnesses, Richard Stratton, said and I
I was very interested in the line of questioning just pursued by
quote, "It was really amazing that almost every time someone con-
the gentleman from Illinois. I attended those hearings and heard
tacted anyone to get some information on Mr. Meltzer, Mr. Meltzer
the same complaints of innocent victims of some of these oper-
seemed to know about it a short time later."
ations.
Well, I do not want to pursue this beyond my time but just to
Judge Webster, in your testimony you said the guidelines recog-
suggest-I just have some questions as to whether the FBI knew inno-
nize that inducements may be offered to an individual even though
what Meltzer was up to and what its obligation was to these
there is no reasonable indication that the particular individual has
cent parties who were being victimized.
engaged or is engaging in an illegal activity that is properly under
Certainly when you call the Chase Manhattan Bank and they call
investigation.
say, the FBI, within minutes or hours, you get a call from Meltzer
"Oh, yes, there is this money on deposit," and when you
What is the public interest in offering such inducements under
those circumstances?
asking what are you going to the FBI for, it raises some questions.
Mr. WEBSTER. I think that the public interest probably is identi-
Mr. WEBSTER. Of course it does, Congressman Hyde.
fied in the two circuit court opinions that have dealt with the need
As I said earlier, I think Mr. Elzay's record reflects that he re-
for prediction in the second circuit, fairly recent opinions that re-
ceived no such calls. As far as the FBI's obligation, I am aware of
viewed the law in this area. I think the public interest is this: I
referred, if you will recall, in my statement to consensual crimes,
borhood, ask about their reputation in the community, if we do
where you do not have clear evidence that someone is engaging in
these other things, we often raise more of a problem for the indi-
prostitution, is engaging in gambling, is engaging in narcotics, or is
vidual than to do what we did in this case, which was to establish a
engaging in bribery. Those have a willing participant on each side
scenario in which only those who come are likely-now I did not
of the transaction. You have no witnesses, as a rule, to that type of
say beyond any doubt, but are likely, are likely to come if the rules
are followed, only those that are likely to come who have an inter-
situation. What you have is a smell. You have people who talk about it and
est in doing this kind of thing.
talk around it and the tendency in our investigations is to focus
And as I mentioned in the statement, and I have said publicly a
upon this kind of activity, rather than upon particular individuals
number of times, we built into our approach a way of selecting out
and create a setting in which these allegations, or smell if you
those who might have come by error, and by making the criminal
want to call it, either are true or not true.
nature of it very apparent from the beginning. I realize there are
That was largely true in Oklahoma where SO many people had
criticisms directed against that that have some merit. But I believe
been receiving kickbacks for every contract, virtually, let by county
the end goals of resolving the issues and protecting them are
commissioners in the majority of the counties in Oklahoma.
worthwhile.
No clear evidence as such, but a clear kind of smell. We focused
You know, Congress passed the, what I call the Special Prosecu-
on that, established a business in which we, with other business-
tors Act, in which we are mandated to investigate any kind of
men, learned more about these practices, participated in those
smell, any kind of allegation, whether unsubstantiated or not,
practices, and did it. We did not have, to start off with, particular
about a given list of officials close to the President of the United
candidates. That is true to some extent in the successful investiga-
States, and we do, on a regular basis.
tion of the dock, longshoremen, the smell of kickbacks.
Mr. KASTENMEIER. That is an interesting question.
We have to get a handle on knowing how they take place. That
My time has expired, Mr. Chairman, but I appreciate it.
involves getting close to corrupt individuals. That often involves
Mr. EDWARDS. Mr. Sensenbrenner, the gentleman from Wiscon-
the cooperating witness who is, in a sense, our great blessing and
sin.
our great risk, because he can misbehave and sometimes does. But
Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.
he brings us close to the people we have been hearing about in
Let me state at the outset that I believe that one of the first re-
these smells.
sponsibilities of the FBI is to root out and prosecute public corrup-
Now these people began to talk about their contacts. And that
tion, so that the public will have confidence that its Government is
becomes even more remote. But if we say that we must have a
operating in an honest and ethical manner.
predication, a prior bite by the dog, we wipe out the decoy in the
As you may recall, during the last Congress I had the honor, and
park, we wipe out a whole range of sting operations, a whole range
I use that term advisedly, of serving on the Ethics Committee. So I
of undercover things.
had more of an intimate overview of FBI activities, in terms of the
Now, as I understand it, Congress in its own legislation took
allegations against some of our colleagues, than members of this
pains to be sure that it was not excluding itself from investigations
subcommittee did.
relative to bribery under this law that I described in the second
My main concern, as is the chairman of the subcommittee's, is
and third circuits.
over the control that the FBI had over Mr. Weinberg. I recall that
The Supreme Court has held that Congress could exclude itself
during my reading of the rather lengthy transcripts of the trials of
by imposing special requirements. It has not done so.
some of the former Congressmen who were indicted and convicted
So the public interest, it seems to me, is to establish whether
in Abscam that there was testimony which came out to the effect
these things in fact are taking place.
that Mr. Weinberg did not file income tax returns for the period
But also, as I think your question suggests the answer to the
that he was on the FBI payroll. I would hope that he would subse-
problem, it does suggest that a higher level of responsibility is re-
quently have to face the music on that.
quired before such activity be authorized.
But I am more concerned about the story that was nationally
Mr. KASTENMEIER. I would think so. I wonder whether we do not
syndicated by the Gannett News Service on April 20, 1982, to the
need something more than a smell. I say that because you have in-
effect that Mr. Weinberg may very well have used phony certif-
dicated yourself, some of the cooperating witnesses were engaged in
icates of deposit to set up his own private scam over and above
puffery.
what the FBI was doing relative to Abscam. And my question is,
Mr. WEBSTER. That is right.
Are you sure that Weinberg did not forge certificates of deposit for
Mr. KASTENMEIER. And I wonder whether your technique with
his own use, separate and apart from Abscam rather than using
reference to verifying the targets offered by these cooperating wit-
the forged CD's within the Abscam context?
nesses is adequate to avoid the puffery; whether you do not require
Mr. WEBSTER. So far as I am able to determine from the ques-
some additional level of verification as to whether the individual
tions I have asked and the assurance that I have been given and
really has been engaged in some various activities in the past.
the documents that I have been shown, that was not the case. The
Mr. WEBSTER. I think that is a fair question, but it is a very diffi-
certificates of deposit were used as a part of the scenario in actual-
cult one to answer. If we nose around, check in somebody's neigh-
ly three different States, trying to develop credibility with crimi-
420
421
nals by showing a willingness of the Abdul Enterprises Co. to
guess, was there any way to sense out right away what Meltzer
engage in criminal conduct and to be looking for shady deals.
was doing, that he was using the FBI to rip off citizens?
The first phase of that involved three individuals, one of whose
Mr. WEBSTER. I think during that investigation by Davis it was
names was Bell, I cannot quickly recall the other two. And Wein-
apparent that that is what Meltzer was doing.
berg was successful in obtaining $200 million in face value of certif-
Mrs. SCHROEDER. But why did it take so long, unless I have the
icates of deposit from that group. It was an elaborate scenario,
dates wrong; it seems to me that is an incredible period of time to
using these to get money out of the Arab money by collateral and
figure that out.
other means.
Mr. WEBSTER. I do not know how many people after 1979 lost
The second group involved, as I recall, Mr. Rosenberg-I could be
money. I have to say that I do not have my facts clear on that. All
mistaken about that, but I think I am correct-and in that situa-
that came up here I am told had lost their money before that time,
tion we have satisfied ourselves that Mr. Weinberg did not supply
before any calls were made.
the forms as was alleged in some of the postconviction cases to
Mrs. SCHROEDER. My recollection was there were some in the fall.
those who produced the bogus certificates of deposit.
Didn't we have testimony to that?
In the third instance, involving Mr. Errichetti, Mr. Weinberg did
Mr. HYDE. October 1979.
in fact supply the forms for the bogus certificates of deposit. This
Mrs. SCHROEDER. October 1979. So that seems to be
was known to the undercover agent and to the supervisor John
Mr. WEBSTER. Did they make a complaint, do you know?
Good. So this was not a scam on us. We knew it and we approved
Mrs. SCHROEDER. Yes.
it.
Mr. WEBSTER. Would we have a way of knowing about them?
Mr. SENSENBRENNER. Thank you very much.
Mrs. SCHROEDER. Well, they said they made a complaint. I would
I have no further questions Mr. Chairman.
appreciate very, very much if you could sort that out, because I
Mr. EDWARDS. The gentlewoman from Colorado.
think every one of us here was
Mrs. SCHROEDER. Thank you, Mr. Chairman. And thank you for
Mr. WEBSTER. Sure.
being here this morning.
Mrs. SCHROEDER [continuing]. Was very distressed about how
I guess my feeling is, No. 1, I agree with the gentleman from
Meltzer was able to use the FBI, Chase Manhattan, and fuse all
Wisconsin and the chairman that certainly we want the FBI not to
this up to do his own little personal moonlighting scam on innocent
be engaged in trying to weed out public corruption wherever it is,
people.
all we have to make Government work is trust. So the other piece
Mr. WEBSTER. I have to tell you that I am not happy with any
of that, though, that concerns me the most is, again, the same
time a witness who has been a cooperating witness goes off the res-
thing, the supervising of the Mel Weinbergs of the world.
ervation.
I am very perplexed about the victims because obviously many
Mrs. SCHROEDER. I think that is one of the things we would really
came from my region and really felt they have been terribly
like to look at, because while we get upset about public misuse of
wronged by the FBI. Now I understand your parameters of the
funds, that is also a misuse of the public services, I think, when
questions that you do not want to answer because of the court
somebody uses the FBI that way.
cases.
The other allegation I would like to look at that has worried me
But one of the things you stated in answer to Congressman
a lot, I am sure you are aware of many allegations that Mel Wein-
Hyde's question was that when inquiries were made by individuals
the FBI started looking into this; is that correct?
berg solicited and accepted gifts from some of the targets of the
Mr. WEBSTER. When the FBI itself was contacted.
Abscam investigation.
Mrs. SCHROEDER. And that would have been?
Are you aware of those allegations?
Mr. WEBSTER. I am aware of those allegations. I am also aware of
Mr. WEBSTER. As I recall, I can refer to my notes, but as I recall
that was in May and June, the end of May and the first of June
the testimony given under oath in the trial proceedings in New
1979.
York and that Judge Pratt found no basis for giving credence to
Mrs. SCHROEDER. Now the thing that disturbs me about that is, I
those allegations. Now that is about where we are on it.
recall many of the witnesses talking about this still going on in the
I would like to know the answers beyond the swearing match
fall of 1979.
that took place; if there is any other evidence, we want it. We have
Mr. WEBSTER. I believe the record will show that Special Agent
made a very sincere effort to secure that evidence in Florida and if
Davis, who was assigned that responsibility, went out and inter-
there is any way of making it clear, why we will do SO.
viewed all of the known victims. The case was given to the U.S. at-
Mrs. SCHROEDER. I guess my problem is I am also aware that
torney, I believe it was San Diego-I think that is right-in Decem-
Marie Weinberg, the deceased wife, has a sworn affidavit on file in
ber I think, 1979, and he did not reach a prosecutive decision on it
the Federal court saying that these gifts did in fact occur and that
for 2 or 3 months. It was not ready to go to the grand jury as far as
ABC News reported they had traced the serial number on some of
he was concerned.
these items, and yet the FBI has been unable to trace it.
Mrs. SCHROEDER. I see. So nothing really happened to stop
I am a little worried that maybe we should contract out to ABC
Meltzer in that interim? Was there any way-my frustration, I
News.
422
423
Mr. WEBSTER. Well, we welcome all the help we can get. If they
I do not want to judge this one because thus far Mr. Weinberg's
have any information we would be very glad to receive it from
position has been sustained in the courts. But I do think it is im-
them.
portant that we take certain steps, as we have, as we learn from
Mrs. SCHROEDER. Are you aware that they claim they traced the
mistakes and also from careful analysis, from some of those cases
serial numbers on this?
that predated our undercover review committee where we could
Mr. WEBSTER. No, I am not.
identify these problems. We make a special effort now to keep the
Mrs. SCHROEDER. Are you aware of Mrs. Weinberg's sworn affida-
cooperating witness away from backstops, that is corporations or
vit?
individuals who provide cover for us, to deal, so that they do not
Mr. WEBSTER. I am aware of the affidavit. I am also aware that it
pick up indicia of authority or other types of equipment that they
was submitted and reviewed in New York by the district judge and
could use in some other scam purpose.
found not to have any relevance to the cases that were tried.
They know that if we find them we will prosecute them. Mr.
Mrs. SCHROEDER. And are you aware of Joey DeLorenzo's testimo-
Meltzer has been prosecuted and convicted of the things he did in
ny before the grand jury that ABC News then picked it up and
San Diego.
traced it?
Mrs. SCHROEDER. But a whole lot of people were hurt very badly
Mr. WEBSTER. You have to help me on that one, I am
by that, that were innocent, from what we have heard.
Mrs. SCHROEDER. I guess I am saying that the supervision issue
Mr. WEBSTER. Yes.
does disturb me a whole lot because again the innocent victims
Mrs. SCHROEDER. I am just saying that we are all in agreement
come from my district and I think that is a great tragedy. I really
and I just feel that there should be much more vigilance on that,
worry when I read allegations about Mel Weinberg having solicited
because that is as bad as public corruption by public officials. It is
gifts, his wife says: "Yes, that is right, he did"; ABC tracing him
just as bad to have the FBI allow itself to be used, even inadvert-
through all of this, and the FBI can't find it.
ently. I am not saying you consciously did it.
Mr. WEBSTER. Well, you catch me being unable to respond to
Mr. WEBSTER. I agree.
Mrs. SCHROEDER. By not having constant supervision.
something that has been given to us. We are interested in this.
Mr. WEBSTER. I agree, we should be very careful of that. The
Mrs. SCHROEDER. My time has just expired.
courts will decide, of course, whether we have any culpability in
Mr. WEBSTER. Well, let me say, Congresswoman Schroeder, that I
the cases of your constituents. If we do, I want to see them made
really do not believe that that particular activity reflects upon the
whole.
guilt or innocence of those involved. You have a right to wonder
Mrs. SCHROEDER. So do I.
whether or not that is proper management.
Mr. WEBSTER. OK.
Mrs. SCHROEDER. And that is exactly what I am targeting the
Mr. EDWARDS. Mr. Washington?
question to. I am not saying it has anything to do with the guilt or
Mr. WASHINGTON. Thank you, Mr. Chairman.
innocence of those involved. I am strictly going to proper manage-
Mr. Director, a lot of people, including myself, are still concerned
ment of the (a) Meltzer area and (b) Weinberg.
with the knotty fundamental question of why under certain stand-
Mr. WEBSTER. We do know that he had three very expensive
ards certain individuals are targeted.
watches that were turned in to us, we do know of other matters
Mr. WEBSTER. I am sorry?
that were reported to us. We do know that he has sworn that he
Mr. WASHINGTON. Why and under what circumstances certain
did not receive them. An effort to keep crooks honest during the
people are targeted. Now we have listened to this magnificent su-
time they are with us is a major undertaking.
perstructure which you described; on paper it looks good. We are
Mrs. SCHROEDER. When you say that you admit how difficult it is,
aware, of course, that you have made distinctions between special
that is why I think you ought to be terribly interested.
agents, informers, bagmen, and we listened very carefully to your
Mr. WEBSTER. I do indeed, I do indeed admit-I do not admit it, I
description of the scenario you are trying to put together of struc-
advance it as one of the problems that we do have. But if we do not
turing it in such a way that you get only those who are likely to
have a cooperating witness, we do not have an entre. So we must
come or, as you phrased it, select themselves.
try to manage him. We can't lock him up 24 hours a day.
The question remains, How could the name of Senator Pressler
Mrs. SCHROEDER. You are admitting they are not Boy Scouts and
be involved in this, with the subsequent problems he has had politi-
I would think the FBI would be 20 times more vigilant in what
cally? How could names like Congressman Rodino, for example, be
happens when you release the person from the operation or what
brought in this, clearly innocent people, notwithstanding all of this
have you to make sure.
careful structure that you put together, all of these instructions
Mr. WEBSTER. We must, I agree, we must be vigilant.
about entrapment that you have given ostensibly or purportedly to
Mrs. SCHROEDER. Yes.
special agents, et cetera, et cetera? Yet certain people are today
Mr. WEBSTER. That is essential and it is one of the conclusions
under color, unjustifiably so, color of doing wrong, unjustifiably so,
that any objective analysis of undercover work would bring us to.
because of what you put together.
That is our greatest challenge, is to be sure that improper things
How can you explain that? How did it get between the cracks the
do not happen.
names of Pressler, Rodino, and SO forth?
FBI UNDERCOVER GUIDELINES
OVERSIGHT HEARINGS
BEFORE THE
SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-SEVENTH CONGRESS
FIRST SESSION
ON
Fisi UNDERCOVER GUIDELINES
PEBRUARY 19, 27. AND 26. 1981
Serial No. 18
Printed for the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
83-566 0
WASHINGTON: 1981
H521- 73
@AMMITTEE ON THE JUDICIARY
RIER W REDENSE July No. dersus Charran
JACK BEDOKS Texas
ROBERT McCLORY. Micross
ROBERT W. KASTENMEIER, Winston
DM BAILSBACK
DON EDWARDS California
HAMILTON FISH 1x New TO
JOHN CONYERS. tx. Michael
M CALDWELL BE TLER Yours
JOHN F SEBERLING Unio
1 ARLOS il MOORHEAD.
GEORGE E DANIELSON, California
ЮИХ M ASHBROOK, Other
ROMANO L MAZZOLL
HENRY 1 HYDE Himms
WILLIAM ; SUGHES. NEW the
THOMAS X KINDNESS Other
SAM E HALL JR. Texas
EXCLUS SAWYER Mehabian
MIKE SYNAR Okipheria
an HUNGREN California
PATRICIA SCHROEDER
F JAMES SENSENBRENNER It The
BILLY LEE EVANS Genericia
Wiscomping
DAN GLICKMAN Kansas
McculLEUM Fierlda
HAROLD WASHINGTON, Home
BARNEY FRANK. Massachusetts
PARKER
will State Doctor
FEANKEN % PACK Assistate
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL Rights
DON EDWARDS California. Chairman
ROBERT W KASTENMEIER: Wisconsin
HENRY I HYDE Hkuns
PATRICIA SCHROEDER Collection
F JAMES SENSENBRENNER. $
HAROLD WASHINGTON
Wisconsin
DAN LUNGREN California
FATHERINE A LEROY, Counsel
JANICE Course Assistment Connsel
THEMAS M Bown Associate Camed
de
CONTENTS
HEARINGS New
They
February 19. 1981
February 25. Pot
20
February 26, Mast
3
WITNESSES
Chevigny, Paul, associate professor of law. New York University of Law
X
Prepared statement
55
Marx, Gary T., professor of sociology, Massachusetts Institute of Technology
18
Prepared statement
Michel, Paul R. Associate Deputy Attorney General, Office if the Attorney
General
Prepared statement
Seidman, Prof Louis. Georgetown Law Center
13
Prepared statement
12
Stone, Prof. Goeffrey, University of Chicago Law School
Prepared statement
2
APPENDIXES
Appendix 1. - -Attorney General guidelines on FBI undercover operations
115
Appendix 2.- FBI Oversight. hearing held by the House Judiciary Commit-
tee, March 4. 1980
124
Appendix 3- The Changing FBI-the Read to Abscam. by James Q
Wilson
172
THE
FBI UNDERCOVER GUIDELINES
THURSDAY, FEBRUARY 19. 1981
House OF REPRESENTATIVES,
SUBTOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS.
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 9355 am in room 2237 of the Rayburn
House Office Building, Hon. Don Edwards endirman of the sub-
committee) presiding.
Present: Representatives Edwards. Kastenmeier, Hvde. and Sen-
senbrenner.
Staff present: Janice Cooper. assistant counsel. and Thomas M.
Boyd, associate counsel.
Mr. EDWARDS. The subcommittee will come to order
This morning, the Subcommittee on Civil and Constitutional
Rights will continue the ongoing task of FBI oversight. Almost 1
year ago. the subcommittee held its first hearing on FBI undercov-
er operations. At that time. the Assistant Attorney General for the
Criminal Division indicated that the Justice Department was draft-
ing guidelines for all undercover operations. and late last year
those guidelines were published.
Now, we are here today to examine those guidelines in light of
constitutional principles, social utility, and public policy. This sub-
committee has for some time encouraged the FBI to concentrate on
"quality" cases. When former Director Kelley announced the
"quality versus quantity" program several years ago, we applauded
his efforts and we have worked with the FBI. often through the
medium of the GAO, to assure continued adherence to this policy.
Undercover police work is often the best way to ferret out some
of the "quality" cases we have urged the FBI to undertake. It has
been very successful in many situations. And. as evidenced by the
FBI's budget--up from $1 million to 84.8 million in a few years-it
is clearly becoming an ever more important part of law enforce-
ment.
But very few of us really understand what is involved-how
undercover operations work: what the advantages and disadvan-
tages are: what the proper limits to this new technique are. and SO
forth. The hearings we have had and will be having over the next
few weeks and months are an attempt to better understand and
oversee this program. Eventually, we hope to have the FBI come
over and tall us about specific completed undercover operations to
give us a clearer picture of what they' re doing.
Our witnesses today are two distinguished professors of criminal
law and procedure. Our first witness will be Prof. Geoffrey Stone
the
2
from the University of Chicago Law School, and our second witness
will be Prof. Michael Seidman from Georgetown Law Center
Before the witnesses begin. I yield to the gentleman from Illinois,
Mr. Hyde.
Mr. HYDE. Thank you. Mr. Chairman. I believe it is wise for us to
look into the guidelines issued by Attorney General Benjamin Civi-
letti before he left office, though perhaps not for the same reasons
which you might suggest. Like SO many midnight regulations and
guidelines which appeared at the last moments of the Carter ad-
ministration. the Carter administration's FBI guidelines. which the
new Attorney General has indicated he properly intends to review.
restrict the flexibility of the FBI in many ways which are unaccep-
table to me. and I suspect to many other Members of Congress.
For example. the restrictions applied to the special agent in
charge are designed to galvanize control in Washington. Many past
abuses which are pointedly noted in the statements of our wit-
nesses today stem from possibly too much control in Washington. I
believe, in any event, that's a point worth exploring.
In addition. the guidelines anticipating more active involvement
by the local U.S. district attorney in undercover operations admin-
istered by the Bureau. I think it is worth noting that the U.S.
attorney is almost always a political appointment, the product of
appropriate political affiliation in the locality over which he or she
has jurisdiction. He's not a sheriff, but he's a prosecutor. and his
function is to presecute the alleged criminal conduct discovered
during a lawful criminal investigation.
I am anxious to hear the comments of today's witnesses, but I
must assert that I personally wholeheartedly believe in the law
enforcement value of undercover operations which do not legally
entrap the victim. Moreover, I believe the overwhelming majority
of Americans would take the same position.
But I do commend you, Mr. Chairman. for initiating these hear-
ings on this very important subject.
Mr. EDWARDS. Thank you, Mr. Hyde.
Without objection. both the witnesses' statements will be made
part of the record.
Mr. EDWARDS, Professor Stone. you may continue at your own
pace.
Professor Stone's statement follows:]
STATEMENT OF PROF. GORFFREY R: STONE UNIVERSITY OF CHICAGO LAW SCHOOL
It is a pleasure to appear before you today to discuss the appropriate limits OP the
use of undercover operations in federal law enforcement.
1. Undercover operations and legitimate expectations of pricars
As Director Webster and Mr. Heymann made clear in their presentations last
March. the use of spies, secret agents, and informers to eheit information from
unsuspecting individuals and to "invite" such individuals to engage in unlawful
conduct can be an extraordinarily effective investigative technique. Undercover
operations may enable government investigators to infiltrate the inner-most circles
of organized crime and to discern otherwise difficult to detect patterns of "consensu-
at unlawful behavior. In recent years, the FBI has employed undercover operatives
to investigate a wide-range of criminal activity, including labor racketeering, white-
collar fraud. political corruption, narcotics trafficking. and truck hijacking. More-
over. as a secondary benefit. undercover operations frequently enable the govern-
ment to present its evidence in subsequent crimmal prosecutions in an unusually
reliable form-through the direct testimony of law enforcement officers who have
participated personally in the unlawful conduct. and often through video and oral
tapes of the actual criminal transactions Finally. the widespread use of spies, secret
agents, and informers can effectively generate an atmosphere of distrust and suspi-
cion among potential "targets." By rendering such individuals uncertain as to the
actual status of their cohorts. the very existence of undercover operations can, as
Mr. Heymann suggested. have a potent deterrent effect
There is: however, another side of the com. For despite their special utility-
indeed. largely because of their special utility-undercover operations pose special
dangers to the individual. the government. and to society in general. These dangers
are not unfamiliar. Such operations. for example, may "create" crime: they may
require government agents to participate directly in iliegal activity: they may
unfairly entrap unwary individuals into unlawful conduct: they may damage the
reputations of innocent persons: and they may seriously undermine legitimate var
pectations of privacy Although each of these dangers merits careful -crutiny, and
each should be thoughtfully considered in effort to establish a meaningful set of
guidelines. 1 have been asked to address myself specifically, to the potential contract
between undercover operations and personal privacy to what extent. if any, does
the government's use of spies, secret agents, and informers. significantly endanger
legitimate expectations of privacy? To what extent. if any, should undercover open
ations be restricted in order to preserve such expectations?
In approaching these questions, it is essential to note at the outset that the
"undercover operation -18 HO! a unitary phenomenon. It IS, rather. multifaceted IR
nature. embracing an bhnost limitless variety of situations It encompasses the
creation of an unlawful business establishment to attract "eustomers seeking to
engage in illegal transactions. and the infiltration of a druz-muzzing conspiracy
by a professional agent: it encompasses the approach of a suspected prostitute by a
plainclothes officer on the street. and the activities of an informer who joins the
ranks of a political or community organization in the course of a domestic security
investigation. The undercover operation may last a moment, or it may extend user
many months It my involve only a single agent cooperating citizen. or paid inform-
ant, OF it may involve a complex network of undercover operatives The extent to
which any particular operation intrudes upon legitimate expectations of privacy WIN
necessarily vary according to the circumstances.
With the cavent in mind. I would like to turn now directly to the privacy issue In
assessing the nature of the potential intrusion on legitimate expectations of priviry.
it may be helpful to hypothesize a paradigm situation-one posing a not uncommon
set of circumstances. Let us suppose that an agent seeks to investigate an individual
suspected of complicity in labor racketeering. narcotics smuggling. or political cor-
ruption. The goal may be to deceive the "target" individual into revealing desired
information. to lead the agent to "higher-ups" in a suspected conspiracy. or to
induce the target 10 engage in a criminal transaction with the agent himself.
Whatever the utimate goat. the target in most circumstances is highly or kels to
disclose his criminal proclivities. if any, to just any stranger off the street. In all
probability. the agent. to be effective. will need to initiate and gradually to foster a
relationship with the target in which the target will come eventually to trust and to
confide in the agent In short, the agent must win the target's confidence through
deception. a task that may require weeks or even months to accomplish. To hasten
this process, the agent may seek the cooperation of some person already in a trust
relationship with the target-perhaps a friend. a business acquaintance, or even
someone in a formally confidential relationship with the target To secure this
cooperation. the agent may appeal to civie duty, otter monetary compensation. or
perhaps offer some ther inducement.
Whether the agent acts on his own or secures the assistance of a private citizen.
the undercover operation in our hypothetical investigation is likely seriously to
intrude upon the target individual's legitimate expectations of privacy. Indeed. the
intrustion occasioned by such operations is strikingly similiar to and perhaps even
greater than that ordinarily associated with other investigative techniques-tech-
niques that may lawfully be employed only when there is a prior judicial finding of
probable cause. Consider, for example. such practices as wiretapping. third party
electronic bugging. and eavesdropping No less than these other practices. the use or
spies. secret agents, and informers directly undermines conversational privacy In
the wiretapping. electronic bugging. and eavesdropping context. governmental offi-
cials curreptitiously monitor the individual's conversations. In the undercover con-
text. governmental officials deceitfully participate in and overhear those very same
conversations. The intrusion upon conversational privacy is functionally the same
As in the case of wiretapping and electronic bucking. the undercover operative will
inevitably learn not only about the target individual criminal intentions, if any?
but also about his personal. political. religious. and cultural attitudes and beliefs-
matters which are, quite simply. none of the government's business.
Moreover. unlike wiretaps and bugging devices, spies and informers see as well as
hear. If. in the course of an investigation. governmental officials want to search an
individual's home or office or inspect his documents, letters, or other personal
effects. they ordinarily would be required first to obtain a judicial warrant based
upon probable cause. In the undercover context. however, the undercover operative
may in the course of the investigation be "invited" to enter the target name or
office or to examine his private papers of effects. The undercover operation. if not
carefully controlled. would thus have the anomatous effect of enabling government
to invade the individual privacy through deceit and strategm when IT could not
otherwise lawfully de 5
Finally, there is a special social cost associated with the use of spare. secret
agents. and informers. As Mr Heymann observed last March the use of undercover
operatives can effectively deter criminal conduct by creating doubt and suspicion as
In the trustworthiness of the would-be criminal's colleagues and associates If the
use of such operatives is not carefully confined, however, and law abidine citizens
are not reasonably confident that they will not find themselves dealing inadvertent-
is with spies and informers. then this chilling effect can all DOD easily spid over into
completely lawint conversations and resationships: The unrestrained USE of such
operatives. in other Words, has at least top potential to undermine that sense of
trust which is essential to the very existence of productive social: business pontical,
and personal-as well as criminal--relations
Despite these concerns, no one would sensibly suggest that the government be
prohibited absolutely from engaging in undereiver investigations Rather. what is
needed IS a reasonable accommodation # the Competing investigative and privacy
interests In attempting to define such on accommodation two related bodies of biw
should be considered-the Supreme Clue unhalves of these issues from the per
spective of the forth amendment. and the evently promuted An mhes General's
Guidelines (II) FBI Undercover Operations
*: Underein (1) operations and the fourth amendment
The Supreme Court has consistently held that the usered deceit by secret
agents. and informers to elicit information from unsuspecting individuals does not
in itself constitute a "search" within the meaning of the fourth amendment See.
eas. United States V. White IN US Hotter United States. U.S. 293
1966g On Lee V. United States, 343 US 747 4% In part, this IS the result of
historical circumstance. The language and historical background of the amendment
made clear that its framers did not attirmatively intend to bring undercover investi-
gations within the amendment scope Although the use of spies and informers was
not wholly unknown to the trainers, the practice simply was not on their minds at
the time In some contexts, the Court has been willing to look beyond the precise
intent of the framers and to construe the amendment expansively. This has been
the case, for instance. with respect to wiretapping and electronic bugging. see Katz
V. United States. 389 U.S. 317 (1967) The Court has declined. however, to extend the
amendment's protections to undercover operations as well:
In lange part. the Court has attempted to justify this distinction on the theory
that the risk of being betraved by ones supposed friends and confidants is "inherent
in the conditions of human society: It is the kind of risk we necessarily assume
whenever we speak." H. ffa V. United States, supra, at 303 And. the theory goes:
since this "is not an undue risk to ask persons to assume." the fourth amendment
does not protect the individual's misplaced confidence that a person to whom he
discloses information will not later reveal it. Lopez V. United States, 373 U.S. 437,
150 (1963) Brennan, + dissenting. With all due respect, this theory is unsatisfac-
tory whether as a matter of constitutional Eaw or as a matter of policy.
It is true, of course, that in the ordinary course of our relationships We necessar-
ily assume the risk that our friends and associates will hetray our contidences.
Insofar as such persons act solely in their private capacities, and not in cooperation
with covernmental officials their betravals undoubtedly fall beyond the scope of the
amendment's concern. The analysis shifts markedly. how pver. once government
enters the picture. For the risk that the individual's contidant may be fickle or a
gossip IS of an entirely different order from the risk that he is in reality an
undercover agent commissioned in advance to report the individual's every utter-
ance to the authorities. In the latter situation, we are no longer dealing with a risk
of misplaced confidence inherent in the nature of human relationships: we are
dealing instead with government action designed explicitly to invade our privacy
and to end in deceit and betraval-with government action that appreciably altérs
the nature of the risks we ordinarily expect to assume. The notion that our willing-
ness to assume one risk means that we must necessarily assume the other is
doubtful at best.
5
Indeed, from a constitutional standpoint, We necessarily assume the risk that
private citizens will invade our privacy by tapping our telephones. bugging our
offices and ransacking our homes. It has never been suggested. however. that
because those risks are unprotected by the fourth amendment we must also assume
the risk that government agents will engage in similar conduct or induce others to
do so for them. There is simply no Indical reason to assume that the risk of
undercover surveillance is any more "inherent in our society than the risk that
government officers will tap our telephones, buz our offices or ransack our dwell-
mes
Another theory occasionally voiced in defense of the Court distinction between
wiretapping and electronic hugzing. on the one hand, and undercover operations. on
the other. is that the risk of below deceived by a secret agent or informant is not an
unreasonable one to require individuals to assume because THE dues no more than
compel them to use discretion in choosing their auditors. to make damaging disclo-
sures only to persons whose character and motives may be trasted: Legiez V. United
States. supra. at 130 Brennan, 1. dissentings The dea that individuals exercising
only reasonable caution can reacily avoid involvement with spies and informers
underestimates the skills of government agents and presaposes an unrealistic
ability on the part of ordinary citizens to detent deception In the usual course of
our relationships, we do of course make judgments as to the trusts irthiness. disch-
tion. and loyalty of our acquaintances Time INDIANA of judgements we are asked to
make in the secret agent context. however, BY entirely different from those We
ordinarily expect to make The individual who IS contronted with the possibility
that his supposed friends and associates are IN reality undercover operatives must
attempt to assuss not only their loyality as persons. out also the likelincod that they
are skilled professional dissemblers specially mained in the art of C ception. or that
at some unknown level of monetury or other inducement. they would agree to "self"
that loyalty to the authorities That must individuals are not 114 had especially ament
at making these sorts of determinations is dem instrated by the very effectiveness of
undercover investigations generally In any exect are would think that this parties
ular skill is not one that citizens of a tree society should ordinarity have to acquire
For a fuller explication of the Court tourth smendment analysis. NOC generally
Stone. "The Scope of the Fourth Amendment Privacy and the Police Use of States,
Secret Agents. and Informers. 1976 Americas Bar Foundation Research Journal
LIND
Whatever the merits of the Court's approach in the fourth amendm context. it
is not dispositive here. The Court has held only that undercover operations do not in
themselves constitute "searches" within the meaning et the fourth amendment The
Constitution. however. establishes only a minimum protection of only limited types
of privacy interests. and Congress has frequently enacted legislative safeguards of
privacy beyond those found by the Court to be mandated by the Constitution See
e.g. Communication Act of 1935. $305 4 Stat 1934 Right to Financial Privacy
Act of 1978 42 U.S.C 3401 et seq The critical question-the question that must
ultimately be answered by Congress-is whether and to what extent law-abiding
citizens in a free society should be entitled confidently to assume that their. sup-
posed friends. confidants, lawyers. and other associates are in fact what they appear
to be. and are not in reality clandestine agents of government secretly reporting
their activities and conversations to the authorities.
J. Undercover raturns. the Attorney General's guidelines. and EE proposed accom-
modation
This then. brings me to the recently promulzated Attorney General's Guidelines
These Guidelines represent a comprehensive and commendable attempt to come to
grips with a wide-range of problems issociated with the FBI's use of undersiver
operations To the extent that the Guidelines are designed to reconcile such upit-
ations with legitimate individual expectations et privacy, they are a clear step in
the right direction. They do not. however. to for enough.
The basic framework established by the Guidelines. insolar as privacy interests
are concerned is relatively straightforward In the absence of "sensitive circum-
stances." undercover operations lasting no longer than six months may be approved
by a special agent in charize upon written determinations that the operation com-
plies with other relevant Guidelines, that the proposed operation "appears to be an
effective means of obtaining evidence or necessary information. and that the
operation "will be conducted with minimal intrusión consistent with the need to
collect the evidence or information in a timely and effective manner." (See para. C.
When "sensitive circumstances" are present. however, the operation must be
approved by F.B.I headquarters. "Sensitive circumstances related to privacy locus
on the existence of a reasonable expectation that It the eration will involve an
investigation of possible political corruption or 01 the activities 01 a religious, politi-
6
cal, or news media organization: (2) an undercover operative will attend a meeting
between a subject of the investigation and his lawver: T31 an undercover operative
will pose as an attorney. physician. clergyman. or member of the news media and
there is a significant risk that another individual will be led into a professional or
confidential relationship with the operative: 4) a request will be made by an
undercover operative for otherwise privileged information from an attorney. physi-
cian. clergyman. or member of the news media: or 1.) the operative will be used to
infiltrate a group under investigation as part of a Domestic Security Investigation.
(see para. 3 THE 181. the 4% iji, kill If any of these "sensitive circumstances" is
present. the operation ordinarily may proceed only with the approval of the Under-
cover Operations Review Committee and the Director or a Designated Assistant
Director. In determining whether to grant such approval. the Committee must
consider such factors as the risk of harm to privileged or confidential relationships.
the risk of invasion of privacy, and whether the operation is planned SD as to
minimize the incidence of sensitive circumstances. isee para. F(3): de
These Guidehnes-especially the minimum intrusion requirements-represent a
useful step forward in the effort to accommodate competing investigative and priva-
CV concerns. There IS. however, room for improvement Most important. the Guide-
lines do not adopt any threshold standard for the initiation of undercover oper-
ations As with other highly intrusive investigative techniques. undercover oper-
ations should in at least some circumstances be prohibited in the absence of prob-
able cause to believe that the target individual is engaged. has engaged. or is about
to engage in criminal conduct: Such a requirement should be imposed as a matter of
sound governmental policy. whether or not it is mandated by the fourth amend-
ment
The probable cause standard serves several valuable functions-it strikes an
appropriate and historically acceptable balance between competing investigative
and privacy concerns: it restricts the use of highly intrusive investigative practices
to a narrowly defined set of circumstances. thereby generating confidence among
law-abiding citizens that they will not unreasonably or indiscriminately be subjected
to such practices: and it requires a conscious governmental determination in no-
vance that the proposed intrusion upon the individual's privacy is reasonably justi-
fied in the particular situation at issue. This is not to sav. however. that all
undercover operations should be predicated upon a finding of probable cause. To the
contrary, such a requirement would in may instances be highly impracticable and
unduly restrictive of legitimate law enforcement needs. The probable cause require-
ment should be imposed only when the proposed undercover operation is likely
significantly to intrude upon legitimate expectations of privacy.
This will most often occur in four distinct types of situations, three of which are
already recognized as special in the Guidelines. First, the probable cause require-
ment should be imposed whenever the undercover operation is likely to involve the
investigation of an individual's political or religious beliefs or the infiltration of a
political. religious, or news media organization: Application of a probable cause
standard is such circumstances is justified not only by conventional privacy consid-
erations, but also by the direct and substantial threat posed by such undercover
operations to the legitimate exercise of first amendment rights.
Second. the probable cause standard should be employed whenever the undercov-
er operation is. likely significantly to intrude upon the privacy of a recognized
"confidential" relationship. such as attorney-client. physician-patient. clergyman-
penitent. or news media-source. The Attorney General's Guidelines expressly delin-
eate most of the circumstances in which undercover operations might "significantly
intrude" upon the privacy of such relationships.
Third. the probable cause standard should be imposed whenever the undercover
operation is likely significantly to intrude upon the privacy of what might be
termed a "trust relationship.' This concept. which is not embodied in the Guide-
lines, rests on the notion that the greater the intimacy of the agent-target relation-
ship, the more problematic the deceit and betraval and. hence. the greater the
intrusion upon legitimate expectations of privacy. The "trust relationship" concept
is, of course. not self-defining. As a compromise, it inevitably lacks perfect clarity.
To promote such clarity and to facilitate implementation. the concept should be
defined as exempting from the probable cause requirement all undercover oper-
ations in which the agent and target interact essentially as strangers or as mere
casual acquaintances. This would leave the Bureau free to engage in a wide-range of
relatively unintrusive undercover operations without a prior showing of probable
cause. For example, the creation of illegal business establishments designed to
attract the patronage of individuals seeking to enter into unlawful transactions is a
commonly employed operation that would-at least in its early stages-fall outside
the "trust relationship" concept as so defined. So, presumably, would most so-called
"pretext interviews." On the other hand. because of their high degree of intrusive-
ness, operations like Miporn. described last March by Director Webster as involving
"two undercover agents who spent 24 years working their way into the confidence
of allegedly some of the nation's major pornography business figures." would and
should be prohibited in the absence of probable cause to believe that these "business
figures were actually engaged in crime.
Finally, there are investigations into the activities of public officials and political
candidates. An undercover agent should be permitted without probable cause to
approach a public official or political candidate in the context of a non-trust rela-
tionship in order explicitly to propose a criminal transaction This would permit the
essentially unrestrained use of sume of the most common. most effective, and least
intrusive techniques for the investigation of official corruption. It would allow. for
example, an agent operating an undercover bar to offer a bribe to a municipal
building inspector in return for a license When such operations become more
intrusive. however, probable cause should be required. for the use of undercover
operatives to elicit information through deceit from public officials and candidates
in a more intensive manner. or 20 infiltrate their offices and statis. poses a serious
threat not only to legitimate expectations of privacy. but also to fundamental
concerns arising out of the first amendment itself. This is not a matter of double
standards or "special treatment for government officials Private citizens in essen-
tially comparable settings-irust relationships and political associations and active
ties-are entitled to basically the same protections. In any event. the formulation of
"special" rules to safeguard the effective operation of our political system it hardly
unknown to the law. The doctrine of official immunity is an obvious example of
such a safeguard. and the Constitution itself. in the speech and debate Chase and.
indeed. in its inherent structure. builds such protections into the very fine in our
system of government. See United States Name: its
4 Conclusion
Spics. secret agents. and informers una serve legitimate investigative lunctions
At the same time. however. their activities. if not caretulls controlled. can scenti-
cantly intrude upon legitimate expectations of privacy. The approach proposed
above attempts reasonably to arcommodate these important hut competing inter-
ests.
TESTIMONY OF PROF. GEOFFREY R. STONE. UNIVERSITY OF
CHICAGO LAW SCHOOL
Professor STONE. Thank you. It is a pleasure to appear before you
today to discuss the appropriate limits on the use of undercover
operations in Federal law enforcement.
As Director Webster and Mr. Heymann made clear in their
presentations last March. the use of spies. secret agents, and in-
formers to elicit information from unsuspecting individuals and to
invite such individuals to engage in unlawful conduct can be an
extraordinarily effective investigative technique.
There is, however, another side of the coin. Despite their special
utility-indeed, largely because of their special utility-undercover
operations pose special dangers to the individual. to government,
and to society in general. These dangers are not unfamiliar. Such
operations. for example. may create crime; they may require a
Government agent to participate directly in illegal activities: they
may unfairly entrap unwary individuals into unlawful conduct:
they may damage the reputations of innocent persons: and they
may seriously undermine legitimate expectations of privacy.
Although each of these dangers merits careful serutiny, and each
should be thoughtfully considered in any effort to establish a
meaningful set of guidelines. I have been asked to address myself
specifically to the potential conflict between undercover operations
and personal privacy.
To what extent, if any. does the Government's use of spies, secret
agents, and informers significantly endanger legitimate expecta-
/
tions of privacy? To what extent, if any, should undercover oper-
ations be restricted in order to preserve such expectations?
In approaching these questions, it is essential to note at the
outset that the undercover operation is not a unitary phenomenon.
It is rather multifaceted in nature. embracing an almost limitless
variety of situations. The extent to which any particular operation
intrudes upon legitimate expectations of privacy will necessarily
vary according to the circumstances.
In assessing the nature of the potential intrusion on legitimate
expectations of privacy. it may be helpful to hypothesize a para-
digm situation-one pesing a not uncommon set of circumstances.
Let us suppose that an agent seeks to investigate an individual
suspected of complicity in labor racketeerine. narcotics smuggling,
or political corruption. The goal may be to deceive the target
individual into revealing desired information. to lead the agent to
higher-ups in a suspected conspiracy. or to induce the target to
engage in a criminal transaction with the agent himself
Whatever the ultimate goal, the target in most circumstances is
highly unlikely to disclose his criminal proctivities, if any, to just
any stranger off the street In all probability the agent, to be
effective, will need to initiate and cradually to foster a relationship
with the target in which the target will come eventually to trust
and to confide, at least to some degree, in the agent
In short, the agent must win the target's confidence through
deception-a task that may require weeks or even months, and in
some cases, perhaps even years, to accomplish. To hasten this
process, the agent may, of course, seek the cooperation of some
person already in a trust relationship with the target-perhaps a
friend, a business acquaintence, or even someone in a formally
confidential relationship with the target individual.
Whether the agent acts on his own or secures the assistance of a
private citizen. the undercover operation in our hypothetical inves-
tigation is likely seriously to intrude upon the target individual's
legitimate expectations of privacy.
Indeed. the intrusion occasioned by such operations is strikingly
similar to and perhaps even greater than that ordinarily associated
with other investigative techniques-techniques that may lawfully
be employed only when there is a prior judicial finding of probable
cause. Consider, for example, such practices as wiretapping, third
party electronic bugging, and eavesdropping. No less than these
other practices-the use of spies. secret agents, and informers-
directly undermines conversational privacy. In the wiretapping,
electronic bugging. and eavesdropping context, Government offi-
cials surreptitiously monitor the individual's conversations. In the
undercover context, Government officials deceitfully participate in
and overhear those very same conversations. The intrusion upon
conversational privacy is functionally the same.
Moreover, unlike wiretaps and bugging devices, spies and inform-
ers see as well as hear. If, in the course of an ordinary investiga-
tion, Government officials want to search an individual's home or
office or inspect his documents, letters, or other personal effects,
they would, of course. ordinarily be required first to obtain a
judicial warrant based upon probable cause. In the undercover
context, however, the undercover operative may, in the course of
9
the investigation, be invited to enter the target's home or office, or
to examine his private papers or effects. The undercover operation,
if not carefully controlled. would thus have the anomalous effect of
enabling Government to invade the individual's privacy through
deceit and stratagem when it could not otherwise lawfully do SO.
Despite these concerns. no one would sensibly suggest that the
Government be prohibited absolutely from engaging in undercover
investigations: rather, what is needed is a reasonable accommoda-
tion of the competing investigative and privacy interests.
In attempting to define such an accommodation. two related
bodies of law should be considered: the Supreme Court's analysis of
these issues from the perspective of the fourth amendment and the
recently promulcated Attorney General's guidelines on FBI under-
cover operations.
The Supreme Court has consistently held that the use of deceit
by spies. secret agents, and informers to elicit information from
unsuspecting individuals does not in itself constitute a technical
search within the meaning of the fourth amendment.
In large part, the Court has attempted to justify this conclusion
on the theory that "the risk of being betraved by one's supposed
friends and confidants is inherent in the conditions of human
society. It is the kind of risk we necessarily assume whenever we
speak. And since it is not an undue risk to ask persons to assume.
the fourth amendment does not protect the individual's "misplaced
confidence that a person to whom he discloses information will not
later reveal it."
With all due respect, this theory is unsatisfactory whether as a
matter of constitutional law or as a matter of policy. It is true. of
course, that in the ordinary course of our relationships we neces-
sarily assume the risk that our friends and associates will betray
our confidences. Insofar as such persons act soleiy in their private
capacities and not in cooperation with governmental officials, their
betrayals undoubtedly fall beyond the scope of the amendment's
concern.
The analysis shifts markedly, however, once Government enters
the picture. The risk that the individual's confidant may be fickle
or a gossip is of an entirely different order from the risk that he is
in reality an undercover agent, commissioned in advance to report
the individual's every utt rance to the authorities.
In the latter situation, we are no longer dealing with the risk of
misplaced confidence inherent in the nature of human relation-
ships: we are dealing instead with Government action designed
explicitly to invade our privacy and to end in deceit and betrayal-
with Government action that appreciably alters the nature of the
risks we ordinarily expect to assume. The notion that our willing-
ness to assume one risk means that we must necessarily assume
the other is doubtful at best.
Whatever the merits of the Court's approach in the fourth
amendment context, however. it is clearly not dispositive here. The
Court has held only that undercover operations do not technically
constitute searches within the meaning of the fourth amendment.
The Constitution, however, establishes only a minimum protec-
tion of only limited types of privacy, and Congress has frequently
10
enacted legislative safeguards of privacy bevond those found by the
Court to be mandated by the Constitution.
The critical question-the question that must ultimately be an-
swered by Congress-is whether and to what extent law-abiding
citizens in a free society should be entitled confidently to assume
that their supposed friends. confidants, lawyers, and other asso-
ciates are not in reality clandestine agents of Government. secretly
reporting their activities and conversations to the authorities.
This, then, brings me to the recently promulgated Attorney Gen-
eral's guidelines. These guidelines represent a comprehensive and,
for the most part. commendable attempt to come to grips with a
wide range of problems associated with the FBI's use of undercover
operations. To the extent that the guidelines are designed to recon-
cile such operations with legitimate expectations of privacy, they
are a clear step in the right direction.
They do not. however, go far enough.
Most important. the guidelines do not adopt any threshold stand-
ard for the initiation of undercover operations. As with other
highly intrusive investigative techniques, undercover operations
should in at least some circumstances be prohibited in the absence
of probable cause to believe that the target individual is engaged,
has engaged, or is about to engage. in criminal conduct.
Such a requirement should be imposed as a matter of sound
governmental policy. whether or not it is mandated by the fourth
amendment.
The probable cause standard serves several valuable functions: It
strikes an appropriate and historically acceptable balance between
competing investigative and privacy concerns: it restricts the use of
highly intrusive investigative practices to a narrowly defined set of
circumstances. thereby generating confidence among law-abiding
citizens that they will not unreasonably or indiscriminately be
subjected to such practices: and it requires a conscious governmen-
tal determination in advance that the proposed intrusion upon the
individual's privacy is reasonably justified in the particular situa-
tion at issue.
Now, this is not to suggest that all undercover operations should
be predicated upon a finding of probable cause. To the contrary,
such a requirement would in many instances be highly impractical
and unduly restrictive of legitimate law enforcement needs. The
probable cause requirement should be imposed only when the pro-
posed undercover operation is likely significantly to intrude upon
legitimate expectations of privacy. This will most often occur in
four distinct types of situations. three of which are already recog-
nized as special in the guidelines.
First, the probable cause requirement should be imposed when-
ever the undercover operation is likely to involve the investigation
of an individual's political or religious beliefs. or th infiltration of
a political, religious, or news media organization. Application of a
probable cause standard in such circumstances is justified not only
by conventional privacy considerations. but also by the direct and
substantial threat posed by such undercover operations to the le-
gitimate exercise of first amendment rights.
Second, the probable cause standard should be employed when-
ever the undercover operation is likely significantly to intrude
INTENTIONAL
BLANK
NTENTIONAL
11
upon the privacy of a recognized confidential relationship, such as
attorney-client, physician-patient. clergyman-penitent, or news
media-source. The Attorney General's guidelines expressly delin-
eate most of the circumstances in which undercover operations
might significantly intrude upon the privacy of such relationships.
Third. the probable cause standard should be imposed whenever
the operation is likely significantly to intrude upon the privacy of
what, for lack of a better term. might be called a trust relationship.
This concept, which is not embodied in the guidelines, rests on the
notion that the greater the intimacy of the agent-target relation-
ship, the more problematic the deceit and betrayal, and hence. the
greater the intrusion upon legitimate expectations of privacy.
The trust relationship concept is. of course. not a self-defining
one. As a compromise. it inevitably lacks perfect clarity. To pro-
mote such clarity and 10 facilitate implementation. the concept
should be defined as exempting from the probable cause require-
ment all undercover operations in which the agent and target
interact essentially as strangers or mere casual acquaintances.
This would leave the bureau free to engage in a wide range of
relatively unintrusive undercover operations. without a prior show-
ing of probable cause. For example, the creation of illegal business
establishments designed to attract the patronage 01 individuals
seeking to enter into unlawful transactions is a commonly em-
ployed operation that would-at least in its early stages-fall out-
side the trust relationship concept. as SO defined.
On the other hand. because of their high degree of intrusiveness,
operations like MIPORN, described last March by Director Webster
as involving "two undercover agents who spent 2½ years working
their way into the confidence of allegedly some of the Nation's
major pornography business figures," would and should be prohib-
ited in the absence of probable cause to believe that these "busi-
ness figures" were actually engaged in some sort of criminal con-
duct.
Finally, there are investigations into the activities of public offi-
cials and political candidates. An undercover agent should be per-
mitted, without probable cause. to approach a public official or
political candidate in the context of a nontrust relationship, in
order explicitly to propose a criminal transaction. This would
permit the essentially unrestrained use of some of the most
common. most effective and least intrusive techniques for the in-
vestigation of official corruption. It would allow. for example, an
agent operating an undercover bar to offer a bribe to a municipal
building inspector in return for a license.
When such operations become more intrusive. however, probable
cause should be required; for the use of undercover operatives to
elicit information through deceit from public officials and candi-
dates in ? more intensive manner. or to infiltrate their offices and
staffs, poses a serious threat not only to legitimate expectations of
privacy, but also to fundamental concerns arising out of the first
amendment itself.
As noted earlier. spies, secret agents, and informers serve legiti-
mate. indeed important investigative functions: but at the same
time, their activities. if not carefully controlled, can significantly
intrude upon legitimate expectations of privacy. What is necessary
12
is some effort at reasonable accommodation. 1 have attempted to
define the contours of such an accommodation. Thank you.
Mr. EDWARDS. Thank you, Professor Stone: If there is no objec-
tion. we will hear now from Professor Seidman, and then we will
have some questions.
Professor Seidman's statement follows:]
TESTIMONY off LOUIS SEHIMAN BEFORE THE SVF OMMITTEE ON Civil AND
CONSIITUTIONAL Rigus: of THE HOUSE COMMITTEE ON THE JUDICIARY
1. would like to thank the Subcommittee for this opportunity to comment on the
Attorney General's Guidelines for Flll Undereover Operations I intend to limit BY
comments in two reavs. First I will speak enty to these Rsues raised by the
Guidelines relating to the haw of entrapment I de not intend Ext arament in the
very serious privacy. free speech. And Tree association issues reased IN the surt or
undercover operations authorized in the Guidelines. Second, I du not pretend 10
have detailed knowledge nt any particular undercover openation therefore intend
to express no opinion DD the Industry of any operation Instead: ISV comments will be
directed to the wisdom and legality et such operations ID general and to the kind of
safernards which should limit such eperations il then are undertaken.
In general I think the Atterney General's Guidelines represent a constructive
first step toward controlling the obvious dangers posed by undercover operations
The efforts to regularize the decision,naking process für such operations and to fix
responsibility for the decision. oner made, are particularly commendable The
Guidelines also impose significant limits on under cover operations in some cases
where the costs outwough the benefits or where an undercover operation would pose
a serious risk to individual liberties Unfortunately, however, the Guidelines also
appear to authorize some conduct which is probably and other conduct which
is survly unwise Supreme Court authority ned mila pertits. But positively invites
Condressional activity in this area i believe that Congress should accept this
invitution by coditiving three part at the Guidelises which are sound and modifying
those parts which are not.
-
The problem of entrapment bezon with the serpent's "stine" operation in the
Garden of Eden It pases the fundamental difenima of criminal kiw On the one
hand. the government has an obvicus and important interest in catching and
isolating dangerous criminals before they inflict irreparable harm on their victims
On the other. it the government asts 100 precipitously. it is likely to ensnare the
innocent as well as the guilty. It is this intrae able driemma which has formed the
law in areas as seemingly diverse as the definition of criminal attempt and conspir-
ney, the problem of pretrial release. and the standard for civil commitment. The
dilemma is particularly acute when the police attempt to trigger a crime by going
undercover and offering inducements. since the same inducement which is essential
to eatch a potential criminal may mso tempt others to commit crimes which other-
wise would not have occurred
The Supreme Court has responded to these conflicting pressures by developing
two interrelated doctrines. First, the Court has road criminal statutes implicitly to
exculpate a defendant when "the Government plays OR the weaknesses of an inno-
cent party and beguiles him into commiting crimes which he otherwise would not
have attempted Sherman V. United States. 336 US 309. 276 (1958): See also
Sorrells V. United States, 405 1932e United States V: Russell 111 U.S. 123
(1973) The ability to invoke this defense. usually labelled "entrapment." depends
entirely on the subjective state of mind of the defendant It "Mocus eston the intent
or predisposition of the defendant to commit the crime. rather than upon the
conduct of the Government agent. Hampton V. United States, 125 U.S. ISI, ISS
(1976). quoting United States V, Russell, 411 U.S. 120 1972 The public policy
behind the defense is clear enough since the entrapped defendant is not predisposed
to commit the crime, he poses no risk absent the government inducement and
therefore no social purpose is advanced by punishing him As the Court held in
Sherman N. United States:
"The function of law enforcement is the prevention of crime and the apprehen-
sion of criminals Manifestly. that function does not include the manufacturing of
crime. 336 U.S. 360,
Although the Court has made clear that entrarment doctrine is unavailable to a
predisposed defendant. it has suggested a second doctrine protecting even predis-
posed defendants when the government becomes overinvolved in criminal activity
13
or engages in outrageous misconduct See United States V. Russell. 111 U.S. 123.
431-432 (1973): Hampton V. Unites States. 425 U.S. 184. 492-493 date Powell, J.
concurring See also United States V., Archer 16 F2d 670 2nd Cir. 1973; United
States V.- Twigg. ,,45 F.2d 373 Cld Cir. 19781 Unlike entrapment. this second doctrine
is constitutionally based It is premised on the notion that it violates due process to
convict even a guilty defendent by improper government conduct. Although a major-
ity of the Court has been insistent on preserving the possibility of such a claim. see
Hampton N. United States 423 U.S 181. 192-195 Powell J. concurring). it bas
yet to decide a Case where a violation has actually been found. The scope of the
doctrine is therefore uncertain We know only that due process does not bar convies
tion simply because 21 government agent has proposed the criminal activity, see
Hummton V Unites States Supra: or provided an incredient necessary for the
successful completion et the crime. See United States V. Reselt 111 U.S.
II:
When one examines the Attorney General's Guidelines in light of these doctrines,
a number of distu himz problems emerges First it should be obvious that no conduct
authorized by the Gardetines conflicts with the entrapment doctrine No conduct
could conflict with trut dectrine. since the doctrine's applicability turns on the
defendant's predisposition rather than the government conduct However, the
Supreme Court has empousized that its narrow articulation of the entrapment
defense has been distated by separation of powers concerns. See United States V.
Russell 41 U.S. 130. It follows that Congress has a responsibility to
face the entrapment problem and to make an independent judgment In this care.
Congressional action is especially important because although the Guitelines them-
selves may not violate the Court entrapment doctrine, they surely authorize activi-
ty which violates the policies behind that doctrine.
I am particularly cancerned that the Guidelines appear to permit the FBI to
dangle substantial movements before wholly innecent citizens suspected of no
wronedoing and unlikele ever to be invoived in crimes Under the guise of crime
prevention, such operations are certain to entrap non-predisposed citizens and
create crime which otherwise would not occur. Indeed there is no need to speculate
about this possibility. We know from newpaper accounts, for example. that during
the Abscam operation. the government offered substantial inducements to members
of Congress who not only were not predisposed 1xx accept them. but indignantly
rejected them. Moreover, one district court judge has already dismissed an Abscam
prosecution on the ground that the defendant was entrapped as a matter of law. See
United States V. Junneth
F. Supp.
(No: No-166, Nov. 26. 1980L
This risk of entrapment is created by the failure of the Guidelines to limit the
offering of inducements to those reasonably suspected of criminal activity. Indeed.
the Guidelines specifically provide that. with the Director's authorization. induce-
ments may be offered despite the absence of any "reasonable indication that
the subject is engaging. has engaged. [or] is likely to engage in illegal activity of a
similar type." Worse still. the guidelines seem to permit the Director to authorize
operations despite the absence of Treason for believing that persons drawn to the
[illegal] opportunity. and brought to it. are predisposed to engage in the contemplat-
ed illegal activity.
The risk of entrapment is reduced. but not eliminated. by the Guidelines' insis-
tence that the corrupt nature of the activity be "reasonably clear to potential
suspects and that The nature of any inducement not [be] unjustifiable in view
of the character of the illegal transaction in which the individual is invited to
engage. These are important and commendable safeguards in their own right
which. in my judgment. Congress should codify. There are no substitutes. however.
for restricting the scope of undercover operations. Tempting a subject with an
exersively attractive indocement clearly serves no public purpose since it 18 unlikely
that the subject would ever be forced to face such temptations but for the govern-
ment's intervention Even if the government limits inducements to the "going rate,
however. it may still ensnare harmless subjects since it may be unlikely that the
subject would ever have been approached by a person proposing criminal activity
but for the under cover operation. Indeed. there is an ironic inverse relationship
between the potential harmfulness of a subject and the risk of entrapment: The
more innocent and naive the subject. the less likely he is to know the "going rate
for criminal activity and. therefore, the smaller the inducement which may be
necessary to entrap him.
Moreover, even when the government restricts itself to the market rate for
criminal activity. it inevitably competes with real criminals and. 30, stimulates
crime. Suppose. for example, the government establishes a fencing operation which
purchases stolen goods at market rates. This operation will inevitably compete with
83-566 0 81 2
14
real fences. thereby increasing the price which thieves can e mmand and stimulat-
ing additional burgiaries.
The only way to avoid these effects is to carefully target undercover operations on
subjects for whom there is convincing evidence of predisposition. It is no response to
say that if an operation sweeps too broadly. those caught up in it who are not
predisposed can assert an entrapment defense at trial in the first place, it is simply
a waste of scarce NW enforcement resources to mount broadscale operations which
ensnare those posing little societal risk. More fundamentally. it is 3 myth that the
post hoe assertion of an entrapment detense falls remedies the harm done to an
entrapped defendant. Juries are likely to be skeptical of the defense and may
convict defendants who should be acquitted. Even if the defendant prevatis. his
personal and business dealines are likely to be shattered by the experience And.
most fundamentally, the social subric is inevitably strained by the spectacle of
seemingly law abroing citizens induced to commit crimes. It is worth remembering
that the most righteous amount us is not immune from temptation and that any of
us could fall victim to our our instincts in 11 WATS moment The covernment
simply has no business rand this and purpose/essiv stress-testing the morality of its
citizens. like many soldered with on an assembly line.
III.
When one measures the Guadennes against the Due Process limitations on under
cover operations. the results are even more unseftlind As I have already indicated.
Supreme Court opinions provide attle guidance or to the precise dezree of zovern-
ment involvement in crime which violates Due Process, At a minimum. however,
one would think that the Constitution precludes the government from engazing in
otherwise unlawful activity which causes more carm than it prevents. Unfortunate-
Iv. the Guidelines contain no similar restriction Indeed: several provisions appear
to authorize operations which clearly serve no legitimate law enforcement purpose.
Perhaps the most disturbing aspect of the Guidelines is that they not only fail to
prohibit, but actually authorize government agents to engage in deliberate and
illegal acts of violence for the sole purpose or maintaining credibility with persons
under investigation. Paragraph 10 specifically permits the Director to approve
"otherwise illegal activity involving a significant risk of violence or physical injury
to individuals While Paragraph prohibits undercover employees from encaging
in illegal acts designed to obtain evidence. Paragraph 11+b permits such acts when
necessary Tto establish and maintain credibility or cover with persons associated
with the criminal activity under investigation.
In my judgement. these provisions are unacceptable. For example, SO long as the
approval of proper officials is secured. they would appear to permit government
agents to participate in armed robberies. assaults. or even murders when necessary
to maintain their cover. Our memories of this sort of government abuse are too
fresh to discount the possibility that this authority might someday be used It is
hard to imagine a justification for government participation in criminal acts of this
kind. especially since any prosecution resulting from such an undercover operation
would almost certainly face insurmountable Due Process obstacles. See Hampton V.
United States. 423 U.S. 484. 433-495 (1976) Powell. J. concurring: United States V.
Archer. 186 F. 2d 670 Cir. 1973 It is imperative that the Guidelines be amended
to remove this authority and to expressly prombit government agents from commit-
ting, encouraging. or tolerating illegal acts of violence.
A less serious but still significant defect in the Guidelines is their failure to
prohibit agents from supplying a subject with an item or service necessary for a
criminal scheme but which would be unavailable but for the government participa-
tion. Although Paragraph B di prohibits an exent from engaging in this conduct
without approval of the Undercover Operations Review Committee and an Assistant
Director, the Guidelines appear to confer the power to grant such approval.
Thus far. the Supreme Court has scrupulously avoided upholding the constitution-
ality of this form of government action. In United States V. Russell the Court
rejected a due process attack on a conviction secured after government agents
supplied a crucial ingredient for the manufacture of an illegal substance. However,
the majority carefully noted that the defendant had not claimed that the ingredient
would have been unavailable had the government not provided it. See 111 U.S. at
431.
There is good reason to think that such government conduct runs afoul of the Due
Process limitations on undercover operations. Moreover. whether constitutional or
not. it is difficult to justify as a matter of public policy. It may well be that a
defendant caught by such a ploy is predisposed to commit the crime if given an
opportunity and therefore. cannot claim entrapment. But such a defendant is, by
definition. harmless since the unavailability of a crucial item makes it impossible
15
for him to commit the crime. When the government supplies the item. it is creating
a crime which otherwise would not occur for the sole purpose of prosecuting the
perpetrator. In these days of tight budgets and scarce resources, there are surely
better ways for the FBI to spend its time and money.
IV.
In summary. the Attorney General's Guidelines on FBI Undercover Operations
represent an important first step in controlling the evils associated with this law
enforcement device. It is clear. however. that Congress shares responsibility for
outlawing techniques which risk entrapping inhecent subjects or are otherwise
unacceptable. I believe that Congress should exercise that responsibility by codifying
the Guidelines and providing that their violation should he a defense to any result-
ing criminal prosecution. Moreover, it is imperative that the Guidelines be modified
to prohibit the offering of inducements to subjects not reasonably suspected of
criminal activity, har government agents from committing, encouraging. or tolerat-
ing criminal acts of violence: and outlaw the practice of supplying a subject with an
item or service necessary for a crume but which would not otherwise be available.
TESTIMONY OF PROF. LOUIS SEIDMAN, GEORGETOWN LAW
CENTER
Mr. SEIDMAN. Thank you. Mr. Chairman.
Mr. Chairman, members of the subcommittee, I would like to
start by thanking you for having me here today and giving me an
opportunity to express my views on the Attorney General's guide-
lines. I think I should start by suggesting there are two limitations
on what I intend to say. First. since Professor Stone has spoken
quite comprehensively on the issue of privacy raised by undercover
operations, I do not intend to address that issue, but rather to
restrict my remarks to comments about the problem of entrap-
ment.
Second, I do not pretend to be an expert on any particular
undercover operation. and I therefore do not intend to express an
opinion as to the legality or propriety of any particular operation. I
intend, rather. to address the problem more generically.
In general, I think that the Attorney General's guidelines repre-
sent a constructive first effort toward controlling and regularizing
this obviously important. but nonetheless in some cases troubling,
mode of law enforcement. In particular. I think that the efforts to
regularize the decisionmaking process and to fix responsibility for
that decision, once made. are commendable.
Let me say in that regard. I think I agree with Congressman
Hvde's remarks that allowing political officials to approve certain
kinds of operations does. indeed, pose a significant risk. And. as I
will indicate later, I think that therefore. efforts have to be made
to control the kinds of operations that they can approve.
But I think also, Congressman, in the long run we are better
being able to fix the decision someplace. and being able to say that
someone in the chain of command is taking responsibility for
making the decisions. I also think the guidelines are important in
that they impose some significant limits on operations where the
benefits of the operation are outweighed by the risks, or where
indeed there are very little in the way of benefits to be obtained at
all.
Unfortunately, however, the guidelines also appear to authorize
some conduct which is probably illegal, and other conduct, which
in my judgment is surely unwise. The Supreme Court authority in
this area not only permits, but indeed positively invites congres-
16
sional activity in this area; and I believe that Congress should
accept this invitation by codifying those portions of the guidelines
which are wise, and by modifying those parts which are not.
To get to the proble n of entrapment. then. the entrapment de-
fense really began with the serpent's sting operation in the Garden
of Eden. It poses one of the fundamental dilemmas in the criminal
law.
On the one hand. the Government has an obvious and important
interest in catching and isolating dangerous criminals before they
inflict irreparable harm on society. And yet, on the other hand. if
governme nt acts too precipitously. it is likely to ensnare innocent
as well as guilty subjects.
The dilemma becomes particularly acute when the police at-
tempt to trigger a crime by going undercover and offering induce-
ments. since the same inducement which is essential to eatch a
potential criminal also bears the possibility of producing crimes
which otherwise would not have occurred.
Now. the Supreme Court has responded to that dilemma by
developing two interrelated doctrines. First. the court has read
criminal statutes implicitly to exculpate a defendant when. in the
words of the court. "the Government plays on the weaknesses of an
innocent party and beguiles him into commiting crimes which he
otherwise would not have attempted.
That defense, which is somewhat confusingly called the entrap-
ment defense. depends entirely upon the subjective state of mind of
the defendant. The question is simply whether the defendant was
predisposed to commit the crime.
Although the entrapment defense is unavailable to a predisposed
defendant. there is a second doctrine which protects even a defend-
ant who is predisposed when the Government becomes overin-
volved in criminal activity, or engages in some form of outrageous
misconduct. That second doctrine. which is constitutionally based,
focuses not on the state of mind of the defendant, but on what the
Government has done. It is premised on the notion that it violates
due process to convict even a guilty defendant by imp roper Govern-
ment conduct.
Although a majority of the court has been insistent on preserv-
ing the second, constitutionally based claim, it has yet to actually
decide a case where a violation has been found: and we are, there-
fore, left somewhat in the dark as to what precisely the scope of
that second doctrine is.
When one examines the Attorney General's guidelines in light of
these doctrines, a number of disturbing problems emerge. First, it
should be obvious that no conduct authorized by the guidelines
conflicts with the statutory construction aspect of the entrapment
doctrine. No conduct could conflict with that portion of the doc-
trine. since the doctrine's applicability turns on the defendant's
predisposition, rather than the Government conduct
However. the Supreme Court has emphasized that its narrow
articulation of the entrapment defense has been dictated by a
separation of the powers concern and it seems to me that Congress
has a responsibility to face the entrapment problem and make an
independent judgment.
17
In this case, congressional action is especially important because,
although the guidelines themselves may not violate the Court en-
trapment doctrine, they surely authorize activity which violates
the policies behind that doctrine. In that regard, I am particularly
concerned that the guidelines appear to permit the FBI to dangle
substantial inducements before wholly innocent citizens suspected
of no wrongdoing and unlikely ever to be involved in a criminal
activity.
Under the guise of crime prevention. such operations are certain
to entrap nonpredisposed citizens and create crime which otherwise
simply would not have occurred. Indeed. we have no need to specu-
late about this possibility. We know from newspaper accounts, for
example. that in the so-called Abscam operation. the Government
offered substantial inducements to some Members of Congress who
not only were not predisposed to accept them, but who indignantly
rejected them.
Furthermore, one district court judge-as I am sure you know-
has already dismissed one of the Abscam prosecutions alleging that
the defendant was entrapped as a matter of law.
I think that this risk of entrapment is created by the failure of
the guidelines to limit the offering of inducements to those who are
reasonably suspected of criminal activity. Indeed. the guidelines
specifically provide that. with the Director's authorization. induce-
ments may be offered despite the absence of any reasonable indica-
tion that the suspect is engaging, has engaged. or is likely to
engage in lilegal activity of a similar type. Worse still. the guide-
lines seem to permit the Director to authorize operations despite
the absence of reason for beliving that persons drawn to the illegal
opportunity and brought to it. are predisposed to engage in the
contemplated illegal activity.
The risk of entrapment is reduced. but not eliminated, by the
guidelines insistence that the corrupt nature of the activity be
made reasonably clear to the suspect. and that the nature of the
inducement not be unjustifiable, in view of the nature of the illegal
transaction.
Inese are important and commendable safeguards, which are
defensible in their own right and which, in my judgment, Congress
ought to codify. They are not substitutes, however, for restricting
the scope of undercover operations. Tempting a subject with an
excessively attractive inducement really serves no public purpose,
if it is unlikely the suspect would ever be forced to face such a
temptation but for the Government's intervention. Even if the
Government limits the inducement to the so-called going rate. how-
ever it may still ensnare harmless suspects. since it may be unlike-
ly that the suspect would ever be approached by a person proposing
criminal activity, but for the existence of the undercover operation.
In fact. there is an ironic inverse relationship between the poten-
tial harmfulness of the suspect and the risk of entrapment. The
more innocent and naive a subject is, the less likely he is to know
what the going rate is.
Mr. HYDE May I interrupt you there?
Mr. SEIDMAN. Certainly, Congressman.
Mr. HYDE. Because I will lose the thought if I don't. A fascinat-
ing poll might be taken of every Member of Congress as to whether
18
or not they have ever been offered $500 to get someone in from
India, to introduce a private bill. I daresay, most have. And you
made the statement that this crime would have been committed
but for.
If you talking $500 or talking $25,000 or $200,000, I grant you
it's a whole different circumstance. You don't get offered $200,000.
But I think it would be fascinating to find out from a goodly
representative number of Congressmen from all over the country-
not just New Jersey-how many have been offered. and not neces-
sarily in an overtly criminal way, but you know-a campaign
contribution that is so close.y tied in with helping to get this
person in-might be very relevant in ins of whether this might
have happened. but for.
Mr. SEIDMAN. Yes: I think your point is very well taken, Con-
gressman. and obviously that is an area in which you have much
more expertise than I do.
Mr. HYDE. Well, I can tell you that I have been made uncomfort-
able by people wanting to make a contribution, very close to a
request for-and it was quite obvious. and of course I rejected it
out of hand. But 1 daresay it's happened with a lot of Members.
Professor SEIDMAN, I certainly would not want to quarrel with
that. That was indeed why I indicated, at the outset, that I wanted
to avoid. to the extent that I could. commenting on the legality of a
particular operation.
My point is simply that if an inducement is a type which is
unlikely to have been offered 16 an individual-
Mr. HYDE. Meaning the amount of money?
Professor SEIDMAN. Not just the amount. but also the possibility.
It strikes me as conceivable. for example, that there may be an
individual who has such a high reputation that no one would ever
conceive of approaching that person to engage in illegal activity.
And if that were true, and if there were no real possibility of its
ever happening, then it seems to me to be pointless for the Govern-
ment to come in and approach that person.
Now, it may be-what you saying, I suppose, is that this sort
of thing is so common that there may be no such person. And if
that were true, that would certainly impact on the legality and
wisdom of the operation.
Mr. HYDE. It would be interesting to find out. And. of course, in
New Jersey there was a former Congressman who was convicted
for taking money through these private bills. Private bills are
really the source of the problem.
Professor SEIDMAN. I'm sure you're right.
Mr. HYDE. Anyway, I'm sorry for the interruption. I just thought
I would forget it, if I didn't. Thank you.
Professor SEIDMAN. In my judgment, really the only way to avoid
the risks that we're talking about is to try to carefully target the
undercover operation. in much the way that Congressman Hyde
suggests--in areas and on subjects where there is some convincing
evidence of a risk of the crime occurring, and a predisposition.
And I don't think it's any response to say that if an operation
sweeps too broadly, those caught up in it. who were not predis-
posed, can assert an entrapment defense at the trial.
19
In the first place, it is simply a waste of scarce law enforcement
resources to mount broad-scale operations which ensnare those
posing little societal risk. There is no point to it.
But, more fundamentally, I think it is a myth that the post hoc
assertion of an entrapment defense fully remedies the harm done
to an entrapped defendant.
Juries are likely to be sceptical of the defense, and may convict
defendants who should be acquitted. Even if the defendant prevails,
his personal and business dealings are likely to be shattered by the
experience-for no purpose.
And. most fundamentally, I think the social fabric is inevitably
strained by the spectacle of a seemingly law-abiding citizen induced
to commit crimes.
It is worth remembering that the most righteous among us is not
immune from temptation, and that any of us could fall victim to
our baser instincts, in a weak moment.
The fundamental point is that the Government simply has no
business randomly and purposelessly stress testing the morality of
its citizens, like so many soldered joints on an assembly line.
When one measures the guidelines against the second part of the
test-the due process limitations on undercover operations-I think
the results are even more unsettling.
As I have already indicated, the Supreme Court opinions provide
little guidance as to the precise degree of Government involvement
in crime which violates due process. But. at a minimum. one would
think that the Constitution precludes the Government from engag-
ing in otherwise unlawful activity, which causes more harm than it
prevents.
Unfortunately. the guidelines contain no similar restrictions.
And. indeed, I think the guidelines are ambiguous and can be read
in different ways.
Several provisions appear to authorize operations which clearly
serve no legitimate law enforcement purpose.
Perhaps the most disturbing aspect of the guidelines is that they
not only fail to prohibit, but actually appear to authorize, Govern-
ment agents to participate in deliberate and illegal acts which run
a significant risk of violence. And that for the sole purpose of
maintaining the credibility of the agent who has the persons under
investigation.
In my judgment, those provisions are simply and flatly unaccept-
able.
For example, so long as the approval of the proper official is
secured, they would appear to permit Government agents to par-
ticipate in schemes involving risks of armed robberies. assaults,
and murders-when necessary for the agents to maintain their
cover.
And, as Congressman Hyde suggested in his opening remarks, I
think that when this power is vested in political appointees, the
risk is particularly severe.
Our memories of that sort of Government abuse are too fresh to
discount the possibility that this authority might some day be used.
It is hard to imagine a justification for Government participation
in criminal acts of that kind.
Mr. EDWARDS. May I interrupt, at this point, Professor Seidman?
20
Just because illegal conduct would be authorized at a higher
level in the police action-whether it be the FBI or some other
police organization-you're not stating that it would be a defense
in a criminal trial of the offending officer or informant?
Professor SEIDMAN. I don't have an opinion on that, because I
haven't studied it.
I think there would be complex supremacy clause problems. at
least if there were Federal statutory authority. for the person to
engage in the conduct.
In any event, it seems to me that it's simply indefensible to allow
Government agents to engage in that conduct: and it becomes more
indefensible still. if it were to turn out that the conduct that the
Federal Government was authorizing was a violation of State
criminal statutes.
I don't think that the Federal Government ought to be in the
business of authorizing its agents to go around violating State laws
against things like armed robbery and murder. I just don't see the
justification.
Mr. EDWARDS. That's an interesting question.
If the informant was authorized to institute a burglary, and was
arrested by the local police, what would happen when he was
brought before the local magistrate and had a trial by jury?
Professor SEIDMAN. It is interesting.
Mr. EDWARDS. I'm sure it would be offered as it defense. But
whether or not it would stand up is something else. We really don't
know? Do we?
Professor SEIDMAN. I'm simply not prepared to speak to that
point, Mr. Chairman.
It's an interesting constitutional question that I would not want
to address without having done some more reading than I have
done to prepare for today.
A less serious, but still significant, defect in the guidelines. I
think, is their failure to prohibit an agent from supplying a subject
with an item or a service which is necessary for a criminal scheme,
but which is unavailable but for the Government's participation.
There is good reason to think that such Government conduct
runs afoul of the due process limitation on undercover operations.
But whether it is constitutionally prohibited or not. it's simply
difficult to justify, as a matter of public policy.
It may well be that the defendant caught by such a ploy is
predisposed to commit the crime if given the opportunity: and,
therefore, cannot claim an entrapment defense. But such a defend-
ant is, by definition. harmless since the unavailability of a crucial
item makes it impossible for him to commit the crime, but for the
Government supplying it to him.
When the Government supplies the item, it is therefore creating
the crime which otherwise would not occur, for the sole purpose of
prosecuting the perpetrator, which in these days of tight budgets
and scarce resources, seems to me to be a rather foolish way for
the FBI to be spending its time and money.
In summary, then, the Attorney General's guidelines on FBI
undercover operations, I think, represent an important first step in
this controversial and significant area.
21
It's clear. however. that the Congress shares responsibility for
outlawing techniques which risk attracting innocent subjects. or
are otherwise unacceptable.
I believe that Congress should exercise that responsibility. by
codifying the guidelines and providing that their violation should
be a defense in a resulting criminal prosecution.
Moreover, it is imperative that the guidelines be modified: To
prohibit the offering of inducements to subjects not reasonably
suspected of criminal activity: to bar Government agents from
committing. encouraging, or tolerating criminal acts of violence:
and to outlaw the practice of supplying a subject with an item or
service necessary for a crime, but which would not otherwise be
available.
Thank you, very much.
Mr. EDWARDS. Thank you very much. Professor Seidman.
The gentleman from Illinois, Mr. Hyde.
Mr. HADE Thank you.
Professor Seidman, you suggest that in order to avoid entrap-
ment, there should be evidence of predisposition before induce-
ments are offered.
Do you suggest, then. that you favor the subjective approach to
the doctrine of entrapment. that the focus ought to be on the state
of mind of the target. rather than the behavior of the police?
Professor SEIDMAN. Well, Congressman, i was speaking in the
context of present Supreme Court doctrine. rather than suggesting
how I would change it. if 1 could.
My point was that presently the Court has adopted essentially a
subjective approach. although they have reserved the possibility of
some objective standard. if the conduct is really outrageous.
And my point is that if the police fail to limit an undercover
operation to people who they have reason is believe are predis-
posed. they will inevitably, under present law. entrap some people
who are not predisposed, under a subjective approach.
Mr. HYDE. Precisposed to this particular crime? Or to criminality
in general?
Professor SEIDMAN. Well, I think it would be to this particular
crime, sir.
Mr. HYDE. In a recent reversal of the usual procedure, the Dis-
trict of Columbia undercover police have begun selling illegal drugs
on the street, and arresting buyers.
In this situation. there may have been probable cause. But not
any evidence, necessarily. of predisposition.
In your opinion, does this go over the edge of entrapment?
Professor SEIDMAN. I think a program like that-any program
that is broadly based, raises very serious problems.
One of the problems that it raises is that it makes crime pay
more, because when the Government goes into competition with
real criminals, the effect that has is to drive up the price that
criminals can command for their criminal activity; and, thereby, to
induce more people to commit crimes.
Mr. HYDE. On the other hand. if the buver never knows who he
is buying from, that might have a very anticompetitive effect, very
discouraging. "Chilling," I believe the preferred phrase is.
Professor SEIDMAN. You're absolutely right about that.
22
And what I think is necessary to do is to strike some sort of
balance. There's no doubt that undercover operations serve a
useful deterrent effect, in that they make criminals think twice
about whether they' dealing with a Government agent.
The question is whether we are willing to buy. that effect at the
price of perhaps. increasing the total amount of crime and perhaps
ending up punishing some people who are completely innocent and
who would never have been involved in crime, but for the Govern-
ment activity.
Mr. HYDE. Well. selling drugs en the street corner doesn't really
pose that situation that you have just described. I mean, someone
coming up to buy drugs from you. you can say they wouldn't have
committed a crime, I suppose. b for your being there.
Well, each depends on the situa ion, 1 suppose.
Professor SEIDMAN. That's exactly right.
It really is fact specific. It depends on whether there were other
people around who would have sold the drugs, for example.
Mr. HYDE. OK.
One question for Professor Stone. What is your proposal for a
limited probable cause standard?
Where does this proposal place the decisionmaking? Is it a stand-
ard for judicial warrant? Or does it mean that the FBI headquar-
ters must make the decision as to whether probable cause is
present?
If the latter. why not the former?
Professor STONE. Well, I think the probable cause decision should
always be located somewhere other than in the hands of the per-
sons who are intimately involved in the process of investigation.
It's a cliche by now that participants in the law enforcement
process ideally should not themselves make such determinations.
They're simply not likely to be dispassionate, objective, unbiased
decisienmakers.
On the other hand, I would think it preferable to have a prob-
able cause standard administered within the Bureau, rather than
not to have such a standard at all. That would certainly be better
than nothing.
Mr. HYDE. You could see a workable arrangement where, say,
we're talking about the FBI as distinguished from some local sher-
iff's office. But let's even assume the highest placed people within
the framework, the most responsible people, the ones who are
accountable to maybe the highest political authority, could make
this decision as distinguished. from the cop on the beat or the--
Professor STONE Again, the question is clear. The further you
move-
Mr. HYDE [continuing]. Rather than somebody outside.
Professor STONE. The further you move from the person who is
personally involved in the investigation-who has a vested interest
in "catching" the particular suspect-the more reliable the deter-
mination is likely to be.
Mr. HYDE. But you don't think it's the greatest idea in the world
to have the U.S. attorney make these decision. or do you?
Professor STONE. I think there are at least two possible difficul-
ties with that. First. the U.S. attorney is a participant with some
vested interest in the investigative process. And second, I think
%
there may also be concerns, as you suggest. about the neutrality of
U.S. attorneys. It would thus be preferable for these decisions to be
taken out of the hands of either the Bureau or the U.S. attorney
and put it in the hands of the judiciary. And I see no reason why
there should be any particular obstacle, assuming a probable cause
standard is otherwise thought to be desirable. to having the judici-
ary handle this. There is no obvious reason. for example, why the
difficulties would be any greater than those encountered in admin-
istering the warrant requirement for ordinary searches, wiretaps.
or electronic buggings.
Mr. HYDE I take it you in RIVOR of judges working harder and
longer hours. and i agree.
Professor STONE I'm all in favor of that
Mr. HYDE. Thank you.
Mr. EDWARDS. The gentleman from Wisconsin. Mr.
Sensenbrenner.
Mr. SENSENBRENNER. Coming down to specific cases. the most
notorious in the eyes of some is the FBEs Abseam operation. Can
you give us your opinion on what the guidelines will do, from what
we read about Abseam in the paper?
Professor STONE I would be reluctant to do that. My knowledge
of Abscam is sketchy, based solely upon what I have read in the
newspapers. and I'm not sure that's an adequate basis for that kind
of judgment. I would prefer not to attempt to answer that question
without having a more definite set of facts stated-either actual
facts or hypothetical facts.
Mr. SENSENBRENNER. Well, assumir If for the sake of argument
that none of our departed colleagues committed a crime until he
started working with the FBI's undercover agent, Mr. Weinburg. do
you think that these guidelines would have prohibited that activity
so that the Abscam would have died aborning?
Professor STONE These guidelines I think probably would not
have prohibited Abscam. although again I must qualify that by
saying I'm not aware of all of the facts of all the different investi-
gations.
Mr. SENSENBRENNER. There may have been a predilection to
commit some crime on the part of the Congressmen that got in-
volved, but there certainly was no probable cause to bélieve that a
crime might have been committed until they had been in contact
with either FBI agents or people who are out on the FBI payrolls.
Professor STONE That's right. These guidelines do not require
probable cause.
Professor SEIDMAN If I could comment briefly on that question.
Congressman. I also don't want to get involved in the specifics of
the Abscam operation. but what the guidelines clearly permit is
the dangling of very substantial inducements before Members of
Congress, who are unlikely to be involved in criminal activity, and
that's what I find to be troubling, because they run the risk of
leading a Member of Congress into a crime where it would be very
unlikely but for the Government operation that that person would
have been anything other than an effective and outstanding public
servant.
Mr. SENSENBRENNER. I have no further questions.
24
Mr. EDWARDS. A number of years ago, this subcommittee worked
with the FBI and the Department of Justice on the FBI's domestic
security program. and we had an interesting dialog that went on
for many, many months. Eventually Attorney General Levi pro-
mulgated guidelines with respect to domestic security cases that
really estaolished a criminal standard and the same type of higher
supervision that these guidelines provide for. where you have to
get permission after a certain number of days. and if not, you 20 to
a higher level and so forth. So there is a sort of a paper protection.
100. in the domestic security guidelines. However. I'm not absolute-
ly sure either of the witnesses are acquainted with them.
Those guidelines are very emphatic that for the investigation to
continue. there must be the almost immediate danger that a crime
is about to be committed or somebody is going to get hurt. some-
thing like that. and then the guideline provides for the investiga-
tion to be called off after a certain number of days if this is not
established.
Now, these guidelines are much more benevolent to the police
organization: isn't that correct?
Professor SEIDMAN. That's correct. Congressman.
Mr. EDWARDS. In other words. it can gc on for 2 or 3 years
without any evidence that criminal activity is about to take place.
Professor STONE They don't. however, modify the Levi guide-
lines. Indeed. they specifically state that in the context of domestic
security cases, the Levi guidelines are to remain in effect. What
the new guidelines do is to preserve the Levi guidelines with re-
spect to domestic security investigations and adopt somewhat dif-
ferent and less restrictive rules with respect to nondomestic, ordi-
nary criminal investigations.
The Levi guidelines. by the way, do require something akin to
probable cause for the use of undercover investigations of political
organizations. Basically they require a showing of specific and
articulable facts giving reason to believe that the individual or
organization is engaged in unlawful activity.
Mr. EDWARDS. And it does require a series of writings from the
officer to a superior and to others in the chain of authority. which
I think is important.
Mr. Hyde?
Mr. HYDE. I think it's worth noting that Pulitzer Prizes have
been won by newspaper people going undercover. setting up their
own Abscam operations. I can think of a couple in Chicago that
have been very successful. lauded by everybody as a great contribu-
tion to the commonwealth. So are we setting up one standard for
media people-the people's right to know. which is an overarching
right over and above everything? The Constitution really doesn' t
apply to a media person, but to a polic man who may be trying to
root out criminality, not for a Pulitzer Prize, but to do their duty?
I have trouble, and it's in an inarticulate way about the special
place that we give media people for this very thing
Professor STONE The investigation you re referring to in Chicago.
the Mirage Bar investigation. is consistent with the proposal I
suggest. In that instance, reporters working in the bar offered
bribes to government building inspectors. This type of investigation
25
falls bevond the realm 0° what I suggested should be covered by the
probable cause requirement.
To the extent that the media engage in more intrusive types of
investigation. they too might pose serious questions. But I think it
mistake too easily to equate the dangers posed by intrusions into
privacy by government and superficially similar intrusions by
other elements of society.
For one thing. the resources available 10 the Government are far
greater, and therefore the potential ability to intrude upon privncy
is far more pervasive. Moreover, the incentive of the Government
to gather information for "law enforcement pu DOSCS is quite dif-
ferent from the incentives motivating the press. The Government is
more likely to be interested in wide-scale information gathering.
Mr. HYDE. There surely are differences. and they surely aren't
fungible. But there is a double standard that troubles me.
Professor SEIDMAN. If I could just have a word on that point,
Congressman. 1 think even the most fervent defender of the first
amendment would not claim that the media ought to have the
right to engage in illegal conduct or acts of violence of the kind
that may be authorized by these guidelines, on one reading of them
on the part of government agents.
Mr. HYDE. Yes. I agree with you. It's an undercover- it spying,
you know. operation, but when you own a bar in Old Town and
electrical inspectors are coming through-I won't say any more.
Probable cause certainly rings a bell.
Mr. EDWARDS. Gentlemen. I don't think that it's happened in our
country-surely we all hope it doesn't-where, as you point out on
page seven of your testimony, Professor Seidman, police, whether
they're Federal or State or local. randomly just go around all our
cities and stop people on the street and offer people bribes or offer
them money or try to sell them drugs or anything.
Wouldn't you agree that it would produce serious damage to the
fabrie of our society if we approved that sort of thing. even though
a lot of people would be arrested?
Professor SEIDMAN. I think that's right, "Congressman. There's no
legitimate purpose served by conducting little tests of the morality
of people. It's hard enough with the tests that people have to
contend with in the real world without government making it
harder still for people to walk the straight and narrow.
Mr. EDWARDS. It would be especially hard on young people, high
school students.
Professor SEIDMAN. Yes.
Mr. EDWARDS Mr. Hyde. any more questions?
Mr. HYDE. No. 1 was just thinking. Public officials do not fall
under that protective umbrella. They are always to be tested for
moral defects. it seems to me.
Mr. EDWARDS. Well, I think you and I will agree we should be
held responsible to a very high standard.
Mr. HYDE Exactly. People expect more from us and do not
always get it.
Mr. EDWARDS. Counsel.
Ms. COOPER. Professor Seidman, I would like to turn to the
question of what constitutes governmental overreaching and a vio-
lation of the due process doctrine in this context. Would an under-
26
cover operation that is premised on a kind of a theory-
where there is no evidence of predisposition-but a-target IS never-
theless offered an inducement, is that. in your opinion. in itself a
governmental overreaching?
Professor SEIDMAN. Well. without directly answering your ques-
tion as to what my opinion is, I think that the Supreme Court
authority is relatively clear that the mere offering of inducement
without probable cause, does not violate due process: The Court
hasn't told us precisely what does violate due process, but I think
it's pretty clear that does not.
Ms. COOPER. Well, it seems that the case law is not clear as to
the parameters of what constitutes governmental overreaching. In
your opinion. can the guidelines fill that void?
Professor SEIDMAN I think it's particularly important that they
fill the void. because of the unclearness of the case law. And I
might add. one of the reasons why the case law is unclear is
because the Court has said repeatedly that it's not our job to decide
questions of policy about law enforcement. that's Congress job, and
it would be wrong, therefore. for Congress now to turn around and
say "We're not going to do anything about this. because the Court
has settled it." The buck has to stop someplace: and I think it's
Congress responsibility to make the hard judgment about what
kind of law enforcement techniques are permissible and what kind
are not.
Ms. COOPER. In a sense, the guidelines do point out dangers that
high-level people within the Bureau or the Justice Department
must consider before they approve undercover operations in certain
circumstance. The guidelines seem to be based on the premise that
the higher you go in the bureaucracy. the more responsible will be
the decisionmaking. Do you agree with that premise?
Professor SEIDMAN. Well, I think it's an important first step to
fix responsibility someplace, and in some visible place, for author-
izing these pregrams. The worst situation is where a questionable
program is authorized. and then after the fact. when it comes out.
you're never quite sure where along the chain of, command it
began, and you have a situation where some low-level subordinate
is ultimately held responsible. I think the guidelines take a step in
the right direction by saving that there has to be. as the chairman
said, a paper record. and there has to be approval someplace close
to the top.
On the other hand. I don't think that anybody ought to have the
authority to authorize certain kinds of programs. When you re
dealing with that kind of a program. there is a substantial risk
that giving the authorization power to someone in a political posi-
tion will someday lead to authorization being given for unaccepta-
ble reasons.
Ms. COOPER. There's also a danger that the people at the top
have the least information, and by the time evidence filters up to
the top, it's primarily conclusory. The people at the top are not in a
position to test the credibility of the evidence they re getting about
facts of the case.
Should the guidelines themselves mandate the kind and quality
of factual basis that must be presented to the decisionmakers?
Professor SEIDMAN. I think that's a useful suggestion, counsel.
27
Professor STONE. It seems to me important to understand the
intent of the guidelines internal review process. As I understand
them. at the lowest level. there must be an approval and recom-
mendation that the operation be undertaken. before further ap-
proval is sought from a higher level. Approval from levels higher
up in the Bureau is thus an added protection against the unjusti-
fied use of an undercover operation. Without those higher levels of
review. presumably all the same operations would be conducted.
and at least some additional ones as well.
Ms. COOPER. The question is. Are people at the higher levels in a
position to do anything other than rubberstamp the earlier deci-
sions?
Professor Stone, you concluded that not all undercover oper-
ations should be predicated upon a finding of probable cause.
Would you make the same exception for other kinds of techniques
that now do require probable cause. for example. wiretaps?
Professor STONE No.
Ms. COOPER. Why do you make the distinction?
Professor STONE The degree of intrusiveness of undercover oper-
ations varies with the nature of the circumstances. For example,
simply to offer a municipal building inspector $5 not to write up a
violation, does not seem to involve any appreciable intrusion upon
privacy.
Ms. COOPER. Well, what if a wiretan was designed solely to find
out whether the person is going to accept the bribe?
Professor STONE It is much more difficult to do. because you
don't know what the people are going to say. The conventional
wiretap issue does not involve the direct participation of a Govern-
ment official in the conversation. Ordinarily, the Government is
tapping conversations between two private individuals. neither of
whom has approved the wiretap. Therefore, the information re-
ceived is wholly outside the Government's control. There's no
reason to believe it will be limited to essentially unintrusive items
of information. In the undercover situation, however, one of the
participants is an agent of the Government. and therefore, to some
extent at least. the Go ernment retains the ability to structure the
situation in such a way as to keep it reasonably unintrusive.
There's no guarantee it will always stav unintrusive. but at least
that potential is present.
Ms. COOPER. Would you agree, Professor Seidman. that some. but
not all. undercover operations ought 10 be subject to the probable
cause requirement?
Professor SEIDMAN. I feund Professor Stone's exposition rather
convincing. I have to say, though I did not come here prepared to
talk about the privacy aspect of this. and I. therefore, would be
reluctant to give my final opinion on the subject.
Ms. COOPER. What is the practical difference between having a
standard of not approaching anyone who has a predisposition
versus not initiating an undercover operation unless there's prob-
ably cause?
Professor STONE. There's a definite overlap between the two. To
the extent Professor Seidman's view on predisposition is adopted. it
would. to some extent. require something akin to probable cause,
even in those circumstances which would not require such a show-
ing for privacy reasons alone. That's largely because there are two
different types of interests at stake-the interest in privacy and
the interest in not being offered participation in a criminal trans-
action without justification.
Mr. EDWARDS. We welcome the gentleman from Wisconsin, Mr.
Kastenmeier. Any questions?
Mr. KASTENMEIER. Thank you, Mr. Chairman. 1 think I have only
one. I compliment the chairman and the staff and these witnesses.
We are dealing with a very complex and difficult subject:
My question is a general one. in terms of the use of informants
in undercover operations, How does the present state of affairs
with respect to the Federal Bureau of Investigation differ from or
resemble undercover operations on the State and the local level? In
terms of developing some rational and reasonable restrictions. are
we way ahead at the Federal level? Have other States proceeded
with models with which we might care to compare these proposed
guidelines?
Professor STONE To the best of my knowledge the proposed
guidelines are. I suspect. as progressive a response to the problem
as one would find anywhere. Perhaps the only exception would be
the ordinance enacted in Seattle, which adopted important restrie-
tions on several facets of undercover investigations.
Mr. KASTENMEIER. In terms of legal complications and in terms
of the use of these particular practices, is this something which has
mushroomed in the recent past and recently come to a head, or
have we always had substantial activities in the field, largely
unregulated. except by an occasional case before some court, to test
the peace powers?
Professor STONE The use of undercover operations has expanded
dramatically over the past several decades. Undercover operations
are especially effective, as Director Webster and Mr. Heyman indi-
cated last March, in the investigation of "consensual" crimes. In
the past few decades. Government has increasingly criminalized
various types of behavior falling within that general category.
Laws involving narcotics. racketeering, public corruption, and
taxes are only a few examples. As a consequence, the use of under-
cover operations has mushroomed, This is true at the local as well
as at the Federal level.
Thank you. Thank you. Mr. Chairman.
Mr. EDWARDS. Mr. Bovd?
Mr. BOYD. Professor Stone. how would you like to see the FBI
respond to the circumstance in which one of its paid informants
reports that certain public officials are willing to introduce and.
supervise the passage of legislation in exchan for $50,000?
Professor STONE. Wisely. More specifically, they should take the
information to a judicial officer and obtain a warrant to engage in
a full-scale undercover investigation.
Mr. BOYD. So you are suggesting that it's probable cause?
Professor STONE. I'm assuming that the informant's information
is reliable.
Mr. BOYD. or course.
Professor STONE. Sure. Certainly.
Mr. Boyd. No further questions.
29
Mr. EDWARDS. One of the problems, obviously, is the auditing
and controlling of not only the informant but the undercover oper-
ation, whoever he or she may be. Great damage might be done to
innocent people by these people who sometimes are criminals
themselves being authorized and sent out into society by the police
organization. How do you think that they should be audited or
controlled. or should there be a careful auditing by the supervisors
of the police organization or the FBI?
Professor SEIDMAN Well. I think SO. Mr. Edwards. In that
regard. it seems to me one of the ironic aspects of Professor Hey-
man's testimony before this committee last year was that he de-
fended the Abscam operation. because the Government had not
made a selection of the people to approach, but rather that selee-
tion had been made by the person who was himself criminally
involved. That's doesn't seem to me to be much of a defense.
Surely, in a matter as sensitive as that, there ought to be closer
Government control over which individuals are approached and
how they re approached, and what sort of inducements are ottered
to them.
Mr. EDWARDS. Well. my problem is-that surfaced as a result of
Mr. Kastenmeier's question-that WP really don't have very much
information. because insofar as the FBI is concerned. underenver
operations are a relatively new phenomena. When Mr. Hoover was
the director during the time that 1 was with the Bureau. we didn't
have any of these at all. and SO 1 think that we're going to have to
get a lot more information about what is going on and what has
been going on. Are they a bunch of lawsuits about these operations
and the difficulties that have been encountered by people as a
result of these operations?
We really are in a rather new area, SO far as the Federal Bureau
of Investigation is concerned.
Professor STONE. Under Director Hoover. the vast majority of
undercover operations were in the domestic security area. and the
number of agents or agent informants or confidential sources who
were actively investigating various Communist or supposedly Com-
munist-related groups, was substantial. There was a good deal of
experience with that sort of undercover operation. It was largely in
response to those activities that the guidelines were framed.
Mr. EDWARDS. That's correct. Counsel?
Ms. COOPER. One more question. The sale or purchase of drugs.
for example. or stolen goods by undercover agents is now a rela-
tively commen undercover operation. and the crimes involved there
are, on their face, unambiguous. All the parties realize that they re
engaging in something illegal.
When you get into the more sophisticated crimes, such as corrup-
tion or other white collar-crimes. the line between legitimate and
illegitimate behavior gets a lot fuzzier. As Congressman Hyde was
explaining, there is legal ambiguity arising from the offer of a
bribe or a political contribution in return for a political act when
the understandings are left unstated. but there is a meeting of the
mind. Does that reality suggest that the guidelines themselves
ought to create special precautions. special requirements, when
you're dealing with a substantive crime which, by its nature, is
fuzzy?
83-556 81 3
30
Professor SEIDMAN. Well. I think. counsel, one of the commend-
able aspects of the guidelines is that they do provide that the
undercover agent should make unambiguous and clear the illegal
nature of the conduct to the participant. Fm a little uncertain how
one does that without blowing one's cover. It seems to me it would
require some skill. But I think that is a commendable safeguard.
Ms. COOPER. Suppose that the guidelines were in effect and a
defendant claims that that was not done. It didn't happen. It was
ambiguous. The jury convicts anyway, for whatever reasons. The
appearance of guilt is overwhelming, despite the ambiguity of the
criminality of the offer. Absent codification of these guidelines,
what would be the defense's recourse?
Professor SEIDMAN. Well, that's one of the most unfortunate
aspects of the guidelines. I think They are very clear-the last
sentence says "They are not intended to, do not. and may not be
relied upon to create any rights. substantive or procedural. enforci-
ble at law. by any party in any manner. civil or criminal." And I
think that makes it as clear as it is possible to be. that they re
intended to create no recourse. And one of the useful things that
this subcommittee and Congress as a whole can do. is to make
these guidelines worth something more than the paper they re
written on. by providing that they would be a celense to a criminal
presecution if they were violated.
Professor STONE May I add a related thought. Especially in the
entrapment area. it is terribly important that Congress understand
that it's not in any way, shape. or form bound by the Courts
formulation of entrapment. It's not a constitutional concept. It's
simply a matter of either common law or statutory interpretation.
Rather than attempting to unravel the entrapment doctrine as
formulated by the Court. Congress should rethink the issue anew
and devise its own formulation of entrapment. The Court's ap-
proach should be viewed as merely one form of the defense which
might or might not be accepted by Congress.
Mr. EDWARDS. Thank you. That would be a most satisfactory
solution. but it's not at all likely to take place. That's the real
world. We have a kind of a definition of "entrapment" as enunci-
ated in various court decisions. there has to be, there should be a.
predisposition. and when the Government goes too far. when the
conduct is outrageous, then it's entrapment. Is that about what it
amounts to?
Professor SEIDMAN. That's about it. Congressman.
Mr. EDWARDS. Well. I think the witnesses also would agree that
until the requirement for a warrant for undercover operations is
put into law-and that's very unlikcly-the guidelines at least
ought to require that the higher officials in the FBI that are
approving one extension after another, should have almost the
same kind of information a magistrate would have, the same kind
of proof that a magistrate would require for approval of a warrant;
is that correct?
Professor STONE I would agree with that.
Mr. EDWARDS. Are there any other questions?
[No response.|
Mr. EDWARDS. The testimony of both Professor Seidman and
Professor Stone has been very helpful. We thank you very much
31
for appearing here today, and We are looking forward to communi-
cating in the future.
Thank you.
The next hearing will be held on the 25th of February.
[Whereupon. at 19550 a.m. the hearing was adjourned.)
a
and
/
The and
NW
A
FBI UNDERCOVER GUIDELINES
WEDNESDAY, FEBRUARY 25. 1981
HOUSE OF REPRESENTATIVES.
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS.
COMMITTEE ON THE JUDICIARY,
Washington. D.C.
The subcommittee met at 9:45 a m. in room 9226 of the Rayburn
House Office Building. Hon. Don Edwards chairman of the sub-
committee) presiding.
Present: Representatives Edwards. Kastenmeier. Schroeder,
Washington, Hyde. Lungren, and Sensenbrenner.
Staff present: Janice Cooper. assistant counsel. and Thermas M.
Boyd, associate counsel.
Mr. EDWARDS. The subcommittee will come to order.
Today we continue the subcommittee's examination of FBI un-
dercover operations and the Attorney General's recent guidelines
on that subject. Our witnesses this morning bring a range of expe-
rience and knowledge that will add immeasurably to our under-
standing of the nature of this topic. Prof. Paul Chevigny of New
York University Law School has not only studied the problem from
an academic, legalistic point of view, but also is a practicing attor-
ney who has worked successfully with law enforcement personnel
to devise ways to monitor and control the use of undercover opera-
tives.
Prof. Gary Marx. of the Massachusetts Institute of Technology,
has approached the issues as befits his training as a sociologist. He
has examined numerous undercover operations, and analyzed the
ethical, practical. economic, and social implications of their spread-
ing use. Only this kind of aggregate review of the tactics can
provide the kind of information we need.
Without objection. both full statements will be made a part of
the record.
And before I recognize Professor Marx. who will speak first, I
yield to the distinguished gentleman from Illinois. Mr. Hyde.
Mr. HYDE. Thank you, Mr. Chairman. I have no opening re-
marks.
Mr. EDWARDS. Professor Marx, we welcome you and you may
proceed at your own time.
STATEMENT OF GARY T. MARX. PROFESSOR OF SOCIOLOGY, MIT
Mr. Chairman and members of the subcommittee. I am pleased to be here today
to discuss some of the issues raised by the new police undercover work and their
implications for the proposed FBI charter and guidelines. My concern will be with
some of the broader social and policy issues raised by police undercover work.
Questions of legality are of the utmost importance. but they should not be the only
issues considered. The mere fact that a tactie is legal (and even this is in dispute for
some recent undercover actions). should not be sufficient grounds for its use. Its
ethical. practical, economic, and social implications must also be considered. Nor
633
34
should we be content with guidelines and formal oversight procedures however
important as a first steps, in the absence of enforcement mechanisms and a means
of assessing their effectiveness
The advantages and successes of recent undercover work have been well publi-
cized. Director Webster and Asst. Aur General Hevman mentioned some of these
in their testimony to this Committee last March Without denving these or arguing
that undercover work should be categorically prohibited. I would like to suggest
some possible disadvantages. andres. and casts which have received far less public
attention. T will then suggest a way of categorying types of underciver operations
and activity and SODE general publicy guidelines that flow from this will then other
comments on the cecently released cuidelines the undersever work and call atten-
Don to some issues which are unressived. or in first of further work Finally i will
speculate on what revent underedver work may Unply about the chrosing nature of
social control in America.
As PROBLEMS ASSISTATED WITH UNIVERSIVER POLICE ****
The problems that may be associated WILR undercover work can be usefully
approached by consederation of the mator groups involved 11 Resets el the revests
21 informers and unwitting middlemen. police. and third parties will
then consider SUITH questions which cut across these, dealing with overall offect
riveness and costs and benefits
Some of the problems to be insidered of course may was INSUR with more
conventional police methods. But Mose problems seem more characteristic of under-
SOMET work. because of its special properties and the WIV 11 was recently been
carried out. The discussion which MIDAS is tentative than / would Nae As in
the testimiony last March un the positive astents at undercover work, examples un
this case of negative asplets) will PP given Fee THE cannot Say with much certainty
how frequently, or under what conditions there are likeiv. to occur Given the
sensitivity of the issues involved. and the russ to cherished liberties. our renorance
in these matters is appalling There is a strong need for systematic research and
public discussion into the questions raised by the new police undercover work
The targets, OF subjects of an investigation: to richins of Government truckery
or concern. rather than autoromous criminats-Most critical public attenion has
focused here. The lier legal questions usually are the Did the person violate the
criminal law and 2 was the person predisposed to do this? The fact that the crime
could would not have occured without the government involvement is usually not
considered legally relevant if the person is predisposed. Yet for understanding
causes of behavior and developing guidelines for the use of scarce law enforcement
resources, issues around the behavior of government agents is crucial Furthermore,
where there is chercien, trickery, or a highly seductive temptation, the determina-
tion of predisposition is very difficult. There are also abuses which are independent
of legal guilt or innovence: such 18 invasions of privacy, the use of political criteria
in choosing targets. the USE of leaks to damage a person reputation. and blackmail:
Three common forms of trickery are offering the illegal action as a minor part of
a very attractive socially legitimate goal, hiding OF disguising the illegal nature of
the action. and weakening the capacity of the target to rationally distiniguish right
and wrong. In the first Clise hereb are lured unto the activity on 3 pretext. The goal
put forth is leiral and destrable and the illeginity is secondary Thus in the Philadel-
phia Abseam case the defendants were told that their involvement could bring a
convention center and possibly other investments to the city They were led to
believe that the project would not come to it by did not accept the
money. Judge Fullam. in his ruling on the Philadelphia case of Schwartz and
Jannotte indicates that neither of the defendants asked for money and both indicat-
ed that no payment was necessary Rommie Louds. the first black executive with a
professional sports team. organized the Orlando Florida. franchise in the World
Football League. With the failure of the WFL Loudd went woke A man whom he
did know called and offered him $1 million to reorganize his team. The caller
promised to hring wealthy collegues into the deal However, Loadd initially was told
to losen up the financiers with cocaine Loudd resisted the offer. but eventually
introduced the caller can undercover agent) to two people who sold him cocaine
Loudd. with no previous criminal record. was sentenced to a long prison term. On
tape the agent involved said to nis partner. Two tricked 'him worse than Exe
tricked anybody ever
Ignorance of the law is not an excuse for its violation. However, the situation
seems different when one is led into illegal activities by government agents who
claim that no wrong doing is occurring Here the agent may be both exploiting
ignorance and generating a subterfure.
35
In several Abscam cases defendants were apparently led to believe that they could
make money without having to deliver on any promises. The video-tape from the
Williams case reveals the main informant coaching the fantet in what to say and
almost literally putting words in his mouth You gotta tell num how important you
are, and you gotta tell him in no uncertain terms Without nie. there is no deal. Em
the man whole conna open the doors. I'm the man who's genna do this and use my
influence and I cuarantee this
The Senator is then assured that nothing wrong is happenang It gues no further.
It's all taik: 34 bullshit. It's a walk-through You gottal 24 play and blow your
horn.
Abscam defendants were min that in decordance with the Arab mind and Arab
way of doine business they must convince the investors that they had triends in
high places. The criteria 10 doing this Was that money had No be paid: No commit-
ment to be actually influenced by the payment was required by the undercover
signts. The key element was applicances In several vases the situation was strue-
tured SO that the acceptance of money would be Send the payment for private
consulting survices and not as taking a bribe
A third proble matie area involves theme trickery against people with dimmished
or weakened capacity, such as the mentaliv limited OF suxeriles, and person
under extreme pressure: or in a weakened state additions it state of withdraw
all Such person may be more susceptible to persuasion and - able to distinguish
right from woomk The undercover agent may attempt to yeste, or help alone such
conditions in the target as part of the investigation: In a Any Jersey Abscam case
the target refused the first offer of cash. However, he eventually takes money after
the resource(s) covernment terents (who have concluded that he is an alcoholic give
him liquor
Participation Clay emerge out of lear of that participating rather than the choice.
An element of this seems inherent in certinn take crimmal stuations, or IN Using as
informants those accustomed to using threats of violence to 269 their WSW
For example: two federal airents and a chewicted armed trader became involved in
a gambling and prostitution front in Alaska as part of an interputory plan to eatch
organized crime when it came with the pupelie project They selped finance a bar
which was to 00 the center of the operation and actively with participants for the
scheme. One of the agents posed as the organization's thears muscle -Fand appears
to have played a heavy-handed role in intimidating and prodding some participants
Former Assistant United States Attorney Donald Robinson Was accused of taking
money for information from what he thought were organized crame figures. but who
were actually police involved in a sting He eventually won his case on entrapment
grounds.
Robinson, at first, ignored their approaches. He became involved only after
persistent phone cails. a threatening call DO his wife. and a warning that he might
end up missing When correion is mixed with temptation the incentive to partici-
pate can be very strong.
Recent undercover actions have transformed the Biblical injunction to something
like "lead us into temptation and deliver US from evil." Temptation raises different
issues than correction OF mickery An act is no less legally criminal because it is in
response to if viry attractive temptation. The concern rather is with the assump-
tions on which the tache IS based. a sense of fairness and whether scarce resources
ought to be used in this W.Y.
Defenders of these facties usually make the assumption that the world IN clearly
divided between the crimmal and non-er-minal. It is assumed that providing an
opportunity will not tempt the latter and the former will commit the offense
regardless. Yet this must be questioned. The number of arrests - possible from certain
undercover actions IS simply astounding What happens when widespread, it not
near universal. destre is met with state-provided opper Lumits
In response to a reporter question Al Capone once said something like "lady
when you get down to cases nobody's on the legit." It IS certainly not true that
everyone has their price or can be tempted While imagery of turning on a faucet.
or providing fly paper for thies to stick to is overdrawn. there are certain categories
where undercover tactics can turn up offenses a goodly proportion of the time. This
is the case for sexual encounters. for certain forms of illegatity related to routine inb
performance чещ.. a building inspector taking a bisbe or issuing a permit that
would have been issue I anyways, and the general desire to purchase popular con-
sumer goods inexpensively.
Even if temptations are not offered. must complex artivities, whether of husi-
nesspersons. legislators, or academics have legally areas wherein secret investi-
gations could turn up viclations. Those who get ahead in organizations are often
those who make things happen b. breaking rules and cutting through red tape.
36
Rules are often general, contradictory. and open to varied interpretations. As those
in law enforcement bureaucracies know too well, organizations have a vast number
of rules which are overlooked until a supervisor wants to nail someone. In many
such cases morality and conformity are not the simple phenomena that a rule
violation may make them out to be The use of secret forms of information eather-
ins. even without providing temptations, can be problematic'
Some of the new police undercover work has lost sight of the profound difference
between currying out an Investigation to determine if a suspect is in fact breaking
the law and carrying it cut to determine it MILL individual can be induced to break
the law. As with God teating Job. the question The the corrupt?" was replaced with
the question 748 he corruptible?
Questions of police discretion are involved here. With limited resources. how
much attention should authorities devote to crimes which appear in response to the
opportunity they themselves generate or which can the subtly ferreted out through
secret tactics, rather than focusing OR more "dentine oltenses which appear with-
out their inducement As Judge Frankfurter wrote in Sterman V. U.S. "Human
nature is weak enough and sufficiently beset by temptations without government
adding to them and generations crime
Conventional investigations which appear in response to the complaint of a
victim. offer some control over police behavior not present in secret investigations
undertaken at police initiative. Openness in NN investigation with respect to the
fact that it is being carried out and the means used and the presence of a complain-
ant as a concerned outside party. reduce discretionary power Secret investigations
carried out at police initiative that involve intergrity tisting are a powerful means
for the discovery and or creation of discrediting information.
The creation of a tempting opportunity and the actions of the undereover person
can atlect conversation and behavior IN was that a borden non-hunian recording
device never can. It is surprising that the former is not regulated by the courts.
Undercoiver operations share with wiretapping the invasion of privacy. but with-
out the restraint imposed on the latter be judicial warrant. The video-taping and
bugging in recent undercover operations permits the development of secret informa-
tion on conversations and behavior which may never appear in court. Discrediting
information nav be developed which has nothing to do with the initial investiga-
tion. Regardless of actual behavior. the appearance of involvement as a suspect in
the apparatus of covert government investigation cannot help but cast a shadow on
a person's reputation. To be secretly video-taped or taperecorded and then to have
this made public will convey a presumption of guilt to the uneritical. For the
unprincipled it offers a tool for character assassmation.
Third parties innocent of no wrong doing may be equally damaged by merely
having their names mentioned on tapes which become public This is the case for at
least three Senators mentioned as possible targets for Abscam. The frequent reli-
ance of such investigations on con-artists with a proclivity to lie. boast and exagger-
ate makes matters worse That those SD named may later receive a letter from the
Justice Department indicating that an intensive investigation "disclosed no evidence
of illegality that warranted our further investigation, seems small compensation.
The discovery and or creation of discrediting information can offer a powerful
means of controlling a person through arrest the threat of exposure. or damaging
their reputation through leaks. The potential for political and personal misuse is
strong. There are many examples from the last decade of radical activists who could
not be arrested for their political beliefs being targets for drug arrests instead. In
Los Angeles a top Mayoral aide, unpopular with police because of his role in police
department changes. was arrested on a merals charge under questionable circum-
stances. He lost his job. In the case of Abscunt, middlemen apparently suggested a
number of other congressmen as potential targets. What criteria were used in
deciding who would be tempted? Even if the criteria are beyond reproach. as long as
police have such wide discretion they will be continually vulnerable to accusations
of misuse. The breadth of some criminal laws such as conspiracy offer very wide law
enforcement discretion and can mask the political motivation behind an investiga- III-
tion.
The investigation may have been carried out with no intention of formal prosecu-
tion. in cases where there is no prosecution because of insufficient evidence. or
improper official behavior. the subject may stili be damaged through leaks to the
media. The unregulated power to carry out integrity tests at will offers a means of
slander. regardless of the outcome of the test In the case of politicians for whom
matters of public reputation are central. the issue is particularly salient.
The situation offers opportunities for blackmail and coercion. Incriminating infor-
mation can be filed away as long as those implicated continue to cooperate in legal
ways, such as by offering information or setting up others, or in illegal ways such as