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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: ABSCAM (1 of 4)\nBox: 1\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nTHE WHITE HOUSE\nWASHINGTON\nOctober 10, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS 82R\nSUBJECT:\nRequest for Executive Review\nof All Evidence in the Case\nof Senator Harrison Williams\nJeanette Williams, wife of convicted Abscam figure Senator\nWilliams, has written the President requesting an \"executive\nreview\" of all the evidence in her husband's case and an\ninvestigation of all who took part in the prosecution,\nincluding former President Carter and Abscam trial judge\nGeorge Pratt (who, Mrs. Williams notes, was elevated to the\nCourt of Appeals after her husband's conviction). She\nspecifically does not request a pardon, since she maintains\nher husband was guilty of no crime.\nWe also have outstanding an earlier letter from Mrs. Williams\nto Mr. Baker, demanding that a Justice Department Office of\nProfessional Responsibility report on Abscam be made public.\nYou will recall that I submitted a draft reply for your\nsignature, advising Mrs. Williams that such reports are\ninternal Justice Department documents and are not available\nfor public dissemination, but that the report in question\ncontained nothing exculpatory. You sent the package back,\nnoting that you could not make such a statement without\nreviewing the report. I sent back a revised reply, advising\nMrs. Williams that according to the Justice Department the\nreport contained nothing exculpatory. This too failed to\nfly; you sent it back with the suggestion that Justice reply\nto the letter.\nAt this point we should probably send both the letter to\nBaker and the letter to the President to Justice for reply.\nA memorandum to Dinkins accomplishing this is attached for\nyour review and signature.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nOctober 10, 1984\nMEMORANDUM FOR CAROL E. DINKINS\nDEPUTY ATTORNEY GENERAL\nU.S. DEPARTMENT OF JUSTICE\nOrig. signed by FFF\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nRequest for Executive Review\nof All Evidence in the Case\nof Senator Harrison Williams\nThe attached letters from Jeanette Williams, wife of convicted\nAbscam defendant Harrison Williams, are referred to the\nDepartment of Justice for direct reply and whatever other\naction you consider appropriate. The White House has not\nresponded to Mrs. Williams in any manner.\nMany thanks.\nFFF: JGR:aea 10/10/84\nCC: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nOctober 10, 1984\nMEMORANDUM FOR CAROL E. DINKINS\nDEPUTY ATTORNEY GENERAL\nU.S. DEPARTMENT OF JUSTICE\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nRequest for Executive Review\nof All Evidence in the Case\nof Senator Harrison Williams\nThe attached letters from Jeanette Williams, wife of convicted\nAbscam defendant Harrison Williams, are referred to the\nDepartment of Justice for direct reply and whatever other\naction you consider appropriate. The White House has not\nresponded to Mrs. Williams in any manner.\nMany thanks.\nFFF: JGR:aea 10/10/84\nCC: FFFielding/JGRoberts/Subj/Chron\nJuly 14, 1984\n243314\nMr. James A. Baker III\n2415 Foxhall Drive\nWashington, D. C. 20007\nDear Mr. Baker,\nI had the pleasure again of sitting next to Susan at\nthe White House luncheon. I asked her if I could communicate\nwith you in this manner and she kindly gave me your home\naddress. I also respect your position and the President of\nthe United States, which is why I am motivated to bring my\npersonal matter to your attention. It is a grave and serious\nsituation and has been for several years.\nI also recognize that the buzz word \"Abscam\" might\nhave affected your thoughts of it. Abscam was created,\nmanufactured and choreographed by the Carter Administra-\ntion. Having created it, there was a concerted effort to\nprotect it at all costs, at all levels by blocking any of\nthe evidence that would disclose it's illegal and immoral\nunconstitutional methods. There are scores of ways this\ncould be illustrated. There is one aspect of abscam that\nmost clearly illustrates the wrongful actions of govern-\nmental agents and that has been absolutely blocked from\nbeing publicaly disclosed. The prosecutorial force oper-\nating out of Newark, New Jersey; observing the actions,\ntechniques and methods of the Brooklyn prosecutorial force,\nafter trying to correct abuses unsuccessfully reported the\nabuses--illegal actions of the Brooklyn agents to superiors\nin Washington. The Brooklyn - Washington response to this\nwas the filing of charges against the Newark prosecutors\nfor attempting to obstruct the abscam operations.\nOne of the most highly placed Washington individuals,\nformer Judge Renfreit directed the Office of Professional\nResponsibility to review and fix the penalty to be imposed\non the Newark prosecutors. The Office of Professional\nResponsibility investigated all of this and from a Con-\ngressional statement included in the July 13th, 1983\nCongressional Record by Congressman Lujan -- we learned\nthat Newark was not only cleared, but applauded and Wash-\nington and Brooklyn agents and officials were chastised.\nThe critical missing link is that report.\nMr. James A. Baker\npage 2 of 2\nWashington, D. C.\nJuly 14, 1984\nAll efforts by Congress, by defendants and by the\npress to obtain this report have been to no avail. This\nmissing vital report is still buried in the Attorney\nGeneral's locked file.\nI feel a grave disservice has been done personally\nto my husband, who is wrongfully imprisoned. It is a\ntragedy for our country that all of our first principles\nhave been demolished by some evil operators operating from\npositions of awesome power. Bit by bit, for instance, two\nand a half years after my husband's trial, he has received\npertinent documents and affidavits which reveal his inno-\ncence and governmental agents illegality.\nThe failure to disclose the findings of the Office\nof Professional Responsibility report has come to symbolize\nthe total denial of the revelations of truth. The Carter\nAdministration carries the burdens of this cover up.\nThis Administration would serve the highest principles of\nyour nation by permitting it be known to the public.\nI hope it will be possible for you, Mr. Baker, to\nhonor my heartfelt plea. With respect and best wishes\nfor a good year to you and Susan.\nRespectfully Yours,\nBanetteWilliams\nJeanette Williams\nBox 2\nBediumster, 07921 nj\nJeanette S. Williams\nFuilding\nBedminster, N.J. 07921\nSeptember 10, 1984\nPresident Ronald Reagan\nThe White House\nWashington, D.C. 20500\nDear Mr. President:\nAs Chief Executive sworn to uphold the set of principles according to which our\ncountry is organized; our Constitution, I call your attention to a most serious\noffense - a violation of the Separation of Powers.\nYour predecessor, in addition to other members of the executive branch of government,\nnamely the Attorney General and the Director of the F.B.I. attacked the legislative\nbranch of government, an act that imprisoned my beloved husband, a United States\nSenator, who never committed a crime, but was convicted by an \"illusion\" of criminal\nactivity created by government agents.\nAs in all wrongs that go uncorrected, the consequences are menacing. The contagious\neffect of \"ABSCAM\" as its adopted by every law enforcement agency in the country in\ntheir quest to incriminate elected officials leaves a very serious question in its\nwake. Are we now creating an institution for defamation and slander that is\nproducing perpetrators, whose egomania could destroy public confidence in our\nability to maintain a government of the people and for the people?\nI cannot think of a more effective way of destroying a nation, than by removing it's\nmost respected leaders in a disgraceful manner, and consequently undermining the\nconfidence of it's people in the elective process. Do we now have an enemy within?\nThe methods used by government operatives and the criminals employed in operation\nABSCAM and in similar Sting operations around the country, not only put decent men\nin peril, but may be, in fact, as much an enemy of the American people as any - ever\nconfronted.\nDepartment 1984\nPage Two\nA fear now exists among many elected officials that prevents them from crying out\nagainst some of the visible wrongs of the bureaucracy. A fear that is well founded\nbecause my husband stands today, in Allenwood, as the most conspicuous example to\nall who doubt the awesome power of unscrupulous agents - innocence offers no protection\nto the elected target sighted for political destruction.\nWhat prompted this letter, Mr. President is the outrage that you have shown recently,\nand rightly so, of the dilemma that surrounds Soviet prisoner Andre Sakarov is in\nthat we in the United States are more aware of Mr. Sakharov's persecution than the\nPremier of the Soviet Union? Wasn't Sakharov prosecuted during Brezhnev's tenure as\nPremier? What do you know about my husband's involvement with ABSCAM? Aside from\nrumors and speculation. Do you think it would be right for Chernenko to re-open\nthe Sakarov matter and to conduct a complete and through investigation to prove to\nthe world once and for all either the guilt or innocence of Sakarov?\nWould it now also be fair to grant a former United States Senator who served his\ncountry honestly and diligently for more than a score, and who also vigorously\nmaintains his innocence from his jail cell the same treatment.\nNo one knows any better the true character and integrity of a man than the woman\nwho shares his life. My husband is incapable of criminal activity. He is a gentle-\nman who posesses a deep love and concern for his fellow man. The people of the\nUnited States have been deprived of an extremely sensitive representative, whose\nacts as a legislator made their lives a little richer.\nFinally, Mr. President, it is not a pardon that I ask for my imprisoned husband, for\na pardon is a forgiveness; a cancellation of a punishment incurred as a result of\ncriminal activity; a kind of indulgence. My husband is not guilty of any crime,\ntherefore he needs no forgiveness.\nI seek an executive review of all evidence in my husband's case, including evidence\nthat has been recently made available through the Freedom of Information Act.\nSecondly, an investigation of all who took part in my husband's persecution, not\nexcluding former President Jimmy Carter and the trial Judge George C. Pratt who\nreceived an immediate promotion to the Circuit Court of Appeals following my husband's\nconviction.\nSeptember 10, 1984\nPage Three\nMr. President, you are a fair and decent man. On behalf of liberty and justice\nfor all, I pray you will be the first to throw light upon the dark cloud of ABSCAM\nthat will set my husband free, just as Sakharov demands the truth to be told, SO\ndoes my husband.\ndeamette S. Welliams\nJeanette S. Williams\n/bs\nID# 248193\nTHE WHITE HOUSE\nCORRESPONDENCE TRACKING WORKSHEET\nINCOMING\nDATE RECEIVED: SEPTEMBER 24, 1984\nJohn\nNAME OF CORRESPONDENT: MRS. JEANETTE S. WILLIAMS\nSUBJECT: REQUESTS AN EXECUTIVE REVIEW OF ALL EVIDENCE\nIN THE CASE OF SENATOR HARRISON WILLIAMS\nACTION\nDISPOSITION\nROUTE TO:\nACT\nDATE\nTYPE C COMPLETED\nOFFICE/AGENCY (STAFF NAME)\nCODE YY/MM/DD RESP D YY/MM/DD\nFRED FIELDING\nORG 84/09/24\n/ /\nWAT/8\nNOTE:\n584110106\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\n/ /\n/ /\nREFERRAL NOTE:\nCOMMENTS:\nADDITIONAL CORRESPONDENTS:\nMEDIA:L INDIVIDUAL CODES:\nMI MAIL\nUSER CODES: (A)\n(B)\n(C)\n*ACTION CODES:\n*DISPOSITION CODES:\n*OUTGOING\n*\n*\n*\n* CORRESPONDENCE:\n*\n*A-APPROPRIATE ACTION\n*A-ANSWERED\n*TYPE RESP=INITIALS\n*\n*C-COMMENT/RECOM\n*B-NON-SPEC-REFERRAL\n*\nOF SIGNER *\n*D-DRAFT RESPONSE\n*C-COMPLETED\n*\nCODE = A\n*\n*F-FURNISH FACT SHEET\n*S-SUSPENDED\n*COMPLETED = DATE OF\n*\n*I-INFO COPY/NO ACT NEC*\n*\nOUTGOING\n*\n*R-DIRECT REPLY W/COPY *\n*\n*\n*S-FOR-SIGNATURE\n*\n*\n*\n*X-INTERIM REPLY\n*\n*\n*\nREFER QUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE\n(ROOM 75,OEOB) EXT. 2590\nKEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING\nLETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS\nMANAGEMENT.\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 11, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS JZR\nSUBJECT:\nMissing Report With Regard to ABSCAM\nYou will recall that Mrs. Harrison Williams wrote Mr. Baker,\nurging that a Department of Justice Office of Professional\nResponsibility (OPR) report related to the Abscam investi-\ngation be released to the public. I prepared a draft\nresponse for your signature, advising Mrs. Williams that OPR\nreports are not available for public dissemination. The\nletter did, however, go on to note that you were authorized\nto inform her that the report contained nothing exculpatory\nabout any Abscam defendant. You objected to such phrasing\nin light of the fact that you have not reviewed the report.\nThe attached redraft notes that, according to the Justice\nDepartment, the report contains nothing exculpatory.\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nJohn\nJuly 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS 926\nSUBJECT:\nMissing Report With Regard to ABSCAM\nMrs. Harrison Williams has written Mr. Baker, to urge that a\nreport of the Justice Department Office of Professional\nResponsibility (OPR) arising out of the Abscam investi-\ngations be made public. In the early stages of the Abscam\ninvestigation, two Federal prosecutors operating out of the\nNewark Strike Force wrote a memorandum to Justice Department\nheadquarters, pointing out the problems involved in relying\non Mel Weinberg as a leading character in the \"sting\"\noperation. The Criminal Division overreacted with an\nunjustified personal attack on the two prosecutors, sug-\ngesting that they be fired. This precipitated a bitter\ninternal dispute that was referred to OPR. OPR issued a one\nand one-half page report concluding that the two prosecutors\nwere totally blameless and had acted properly in raising\nsincere concerns, while the Criminal Division had acted\nimproperly in personally attacking the two. All of this\ntook place during the Carter Administration; Associate\nAttorney General Rudy Giuliani later apologized to the two\nprosecutors.\nThe OPR report has never been released; as a rule such\nreports are considered internal Justice documents not\nsubject to disclosure. Senator Hatch asked for a copy of\nthis report and was turned down; we obviously cannot provide\nMrs. Williams what we have denied to Senator Hatch. Accor-\nding to Roger Clegg, however, OPR has no objection to\nstating publicly that there is nothing whatsoever in the\n]\ncon't\nreport that is exculpatory with respect to any Abscam\ndefendant.\n? this w/o regul receive\nthe\nA draft reply to Mrs. Williams is attached, for your signa-\nture. I think the reply should come from you rather than\nwhy\nnot\nhave\nMr. Baker, since it concerns Justice Department matters\nproperly coordinated by our office. A reply from you might\nDOS make\nalso ease any personal discomfort Mr. Baker may have in\ndealing with someone with whom his wife appears to have some\nstates?\nsort of personal acquaintance.\n7/29\nAttachment\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 11, 1984\nDear Mrs. Williams:\nMr. Baker has asked me to respond to your letter of July 14,\n1984. In that letter you requested that a report of the\nDepartment of Justice Office of Professional Responsibility\nbe made public. The report in question concerned certain\nFederal prosecutors and the response of units within the\nDepartment of Justice to particular actions taken by those\nprosecutors.\nI must advise you that such Office of Professional Responsi-\nbility reports are internal Department of Justice documents\nand are not available for public dissemination. According\nto the Department of Justice, however, the report in question\ncontains nothing whatsoever that could be considered exculpatory\nwith respect to any of the Abscam defendants. I am sorry\nthat we cannot be more responsive to your request.\nSincerely,\nFred F. Fielding\nCounsel to the President\nMrs. Jeannette Williams\nBox 2\nBedminster, NJ 07921\nFFF: JGR:aea 9/11/84\nbcc: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nSeptember 11, 1984\nMEMORANDUM FOR JAMES A. BAKER, III\nASSISTANT TO THE PRESIDENT\nCHIEF OF STAFF\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nMissing Report With Regard to ABSCAM\nAttached for your information is a copy of my reply on your\nbehalf to Mrs. Harrison Williams, who wrote requesting that\nan internal Department of Justice document be made public.\nAttachment\nFFF:JGR:aea 9/11/84\nCC: FFFielding/JGRoberts/Subj/Chron\nTHE WHITE HOUSE\nWASHINGTON\nJuly 27, 1984\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS /s/\nSUBJECT:\nMissing Report With Regard to ABSCAM\nMrs. Harrison Williams has written Mr. Baker, to urge that a\nreport of the Justice Department Office of Professional\nResponsibility (OPR) arising out of the Abscam investi-\ngations be made public. In the early stages of the Abscam\ninvestigation, two Federal prosecutors operating out of the\nNewark Strike Force wrote a memorandum to Justice Department\nheadquarters, pointing out the problems involved in relying\non Mel Weinberg as a leading character in the \"sting\"\noperation. The Criminal Division overreacted with an\nunjustified personal attack on the two prosecutors, sug-\ngesting that they be fired. This precipitated a bitter\ninternal dispute that was referred to OPR. OPR issued a one\nand one-half page report concluding that the two prosecutors\nwere totally blameless and had acted properly in raising\nsincere concerns, while the Criminal Division had acted\nimproperly in personally attacking the two. All of this\ntook place during the Carter Administration; Associate\nAttorney General Rudy Giuliani later apologized to the two\nprosecutors.\nThe OPR report has never been released; as a rule such\nreports are considered internal Justice documents not\nsubject to disclosure. Senator Hatch asked for a copy of\nthis report and was turned down; we obviously cannot provide\nMrs. Williams what we have denied to Senator Hatch. Accor-\nding to Roger Clegg, however, OPR has no objection to\nstating publicly that there is nothing whatsoever in the\nreport that is exculpatory with respect to any Abscam\ndefendant.\nA draft reply to Mrs. Williams is attached, for your signa-\nture. I think the reply should come from you rather than\nMr. Baker, since it concerns Justice Department matters\nproperly coordinated by our office. A reply from you might\nalso ease any personal discomfort Mr. Baker may have in\ndealing with someone with whom his wife appears to have some\nsort of personal acquaintance.\nAttachment\nTHE WHITE HOUSE\nWASRINGTON\nJuly 27, 1984\nMEMORANDUM FOR JAMES A. BAKER, III\nASSISTANT TO THE PRESIDENT\nCHIEF OF STAFF\nFROM:\nFRED F. FIELDING\nCOUNSEL TO THE PRESIDENT\nSUBJECT:\nMissing Report With Regard to ABSCAM\nAttached for your information is a copy of my reply on your\nbehalf to Mrs. Harrison Williams, who wrote requesting that\nan internal Department of Justice document be made public.\nAttachment\nFFF:JGR:aea 7/27/84\nCC: FFFielding/JGRoberts/Subj/Chron\n==\nTHE WHITE HOUSE\nWAEHINGTON\nJuly 27, 1984\nDear Mrs. Williams:\nMr. Baker has asked me to respond to your letter of July 14,\n1984. In that letter you requested that a report of the\nDepartment of Justice Office of Professional Responsibility\nbe made public. The report in question concerned certain\nFederal prosecutors and the response of units within the\nDepartment of Justice to particular actions taken by those\nprosecutors.\nI must advise you that such Office of Professional Responsi-\nbility reports are internal Department of Justice documents\nand are not available for public dissemination. I an\nauthorized to tell you, however, that the report in question\ncontains nothing whatsoever that could be considered exculpa-\ntory with respect to any of the Abscam defendants. I am\nsorry that WE cannot be more responsive to your request.\nSincerely,\nFred F. Fielding\nCounsel to the President\nMrs. Jeannette Williams\nBox 2\nBedminster, NJ 07921\nFFF:JGR:aea 7/27/84\nbcc: FFFielding/JGRoberts/Subj/Chron\n243344\nID #.\nCU\nWHITE HOUSE\nJL003\nCORRESPONDENCE TRACKING WORKSHEET\nthe\no - OUTGOING\nH * INTERNAL\nR\nreview lev's\nI * INCOMING\nDate Correspondence\nReceived (YY/MM/DD)\n/\n/\ndecide who\nName of Correspondent:\nJeanette Williams\nshould This respond\nMI Mail Report\nUser Codes: (A)\n(B)\n(C)\n7/24\nSubject:\ninsing report with hegard to ABSCAP\nROUTE TO:\nACTION\nDISPOSITION\nTracking\nType\nCompletion\nAction\nDate\nof\nDate\nOffice/Agency\n(Staff Name)\nCode\nYY/MM/DD\nResponse\nCode\nYY/MM/DD\nWHolland\nORIGINATOR DIE 84/107124\n/\n/\nReferral Note:\nWATIE\nA DDV 84,07,25\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\n/\n/\n/\n/\nReferral Note:\nACTION CODES:\nDISPOSITION CODES:\nA . Appropriate Action\nI Info Copy Only/No Action Necessary\nA Answered\nC Completed\nC * Comment/Recommendation\nR Direct Reply w/Copy\nB . Non-Special Referral\nS Suspended\nD Draft Response\nS For Signature\nF - Furnish Fact Sheet\nX Interim Reply\nto be used as Enclosure\nFOR OUTGOING CORRESPONDENCE:\nType of Response = Initials of Signer\nCode = \"A\"\nCompletion Date = Date of Outgoing\nComments: Harrison Italliams\nque 2384 Kathy Camalieumemoto FFF\nKeep this worksheet attached to the original incoming letter.\nSend all routing updates to Central Reference (Room 75, OEOB).\nAlways return completed correspondence record to Central Files.\nRefer questions about the correspondence tracking system to Central Reference, ext. 2590.\n5/81\nTHE WHITE HOUSE\nWASHINGTON\n7/23/84\nFred:\nJim Baker asked that your\noffice prepare a response\nto the attached correspondence\nfrom Senator Harrison Williams'\nwife, Jeanette. Would it be\nmore appropriate if your office\nresponded or could you prepare\na draft for JAB's signature?\nPlease advise. Thanks.\nKathy Camalier\nx6797\nabscan\nOF JUSHINGS\nOM\nDepartment of Justice\nPUPTINA\nADDRESS\nOF\nTHE HONORABLE WILLIAM FRENCH SMITH\nATTORNEY GENERAL OF THE UNITED STATES\nTO\nA PUBLIC FORUM\nSPONSORED BY\nTHE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK\n7:00 P.M.\nWEDNESDAY, JUNE 23, 1982\nNEW YORK CITY\nThis evening I would like to outline my views on a law\nenforcement issue of substantial importance and current interest\n-- the use of undercover operations to investigate especially\nsecretive crimes, including public corruption. Although\nundercover operations have evoked greater public attention\nrecently, they have for years been a staple of law enforcement\nefforts against the most pernicious of crimes. The judicious use\nof undercover techniques has often been the only way to detect and\ndeter the secretive activity that characterizes certain kinds of\nvery serious crime, like public corruption. In fact, the federal\neffort against public corruption is older even than the FBI.\nSeventy-three years ago, there was no Federal Bureau of\nInvestigation. Although some investigations of federal crimes\nwere undertaken by the Secret Service, they were few in number,\nlacked coordination, and were restricted in scope. In 1909\nPresident Teddy Roosevelt -- and his Attorney General Charles\nBonaparte -- determined that something had to be done to make\nfederal law enforcement more effective. Congress, however,\nexpressed reservations about expanding the use of the Secret\nService or other federal agents -- especially if that could result\nin investigations of members of Congress. In typical fashion,\nTeddy Roosevelt -- who had previously served as the President of\nthis city's Board of Police Commissioners -- responded directly to\nthat concern, in words that bear a full repeating today:\n\"It is not too much to say that [the\nrestriction on the use of Secret Service\nagents] has been of benefit only to the\ncriminal classes\nThe chief argument\n-2-\nwas that the Congressmen did not\nthemselves wish to be investigated by Secret\nService men. Very little of such\ninvestigation has been done in the past;\nbut it is true that the work of the Secret\nService agents was partly responsible for\nthe indictment and conviction of a Senator\nand a Congressman for land frauds in Oregon.\nI do not believe that it is in the public\ninterest to protect criminals in any branch\nof the public service, and exactly as we have\nagain and again\n...\nprosecuted and convicted\nsuch criminals who were in the executive\nbranch\nso\nwe should give ample\nmeans to prosecute them if found in the\nlegislative branch. But if this is not\nconsidered desirable a special exception\ncould be made in the law prohibiting\nthe use of the Secret Service force in\ninvestigating members of Congress\n\"\nCongress subsequently did approve a heightened federal effort that\nin 1910 was designated the Bureau of Investigation -- and in 1935,\nthe FBI. It is worthy of note that Congress chose not to exempt\nitself from the scrutiny of federal law enforcement.\nIn the nearly three quarters of a century since the\ncreation of the Bureau of Investigation, federal law enforcement\nhas compiled an impressive record of effective investigations and\nenforcement. It is only during the last decade -- and especially\n-3-\nthe last six years -- however, that federal resources have been\nconcertedly and effectively employed to fight the most secretive\nof crimes like public corruption. The key to that effort has\nlargely been the refinement of undercover techniques.\nTo assess the need for undercover techniques, we must\nfirst gauge the magnitude of the evil we seek to combat.\nDrug-trafficking, organized crime, white-collar crime, and public\ncorruption are all serious threats to our society. They occur\nbeneath the surface of society and employ every imaginable device\nto remain hidden from public view. There usually is little\nincentive for the victims of these crimes to report their occurrence.\nOnly active, undercover law enforcement can penetrate that veil of\nsecrecy.\nIn recent years, the Department of Justice has dramatically\naltered its enforcement program and its priorities to seek out\nthis type of crime. Late in 1975, the Attorney General's Committee\non White Collar Crime was established. The Committee recommended\nan increased and improved effort -- including a less reactive\napproach to ferret out violations. In January 1976, the Department\norganized a new Public Integrity Section in its Criminal Division.\nIn early 1977, many of the recommendations of the White Collar\nCrime Committee were implemented. In 1978 the FBI set up its\nCriminal Undercover Operations Review Committee, and specific\nwritten Guidelines on Undercover Operations were issued by the\nJustice Department just eighteen months ago.\nMuch of this process was a response to growing public\nconcern -- and the public concern was fully expressed in the\nUnited States Congress. In the mid-1970s the Subcommittee on\n-4-\nCivil and Constitutional Rights of the House Judiciary Committee\nitself began to urge an enhanced effort against more sophisticated\nkinds of crime. Harvard's James Q. Wilson -- in an article\nreprinted in 1981 as part of that Subcommittee's record -- makes\nthe following observations about a 1977 staff report of the House\nSubcommittee:\n\"The staff lamented the 'reluctance on the\npart of FBI personnel, particularly at the\nsupervisory level, to get involved in more\ncomplex investigations that may require\nsignificant allocation of manpower for\nlong periods of time.' And the report\ncriticized the field offices for not\nmounting more undercover operations.\"\nThe Federal Bureau of Investigation bore the brunt of\nsuch criticism over the last five or ten years. Some said that\nthe largest and most sophisticated law enforcement agency in the\nworld was unable or perhaps unwilling to conduct the kind of\nsensitive undercover investigations necessary to root out\ndrug-trafficking, organized crime, white-collar crime, and public\ncorruption. Moreover, cynics noted that such investigations were\nunappealing to the Bureau because they did not produce striking\nincreases in the numbers of crimes \"solved.\" It was a dirty,\nlengthy, and risky business they said, not the stuff for which\nhigher appropriations are voted.\nThrough a bipartisan effort over the past three\nAdministrations, however, any inability or unwillingness to\nconduct undercover investigations has been steadily and decidedly\n-5-\neliminated. Under Attorney General Edward Levi and Deputy Attorney\nGeneral Harold Tyler, and later under Attorneys General Griffin\nBell and Benjamin Civiletti -- and under FBI Directors Clarence\nKelly and William Webster -- the FBI has demonstrated its\nwillingness and its ability to conduct the necessary kinds of\nundercover investigations. The strides have been monumental. For\nexample, following a lengthy undercover investigation, the FBI\njust yesterday apprehended the leaders of what appears to be a\nlarge and sophisticated Japanese commercial espionage ring attempting\nto pirate American computer technology. In the last two fiscal\nyears, using less than one percent of its total budget, the FBI's\nundercover operations have netted illicit funds and property of\nover $109 million. In just those two recent years, arrests\narising from FBI undercover operations alone have totaled more\nthan 2700 -- and resulted in nearly 1100 convictions.\nThe message is clear. Every corrupt public official,\ndrug-trafficker, or organized crime figure should recognize that\nhe is not beyond the reach of law.\nIn the course of our increased efforts against these\nkinds of carefully concealed crime and corruption, the Department\nof Justice quickly learned what must now be regarded as a fundamental\ntenet. An enforcement program can never succeed without the\neffective use of undercover investigations.\nBy their very nature, these are clandestine crimes.\nPayment of a bribe is not a public event. Neither the person who\npays nor the person who takes a bribe heralds that fact from the\nroof tops. The person who pays, even if regarded as a victim,\ntypically makes no report to the authorities.\n-6-\nIn most cases, there is only one way for law enforcement\nto apprehend such criminals and to deter such crimes. It must\ninterject its agents into the midst of corrupt transactions. It\nmust feign the role of corrupt participant. In short, it must go\nundercover. If it does not, we as a society, as taxpayers, as\npersons with respect for law, can do nothing but tolerate this\nparticularly pernicious and costly form of crime. And, to go\nfurther, our undercover techniques -- although they must be\njudicious and they must be controlled -- must also be innovative.\nOtherwise, we must settle for apprehending only those at the lower\nlevels of corruption. Our techniques must be as sophisticated as\nthose we want to catch.\nOf course, undercover operations present certain dangers.\nThe techniques are sensitive and by definition involve subterfuge.\nThere is a potential for mischief, for undue invasion of privacy,\nfor illegal activity committed by law enforcement agents themselves.\nAlthough exceedingly unlikely, every potential injustice must be\nconsidered and minimized. For that reason, the Department of\nJustice and the FBI have built controls into the system.\nUndercover operations must be approved by a separate\nReview Committee made up of FBI specialists, members of the FBI's\nDivision of Legal Counsel, and Department of Justice officials.\nThe Committee reviews the propriety and legality of every operation\ninvolving any \"sensitive issue\" before it is begun. It reviews\nthe continuation of every operation beyond six months -- and\nmonitors most investigations with even greater frequency.\nAll undercover operations are now conducted under\nwritten guidelines that reflect the experience and insights gained\n-7-\nby the FBI and Department of Justice. These guidelines incorporate\nnumerous safeguards beyond those necessary to comply with the law.\nNo invitation to engage in an illegal activity may be offered\nunless:\n-- the corrupt nature of the activity is\nreasonably clear to the target;\n-- there are reasonable indications the\noperation will reveal illegal activity; and\n-- the character of the illegal transaction\njustifies the inducements offered.\nIn addition, the authorization of the FBI Director is necessary\nbefore any inducement may be offered to someone absent a reasonable\nindication that the person already has engaged or is engaging in\nthe illegal activity being investigated. The Guidelines, which\nalso cover the other kinds of activities necessary in undercover\noperations, are themselves reviewed against those lessons learned\nfrom on-going investigations.\nAlthough these Guidelines had not formally been issued\nwhen the Abscam investigations were begun, the legality of the\npractices employed have been substantially demonstrated in the\ncourts. It is most worthwhile to reflect upon the results of\nthose investigations -- and of the videotape record they presented\nin court. Twenty-two individuals were indicted -- including six\nmembers of Congress, one U.S. Senator, one state senator, three\ncity councilmen, one state official, and one federal employee. In\neight separate cases, jury verdicts resulted in the conviction of\neighteen persons -- while one defendant pleaded guilty. One\nperson is still awaiting trial -- and two defendants died before\n-8-\nbeing tried. Out of twenty-two persons indicted, no individual\nwas acquitted. To date, 96 jurors have found for the government,\nand no juror has exonerated any of the defendants. Although\nseveral cases are now on appeal, none of the eight defendants that\nraised the issue of entrapment has been successful on appeal.\nOnly three of the eighteen defendants that raised due process\nquestions have had any success on that issue even at the district\ncourt level. And the only two appellate courts that have thus far\nruled on these verdicts have ruled in the government's behalf.\nWhen it comes to undercover investigations, no one would\nclaim that there could not be any mistakes. The subjects of such\ninvestigations -- and the corrupt influence peddlers with whom our\nagents must credibly deal -- are neither Boy Scouts nor regular\nattendees in Sunday School. The work is difficult, and the risks\nto federal agents are outweighed only by the seriousness of the\ncrimes being investigated. Human frailties inevitably affect any\ngovernment agency, and the pressures of undercover work multiply\nthe stress. We have, however, learned from our experience. And\nwe can learn further and improve upon practices and policies.\nBefore concluding, however, I want to emphasize one\nfurther point. Our investigations of public corruption have\nincreased dramatically over the years in response to public and\ncongressional desires. During 1981, as the result of federal\nprosecutions, over seven hundred public officials were convicted\nof corrupt activities -- only a few of whom were involved in\nAbscam. Since 1970 federal indictments have been returned against\nover 5000 federal, state, and local officials -- plus other\nindividuals involved with them in corrupt activities. Nearly 80\n-9-\npercent of those indictments were returned in just the last six\nyears. All of those figures indicate the seriousness with which\nthe Department of Justice attacks public corruption.\nIn a democracy, it is essential for the public to have\nconfidence in the integrity of influential and powerful institutions\n-- especially governmental institutions. And it is the effectiveness\nof federal law enforcement in uncovering public corruption that\nreassures the public in their belief in the high integrity of the\noverwhelming majority of their government officials. Nothing\nwould do more to undermine public confidence than for federal law\nenforcement to be denied the means necessary to detect, prosecute,\nand deter crimes committed by the powerful.\nIn the case of the Abscam investigations -- and all\nfederal undercover operations -- there is much that should be\nstudied and improvements certainly can be made. Already, the\nUndercover Review Committee has been improved and Undercover\nGuidelines have been formally issued.\nClearly, Congress should itself review the propriety of\nfederal law enforcement efforts -- just as it should seek to\nimprove the effectiveness of those efforts. This Administration\nwelcomes -- and will join in -- such an effort by the Congress.\nThere cannot, however, be different rules of law enforcement for\nthe governed and for those who govern. Although law enforcement\ntechniques can always be improved -- both to protect those under\nsuspicion and to protect the public -- they must not be emasculated,\nespecially in a context that suggests special treatment for the\npowerful. Although the Abscam investigations were not undertaken\nor completed during this Administration, we are committed to the\n-10-\nuse of effective law enforcement techniques of the kind Abscam\nemployed. We will work to make them more effective and to ensure\nthat they -- like all law enforcement procedures -- are fairly\nemployed. We will also resist any effort to weaken effective\nfederal law enforcement efforts aimed at detecting and deterring\ndrug, organized , or white-collar crime -- including public\ncorruption.\na\nA foreign writer once observed that his homeland \"fell\nbecause there was corruption without indignation.\" After surveying\nthe federal effort against public corruption, I for one want to\nexpress my indignation -- not at the techniques or aims of law\nenforcement, but at the corruption uncovered. Let everyone who\nseeks to improve the efforts of law enforcement in these areas\nkeep in mind that the American public itself is also indignant\nabout the kind of criminal activity uncovered and videotaped\nduring Abscam. The most important lesson is not that federal law\nenforcement techniques can be improved, but that public corruption\nclearly exists and must be effectively uncovered, prosecuted, and\ndeterred.\nDuring 1981, the first year of this new Administration,\nthere were more federal indictments and convictions of corrupt\nofficials at all levels than in any previous year. Those efforts\n-- and the undercover techniques they frequently require -- will\ncontinue. We will pursue public corruption by every necessary and\nlegal means -- wherever the trail may lead. Weakening legitimate\nundercover investigations would be tantamount to granting some of\nthe most virulent types of criminals a license to steal. That is\nsomething this Administration will not do.\nDOJ-1982-06\nMr. Chairman, I want to compliment you on the outstanding\nAs in all endeavors, we have experienced some significant suc-\nmanner in which you have conducted these most difficult hearings\ncesses and we have suffered some setbacks in specific investiga-\nto date. As usual, your diligence in bringing before this subcommit-\ntions. The overall results seem to me to be very positive.\ntee a witness with valuable testimony has not waivered.\nAn undercover activity, especially one of long-term duration, is\nI am certain members of this committee agree that no one\nmore demanding than simple theater. There is no fixed script;\nshould be held above the laws of our land. I also hope we agree\nindeed, our participating antagonists are not even aware of the\nwith Director Webster, who has previously testified, that law en-\nplot. Considerable dexterity, ingenuity, and often courage are re-\nforcement officials must act with scrupulous fairness, apolitically,\nquired to deal with unexpected twists and turns in the road as the\nand cautiously in carrying out their investigations. When this prin-\ninvestigation progresses.\nciple is violated, the dangers to a democracy such as ours are very\nAgents are required to conform to legal and operational limita-\ngrave.\ntions and requirements and still maintain the credibility of the ap-\nUnfortunately, with respect to the undercover operations on\nproved scenario. We do not always succeed. Sometimes the subject\nwhich this subcommittee has heard testimony, some of these pre-\nbecomes suspicious. Sometimes innocent third parties become in-\nrequisites apparently have been lacking. Previous witnesses have\nvolved in the activity, and sometimes a cooperating witness or in-\nprovided us with documented evidence which clearly shows that\nformant does not or will not comply with our rules. These are some\ncertain of the undercover operatives might well have been not\nof the problems with which we must deal.\nunder control.\nAs I hope my testimony will demonstrate today, we are getting\nWe have also received evidence of possible unprofessional and\nan increasingly better handle on the byproduct problems of under-\nunethical conduct. The President's new Executive order on domes-\ncover operations. Certainly the very small percentage of our re-\ntic spying will of course compound the difficulties of coordination\nsources devoted to undercover work has proven to be both cost-ef-\nand supervision which may presently exist. And a new policy of\nfective and an indispensable tool in certain kinds of cases.\nGovernment secrecy would make it difficult, if not impossible, for\nThe traditional approach to investigating crime is a direct one;\nindividuals and for the public to learn when abuses have taken\nour agents knock on doors, identify themselves, and ask questions.\nplace.\nIn some cases they may request documents or records, in others\nAll of this greatly disturbs me and many other people because of\nthey may arrive on the scene of a crime and take fingerprints and\nits susceptibility to political abuse and because it has a potential\ncollect other physical evidence. This approach is usually successful\nfor once again undermining public confidence in law enforcement\nin bank robberies, embezzlements, kidnapings, and many other\nagencies.\ncrimes, but certain criminal activity is not susceptible to these\nToday we will hear what I anticipate to be very enlightening tes-\ntechniques.\ntimony from FBI Director William Webster. I am sure he is as\nOne of the problems we face is the organized crime figure who\neager to speak to us as we are to hear from him. I welcome him\ndirects the criminal activity of others but rarely exposes himself to\nand look forward to this hearing with great gusto.\nother than his criminal confederates. Another problem we face is\nThank you.\nwhat I refer to as consensual crime. This includes cases where\nMr. EDWARDS. Thank you, Mr. Washington.\nfences are accepting stolen property from thieves, situations where\nWe also welcome Mr. Hughes, a member of the Judiciary Com-\na broker knowingly assists narcotics dealers in laundering their\nmittee who will sit with us today.\nprofits, or the public servant who accepts a bribe. These criminal\nMr. Hughes, do you have a statement?\nacts are rarely documented or witnessed by outsiders. In each case\nMr. HUGHES. No, Mr. Chairman, I do not.\nboth parties to the transactions have a criminal interest in conceal-\nMr. EDWARDS. Judge Webster, you may proceed.\ning the relationship. In each case, the general public is the un-\nknowing victim.\nTESTIMONY OF HON. WILLIAM H. WEBSTER, DIRECTOR,\nTo reach beyond the streets and to develop evidence that will\nFEDERAL BUREAU OF INVESTIGATION\nlead to prosecutions of this kind of serious criminal activity, we can\nMr. WEBSTER. Thank you, Mr. Chairman.\nand we do employ sensitive techniques from our investigative arse-\nI am pleased to appear before you today to discuss the FBI's un-\nnal. These techniques include the use of confidential informants,\ndercover activities.\ncourt-authorized electronic surveillance, undercover special agents,\nI appeared before this subcommittee 2 years ago and testified on\nand combinations of these. Of course, there are risks inherent in\nthe importance of undercover investigations in effective law en-\ntheir use. We recognize that at the outset. Because of these risks\nforcement. Many issues which could not be fully discussed at that\nand the intrusive nature of these techniques, they must be careful-\ntime have become a matter of public record in subsequent trials.\nly controlled and monitored, and we must be publicly accountable\nfor their use.\nLikewise, a number of new matters have been reported in the press\nthat, for the same reason, can only be discussed with deference to\nEach of these techniques has its advantages and its disadvan-\npending litigation. Insofar as I can be properly responsive to your\ntages. Electronic surveillance involves less danger to our personnel,\nquestions today, I intend to do so.\nbut it isn't as flexible as other techniques. If the subjects of our in-\nvestigation have any idea that electronic surveillance is being used,\n402\nthey simply move to other phones or other places, or they don't use\nOn April 28, 1981, simultaneous raids were carried out in the\ngreater Washington area by FBI agents and officers of the Metro-\ntheir phones.\nThe traditional informant is still the most important tool in law\npolitan Police Department. A total of 22 individuals were arrested\nenforcement although their reliability varies widely and they are\nand charged in Federal and local complaints. Stolen property\noften unwilling to testify. They usually provide us with specific in-\nvalued at approximately $2 million was seized.\nformation as a result of their station within the criminal communi-\nA public viewing of the property was conducted during a 3-day\nty. They may even be able to tell us something about the plans and\nperiod in June 1981, and approximately 1,400 citizens participated.\nstructure of a criminal organization, but they have limitations. the\nOver 30 percent were able to identify property which had been\nOften they do not have the flexibility to move about within\nstolen from them. To date, 35 persons have been convicted of Fed-\nstructure. We have to overcome these limitations.\neral and local charges; 13 additional subjects have been charged.\nThe use of the special agent in an undercover capacity answers\nIn another undercover operation entitled \"Bancoshares,\" our un-\nsome of these problems and presents some additional advantages to\ndercover agents posed as brokers willing to launder illicit drug\nus. He or she is more disciplined and more reliable. After all, they\nmoney through a fictitious corporation. Transactions which grew to\nare our special agents, trained to know and respect the law. They\nover $1 million per day were video taped. The primary services of-\ncan be trusted with large sums of money which today's operations\nfered by the undercover corporation were the conversion of small\noften require because we are dealing with and against those who\nbills to large bills, the conversion of U.S. currency to cashiers'\nhave access to large sums of money. And they're more likely to rec-\nchecks, the maintenance of large quantities of U.S. currency in\nognize and acquire evidence concerning a major crime figure.\nbank accounts of the undercover corporations, and the depositing\nThe bottom line for the undercover agent is discipline and stay-\nof clients' U.S. currency in Miami area banks to protect them from\ning power. As a special agent of the FBI, he receives a basic course\nbeing identified as the source of funds.\nof legal instruction, periodic refresher courses, and additional guid-\nUpon termination of the covert stage of this investigation in\nance in legal matters specifically connected with his undercover as-\nAugust 1981, 61 arrest warrants were issued, and 31 subjects were\nsignment. His operation is planned in advance, and his work is con-\narrested. Property and cash recovered, seized, and/or frozen as a\ntinually monitored. Therefore, the key to an undercover operation\nresult of this operation included numerous airplanes and vehicles,\nis to maximize the use of the agent personnel.\nlarge quantities of cocaine, a 4,600-acre ranch with an estimated\nWhile statistics tell only part of our story, they are illuminating.\nvalue in excess of $4 million, three residences, and $18 million in\nIn combined fiscal years 1980 and 1981, undercover operations\ncash.\nled to actual recoveries worth over $109 million. Arrests arising\nIn another undercover case known as \"Corcom,\" our Oklahoma\nfrom such operations in those fiscal years totaled 2,723, with 1,064\nCity office has conducted a joint investigation with IRS, aimed at\nconvictions. Our funding for undercover operations during this\ncounty commissioners in Oklahoma who allegedly have been de-\nperiod was about $7.5 million, less than 1 percent of our total\nmanding kickbacks from material and equipment vendors for years\nbudget. I do want to advise you that we have identified 10 undercover\nand years. To determine if this was so, in December 1979 we cre-\noperations that have resulted in the filing of 30 civil actions involv-\nated our own business to sell road- and bridge-building materials.\nAs a result of the efforts of undercover agents, almost 100 individ-\ntions have been resolved, and the remainder are currently pending\ning the FBI and/or its employees. To date, nine of these civil ac-\nuals have been convicted or have entered guilty pleas, approxi-\nmately 180 more have signed agreements to plead guilty, and an-\nin court.\nI know the subcommittee is familiar with the operation which we\nother 100 are under investigation.\ncall Frontload. I am informed that it is the only FBI undercover\nWhile numerous other cases could be cited, Mr. Chairman, in in-\ncase to date which has resulted in payments being made to satisfy\nvestigations ranging from simple sting operations to those involv-\ncivil liability to others. Frontload was one of our first undercover\ning terrorist organizations, these three examples suggest the range\nefforts, approved and implemented well before the creation of our\nand utility of the undercover technique. Let me turn now to the\nundercover review committee. I can assure you that the lessons of\nprocedures by which undercover proposals are developed, approved,\nand managed.\neach lawsuit have not been lost.\nA brief look at recent undercover cases illustrates the kinds of\nGenerally, undercover projects originate in our field offices and\ncrime that confront us and how effective investigations can be. I\nare designed to investigate a particular crime problem or groups of\nindividuals suspected of participating in illegal activity. Prior to\nwill discuss three.\nAn investigation entitled \"Greenthumb\" was directed by our\nthe submission of an undercover proposal to FBI Headquarters\nWashington field office against fences of stolen precious metals and\n[FBIHQ], the proposal must be approved at the field office level by\ntheir associates who cloaked their illegal activities with legitimate\nthe field supervisor, the principal legal advisor, the special agent in\nsecond-hand businesses. Two undercover agents were able to inject\ncharge, and the concurrence of strike force attorney's or U.S. attor-\nthemselves into the distribution system. As a direct result of their\nney's office in that region. The approval must include comments\nobservations, we were able to engage in court-authorized surveil-\nand observations regarding the legal and ethical considerations in-\nlance of telephone and other conversations.\nvolved in the proposal.\n404\n405\nIn addition, the project's goals, the worthiness of its objectives,\nmatters as: Entrapment, due process, Federal jurisdiction, creation\nits cost, and whether the tactics proposed might involve entrap-\nof undercover companies, false identification, and numerous addi-\nment, due process violations, or create a unreasonable potential for\ntional topics.\neconomic loss to either individuals or the general community must\nThe Attorney General's guidelines on FBI undercover operations\nbe addressed in a proposal.\nwere not issued until February 1, 1981; however, they were de-\nMany projects are rejected in the field or by FBIHQ supervisors\nsigned to set forth practices that had developed out of our previous\nafter their initial review. Those that meet the basic requirements\nexperiences. These guidelines provide that in addition to complying\nand which appear to offer potential to accomplish the objectives\nwith legal requirements, before approving an undercover operation\nare submitted to the Criminal Undercover Operations Review Com-\ninvolving an invitation to engage in illegal activity, the approving\nmittee.\nauthority should be satisfied that:\nThe Committee includes FBI headquarters officials from the dis-\n(a) The corrupt nature of the activity is reasonably clear to po-\nciplines involved, including representatives from the Legal Counsel\ntential subjects;\nDivision and representatives from the Department of Justice who\n(b) There is a reasonable indication that the undercover oper-\nconsider any legal issues. It was established by me in the fall of\nation will reveal illegal activity, and\n1978 to provide an ongoing institutionalized method of evaluating\n(c) The nature of any inducement is justifiable in view of the\nproposals, recognizing potential pitfalls, and giving guidance on\ncharacter of the illegal transactions in which the individual is in-\nsuch matters as avoiding injury to third parties.\nvited to engage.\nThis committee has become my main advisory board in the ap-\nThe guidelines recognize that inducements may be offered to an\nproval process for undercover operations. The committee thorough-\nindividual even though there is no reasonable indication that the\nly reviews the fields submission and attempts to look at the project\nparticular individual has engaged in or is engaging in illegal activi-\nfrom other angles, including the general propriety of its approach.\nty that is properly under investigation. However, the guidelines\nAfter this review, many proposals are sent back to the drawing\nprovide that no such undercover operation shall be approved with-\nboard.\nout the authorization of the Director.\nIf the committee makes the determination that the legal and\nOther circumstances which can be approved by the committee\nethical considerations as well as operational aspects warrant ap-\nwould include situations where there is reasonable indication based\nproval of an undercover proposal, the committee will make such a\non information developed through informants or other means that\nrecommendation to the Assistant Director of the Criminal Investi-\nthe subject is engaging, has engaged, or is likely to engage in il-\ngative Division or, when particularly sensitive circumstances are\nlegal activity of a similar type; or the opportunity for illegal activi-\ninvolved, to me.\nty has been structured SO that there is reason for believing that\nNo operation is approved for more than 6 months, and many are\npersons drawn to the opportunity or brought to it are predisposed\napproved with the stipulation that an interim progress report be\nto engage in contemplated illegal activity.\nmade to the committee. Undercover operations requiring a time\nAll long-term undercover projects must be closely coordinated\nperiod of more than 6 months must be represented to the commit-\nwith U.S. attorney's or strike force offices. As I indicated earlier,\ntee for subsequent approval.\nthe committee must be assured that the U.S. attorney is fully ad-\nIn addition, special agent supervisors at headquarters provide\nvised of the proposed operation and that he or she concurs with the\ncontinuing supervision of those operations which are approved.\nproposal, its objectives and the legality of the operation.\nSince the implementation of the committee problems which could\nOnce an operation is approved by FBIHQ, the contact with the\narise during the course of an undercover operation have been more\nU.S. attorney's office or strike force office is intensified. For exam-\nreadily recognized, and the possibility of harm to other third par-\nple, Abscam was reviewed on a daily basis by the strike force in\nties as a result of an undercover operation has been greatly mini-\nthe eastern district of New York. Strike force attorneys personally\nmized.\nmonitored on closed circuit television many of the transactions as\nWe recognize that undercover work places unusual stress upon\nthey were taking place. One purpose for this on-line monitoring\nagents and their families. We carefully choose our undercover\nwas to guard against conduct amounting to entrapment. The attor-\nagents from a pool of volunteers. We have instituted a training pro-\nneys could pick up a telephone and call into the meeting room. The\ngram, including undercover seminars at Quantico, which deal with\nundercover agent would answer as receiving a business call and\nmany aspects of undercover operations. These seminars are de-\nobtain instructions necessary to insure that all legal requirements\nsigned to train undercover agents, the handling agents, and the un-\nwere being followed.\ndercover agents' supervisors.\nIt should also be emphasized that this investigation was closely\nAs an example, recent seminars have presented such diverse\nmonitored by the Department of Justice in Washington. Many in-\ntopics as legal matters, handling of informants, stress factors,\nvestigative steps were taken at the recommendation of Department\nmoney laundering, narcotics investigations, psychological aspects of\nof Justice attorneys. Strike force and U.S. attorneys were not only\nundercover work, and female undercover roles. In addition, our\nin close touch with our undercover agents and their supervisors,\nprincipal legal advisors have been given seminars at Quantico\nbut also with Department of Justice officials as the investigation\nwhich address the developments in such legal issues and policy\nprogressed. Department of Justice officials viewed the more signifi-\n406\nand the word was spread in the network of con men that easy\nprovided legal guidance and exercised the ultimate for\nmoney was available for shady transactions.\ncant prosecutive tapes, discretion as to each Congressman considered pros-\nIn the early stages of the investigation, there was nothing unusu-\nal about the undercover operation except perhaps the somewhat\necution. Before turning to the specifics of the Abscam investigations, to it\nelaborate cover story. Through the summer of 1978 there was no\nbe helpful to make some important distinctions that cases. go\npolitical orientation to the operation which was aimed at the recov-\nmight much of the confusion and uncertainty about those and other crimi-\nery of stolen and forged property.\nan undercover operation that is designed to identify co-\nThings began to change slowly in the fall of 1978. One of the\nFirst, normally requires the assistance of one or more of back-\ngroups which had sold Abdul Enterprises phony certificates of de-\nnal practices witnesses. These individuals have a wide range victims of a\nposit raised a new prospect. They offered to serve as a broker be-\noperating and motives for cooperating. They may be of this\ntween the mayor of Camden, Angelo Errichetti, and the fictitious\ngrounds of payoffs and kickbacks who want to be relieved in this\nArabs who had indicated some interest in investments, including\npractice Our labor racketeering cases have often developed looking\nthe newly legalized gambling casinos in Atlantic City, N.J. These\nburden. They may be in serious trouble with the law and are in the\nindividuals described in detail the corrupt relationship that they\nway. for a to soften the blow. In such cases, their expertise familiar-\nhad with this politician and the influence he claimed he could com-\nfraud way techniques of the area under investigation and their success\nmand in the State. Errichetti was described as a corrupt politician\nity with the criminal actors are of vital importance to the\nwho could obtain an Atlantic City casino license in return for a\nbribe.\nof the\noperation. credibility as a witness in a trial may be of uncertain value with\nMeetings were held between Errichetti and the Abscam opera-\nTheir of their background, but their credibility in dealing credibility\ntives. Errichetti boasted that with his assistance the operatives\nin criminal view contacts provides our agents with access and wit-\ncould obtain a gambling license; however, without his assistance, it\nmight take years, if ever, to develop. The cooperating that the\nwould be impossible to obtain the needed licenses. Errichetti indi-\nwhich knows, of course, that he is dealing with the FBI, and\ncated that a cash payment would be necessary in order to obtain\nness FBI expects him to conform his conduct to FBI requirements. cases.\nhis assistance.\nMelvin Weinberg was the cooperating witness in the Abscam corrupt\nWhen Errichetti indicated that he would accept a bribe, the New\ninfluence In peddlers did not know they were dealing with the them-\ncontrast to the cooperating witnesses in Abscam, the FBI,\nYork office of the FBI, with the concurrence of the strike force, fur-\nnished FBIHQ with the details. They also requested the authority\nto make a $25,000 cash payment to Errichetti, The request followed\nbut who were interested in achieving results by purchasing offi-\nrather thought they were dealing with individuals like in-\nthe FBIHQ chain of command and was presented to the undercover\nselves The influence peddler often fronts for a corrupt public were\nreview committee, where it was approved. At this time, the deci-\nfluence. and is sometimes called a bag man. In Abscam they thought\nsion was made that all bribes would be documented on video and\ncial themselves the subjects of our investigations. In what they and\naudiotape. This procedure was followed throughout Abscam.\nconfidential setting, they spoke of their political contacts of the\nOn January 20, 1979, a $25,000 payment was made to Errichetti.\nwas the political a corruption that could be utilized in the services\nMeetings between the operatives and Errichetti continued, and\narrangements were made for a payment of a $100,000 bribe to Ken-\nArab shiek.\nall that followed, these influence peddlers were not Govern-\nneth MacDonald, vice chairman, New Jersey Casino Control Com-\nIn informants, cooperating witnesses, or Government operatives. and those\nmission. With the concurrence of the strike force, our New York\nment as the courts have found, engaged in crime, important\noffice requested and received FBIHQ authority to make this pay-\nment.\nThey who have were, been tried have been convicted. I think it is\nA meeting was set up with Errichetti and MacDonald. On March\nthat these distinctions be kept firmly in mind.\nwant to focus on a brief chronology of Abscam as reflected Abscam\n31, 1979, Errichetti was furnished with a bribe payment of $100,000\nin the in the Hauppauge office of the FBI on Long Island, swindler, N.Y.,\nI now evidence adduced in various trials. The idea for in\nin the presence of Kenneth MacDonald. At this time, Errichetti\ndemonstrated through words and actions that he was MacDonald's\nintermediary.\narose 1978. Agents there began working with a convicted at the\nErrichetti was also directly responsible for developing another\nearly Weinberg. The scope of the operation was limited forged\ncase, this one involving Senator Harrison A. Williams. As early as\nMelvin to property crimes, including the recovery of stolen or to\nJanuary 10, 1979, Errichetti had mentioned Senator Williams and\noutset securities or artwork. The operation was simple and similar one\nhis associates. It was determined on January 11, 1979, that Senator\nwhich Weinberg had run illegally prior to being convicted.\nWilliams and his associates were looking for financing for a mining\nUpon the hope of receiving a lenient sentence. He and agents busi-\nconviction, Weinberg agreed to cooperate with the Govern- of\nventure in Virginia. Subsequent investigation and meetings with\nSenator Williams and his associates determined that Senator Wil-\nment FBI in posed as American representatives of wealthy Arab of\nliams had a hidden interest in the mining venture. On June 28,\nthe interested in making shrewd investments, regardless the name\n1979, Senator Williams met with our operatives and offered to use\nnessmen Abdul Enterprises, Ltd., from which Island,\nhis influence and position to benefit the mining venture.\ntheir Abscam legality. was derived, was established in an office on Long\nIn the spring of 1979, Errichetti, still believing the Abscam oper-\nwith the undercover operatives, and on October 20, 1979, he was\natives to be agents of wealthy and unscrupulous Arab sheiks, pro-\npaid $50,000 in exchange for the commitments he made to assist in\nvided them a written list of names of those who he claimed were\nthe immigration problem.\ncorrupt Federal and State politicians. It is important to note that\nDuring October 1978, in a recorded telephone conversation with\nErrichetti first brought up these names, not the operatives. This\nWeinberg, John Stowe, a South Carolina businessman, advised that\nbecame a pattern which followed throughout the operation. Erri-\nhe knew a Congressman who was as big a crook as he was-\nchetti claimed he could put the operatives in touch with these al-\nStowe-and who would assist in transactions involving forged\nlegedly corrupt politicians should the need arise. An opportunity\ncertificates of deposit. In November 1979, recalling Stowe's repre-\nsoon presented itself.\nsentations, he was recontacted by the Abscam operatives.\nIn late July 1979, aboard a yacht in Florida, a meeting was held\nStowe was asked if he was still dealing with the Congressman\nwith Errichetti and others to discuss a proposed casino transaction.\nthat he had previously mentioned. Stowe identified the Congress-\nAlso present at the meeting were individuals whom Errichetti had\nman as John Jenrette, and indicated that he still had contact with\nidentified to the FBI operatives as being instrumental in the casino\nhim. Our operatives then asked if Congressman Jenrette would be\ndeal. These included Louis Johanson, a Philadelphia city council-\ninterested in assisting the sheik in his immigration problems in\nman, and his law partner, Howard Criden. During the cruise, FBI\nreturn for cash. Stowe indicated that Jenrette would be interested,\nundercover Agent Anthony Amoroso, posing as the Arabs' right-\nand that he would set up a meeting.\nhand man Tony DeVito, remarked that the sheiks might have to\nIn December 1979, our operatives had several meetings with\nflee their country and seek asylum in the United States. He said\nStowe and Jenrette, at which time Jenrette offered to assist us for\nthat the sheiks did not want to face a situation like that which had\n$50,000. After two meetings and several phone calls with Stowe\nrecently confronted Anastasio Somoza, the deposed Nicaraguan\nand Congressman Jenrette, Stowe accepted a $50,000 bribe on\nleader who had been expelled from this country shortly after his\nbehalf of Congressman Jenrette. Congressman Jenrette confirmed\narrival. Errichetti, with the assistance of Criden, began to identify\nthis payment in a telephone conversation which was recorded. Sev-\nU.S. Congressmen who, in return for cash, would take actions to\neral days later, Congressman Jenrette reconfirmed his receipt of\nguarantee asylum for the fictitious sheiks.\nthe money in a video taped face-to-face meeting with our opera-\nOn March 30, 1979, Errichetti had supplied the name of Con-\ntives.\ngressman Myers as a corrupt politician. Errichetti, in a series of\nDuring this period, William Rosenberg, a corrupt influence ped-\ntelephone conversations with Abscam operatives in July and\ndler and con man from New York, who had been responsible for\nintroducing us to Mayor Errichetti, introduced us to Stanley Weisz,\nAugust 1979, claimed—\nMr. HYDE. Judge Webster, would you mind giving Mr. Myers'\nEugene Cuizio, and Congressman Richard Kelly. Congressman\nfirst name? We have another.\nKelly, in exchange for his offer of assistance in connection with the\nMr. WEBSTER. Ozzie Myers. Thank you. Congressman Ozzie\nimmigration problem, was paid a bribe of $25,000 in January 1980.\nIn January 1980, Howard Criden led our operatives to George\nMyers. Mr. HYDE. We have another one still serving with distinction.\nSchwartz, Philadelphia city council president; Harry P. Jannotti,\nMr. WEBSTER. I appreciate your drawing that to my attention.\nPhiladelphia city councilman, and Louis Johanson, Philadelphia\nErrichetti in a series of telephone conversations with Abscam\ncity councilman. As you will recall, Johanson had attended the\noperatives in July 1979, claimed to have commitments from Con-\nJuly 1979, meeting held in Florida. It was now represented to our\ngressmen Ozzie Myers and Lederer to meet with the sheiks' repre-\noperatives that these individuals could assist in obtaining permits\nsentatives in order to provide immigration assistance. He subse-\nwhich would be necessary for construction work that the Arabs\nquently advised the operatives that the support of each Congress-\nwanted to finance in Philadelphia. Johanson was paid $25,000 on\nman would cost $100,000. After consulting with FBIHQ, the opera-\nJanuary 21, 1980; Schwartz was paid $30,000 on January 23, 1980;\ntives were able to reduce the demand to $50,000 each. Payments of\nand Jannotti was paid $10,000 on January 24, 1980.\n$50,000 were subsequently made to both Congressman Ozzie Myers\nThe corrupt influence peddlers talked at length about their polit-\nand Congressman Lederer.\nical connections and in the course of their discussions many addi-\nHoward Criden, with the assistance of Joseph Silvestri, intro-\ntional names were mentioned. Some of these turned out to be mere\nduced our agents to Congressman Thompson. Silvestri was involved\npuffery.\nin the construction industry in New Jersey and had strong political\nWhile we could not eliminate the possibility that completely in-\nties. On October 9, 1979, our agents made a $50,000 payment to\nnocent officials might come to an undercover meeting at the behest\nsumed the role of a corrupt influence peddler and suggested that\nCongressman Thompson. During the meeting Thompson himself as-\nof a corrupt influence peddler, we sought to reduce the likelihood\nin the following way:\nhe had a close friend who was a Congressman from New York who\nFirst, the shiek's representative firmly and repeatedly instructed\ncould assist us. We later learned that he was referring to Congress-\nthe influence peddlers not to bring public officials who did not un-\nman John Murphy.\nderstand the purpose of the meeting and unless they were prepared\nActing upon the suggestion of Congressman Thompson, Howard\nto make their promises of assistance and receive payment personal-\nCriden made arrangements for Congressman John Murphy to meet\nly. This was couched in language consistent with the scenario.\nWhile the corrupt influence peddler had a vested interest in not of-\nLater on, again:\nfending the shiek or exposing his corrupt operation by violating\nthis requirement, we nonetheless put in place a second or backup\nQuestion. You kept no notes at all?\nrequirement. The undercover agents were instructed that no\nAnswer. No, not concerning that. Tape recordings is what was utilized.\nmoney should pass until after the criminal representations had\nAnother question:\nbeen made. The online monitoring by strike force attorneys pro-\nvided an additional safeguard.\nwould require that you keep some type of notes or memoranda.\nYou know of no rule, regulations, memo or anything else written or oral which\nThe facts that I have presented received searching scrutiny in\nAnswer. No.\npretrial motions, in the trials themselves, and in extensive posttrial\nThen later on:\nhearings. The judicial process has thus far determined that those\ncharged and tried significantly violated the public trust. Of equal\nvised these calls, was he not, in the spring of 1979?\nYou in left it with Mr. Weinberg and for the most part Mr. Weinberg was unsuper-\nimportance, the techniques employed by the Department of Justice\nAnswer. Correct.\nhave thus far withstood legal attack in the courts on review.\ndocumentation. whereabouts from June 1979 to and through January of 1980 you have no written\nQuestion. And his whereabouts, isn't that statement correct that Mr. Weinberg's\nThe responsibility does not stop there. Our undercover investiga-\ntions are regularly reviewed in the helpful light of hindsight. Prob-\nlem areas are eliminated and better ways to achieve worthy goals\nAnd so forth. I believe you are acquainted with these facts.\nare developed. I, therefore, approach these hearings with the hope\nThis FBI agent testified that over 50 percent of the time Wein-\nthat they will be helpful to your oversight function and to the FBI\nthat? berg was not supervised at all. Would you care to comment on\nin the discharge of its significant law enforcement responsibilities.\nIn that spirit, I am now prepared to answer your questions, Mr.\nMr. WEBSTER. Yes, I would be glad to.\nChairman.\nMr. EDWARDS. Thank you very much, Judge Webster.\nwhich ones you want me to address first.\nYou mentioned a few things and I am not sure, Mr. Chairman,\nPursuant to House rules, we will be operating under the 5-\nminute rule.\nMr. WEBSTER. Yes.\nMr. EDWARDS. It is the supervision of Mel Weinberg?\nJudge Webster, on page 4 of your report, the second paragraph,\nFirst, as to Mr. Amoroso, I was aware of that statement when it\nyou point out how carefully the agents in these undercover activi-\nwas called to your attention, and you made a point of it and I made\nties were monitored, that the operations were planned in advance,\ninquiry of Mr. Amoroso. The question related to guidelines on en-\nand that all work was continually monitored. Back in February of\ntrapment. There were no written guidelines on entrapment until\n1980, you said on TV, \"The Abscam operation is probably the most\nDecember 1980.\ncarefully monitored, the most carefully controlled, the most care-\nIn a trial where Special Agent Anthony Amoroso, the supervis-\ninars and training and online instruction from principal legal advi-\nwith 18 years experience has had numerous seminars, specific sem-\nSo his statement was made in response to the question. An agent\nfully scrutinized investigation in the history of the FBI.\"\ning FBI agent in charge of Mel Weinberg-I believe his undercover\nsors in the field; 16 hours is given to every special agent in the\nname was Tony DeVito-was testifying under oath, of course; he\nfield as well as the training that we have at Quantico.\nwas asked the question by defense counsel, Mr. Robinson:\nI think that in terms of supervision, one has to recall the daily\nAre there any written regulations or guidelines at all in the FBI there to give\nagents cover guidelines to pursue an investigation?\nwith Thomas Puccio, the chief of the strike force in the eastern dis-\ncontact that Amoroso and John Good, who was his supervisor, had\nAnswer by FBI Agent Amoroso:\ntrict of New York and others, departmental attorneys with whom\nNot in an undercover operation, no.\nbase, cluing in with each other on what was proper and appropri-\nthey were working. They were getting constant advice, touching\nAnd then the questions continue:\nate and setting the next stages.\nWe've talked about the guidelines and that there were no written guidelines, no\nthe dates and I cannot tell you out of my own knowledge what was\nSo far as accounting for Mr. Weinberg, I did not make a note of\nwritten-no recordings.\nDid you make written reports on a day-to-day basis of what was happening with\nyou and Weinberg?\nAnswer. No.\nand it is my understanding in talking to our agents that before\nhappening at that particular time. But this is over several months,\nQuestion. Did you make them on a week-to-week, month-to-month basis?\nmeetings took place, Mr. Weinberg was in the company of our any un-\nAnswer. No, never made any reports. The tapes were what we were using.\ndercover I operatives for as much as 48 hours before they took place.\nLater,\nQuestion. Weren't you told as part of your script, your role as an undercover offi-\nwho is-who is a relatively free agent, is a substantial amount of\nthe time. I think 50 percent of the time to keep track of somebody\nthink it is not too helpful to talk in terms of only 50 percent of\ncer. Tony DeVito, to get the man to talk about taking the money and get one?\nAnswer. I was not given any script or I was not told what to say.\nkeeping track of.\nIt was all what I felt.\nQuestion. You were given no guidelines at all as to what was expected of you?\nThe issues have to do with what Weinberg did or did not do, it\nAnswer. No.\nseems to me, when he was under supervision or when he was not\nunder supervision. And it is my impression that all of those issues\n94-384 0 83\n412\nwork had gotten wind of what was going on and were getting very\nsearchingly examined in the due process hearings and monitor- to date\nclose to us and very close to writing about it. So that had to be\nwere no fault has been found by the courts with that degree of\ntaken into account.\nAs a matter of fact, I authorized the extension of the Abscam in-\ning. EDWARDS. Well, in the same hearing, the same trial, Mr. at\nvestigation for an additional 10 days after we had originally\nMr. said Mr. Weinberg was, as I have said before *\nplanned to close it, in order that the strike force attorney, the U.S.\nAmoroso liberty to operate in a manner he saw fit.\" But naturally, I accept\nattorney rather, in Philadelphia and FBI agents there might have\nyour response doesn't and those thank statements you for by it. the supervising agent for Mel\nan opportunity to follow some leads into the Philadelphia City\ncouncil. So it really ran 10 days longer than we had expected.\nWeinberg ation is probably the most carefully monitored, the most\nBut call into question what you said, that \"the Abscam carefully oper-\nMr. HYDE. Was there a fear expressed that you were being too\nsuccessful, that you were getting too many political figures and\ncontrolled, most testified carefully that scrutinized?\" over 50 percent of the time he did not\nthat enough is enough; was that fear ever expressed in your confer-\nAmoroso what Weinberg was doing and there were no notes kept he on\nences with Mr. Heymann?\nMr. WEBSTER. No; not by Mr. Heymann and--\nknow what Weinberg was doing and he really did not know what was\nMr. HYDE. By you?\ndoing. WEBSTER. That had to do with his relationship with courts Wein-\nMr. WEBSTER. By me?\nMr. If would care to be specific, as I said before, the\nI have always been of the view, and I apply this not just to public\nberg. you what Weinberg did or did not do and what evidence was\ncorruption but corruption in supporting industries and so forth,\nlooked involved. at I do know that it was our policy that when Weinberg- He\nthat you follow your leads, you do not turn away from something\nthat Weinberg was not to meet separately with public officials. with\nthat you hear about and you resolve it quickly, but you do not try\ndid it on one occasion, for which we remonstrated with him,\nto keep going on and on and on. The point gets made. The deter-\nrent effect gets made at some reasonable point.\nthe manner was in very which early he in handled the investigation, it. Mr. Chairman, I think came\nThat point, it seemed to me, is when our leads that we had were\nThat was in the spring of 1979, before any of the other cases him\nresolved and we were running the risk that the corrupt influence\nthat on. And we made a point of trying to stay in close touch Now with we could\npeddlers were going beyond their string of associates and beginning\nwhen him from accepting telephone calls in any place\nhe was dealing with any of the public officials. where he\nto bring in people who were not—\nMr. HYDE. Not good prospects?\nnot keep receive them, but those that came into Abdul recorded Enterprises con-\nMr. WEBSTER. Not good prospects.\nmight were largely taped. I think we had over 1,000 tapes of\nMr. HYDE. For the enterprise?\nMr. WEBSTER. Exactly.\nversations. did not have-he was as you know, he had his own home indi- and\nMr. HYDE. There was no political pressure brought on you, and\nwe cates that any damage was done by his activity during periods\nWe could not sequester him and I do not think that the case\nthere was no discussion then I take it between you and the Justice\nDepartment about this-the repercussions? As I take it, there were\nwhen he was not under lock-step with us.\n12 Congressmen approached and only 5 refused and 7 took the\nMr. EDWARDS. Thank you, Judge Webster.\nbait?\nMr. WEBSTER. I am not sure of those figures. I think two came\nMr. Hyde.\nand went away, one accepted money under ambivalent circum-\nMr. HYDE. Webster, Thank I you, would Mr. like Chairman. to take you in a different direction\nstances, ambiguous circumstances; a few were named who did not\nentirely. Members of Congress, Two were committee chairmen,\nJudge Some of the fish that you landed were very and important one was\ncome and the rest came and took the money.\nMr. HYDE. Now, I did not hear you mention Joseph Meltzer and I\nam very interested in Mr. Meltzer and his operations. What was\na\nSenator. I am interested in knowing why the process stopped. Did you do or\nhis relationship with the entire Abscam operation?\nso on your own or were you directed by the Justice Department\nMr. WEBSTER. Meltzer did not have a direct relationship with the\nothers and desist the Abscam operation?\nAbscam operation. He was involved as a cooperating witness in an-\ncease or by me and by Assistant Attorney General force Philip attorneys\nMr. desist. The decision to conclude the operation was Hey-\nto WEBSTER. cease Congressman Hyde, we were never directed made to\nother case which we called Palmscam. It was intended to look into\na number of corruption-type activities in southern Florida. And it\nwas an operation that was open for about 2 months in the summer\nprimarily mann, at a time when, after consulting with strike determined\nof 1978.\nand our own executives at FBI headquarters, we had\nDuring that time he was to set up an office as a sort of a real\nthat had leads.\nestate place from which he could approach some rezoning matters\nThere we is always run our the possibility of keeping an ongoing investiga- of those\nand other things. And he had a lead that a person responsible for\nIt has some risks that had to be balanced. One\nrezoning was interested in taking money for that type of activity.\ntion the open. risk of imminent disclosure of the covert part of the oper- net-\nAnd he needed some credibility.\nwas ation by the press. At least one newspaper and one television\nA decision was made which in the benefit of 20-20 hindsight I\nrate, and he asks for a payment in advance as good faith. It does\nhink we could have done better, a decision was made to provide\nnot make much sense to you or me as to why someone would do\nim with a letter from Abdul Enterprises on Abdul Enterprises sta-\nthat unless they were very anxious to get some money and very\ntionery, which I believe has been made a part of the record, and\nhopefully knew what he was talking about; sort of like a financial\ncertainly if it hasn't it can be; it was in the courts that talked\npigeon drop confidence scheme.\nabout two deals that Abdul was interested in.\nWe have quite a few of those in the country, just an enormous\nIt was not a letter of reference, it was not a letter of credit, it\namount, victimized American citizens who are in need of money or\nwas simply saying we are interested in those two deals and would\nlooking for money under those circumstances.\nlike to explore this further with you, words to that effect.\nSo he engaged apparently in a series of advance fee schemes and\nThat letter was apparently utilized by Meltzer after the Palms-\nactivities, working with other associates. We were not aware of his\ncam investigation had closed on the west coast with another letter\nactivities until after many of these people that have appeared\nthat was apparently forged by Meltzer or someone working with\nbefore you had actually paid their money to Meltzer.\nMeltzer for which we had no participation of any kind, to use as\nMeltzer was not a part of Abscam. But he apparently, by being a\nbait for what we call an advance fee scheme.\ngood con man, knew that Abscam was our operation-Abdul Enter-\n[The letter referred to follows:]\nprise was our operation and knew enough about it, apparently, to\nU.S. DEPARTMENT OF JUSTICE,\nobserve or get the idea about Arabs. He was also dealing with a\nOFFICE OF LEGISLATIVE AFFAIRS,\nfigure-and this was part of the purpose of Palmscam-he was\nWashington, D.C., May 19, 1982.\ndealing with a figure in New York associated with organized crime\nAttention: Michael Tucevich.\nwith whom we in turn were dealing out of the Abscam-Abdul En-\nCATHERINE LEROY,\nterprise operation. It appears from what we have been able to\nCounsel, Committee on the Judiciary,\nlearn that he picked up some of the information about the Arabs\nHouse of Representatives, Washington, D.C.\nDEAR Ms. LEROY: I am returning the transcript of the testimony for William H.\nand their money and that scenario in talking not just with us but\nWebster, Director, Federal Bureau of Investigation, before the Subcommittee on\nwith a person under our scrutiny. That is where he comes in.\nCivil and Constitutional Rights, on April 29, 1982, concerning FBI Undercover Oper-\nNow there have been a lot of lawsuits filed recently, they are in\nations. Also enclosed for the record is a copy of a letter dated July 7, 1978, addressed\nto H & J Realty, c/o Joseph Meltzer, and signed John McCloud. Reference to this\nthe court and I am sure you can appreciate that I can only respond\nletter occurs on page 38 of the corrected transcript.\nto your questions in a rather limited way because the Government\nFurther information regarding (1) complaints to the FBI of Joseph Meltzer's ad-\nis entitled to its day in court. A great deal of money damages have\nvance fee scheme, page 54; (2) the tracing of gifts which were allegedly provided to\nbeen claimed. The actual amounts that Meltzer took from these\nMel Weinberg, page 56; and (3) an approach to Congressman James Howard by a\ncorrupt influence peddler, page 86, will be provided to the Subcommittee as soon as\nvarious victims was relatively small by our standards, certainly not\nby theirs. But we are talking in $5,000, $10,000 increments.\npossible.\nSincerely,\nUndoubtedly some of those people were-I can't say because I do\nROBERT A. McConnell,\nAssistant Attorney General.\nnot know, but there is a good indication that some of these people\ncame in off the street, were not involved in any illegal activity of\nEnclosure.\nABDUL ENTERPRISES, LTD.,\ntheir own. Whether that is the responsibility of the FBI, whether it\nNew York, N.Y., July 17, 1978.\nis the responsibility of the Department of Justice, or the Govern-\nH. & J. Realty,\nment remains to be seen. They have a remedy in court and if it\ncare Joseph Meltzer,\nproves that the FBI was the-or the Government was the cause of\nP.O. Box 413, Delray Beach, Fla.\ntheir loss, I would hope and expect that they would be made whole.\nDEAR MR. MELTZER: Regarding our conversation of June 23, 1978, I am consider-\ning the purchase of the 160 acre Longmeadow Development owned by Allison Mort-\nMr. HYDE. Judge, I do not want to prejudice any litigation that is\nof Los Angeles, California. I believe the price you mentioned was $1,900,000.\npending because there is a lot at stake. It just appeared to me,\ngage Additionally, the adjacent parcel of land owned by John Rochman which is for sale\nfrom the testimony of a great number of these people, that they\nfor $250,000 also looks interesting. Further, the purchase of Lighthouse Foods in\nMiami for $500,000 appears to be a good business venture which could be mutually\nwere not greedy, they needed financing for some enterprise, legiti-\nmate enterprise and that Meltzer was credentialed by the FBI in\nprofitable. 1 feel confident, Mr. Meltzer, that you will be able to handle the legal problems\nthe sense that these people checked with the FBI, and of course the\nconcerning the use of the land in the appropriate way.\nFBI is no Dunn & Bradstreet but it is funny, as soon as they would\nAs soon as you assure me that the property can be used for the purposes I speci-\ntalk to the FBI about Meltzer, Meltzer knew about it almost imme-\nfied, we can proceed quickly in making arrangements for final closing.\ndiately and would remonstrate with these people about why were\nSincerely,\nJOHN M. McCLOUD,\nthey going to the FBI?\nChairman of the Board.\nAlso, the Chase Manhattan Bank credentialed Meltzer's oper-\nMr. WEBSTER. An advance fee scheme is when a con man offers\nation. It called the Chase Manhattan, Oh, yes, the shiek has a lot\nto do something for someone who is either naive or greedy and\nof money on deposit here.\nwants something that he would not be able to get from convention-\nI just am interested to know if the FBI stood by with knowledge\nal financing sources such as a big loan or a reasonable interest\nthat he was scamming a lot of people, Meltzer, and out of a fear of\nblowing his cover let these people go down the drain, as some of\none individual, late in the investigation, when we were in fact\naware of Meltzer, who called, I believe from Denver-and I have\nthem did.\nWe have had some weeping at those tables, and justifiably SO. Is\nhis name, it is Harlow-who called the FBI and, as a result of his\nit your view that going into that in detail might compromise that\nconversation, he did not invest. All these other people who called\nhad already lost their money. This was not a question of keeping\nlitigation? Mr. WEBSTER. I think so, Congressman Hyde. And besides, what I\nthem from losing their money, they had already lost it.\nam and searching questions to find out where we were. I was\nsaying is information that has come to me by my own questions not\nIt will be the testimony of the one agent at Abdul who received a\ncall that he told the one person who called, and I do not remember,\nof Mr. Meltzer until the spring of 1980. He was not consid- those\nI do not recall whether he left a name or not, to call the FBI if he\naware ered part of our Abscam activity and I do not believe that\nhad some question about it.\naround were-talking to me were generally aware of the Meltzer\nMr. HYDE. We had a Joel Chasen who wanted to buy a soccer\nteam, who was led to believe that he could. He contacted, he said,\nproblem. I can say a few generalizations and I say them only because-on\nthe Bureau in New York and Washington. He testified he was told\nthe basis of what I know or I have been told and believe.\nthat Meltzer was fine, everybody was good as gold. He said he con-\nFirst is with regard to the Chase Manhattan Bank, that was a\ntacted the Bureau in August 1979 and was not recontacted until\ncredibility cover for Abscam. Our arrangements were made with\nDecember, at which time he was told to be quiet and not tell\nMr. Elzay of that bank, that if persons called he would acknowl- in\nanyone anything.\nthe Chase Manhattan Bank under Abdul Enterprises, that is all;\nedge that there was a substantial amount of money on deposit\nMr. WEBSTER. Those are disturbing reports. But as you know and\nI know, those are allegations that will be developed in the court-\nthat is all he would say. He kept a log. And it is my understanding\nroom. The FBI keeps fairly meticulous logs and presumably this\nthat the log reveals no such inquiries by any of the people who tes-\nperson had a record of a long-distance call that he can establish if\ntified here. That will all come out in the courts.\nhe has one. So I would rather avoid the issue of the facts of the\nWith respect to contact to the FBI, when in May and June 1979\ncase other than to assure you in response to a reasonable question\ntwo people called the San Diego office to complain and then to go\nthat in this case it is my view that the FBI did not let people go\nin, an investigation was promptly opened on Meltzer. Meltzer was\ndown the drain in order to protect Meltzer or in order to protect\nnot recognized as a former FBI informant. He had been closed as\nAbscam. There may be other types of situations in the future,\ninformant several months-I do not have the exact date, several\nthere have been terrorism-type cases in the past, there have been\nmonths-before an that. He was not recognized. That is a question,\nall kinds of questions where that hard philosophical issue comes\nwhether we should have recognized Meltzer as an informant in the\nup.\nShould Winston Churchill have let Coventry be bombed at the\nSan Diego office.\nI am not trying to buy off on that question, but he was not recog-\nrisk of giving up the code? I do not think that is the issue in the\nAbscam-Meltzer case. I do not think that happened.\nnized. When we finally did recognize Meltzer and began to talk to our\nMr. HYDE. I thank you.\nown people, then his former handler in Florida contacted him to\nMr. EDWARDS. Mr. Kastenmeier.\nfind out what he was doing and why these calls were coming in,\nMr. KASTENMEIER. Thank you, Mr. Chairman. I want to con-\nthe being to get him to behave himself.\ngratulate you for having these hearings. I think the interest with\nMeltzer purpose apparently, and I am only getting it as you have ex-\nwhich this hearing has been received is evidence that the policy\nplained it to me, apparently used that information then to imply\nquestions and the interest generally in the subject have not been\nthat he had some kind of FBI credibility.\nexhausted.\nMr. HYDE. One of the witnesses, Richard Stratton, said and I\nI was very interested in the line of questioning just pursued by\nquote, \"It was really amazing that almost every time someone con-\nthe gentleman from Illinois. I attended those hearings and heard\ntacted anyone to get some information on Mr. Meltzer, Mr. Meltzer\nthe same complaints of innocent victims of some of these oper-\nseemed to know about it a short time later.\"\nations.\nWell, I do not want to pursue this beyond my time but just to\nJudge Webster, in your testimony you said the guidelines recog-\nsuggest-I just have some questions as to whether the FBI knew inno-\nnize that inducements may be offered to an individual even though\nwhat Meltzer was up to and what its obligation was to these\nthere is no reasonable indication that the particular individual has\ncent parties who were being victimized.\nengaged or is engaging in an illegal activity that is properly under\nCertainly when you call the Chase Manhattan Bank and they call\ninvestigation.\nsay, the FBI, within minutes or hours, you get a call from Meltzer\n\"Oh, yes, there is this money on deposit,\" and when you\nWhat is the public interest in offering such inducements under\nthose circumstances?\nasking what are you going to the FBI for, it raises some questions.\nMr. WEBSTER. I think that the public interest probably is identi-\nMr. WEBSTER. Of course it does, Congressman Hyde.\nfied in the two circuit court opinions that have dealt with the need\nAs I said earlier, I think Mr. Elzay's record reflects that he re-\nfor prediction in the second circuit, fairly recent opinions that re-\nceived no such calls. As far as the FBI's obligation, I am aware of\nviewed the law in this area. I think the public interest is this: I\nreferred, if you will recall, in my statement to consensual crimes,\nborhood, ask about their reputation in the community, if we do\nwhere you do not have clear evidence that someone is engaging in\nthese other things, we often raise more of a problem for the indi-\nprostitution, is engaging in gambling, is engaging in narcotics, or is\nvidual than to do what we did in this case, which was to establish a\nengaging in bribery. Those have a willing participant on each side\nscenario in which only those who come are likely-now I did not\nof the transaction. You have no witnesses, as a rule, to that type of\nsay beyond any doubt, but are likely, are likely to come if the rules\nare followed, only those that are likely to come who have an inter-\nsituation. What you have is a smell. You have people who talk about it and\nest in doing this kind of thing.\ntalk around it and the tendency in our investigations is to focus\nAnd as I mentioned in the statement, and I have said publicly a\nupon this kind of activity, rather than upon particular individuals\nnumber of times, we built into our approach a way of selecting out\nand create a setting in which these allegations, or smell if you\nthose who might have come by error, and by making the criminal\nwant to call it, either are true or not true.\nnature of it very apparent from the beginning. I realize there are\nThat was largely true in Oklahoma where SO many people had\ncriticisms directed against that that have some merit. But I believe\nbeen receiving kickbacks for every contract, virtually, let by county\nthe end goals of resolving the issues and protecting them are\ncommissioners in the majority of the counties in Oklahoma.\nworthwhile.\nNo clear evidence as such, but a clear kind of smell. We focused\nYou know, Congress passed the, what I call the Special Prosecu-\non that, established a business in which we, with other business-\ntors Act, in which we are mandated to investigate any kind of\nmen, learned more about these practices, participated in those\nsmell, any kind of allegation, whether unsubstantiated or not,\npractices, and did it. We did not have, to start off with, particular\nabout a given list of officials close to the President of the United\ncandidates. That is true to some extent in the successful investiga-\nStates, and we do, on a regular basis.\ntion of the dock, longshoremen, the smell of kickbacks.\nMr. KASTENMEIER. That is an interesting question.\nWe have to get a handle on knowing how they take place. That\nMy time has expired, Mr. Chairman, but I appreciate it.\ninvolves getting close to corrupt individuals. That often involves\nMr. EDWARDS. Mr. Sensenbrenner, the gentleman from Wiscon-\nthe cooperating witness who is, in a sense, our great blessing and\nsin.\nour great risk, because he can misbehave and sometimes does. But\nMr. SENSENBRENNER. Thank you very much, Mr. Chairman.\nhe brings us close to the people we have been hearing about in\nLet me state at the outset that I believe that one of the first re-\nthese smells.\nsponsibilities of the FBI is to root out and prosecute public corrup-\nNow these people began to talk about their contacts. And that\ntion, so that the public will have confidence that its Government is\nbecomes even more remote. But if we say that we must have a\noperating in an honest and ethical manner.\npredication, a prior bite by the dog, we wipe out the decoy in the\nAs you may recall, during the last Congress I had the honor, and\npark, we wipe out a whole range of sting operations, a whole range\nI use that term advisedly, of serving on the Ethics Committee. So I\nof undercover things.\nhad more of an intimate overview of FBI activities, in terms of the\nNow, as I understand it, Congress in its own legislation took\nallegations against some of our colleagues, than members of this\npains to be sure that it was not excluding itself from investigations\nsubcommittee did.\nrelative to bribery under this law that I described in the second\nMy main concern, as is the chairman of the subcommittee's, is\nand third circuits.\nover the control that the FBI had over Mr. Weinberg. I recall that\nThe Supreme Court has held that Congress could exclude itself\nduring my reading of the rather lengthy transcripts of the trials of\nby imposing special requirements. It has not done so.\nsome of the former Congressmen who were indicted and convicted\nSo the public interest, it seems to me, is to establish whether\nin Abscam that there was testimony which came out to the effect\nthese things in fact are taking place.\nthat Mr. Weinberg did not file income tax returns for the period\nBut also, as I think your question suggests the answer to the\nthat he was on the FBI payroll. I would hope that he would subse-\nproblem, it does suggest that a higher level of responsibility is re-\nquently have to face the music on that.\nquired before such activity be authorized.\nBut I am more concerned about the story that was nationally\nMr. KASTENMEIER. I would think so. I wonder whether we do not\nsyndicated by the Gannett News Service on April 20, 1982, to the\nneed something more than a smell. I say that because you have in-\neffect that Mr. Weinberg may very well have used phony certif-\ndicated yourself, some of the cooperating witnesses were engaged in\nicates of deposit to set up his own private scam over and above\npuffery.\nwhat the FBI was doing relative to Abscam. And my question is,\nMr. WEBSTER. That is right.\nAre you sure that Weinberg did not forge certificates of deposit for\nMr. KASTENMEIER. And I wonder whether your technique with\nhis own use, separate and apart from Abscam rather than using\nreference to verifying the targets offered by these cooperating wit-\nthe forged CD's within the Abscam context?\nnesses is adequate to avoid the puffery; whether you do not require\nMr. WEBSTER. So far as I am able to determine from the ques-\nsome additional level of verification as to whether the individual\ntions I have asked and the assurance that I have been given and\nreally has been engaged in some various activities in the past.\nthe documents that I have been shown, that was not the case. The\nMr. WEBSTER. I think that is a fair question, but it is a very diffi-\ncertificates of deposit were used as a part of the scenario in actual-\ncult one to answer. If we nose around, check in somebody's neigh-\nly three different States, trying to develop credibility with crimi-\n420\n421\nnals by showing a willingness of the Abdul Enterprises Co. to\nguess, was there any way to sense out right away what Meltzer\nengage in criminal conduct and to be looking for shady deals.\nwas doing, that he was using the FBI to rip off citizens?\nThe first phase of that involved three individuals, one of whose\nMr. WEBSTER. I think during that investigation by Davis it was\nnames was Bell, I cannot quickly recall the other two. And Wein-\napparent that that is what Meltzer was doing.\nberg was successful in obtaining $200 million in face value of certif-\nMrs. SCHROEDER. But why did it take so long, unless I have the\nicates of deposit from that group. It was an elaborate scenario,\ndates wrong; it seems to me that is an incredible period of time to\nusing these to get money out of the Arab money by collateral and\nfigure that out.\nother means.\nMr. WEBSTER. I do not know how many people after 1979 lost\nThe second group involved, as I recall, Mr. Rosenberg-I could be\nmoney. I have to say that I do not have my facts clear on that. All\nmistaken about that, but I think I am correct-and in that situa-\nthat came up here I am told had lost their money before that time,\ntion we have satisfied ourselves that Mr. Weinberg did not supply\nbefore any calls were made.\nthe forms as was alleged in some of the postconviction cases to\nMrs. SCHROEDER. My recollection was there were some in the fall.\nthose who produced the bogus certificates of deposit.\nDidn't we have testimony to that?\nIn the third instance, involving Mr. Errichetti, Mr. Weinberg did\nMr. HYDE. October 1979.\nin fact supply the forms for the bogus certificates of deposit. This\nMrs. SCHROEDER. October 1979. So that seems to be\nwas known to the undercover agent and to the supervisor John\nMr. WEBSTER. Did they make a complaint, do you know?\nGood. So this was not a scam on us. We knew it and we approved\nMrs. SCHROEDER. Yes.\nit.\nMr. WEBSTER. Would we have a way of knowing about them?\nMr. SENSENBRENNER. Thank you very much.\nMrs. SCHROEDER. Well, they said they made a complaint. I would\nI have no further questions Mr. Chairman.\nappreciate very, very much if you could sort that out, because I\nMr. EDWARDS. The gentlewoman from Colorado.\nthink every one of us here was\nMrs. SCHROEDER. Thank you, Mr. Chairman. And thank you for\nMr. WEBSTER. Sure.\nbeing here this morning.\nMrs. SCHROEDER [continuing]. Was very distressed about how\nI guess my feeling is, No. 1, I agree with the gentleman from\nMeltzer was able to use the FBI, Chase Manhattan, and fuse all\nWisconsin and the chairman that certainly we want the FBI not to\nthis up to do his own little personal moonlighting scam on innocent\nbe engaged in trying to weed out public corruption wherever it is,\npeople.\nall we have to make Government work is trust. So the other piece\nMr. WEBSTER. I have to tell you that I am not happy with any\nof that, though, that concerns me the most is, again, the same\ntime a witness who has been a cooperating witness goes off the res-\nthing, the supervising of the Mel Weinbergs of the world.\nervation.\nI am very perplexed about the victims because obviously many\nMrs. SCHROEDER. I think that is one of the things we would really\ncame from my region and really felt they have been terribly\nlike to look at, because while we get upset about public misuse of\nwronged by the FBI. Now I understand your parameters of the\nfunds, that is also a misuse of the public services, I think, when\nquestions that you do not want to answer because of the court\nsomebody uses the FBI that way.\ncases.\nThe other allegation I would like to look at that has worried me\nBut one of the things you stated in answer to Congressman\na lot, I am sure you are aware of many allegations that Mel Wein-\nHyde's question was that when inquiries were made by individuals\nthe FBI started looking into this; is that correct?\nberg solicited and accepted gifts from some of the targets of the\nMr. WEBSTER. When the FBI itself was contacted.\nAbscam investigation.\nMrs. SCHROEDER. And that would have been?\nAre you aware of those allegations?\nMr. WEBSTER. I am aware of those allegations. I am also aware of\nMr. WEBSTER. As I recall, I can refer to my notes, but as I recall\nthat was in May and June, the end of May and the first of June\nthe testimony given under oath in the trial proceedings in New\n1979.\nYork and that Judge Pratt found no basis for giving credence to\nMrs. SCHROEDER. Now the thing that disturbs me about that is, I\nthose allegations. Now that is about where we are on it.\nrecall many of the witnesses talking about this still going on in the\nI would like to know the answers beyond the swearing match\nfall of 1979.\nthat took place; if there is any other evidence, we want it. We have\nMr. WEBSTER. I believe the record will show that Special Agent\nmade a very sincere effort to secure that evidence in Florida and if\nDavis, who was assigned that responsibility, went out and inter-\nthere is any way of making it clear, why we will do SO.\nviewed all of the known victims. The case was given to the U.S. at-\nMrs. SCHROEDER. I guess my problem is I am also aware that\ntorney, I believe it was San Diego-I think that is right-in Decem-\nMarie Weinberg, the deceased wife, has a sworn affidavit on file in\nber I think, 1979, and he did not reach a prosecutive decision on it\nthe Federal court saying that these gifts did in fact occur and that\nfor 2 or 3 months. It was not ready to go to the grand jury as far as\nABC News reported they had traced the serial number on some of\nhe was concerned.\nthese items, and yet the FBI has been unable to trace it.\nMrs. SCHROEDER. I see. So nothing really happened to stop\nI am a little worried that maybe we should contract out to ABC\nMeltzer in that interim? Was there any way-my frustration, I\nNews.\n422\n423\nMr. WEBSTER. Well, we welcome all the help we can get. If they\nI do not want to judge this one because thus far Mr. Weinberg's\nhave any information we would be very glad to receive it from\nposition has been sustained in the courts. But I do think it is im-\nthem.\nportant that we take certain steps, as we have, as we learn from\nMrs. SCHROEDER. Are you aware that they claim they traced the\nmistakes and also from careful analysis, from some of those cases\nserial numbers on this?\nthat predated our undercover review committee where we could\nMr. WEBSTER. No, I am not.\nidentify these problems. We make a special effort now to keep the\nMrs. SCHROEDER. Are you aware of Mrs. Weinberg's sworn affida-\ncooperating witness away from backstops, that is corporations or\nvit?\nindividuals who provide cover for us, to deal, so that they do not\nMr. WEBSTER. I am aware of the affidavit. I am also aware that it\npick up indicia of authority or other types of equipment that they\nwas submitted and reviewed in New York by the district judge and\ncould use in some other scam purpose.\nfound not to have any relevance to the cases that were tried.\nThey know that if we find them we will prosecute them. Mr.\nMrs. SCHROEDER. And are you aware of Joey DeLorenzo's testimo-\nMeltzer has been prosecuted and convicted of the things he did in\nny before the grand jury that ABC News then picked it up and\nSan Diego.\ntraced it?\nMrs. SCHROEDER. But a whole lot of people were hurt very badly\nMr. WEBSTER. You have to help me on that one, I am\nby that, that were innocent, from what we have heard.\nMrs. SCHROEDER. I guess I am saying that the supervision issue\nMr. WEBSTER. Yes.\ndoes disturb me a whole lot because again the innocent victims\nMrs. SCHROEDER. I am just saying that we are all in agreement\ncome from my district and I think that is a great tragedy. I really\nand I just feel that there should be much more vigilance on that,\nworry when I read allegations about Mel Weinberg having solicited\nbecause that is as bad as public corruption by public officials. It is\ngifts, his wife says: \"Yes, that is right, he did\"; ABC tracing him\njust as bad to have the FBI allow itself to be used, even inadvert-\nthrough all of this, and the FBI can't find it.\nently. I am not saying you consciously did it.\nMr. WEBSTER. Well, you catch me being unable to respond to\nMr. WEBSTER. I agree.\nMrs. SCHROEDER. By not having constant supervision.\nsomething that has been given to us. We are interested in this.\nMr. WEBSTER. I agree, we should be very careful of that. The\nMrs. SCHROEDER. My time has just expired.\ncourts will decide, of course, whether we have any culpability in\nMr. WEBSTER. Well, let me say, Congresswoman Schroeder, that I\nthe cases of your constituents. If we do, I want to see them made\nreally do not believe that that particular activity reflects upon the\nwhole.\nguilt or innocence of those involved. You have a right to wonder\nMrs. SCHROEDER. So do I.\nwhether or not that is proper management.\nMr. WEBSTER. OK.\nMrs. SCHROEDER. And that is exactly what I am targeting the\nMr. EDWARDS. Mr. Washington?\nquestion to. I am not saying it has anything to do with the guilt or\nMr. WASHINGTON. Thank you, Mr. Chairman.\ninnocence of those involved. I am strictly going to proper manage-\nMr. Director, a lot of people, including myself, are still concerned\nment of the (a) Meltzer area and (b) Weinberg.\nwith the knotty fundamental question of why under certain stand-\nMr. WEBSTER. We do know that he had three very expensive\nards certain individuals are targeted.\nwatches that were turned in to us, we do know of other matters\nMr. WEBSTER. I am sorry?\nthat were reported to us. We do know that he has sworn that he\nMr. WASHINGTON. Why and under what circumstances certain\ndid not receive them. An effort to keep crooks honest during the\npeople are targeted. Now we have listened to this magnificent su-\ntime they are with us is a major undertaking.\nperstructure which you described; on paper it looks good. We are\nMrs. SCHROEDER. When you say that you admit how difficult it is,\naware, of course, that you have made distinctions between special\nthat is why I think you ought to be terribly interested.\nagents, informers, bagmen, and we listened very carefully to your\nMr. WEBSTER. I do indeed, I do indeed admit-I do not admit it, I\ndescription of the scenario you are trying to put together of struc-\nadvance it as one of the problems that we do have. But if we do not\nturing it in such a way that you get only those who are likely to\nhave a cooperating witness, we do not have an entre. So we must\ncome or, as you phrased it, select themselves.\ntry to manage him. We can't lock him up 24 hours a day.\nThe question remains, How could the name of Senator Pressler\nMrs. SCHROEDER. You are admitting they are not Boy Scouts and\nbe involved in this, with the subsequent problems he has had politi-\nI would think the FBI would be 20 times more vigilant in what\ncally? How could names like Congressman Rodino, for example, be\nhappens when you release the person from the operation or what\nbrought in this, clearly innocent people, notwithstanding all of this\nhave you to make sure.\ncareful structure that you put together, all of these instructions\nMr. WEBSTER. We must, I agree, we must be vigilant.\nabout entrapment that you have given ostensibly or purportedly to\nMrs. SCHROEDER. Yes.\nspecial agents, et cetera, et cetera? Yet certain people are today\nMr. WEBSTER. That is essential and it is one of the conclusions\nunder color, unjustifiably so, color of doing wrong, unjustifiably so,\nthat any objective analysis of undercover work would bring us to.\nbecause of what you put together.\nThat is our greatest challenge, is to be sure that improper things\nHow can you explain that? How did it get between the cracks the\ndo not happen.\nnames of Pressler, Rodino, and SO forth?\nFBI UNDERCOVER GUIDELINES\nOVERSIGHT HEARINGS\nBEFORE THE\nSUBCOMMITTEE ON\nCIVIL AND CONSTITUTIONAL RIGHTS\nOF THE\nCOMMITTEE ON THE JUDICIARY\nHOUSE OF REPRESENTATIVES\nNINETY-SEVENTH CONGRESS\nFIRST SESSION\nON\nFisi UNDERCOVER GUIDELINES\nPEBRUARY 19, 27. AND 26. 1981\nSerial No. 18\nPrinted for the Committee on the Judiciary\nU.S. GOVERNMENT PRINTING OFFICE\n83-566 0\nWASHINGTON: 1981\nH521- 73\n@AMMITTEE ON THE JUDICIARY\nRIER W REDENSE July No. dersus Charran\nJACK BEDOKS Texas\nROBERT McCLORY. Micross\nROBERT W. KASTENMEIER, Winston\nDM BAILSBACK\nDON EDWARDS California\nHAMILTON FISH 1x New TO\nJOHN CONYERS. tx. Michael\nM CALDWELL BE TLER Yours\nJOHN F SEBERLING Unio\n1 ARLOS il MOORHEAD.\nGEORGE E DANIELSON, California\nЮИХ M ASHBROOK, Other\nROMANO L MAZZOLL\nHENRY 1 HYDE Himms\nWILLIAM ; SUGHES. NEW the\nTHOMAS X KINDNESS Other\nSAM E HALL JR. Texas\nEXCLUS SAWYER Mehabian\nMIKE SYNAR Okipheria\nan HUNGREN California\nPATRICIA SCHROEDER\nF JAMES SENSENBRENNER It The\nBILLY LEE EVANS Genericia\nWiscomping\nDAN GLICKMAN Kansas\nMcculLEUM Fierlda\nHAROLD WASHINGTON, Home\nBARNEY FRANK. Massachusetts\nPARKER\nwill State Doctor\nFEANKEN % PACK Assistate\nSUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL Rights\nDON EDWARDS California. Chairman\nROBERT W KASTENMEIER: Wisconsin\nHENRY I HYDE Hkuns\nPATRICIA SCHROEDER Collection\nF JAMES SENSENBRENNER. $\nHAROLD WASHINGTON\nWisconsin\nDAN LUNGREN California\nFATHERINE A LEROY, Counsel\nJANICE Course Assistment Connsel\nTHEMAS M Bown Associate Camed\nde\nCONTENTS\nHEARINGS New\nThey\nFebruary 19. 1981\nFebruary 25. Pot\n20\nFebruary 26, Mast\n3\nWITNESSES\nChevigny, Paul, associate professor of law. New York University of Law\nX\nPrepared statement\n55\nMarx, Gary T., professor of sociology, Massachusetts Institute of Technology\n18\nPrepared statement\nMichel, Paul R. Associate Deputy Attorney General, Office if the Attorney\nGeneral\nPrepared statement\nSeidman, Prof Louis. Georgetown Law Center\n13\nPrepared statement\n12\nStone, Prof. Goeffrey, University of Chicago Law School\nPrepared statement\n2\nAPPENDIXES\nAppendix 1. - -Attorney General guidelines on FBI undercover operations\n115\nAppendix 2.- FBI Oversight. hearing held by the House Judiciary Commit-\ntee, March 4. 1980\n124\nAppendix 3- The Changing FBI-the Read to Abscam. by James Q\nWilson\n172\nTHE\nFBI UNDERCOVER GUIDELINES\nTHURSDAY, FEBRUARY 19. 1981\nHouse OF REPRESENTATIVES,\nSUBTOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS.\nOF THE COMMITTEE ON THE JUDICIARY,\nWashington, D.C.\nThe subcommittee met at 9355 am in room 2237 of the Rayburn\nHouse Office Building, Hon. Don Edwards endirman of the sub-\ncommittee) presiding.\nPresent: Representatives Edwards. Kastenmeier, Hvde. and Sen-\nsenbrenner.\nStaff present: Janice Cooper. assistant counsel. and Thomas M.\nBoyd, associate counsel.\nMr. EDWARDS. The subcommittee will come to order\nThis morning, the Subcommittee on Civil and Constitutional\nRights will continue the ongoing task of FBI oversight. Almost 1\nyear ago. the subcommittee held its first hearing on FBI undercov-\ner operations. At that time. the Assistant Attorney General for the\nCriminal Division indicated that the Justice Department was draft-\ning guidelines for all undercover operations. and late last year\nthose guidelines were published.\nNow, we are here today to examine those guidelines in light of\nconstitutional principles, social utility, and public policy. This sub-\ncommittee has for some time encouraged the FBI to concentrate on\n\"quality\" cases. When former Director Kelley announced the\n\"quality versus quantity\" program several years ago, we applauded\nhis efforts and we have worked with the FBI. often through the\nmedium of the GAO, to assure continued adherence to this policy.\nUndercover police work is often the best way to ferret out some\nof the \"quality\" cases we have urged the FBI to undertake. It has\nbeen very successful in many situations. And. as evidenced by the\nFBI's budget--up from $1 million to 84.8 million in a few years-it\nis clearly becoming an ever more important part of law enforce-\nment.\nBut very few of us really understand what is involved-how\nundercover operations work: what the advantages and disadvan-\ntages are: what the proper limits to this new technique are. and SO\nforth. The hearings we have had and will be having over the next\nfew weeks and months are an attempt to better understand and\noversee this program. Eventually, we hope to have the FBI come\nover and tall us about specific completed undercover operations to\ngive us a clearer picture of what they' re doing.\nOur witnesses today are two distinguished professors of criminal\nlaw and procedure. Our first witness will be Prof. Geoffrey Stone\nthe\n2\nfrom the University of Chicago Law School, and our second witness\nwill be Prof. Michael Seidman from Georgetown Law Center\nBefore the witnesses begin. I yield to the gentleman from Illinois,\nMr. Hyde.\nMr. HYDE. Thank you. Mr. Chairman. I believe it is wise for us to\nlook into the guidelines issued by Attorney General Benjamin Civi-\nletti before he left office, though perhaps not for the same reasons\nwhich you might suggest. Like SO many midnight regulations and\nguidelines which appeared at the last moments of the Carter ad-\nministration. the Carter administration's FBI guidelines. which the\nnew Attorney General has indicated he properly intends to review.\nrestrict the flexibility of the FBI in many ways which are unaccep-\ntable to me. and I suspect to many other Members of Congress.\nFor example. the restrictions applied to the special agent in\ncharge are designed to galvanize control in Washington. Many past\nabuses which are pointedly noted in the statements of our wit-\nnesses today stem from possibly too much control in Washington. I\nbelieve, in any event, that's a point worth exploring.\nIn addition. the guidelines anticipating more active involvement\nby the local U.S. district attorney in undercover operations admin-\nistered by the Bureau. I think it is worth noting that the U.S.\nattorney is almost always a political appointment, the product of\nappropriate political affiliation in the locality over which he or she\nhas jurisdiction. He's not a sheriff, but he's a prosecutor. and his\nfunction is to presecute the alleged criminal conduct discovered\nduring a lawful criminal investigation.\nI am anxious to hear the comments of today's witnesses, but I\nmust assert that I personally wholeheartedly believe in the law\nenforcement value of undercover operations which do not legally\nentrap the victim. Moreover, I believe the overwhelming majority\nof Americans would take the same position.\nBut I do commend you, Mr. Chairman. for initiating these hear-\nings on this very important subject.\nMr. EDWARDS. Thank you, Mr. Hyde.\nWithout objection. both the witnesses' statements will be made\npart of the record.\nMr. EDWARDS, Professor Stone. you may continue at your own\npace.\nProfessor Stone's statement follows:]\nSTATEMENT OF PROF. GORFFREY R: STONE UNIVERSITY OF CHICAGO LAW SCHOOL\nIt is a pleasure to appear before you today to discuss the appropriate limits OP the\nuse of undercover operations in federal law enforcement.\n1. Undercover operations and legitimate expectations of pricars\nAs Director Webster and Mr. Heymann made clear in their presentations last\nMarch. the use of spies, secret agents, and informers to eheit information from\nunsuspecting individuals and to \"invite\" such individuals to engage in unlawful\nconduct can be an extraordinarily effective investigative technique. Undercover\noperations may enable government investigators to infiltrate the inner-most circles\nof organized crime and to discern otherwise difficult to detect patterns of \"consensu-\nat unlawful behavior. In recent years, the FBI has employed undercover operatives\nto investigate a wide-range of criminal activity, including labor racketeering, white-\ncollar fraud. political corruption, narcotics trafficking. and truck hijacking. More-\nover. as a secondary benefit. undercover operations frequently enable the govern-\nment to present its evidence in subsequent crimmal prosecutions in an unusually\nreliable form-through the direct testimony of law enforcement officers who have\nparticipated personally in the unlawful conduct. and often through video and oral\ntapes of the actual criminal transactions Finally. the widespread use of spies, secret\nagents, and informers can effectively generate an atmosphere of distrust and suspi-\ncion among potential \"targets.\" By rendering such individuals uncertain as to the\nactual status of their cohorts. the very existence of undercover operations can, as\nMr. Heymann suggested. have a potent deterrent effect\nThere is: however, another side of the com. For despite their special utility-\nindeed. largely because of their special utility-undercover operations pose special\ndangers to the individual. the government. and to society in general. These dangers\nare not unfamiliar. Such operations. for example, may \"create\" crime: they may\nrequire government agents to participate directly in iliegal activity: they may\nunfairly entrap unwary individuals into unlawful conduct: they may damage the\nreputations of innocent persons: and they may seriously undermine legitimate var\npectations of privacy Although each of these dangers merits careful -crutiny, and\neach should be thoughtfully considered in effort to establish a meaningful set of\nguidelines. 1 have been asked to address myself specifically, to the potential contract\nbetween undercover operations and personal privacy to what extent. if any, does\nthe government's use of spies, secret agents, and informers. significantly endanger\nlegitimate expectations of privacy? To what extent. if any, should undercover open\nations be restricted in order to preserve such expectations?\nIn approaching these questions, it is essential to note at the outset that the\n\"undercover operation -18 HO! a unitary phenomenon. It IS, rather. multifaceted IR\nnature. embracing an bhnost limitless variety of situations It encompasses the\ncreation of an unlawful business establishment to attract \"eustomers seeking to\nengage in illegal transactions. and the infiltration of a druz-muzzing conspiracy\nby a professional agent: it encompasses the approach of a suspected prostitute by a\nplainclothes officer on the street. and the activities of an informer who joins the\nranks of a political or community organization in the course of a domestic security\ninvestigation. The undercover operation may last a moment, or it may extend user\nmany months It my involve only a single agent cooperating citizen. or paid inform-\nant, OF it may involve a complex network of undercover operatives The extent to\nwhich any particular operation intrudes upon legitimate expectations of privacy WIN\nnecessarily vary according to the circumstances.\nWith the cavent in mind. I would like to turn now directly to the privacy issue In\nassessing the nature of the potential intrusion on legitimate expectations of priviry.\nit may be helpful to hypothesize a paradigm situation-one posing a not uncommon\nset of circumstances. Let us suppose that an agent seeks to investigate an individual\nsuspected of complicity in labor racketeering. narcotics smuggling. or political cor-\nruption. The goal may be to deceive the \"target\" individual into revealing desired\ninformation. to lead the agent to \"higher-ups\" in a suspected conspiracy. or to\ninduce the target 10 engage in a criminal transaction with the agent himself.\nWhatever the utimate goat. the target in most circumstances is highly or kels to\ndisclose his criminal proclivities. if any, to just any stranger off the street. In all\nprobability. the agent. to be effective. will need to initiate and gradually to foster a\nrelationship with the target in which the target will come eventually to trust and to\nconfide in the agent In short, the agent must win the target's confidence through\ndeception. a task that may require weeks or even months to accomplish. To hasten\nthis process, the agent may seek the cooperation of some person already in a trust\nrelationship with the target-perhaps a friend. a business acquaintance, or even\nsomeone in a formally confidential relationship with the target To secure this\ncooperation. the agent may appeal to civie duty, otter monetary compensation. or\nperhaps offer some ther inducement.\nWhether the agent acts on his own or secures the assistance of a private citizen.\nthe undercover operation in our hypothetical investigation is likely seriously to\nintrude upon the target individual's legitimate expectations of privacy. Indeed. the\nintrustion occasioned by such operations is strikingly similiar to and perhaps even\ngreater than that ordinarily associated with other investigative techniques-tech-\nniques that may lawfully be employed only when there is a prior judicial finding of\nprobable cause. Consider, for example. such practices as wiretapping. third party\nelectronic bugging. and eavesdropping No less than these other practices. the use or\nspies. secret agents, and informers directly undermines conversational privacy In\nthe wiretapping. electronic bugging. and eavesdropping context. governmental offi-\ncials curreptitiously monitor the individual's conversations. In the undercover con-\ntext. governmental officials deceitfully participate in and overhear those very same\nconversations. The intrusion upon conversational privacy is functionally the same\nAs in the case of wiretapping and electronic bucking. the undercover operative will\ninevitably learn not only about the target individual criminal intentions, if any?\nbut also about his personal. political. religious. and cultural attitudes and beliefs-\nmatters which are, quite simply. none of the government's business.\nMoreover. unlike wiretaps and bugging devices, spies and informers see as well as\nhear. If. in the course of an investigation. governmental officials want to search an\nindividual's home or office or inspect his documents, letters, or other personal\neffects. they ordinarily would be required first to obtain a judicial warrant based\nupon probable cause. In the undercover context. however, the undercover operative\nmay in the course of the investigation be \"invited\" to enter the target name or\noffice or to examine his private papers of effects. The undercover operation. if not\ncarefully controlled. would thus have the anomatous effect of enabling government\nto invade the individual privacy through deceit and strategm when IT could not\notherwise lawfully de 5\nFinally, there is a special social cost associated with the use of spare. secret\nagents. and informers. As Mr Heymann observed last March the use of undercover\noperatives can effectively deter criminal conduct by creating doubt and suspicion as\nIn the trustworthiness of the would-be criminal's colleagues and associates If the\nuse of such operatives is not carefully confined, however, and law abidine citizens\nare not reasonably confident that they will not find themselves dealing inadvertent-\nis with spies and informers. then this chilling effect can all DOD easily spid over into\ncompletely lawint conversations and resationships: The unrestrained USE of such\noperatives. in other Words, has at least top potential to undermine that sense of\ntrust which is essential to the very existence of productive social: business pontical,\nand personal-as well as criminal--relations\nDespite these concerns, no one would sensibly suggest that the government be\nprohibited absolutely from engaging in undereiver investigations Rather. what is\nneeded IS a reasonable accommodation # the Competing investigative and privacy\ninterests In attempting to define such on accommodation two related bodies of biw\nshould be considered-the Supreme Clue unhalves of these issues from the per\nspective of the forth amendment. and the evently promuted An mhes General's\nGuidelines (II) FBI Undercover Operations\n*: Underein (1) operations and the fourth amendment\nThe Supreme Court has consistently held that the usered deceit by secret\nagents. and informers to elicit information from unsuspecting individuals does not\nin itself constitute a \"search\" within the meaning of the fourth amendment See.\neas. United States V. White IN US Hotter United States. U.S. 293\n1966g On Lee V. United States, 343 US 747 4% In part, this IS the result of\nhistorical circumstance. The language and historical background of the amendment\nmade clear that its framers did not attirmatively intend to bring undercover investi-\ngations within the amendment scope Although the use of spies and informers was\nnot wholly unknown to the trainers, the practice simply was not on their minds at\nthe time In some contexts, the Court has been willing to look beyond the precise\nintent of the framers and to construe the amendment expansively. This has been\nthe case, for instance. with respect to wiretapping and electronic bugging. see Katz\nV. United States. 389 U.S. 317 (1967) The Court has declined. however, to extend the\namendment's protections to undercover operations as well:\nIn lange part. the Court has attempted to justify this distinction on the theory\nthat the risk of being betraved by ones supposed friends and confidants is \"inherent\nin the conditions of human society: It is the kind of risk we necessarily assume\nwhenever we speak.\" H. ffa V. United States, supra, at 303 And. the theory goes:\nsince this \"is not an undue risk to ask persons to assume.\" the fourth amendment\ndoes not protect the individual's misplaced confidence that a person to whom he\ndiscloses information will not later reveal it. Lopez V. United States, 373 U.S. 437,\n150 (1963) Brennan, + dissenting. With all due respect, this theory is unsatisfac-\ntory whether as a matter of constitutional Eaw or as a matter of policy.\nIt is true, of course, that in the ordinary course of our relationships We necessar-\nily assume the risk that our friends and associates will hetray our contidences.\nInsofar as such persons act solely in their private capacities, and not in cooperation\nwith covernmental officials their betravals undoubtedly fall beyond the scope of the\namendment's concern. The analysis shifts markedly. how pver. once government\nenters the picture. For the risk that the individual's contidant may be fickle or a\ngossip IS of an entirely different order from the risk that he is in reality an\nundercover agent commissioned in advance to report the individual's every utter-\nance to the authorities. In the latter situation, we are no longer dealing with a risk\nof misplaced confidence inherent in the nature of human relationships: we are\ndealing instead with government action designed explicitly to invade our privacy\nand to end in deceit and betraval-with government action that appreciably altérs\nthe nature of the risks we ordinarily expect to assume. The notion that our willing-\nness to assume one risk means that we must necessarily assume the other is\ndoubtful at best.\n5\nIndeed, from a constitutional standpoint, We necessarily assume the risk that\nprivate citizens will invade our privacy by tapping our telephones. bugging our\noffices and ransacking our homes. It has never been suggested. however. that\nbecause those risks are unprotected by the fourth amendment we must also assume\nthe risk that government agents will engage in similar conduct or induce others to\ndo so for them. There is simply no Indical reason to assume that the risk of\nundercover surveillance is any more \"inherent in our society than the risk that\ngovernment officers will tap our telephones, buz our offices or ransack our dwell-\nmes\nAnother theory occasionally voiced in defense of the Court distinction between\nwiretapping and electronic hugzing. on the one hand, and undercover operations. on\nthe other. is that the risk of below deceived by a secret agent or informant is not an\nunreasonable one to require individuals to assume because THE dues no more than\ncompel them to use discretion in choosing their auditors. to make damaging disclo-\nsures only to persons whose character and motives may be trasted: Legiez V. United\nStates. supra. at 130 Brennan, 1. dissentings The dea that individuals exercising\nonly reasonable caution can reacily avoid involvement with spies and informers\nunderestimates the skills of government agents and presaposes an unrealistic\nability on the part of ordinary citizens to detent deception In the usual course of\nour relationships, we do of course make judgments as to the trusts irthiness. disch-\ntion. and loyalty of our acquaintances Time INDIANA of judgements we are asked to\nmake in the secret agent context. however, BY entirely different from those We\nordinarily expect to make The individual who IS contronted with the possibility\nthat his supposed friends and associates are IN reality undercover operatives must\nattempt to assuss not only their loyality as persons. out also the likelincod that they\nare skilled professional dissemblers specially mained in the art of C ception. or that\nat some unknown level of monetury or other inducement. they would agree to \"self\"\nthat loyalty to the authorities That must individuals are not 114 had especially ament\nat making these sorts of determinations is dem instrated by the very effectiveness of\nundercover investigations generally In any exect are would think that this parties\nular skill is not one that citizens of a tree society should ordinarity have to acquire\nFor a fuller explication of the Court tourth smendment analysis. NOC generally\nStone. \"The Scope of the Fourth Amendment Privacy and the Police Use of States,\nSecret Agents. and Informers. 1976 Americas Bar Foundation Research Journal\nLIND\nWhatever the merits of the Court's approach in the fourth amendm context. it\nis not dispositive here. The Court has held only that undercover operations do not in\nthemselves constitute \"searches\" within the meaning et the fourth amendment The\nConstitution. however. establishes only a minimum protection of only limited types\nof privacy interests. and Congress has frequently enacted legislative safeguards of\nprivacy beyond those found by the Court to be mandated by the Constitution See\ne.g. Communication Act of 1935. $305 4 Stat 1934 Right to Financial Privacy\nAct of 1978 42 U.S.C 3401 et seq The critical question-the question that must\nultimately be answered by Congress-is whether and to what extent law-abiding\ncitizens in a free society should be entitled confidently to assume that their. sup-\nposed friends. confidants, lawyers. and other associates are in fact what they appear\nto be. and are not in reality clandestine agents of government secretly reporting\ntheir activities and conversations to the authorities.\nJ. Undercover raturns. the Attorney General's guidelines. and EE proposed accom-\nmodation\nThis then. brings me to the recently promulzated Attorney General's Guidelines\nThese Guidelines represent a comprehensive and commendable attempt to come to\ngrips with a wide-range of problems issociated with the FBI's use of undersiver\noperations To the extent that the Guidelines are designed to reconcile such upit-\nations with legitimate individual expectations et privacy, they are a clear step in\nthe right direction. They do not. however. to for enough.\nThe basic framework established by the Guidelines. insolar as privacy interests\nare concerned is relatively straightforward In the absence of \"sensitive circum-\nstances.\" undercover operations lasting no longer than six months may be approved\nby a special agent in charize upon written determinations that the operation com-\nplies with other relevant Guidelines, that the proposed operation \"appears to be an\neffective means of obtaining evidence or necessary information. and that the\noperation \"will be conducted with minimal intrusión consistent with the need to\ncollect the evidence or information in a timely and effective manner.\" (See para. C.\nWhen \"sensitive circumstances\" are present. however, the operation must be\napproved by F.B.I headquarters. \"Sensitive circumstances related to privacy locus\non the existence of a reasonable expectation that It the eration will involve an\ninvestigation of possible political corruption or 01 the activities 01 a religious, politi-\n6\ncal, or news media organization: (2) an undercover operative will attend a meeting\nbetween a subject of the investigation and his lawver: T31 an undercover operative\nwill pose as an attorney. physician. clergyman. or member of the news media and\nthere is a significant risk that another individual will be led into a professional or\nconfidential relationship with the operative: 4) a request will be made by an\nundercover operative for otherwise privileged information from an attorney. physi-\ncian. clergyman. or member of the news media: or 1.) the operative will be used to\ninfiltrate a group under investigation as part of a Domestic Security Investigation.\n(see para. 3 THE 181. the 4% iji, kill If any of these \"sensitive circumstances\" is\npresent. the operation ordinarily may proceed only with the approval of the Under-\ncover Operations Review Committee and the Director or a Designated Assistant\nDirector. In determining whether to grant such approval. the Committee must\nconsider such factors as the risk of harm to privileged or confidential relationships.\nthe risk of invasion of privacy, and whether the operation is planned SD as to\nminimize the incidence of sensitive circumstances. isee para. F(3): de\nThese Guidehnes-especially the minimum intrusion requirements-represent a\nuseful step forward in the effort to accommodate competing investigative and priva-\nCV concerns. There IS. however, room for improvement Most important. the Guide-\nlines do not adopt any threshold standard for the initiation of undercover oper-\nations As with other highly intrusive investigative techniques. undercover oper-\nations should in at least some circumstances be prohibited in the absence of prob-\nable cause to believe that the target individual is engaged. has engaged. or is about\nto engage in criminal conduct: Such a requirement should be imposed as a matter of\nsound governmental policy. whether or not it is mandated by the fourth amend-\nment\nThe probable cause standard serves several valuable functions-it strikes an\nappropriate and historically acceptable balance between competing investigative\nand privacy concerns: it restricts the use of highly intrusive investigative practices\nto a narrowly defined set of circumstances. thereby generating confidence among\nlaw-abiding citizens that they will not unreasonably or indiscriminately be subjected\nto such practices: and it requires a conscious governmental determination in no-\nvance that the proposed intrusion upon the individual's privacy is reasonably justi-\nfied in the particular situation at issue. This is not to sav. however. that all\nundercover operations should be predicated upon a finding of probable cause. To the\ncontrary, such a requirement would in may instances be highly impracticable and\nunduly restrictive of legitimate law enforcement needs. The probable cause require-\nment should be imposed only when the proposed undercover operation is likely\nsignificantly to intrude upon legitimate expectations of privacy.\nThis will most often occur in four distinct types of situations, three of which are\nalready recognized as special in the Guidelines. First, the probable cause require-\nment should be imposed whenever the undercover operation is likely to involve the\ninvestigation of an individual's political or religious beliefs or the infiltration of a\npolitical. religious, or news media organization: Application of a probable cause\nstandard is such circumstances is justified not only by conventional privacy consid-\nerations, but also by the direct and substantial threat posed by such undercover\noperations to the legitimate exercise of first amendment rights.\nSecond. the probable cause standard should be employed whenever the undercov-\ner operation is. likely significantly to intrude upon the privacy of a recognized\n\"confidential\" relationship. such as attorney-client. physician-patient. clergyman-\npenitent. or news media-source. The Attorney General's Guidelines expressly delin-\neate most of the circumstances in which undercover operations might \"significantly\nintrude\" upon the privacy of such relationships.\nThird. the probable cause standard should be imposed whenever the undercover\noperation is likely significantly to intrude upon the privacy of what might be\ntermed a \"trust relationship.' This concept. which is not embodied in the Guide-\nlines, rests on the notion that the greater the intimacy of the agent-target relation-\nship, the more problematic the deceit and betraval and. hence. the greater the\nintrusion upon legitimate expectations of privacy. The \"trust relationship\" concept\nis, of course. not self-defining. As a compromise, it inevitably lacks perfect clarity.\nTo promote such clarity and to facilitate implementation. the concept should be\ndefined as exempting from the probable cause requirement all undercover oper-\nations in which the agent and target interact essentially as strangers or as mere\ncasual acquaintances. This would leave the Bureau free to engage in a wide-range of\nrelatively unintrusive undercover operations without a prior showing of probable\ncause. For example, the creation of illegal business establishments designed to\nattract the patronage of individuals seeking to enter into unlawful transactions is a\ncommonly employed operation that would-at least in its early stages-fall outside\nthe \"trust relationship\" concept as so defined. So, presumably, would most so-called\n\"pretext interviews.\" On the other hand. because of their high degree of intrusive-\nness, operations like Miporn. described last March by Director Webster as involving\n\"two undercover agents who spent 24 years working their way into the confidence\nof allegedly some of the nation's major pornography business figures.\" would and\nshould be prohibited in the absence of probable cause to believe that these \"business\nfigures were actually engaged in crime.\nFinally, there are investigations into the activities of public officials and political\ncandidates. An undercover agent should be permitted without probable cause to\napproach a public official or political candidate in the context of a non-trust rela-\ntionship in order explicitly to propose a criminal transaction This would permit the\nessentially unrestrained use of sume of the most common. most effective, and least\nintrusive techniques for the investigation of official corruption. It would allow. for\nexample, an agent operating an undercover bar to offer a bribe to a municipal\nbuilding inspector in return for a license When such operations become more\nintrusive. however, probable cause should be required. for the use of undercover\noperatives to elicit information through deceit from public officials and candidates\nin a more intensive manner. or 20 infiltrate their offices and statis. poses a serious\nthreat not only to legitimate expectations of privacy. but also to fundamental\nconcerns arising out of the first amendment itself. This is not a matter of double\nstandards or \"special treatment for government officials Private citizens in essen-\ntially comparable settings-irust relationships and political associations and active\nties-are entitled to basically the same protections. In any event. the formulation of\n\"special\" rules to safeguard the effective operation of our political system it hardly\nunknown to the law. The doctrine of official immunity is an obvious example of\nsuch a safeguard. and the Constitution itself. in the speech and debate Chase and.\nindeed. in its inherent structure. builds such protections into the very fine in our\nsystem of government. See United States Name: its\n4 Conclusion\nSpics. secret agents. and informers una serve legitimate investigative lunctions\nAt the same time. however. their activities. if not caretulls controlled. can scenti-\ncantly intrude upon legitimate expectations of privacy. The approach proposed\nabove attempts reasonably to arcommodate these important hut competing inter-\nests.\nTESTIMONY OF PROF. GEOFFREY R. STONE. UNIVERSITY OF\nCHICAGO LAW SCHOOL\nProfessor STONE. Thank you. It is a pleasure to appear before you\ntoday to discuss the appropriate limits on the use of undercover\noperations in Federal law enforcement.\nAs Director Webster and Mr. Heymann made clear in their\npresentations last March. the use of spies. secret agents, and in-\nformers to elicit information from unsuspecting individuals and to\ninvite such individuals to engage in unlawful conduct can be an\nextraordinarily effective investigative technique.\nThere is, however, another side of the coin. Despite their special\nutility-indeed, largely because of their special utility-undercover\noperations pose special dangers to the individual. to government,\nand to society in general. These dangers are not unfamiliar. Such\noperations. for example. may create crime; they may require a\nGovernment agent to participate directly in illegal activities: they\nmay unfairly entrap unwary individuals into unlawful conduct:\nthey may damage the reputations of innocent persons: and they\nmay seriously undermine legitimate expectations of privacy.\nAlthough each of these dangers merits careful serutiny, and each\nshould be thoughtfully considered in any effort to establish a\nmeaningful set of guidelines. I have been asked to address myself\nspecifically to the potential conflict between undercover operations\nand personal privacy.\nTo what extent, if any. does the Government's use of spies, secret\nagents, and informers significantly endanger legitimate expecta-\n/\ntions of privacy? To what extent, if any, should undercover oper-\nations be restricted in order to preserve such expectations?\nIn approaching these questions, it is essential to note at the\noutset that the undercover operation is not a unitary phenomenon.\nIt is rather multifaceted in nature. embracing an almost limitless\nvariety of situations. The extent to which any particular operation\nintrudes upon legitimate expectations of privacy will necessarily\nvary according to the circumstances.\nIn assessing the nature of the potential intrusion on legitimate\nexpectations of privacy. it may be helpful to hypothesize a para-\ndigm situation-one pesing a not uncommon set of circumstances.\nLet us suppose that an agent seeks to investigate an individual\nsuspected of complicity in labor racketeerine. narcotics smuggling,\nor political corruption. The goal may be to deceive the target\nindividual into revealing desired information. to lead the agent to\nhigher-ups in a suspected conspiracy. or to induce the target to\nengage in a criminal transaction with the agent himself\nWhatever the ultimate goal, the target in most circumstances is\nhighly unlikely to disclose his criminal proctivities, if any, to just\nany stranger off the street In all probability the agent, to be\neffective, will need to initiate and cradually to foster a relationship\nwith the target in which the target will come eventually to trust\nand to confide, at least to some degree, in the agent\nIn short, the agent must win the target's confidence through\ndeception-a task that may require weeks or even months, and in\nsome cases, perhaps even years, to accomplish. To hasten this\nprocess, the agent may, of course, seek the cooperation of some\nperson already in a trust relationship with the target-perhaps a\nfriend, a business acquaintence, or even someone in a formally\nconfidential relationship with the target individual.\nWhether the agent acts on his own or secures the assistance of a\nprivate citizen. the undercover operation in our hypothetical inves-\ntigation is likely seriously to intrude upon the target individual's\nlegitimate expectations of privacy.\nIndeed. the intrusion occasioned by such operations is strikingly\nsimilar to and perhaps even greater than that ordinarily associated\nwith other investigative techniques-techniques that may lawfully\nbe employed only when there is a prior judicial finding of probable\ncause. Consider, for example, such practices as wiretapping, third\nparty electronic bugging, and eavesdropping. No less than these\nother practices-the use of spies. secret agents, and informers-\ndirectly undermines conversational privacy. In the wiretapping,\nelectronic bugging. and eavesdropping context, Government offi-\ncials surreptitiously monitor the individual's conversations. In the\nundercover context, Government officials deceitfully participate in\nand overhear those very same conversations. The intrusion upon\nconversational privacy is functionally the same.\nMoreover, unlike wiretaps and bugging devices, spies and inform-\ners see as well as hear. If, in the course of an ordinary investiga-\ntion, Government officials want to search an individual's home or\noffice or inspect his documents, letters, or other personal effects,\nthey would, of course. ordinarily be required first to obtain a\njudicial warrant based upon probable cause. In the undercover\ncontext, however, the undercover operative may, in the course of\n9\nthe investigation, be invited to enter the target's home or office, or\nto examine his private papers or effects. The undercover operation,\nif not carefully controlled. would thus have the anomalous effect of\nenabling Government to invade the individual's privacy through\ndeceit and stratagem when it could not otherwise lawfully do SO.\nDespite these concerns. no one would sensibly suggest that the\nGovernment be prohibited absolutely from engaging in undercover\ninvestigations: rather, what is needed is a reasonable accommoda-\ntion of the competing investigative and privacy interests.\nIn attempting to define such an accommodation. two related\nbodies of law should be considered: the Supreme Court's analysis of\nthese issues from the perspective of the fourth amendment and the\nrecently promulcated Attorney General's guidelines on FBI under-\ncover operations.\nThe Supreme Court has consistently held that the use of deceit\nby spies. secret agents, and informers to elicit information from\nunsuspecting individuals does not in itself constitute a technical\nsearch within the meaning of the fourth amendment.\nIn large part, the Court has attempted to justify this conclusion\non the theory that \"the risk of being betraved by one's supposed\nfriends and confidants is inherent in the conditions of human\nsociety. It is the kind of risk we necessarily assume whenever we\nspeak. And since it is not an undue risk to ask persons to assume.\nthe fourth amendment does not protect the individual's \"misplaced\nconfidence that a person to whom he discloses information will not\nlater reveal it.\"\nWith all due respect, this theory is unsatisfactory whether as a\nmatter of constitutional law or as a matter of policy. It is true. of\ncourse, that in the ordinary course of our relationships we neces-\nsarily assume the risk that our friends and associates will betray\nour confidences. Insofar as such persons act soleiy in their private\ncapacities and not in cooperation with governmental officials, their\nbetrayals undoubtedly fall beyond the scope of the amendment's\nconcern.\nThe analysis shifts markedly, however, once Government enters\nthe picture. The risk that the individual's confidant may be fickle\nor a gossip is of an entirely different order from the risk that he is\nin reality an undercover agent, commissioned in advance to report\nthe individual's every utt rance to the authorities.\nIn the latter situation, we are no longer dealing with the risk of\nmisplaced confidence inherent in the nature of human relation-\nships: we are dealing instead with Government action designed\nexplicitly to invade our privacy and to end in deceit and betrayal-\nwith Government action that appreciably alters the nature of the\nrisks we ordinarily expect to assume. The notion that our willing-\nness to assume one risk means that we must necessarily assume\nthe other is doubtful at best.\nWhatever the merits of the Court's approach in the fourth\namendment context, however. it is clearly not dispositive here. The\nCourt has held only that undercover operations do not technically\nconstitute searches within the meaning of the fourth amendment.\nThe Constitution, however, establishes only a minimum protec-\ntion of only limited types of privacy, and Congress has frequently\n10\nenacted legislative safeguards of privacy bevond those found by the\nCourt to be mandated by the Constitution.\nThe critical question-the question that must ultimately be an-\nswered by Congress-is whether and to what extent law-abiding\ncitizens in a free society should be entitled confidently to assume\nthat their supposed friends. confidants, lawyers, and other asso-\nciates are not in reality clandestine agents of Government. secretly\nreporting their activities and conversations to the authorities.\nThis, then, brings me to the recently promulgated Attorney Gen-\neral's guidelines. These guidelines represent a comprehensive and,\nfor the most part. commendable attempt to come to grips with a\nwide range of problems associated with the FBI's use of undercover\noperations. To the extent that the guidelines are designed to recon-\ncile such operations with legitimate expectations of privacy, they\nare a clear step in the right direction.\nThey do not. however, go far enough.\nMost important. the guidelines do not adopt any threshold stand-\nard for the initiation of undercover operations. As with other\nhighly intrusive investigative techniques, undercover operations\nshould in at least some circumstances be prohibited in the absence\nof probable cause to believe that the target individual is engaged,\nhas engaged, or is about to engage. in criminal conduct.\nSuch a requirement should be imposed as a matter of sound\ngovernmental policy. whether or not it is mandated by the fourth\namendment.\nThe probable cause standard serves several valuable functions: It\nstrikes an appropriate and historically acceptable balance between\ncompeting investigative and privacy concerns: it restricts the use of\nhighly intrusive investigative practices to a narrowly defined set of\ncircumstances. thereby generating confidence among law-abiding\ncitizens that they will not unreasonably or indiscriminately be\nsubjected to such practices: and it requires a conscious governmen-\ntal determination in advance that the proposed intrusion upon the\nindividual's privacy is reasonably justified in the particular situa-\ntion at issue.\nNow, this is not to suggest that all undercover operations should\nbe predicated upon a finding of probable cause. To the contrary,\nsuch a requirement would in many instances be highly impractical\nand unduly restrictive of legitimate law enforcement needs. The\nprobable cause requirement should be imposed only when the pro-\nposed undercover operation is likely significantly to intrude upon\nlegitimate expectations of privacy. This will most often occur in\nfour distinct types of situations. three of which are already recog-\nnized as special in the guidelines.\nFirst, the probable cause requirement should be imposed when-\never the undercover operation is likely to involve the investigation\nof an individual's political or religious beliefs. or th infiltration of\na political, religious, or news media organization. Application of a\nprobable cause standard in such circumstances is justified not only\nby conventional privacy considerations. but also by the direct and\nsubstantial threat posed by such undercover operations to the le-\ngitimate exercise of first amendment rights.\nSecond, the probable cause standard should be employed when-\never the undercover operation is likely significantly to intrude\nINTENTIONAL\nBLANK\nNTENTIONAL\n11\nupon the privacy of a recognized confidential relationship, such as\nattorney-client, physician-patient. clergyman-penitent, or news\nmedia-source. The Attorney General's guidelines expressly delin-\neate most of the circumstances in which undercover operations\nmight significantly intrude upon the privacy of such relationships.\nThird. the probable cause standard should be imposed whenever\nthe operation is likely significantly to intrude upon the privacy of\nwhat, for lack of a better term. might be called a trust relationship.\nThis concept, which is not embodied in the guidelines, rests on the\nnotion that the greater the intimacy of the agent-target relation-\nship, the more problematic the deceit and betrayal, and hence. the\ngreater the intrusion upon legitimate expectations of privacy.\nThe trust relationship concept is. of course. not a self-defining\none. As a compromise. it inevitably lacks perfect clarity. To pro-\nmote such clarity and 10 facilitate implementation. the concept\nshould be defined as exempting from the probable cause require-\nment all undercover operations in which the agent and target\ninteract essentially as strangers or mere casual acquaintances.\nThis would leave the bureau free to engage in a wide range of\nrelatively unintrusive undercover operations. without a prior show-\ning of probable cause. For example, the creation of illegal business\nestablishments designed to attract the patronage 01 individuals\nseeking to enter into unlawful transactions is a commonly em-\nployed operation that would-at least in its early stages-fall out-\nside the trust relationship concept. as SO defined.\nOn the other hand. because of their high degree of intrusiveness,\noperations like MIPORN, described last March by Director Webster\nas involving \"two undercover agents who spent 2½ years working\ntheir way into the confidence of allegedly some of the Nation's\nmajor pornography business figures,\" would and should be prohib-\nited in the absence of probable cause to believe that these \"busi-\nness figures\" were actually engaged in some sort of criminal con-\nduct.\nFinally, there are investigations into the activities of public offi-\ncials and political candidates. An undercover agent should be per-\nmitted, without probable cause. to approach a public official or\npolitical candidate in the context of a nontrust relationship, in\norder explicitly to propose a criminal transaction. This would\npermit the essentially unrestrained use of some of the most\ncommon. most effective and least intrusive techniques for the in-\nvestigation of official corruption. It would allow. for example, an\nagent operating an undercover bar to offer a bribe to a municipal\nbuilding inspector in return for a license.\nWhen such operations become more intrusive. however, probable\ncause should be required; for the use of undercover operatives to\nelicit information through deceit from public officials and candi-\ndates in ? more intensive manner. or to infiltrate their offices and\nstaffs, poses a serious threat not only to legitimate expectations of\nprivacy, but also to fundamental concerns arising out of the first\namendment itself.\nAs noted earlier. spies, secret agents, and informers serve legiti-\nmate. indeed important investigative functions: but at the same\ntime, their activities. if not carefully controlled, can significantly\nintrude upon legitimate expectations of privacy. What is necessary\n12\nis some effort at reasonable accommodation. 1 have attempted to\ndefine the contours of such an accommodation. Thank you.\nMr. EDWARDS. Thank you, Professor Stone: If there is no objec-\ntion. we will hear now from Professor Seidman, and then we will\nhave some questions.\nProfessor Seidman's statement follows:]\nTESTIMONY off LOUIS SEHIMAN BEFORE THE SVF OMMITTEE ON Civil AND\nCONSIITUTIONAL Rigus: of THE HOUSE COMMITTEE ON THE JUDICIARY\n1. would like to thank the Subcommittee for this opportunity to comment on the\nAttorney General's Guidelines for Flll Undereover Operations I intend to limit BY\ncomments in two reavs. First I will speak enty to these Rsues raised by the\nGuidelines relating to the haw of entrapment I de not intend Ext arament in the\nvery serious privacy. free speech. And Tree association issues reased IN the surt or\nundercover operations authorized in the Guidelines. Second, I du not pretend 10\nhave detailed knowledge nt any particular undercover openation therefore intend\nto express no opinion DD the Industry of any operation Instead: ISV comments will be\ndirected to the wisdom and legality et such operations ID general and to the kind of\nsafernards which should limit such eperations il then are undertaken.\nIn general I think the Atterney General's Guidelines represent a constructive\nfirst step toward controlling the obvious dangers posed by undercover operations\nThe efforts to regularize the decision,naking process für such operations and to fix\nresponsibility for the decision. oner made, are particularly commendable The\nGuidelines also impose significant limits on under cover operations in some cases\nwhere the costs outwough the benefits or where an undercover operation would pose\na serious risk to individual liberties Unfortunately, however, the Guidelines also\nappear to authorize some conduct which is probably and other conduct which\nis survly unwise Supreme Court authority ned mila pertits. But positively invites\nCondressional activity in this area i believe that Congress should accept this\ninvitution by coditiving three part at the Guidelises which are sound and modifying\nthose parts which are not.\n-\nThe problem of entrapment bezon with the serpent's \"stine\" operation in the\nGarden of Eden It pases the fundamental difenima of criminal kiw On the one\nhand. the government has an obvicus and important interest in catching and\nisolating dangerous criminals before they inflict irreparable harm on their victims\nOn the other. it the government asts 100 precipitously. it is likely to ensnare the\ninnocent as well as the guilty. It is this intrae able driemma which has formed the\nlaw in areas as seemingly diverse as the definition of criminal attempt and conspir-\nney, the problem of pretrial release. and the standard for civil commitment. The\ndilemma is particularly acute when the police attempt to trigger a crime by going\nundercover and offering inducements. since the same inducement which is essential\nto eatch a potential criminal may mso tempt others to commit crimes which other-\nwise would not have occurred\nThe Supreme Court has responded to these conflicting pressures by developing\ntwo interrelated doctrines. First, the Court has road criminal statutes implicitly to\nexculpate a defendant when \"the Government plays OR the weaknesses of an inno-\ncent party and beguiles him into commiting crimes which he otherwise would not\nhave attempted Sherman V. United States. 336 US 309. 276 (1958): See also\nSorrells V. United States, 405 1932e United States V: Russell 111 U.S. 123\n(1973) The ability to invoke this defense. usually labelled \"entrapment.\" depends\nentirely on the subjective state of mind of the defendant It \"Mocus eston the intent\nor predisposition of the defendant to commit the crime. rather than upon the\nconduct of the Government agent. Hampton V. United States, 125 U.S. ISI, ISS\n(1976). quoting United States V, Russell, 411 U.S. 120 1972 The public policy\nbehind the defense is clear enough since the entrapped defendant is not predisposed\nto commit the crime, he poses no risk absent the government inducement and\ntherefore no social purpose is advanced by punishing him As the Court held in\nSherman N. United States:\n\"The function of law enforcement is the prevention of crime and the apprehen-\nsion of criminals Manifestly. that function does not include the manufacturing of\ncrime. 336 U.S. 360,\nAlthough the Court has made clear that entrarment doctrine is unavailable to a\npredisposed defendant. it has suggested a second doctrine protecting even predis-\nposed defendants when the government becomes overinvolved in criminal activity\n13\nor engages in outrageous misconduct See United States V. Russell. 111 U.S. 123.\n431-432 (1973): Hampton V. Unites States. 425 U.S. 184. 492-493 date Powell, J.\nconcurring See also United States V., Archer 16 F2d 670 2nd Cir. 1973; United\nStates V.- Twigg. ,,45 F.2d 373 Cld Cir. 19781 Unlike entrapment. this second doctrine\nis constitutionally based It is premised on the notion that it violates due process to\nconvict even a guilty defendent by improper government conduct. Although a major-\nity of the Court has been insistent on preserving the possibility of such a claim. see\nHampton N. United States 423 U.S 181. 192-195 Powell J. concurring). it bas\nyet to decide a Case where a violation has actually been found. The scope of the\ndoctrine is therefore uncertain We know only that due process does not bar convies\ntion simply because 21 government agent has proposed the criminal activity, see\nHummton V Unites States Supra: or provided an incredient necessary for the\nsuccessful completion et the crime. See United States V. Reselt 111 U.S.\nII:\nWhen one examines the Attorney General's Guidelines in light of these doctrines,\na number of distu himz problems emerges First it should be obvious that no conduct\nauthorized by the Gardetines conflicts with the entrapment doctrine No conduct\ncould conflict with trut dectrine. since the doctrine's applicability turns on the\ndefendant's predisposition rather than the government conduct However, the\nSupreme Court has empousized that its narrow articulation of the entrapment\ndefense has been distated by separation of powers concerns. See United States V.\nRussell 41 U.S. 130. It follows that Congress has a responsibility to\nface the entrapment problem and to make an independent judgment In this care.\nCongressional action is especially important because although the Guitelines them-\nselves may not violate the Court entrapment doctrine, they surely authorize activi-\nty which violates the policies behind that doctrine.\nI am particularly cancerned that the Guidelines appear to permit the FBI to\ndangle substantial movements before wholly innecent citizens suspected of no\nwronedoing and unlikele ever to be invoived in crimes Under the guise of crime\nprevention, such operations are certain to entrap non-predisposed citizens and\ncreate crime which otherwise would not occur. Indeed there is no need to speculate\nabout this possibility. We know from newpaper accounts, for example. that during\nthe Abscam operation. the government offered substantial inducements to members\nof Congress who not only were not predisposed 1xx accept them. but indignantly\nrejected them. Moreover, one district court judge has already dismissed an Abscam\nprosecution on the ground that the defendant was entrapped as a matter of law. See\nUnited States V. Junneth\nF. Supp.\n(No: No-166, Nov. 26. 1980L\nThis risk of entrapment is created by the failure of the Guidelines to limit the\noffering of inducements to those reasonably suspected of criminal activity. Indeed.\nthe Guidelines specifically provide that. with the Director's authorization. induce-\nments may be offered despite the absence of any \"reasonable indication that\nthe subject is engaging. has engaged. [or] is likely to engage in illegal activity of a\nsimilar type.\" Worse still. the guidelines seem to permit the Director to authorize\noperations despite the absence of Treason for believing that persons drawn to the\n[illegal] opportunity. and brought to it. are predisposed to engage in the contemplat-\ned illegal activity.\nThe risk of entrapment is reduced. but not eliminated. by the Guidelines' insis-\ntence that the corrupt nature of the activity be \"reasonably clear to potential\nsuspects and that The nature of any inducement not [be] unjustifiable in view\nof the character of the illegal transaction in which the individual is invited to\nengage. These are important and commendable safeguards in their own right\nwhich. in my judgment. Congress should codify. There are no substitutes. however.\nfor restricting the scope of undercover operations. Tempting a subject with an\nexersively attractive indocement clearly serves no public purpose since it 18 unlikely\nthat the subject would ever be forced to face such temptations but for the govern-\nment's intervention Even if the government limits inducements to the \"going rate,\nhowever. it may still ensnare harmless subjects since it may be unlikely that the\nsubject would ever have been approached by a person proposing criminal activity\nbut for the under cover operation. Indeed. there is an ironic inverse relationship\nbetween the potential harmfulness of a subject and the risk of entrapment: The\nmore innocent and naive the subject. the less likely he is to know the \"going rate\nfor criminal activity and. therefore, the smaller the inducement which may be\nnecessary to entrap him.\nMoreover, even when the government restricts itself to the market rate for\ncriminal activity. it inevitably competes with real criminals and. 30, stimulates\ncrime. Suppose. for example, the government establishes a fencing operation which\npurchases stolen goods at market rates. This operation will inevitably compete with\n83-566 0 81 2\n14\nreal fences. thereby increasing the price which thieves can e mmand and stimulat-\ning additional burgiaries.\nThe only way to avoid these effects is to carefully target undercover operations on\nsubjects for whom there is convincing evidence of predisposition. It is no response to\nsay that if an operation sweeps too broadly. those caught up in it who are not\npredisposed can assert an entrapment defense at trial in the first place, it is simply\na waste of scarce NW enforcement resources to mount broadscale operations which\nensnare those posing little societal risk. More fundamentally. it is 3 myth that the\npost hoe assertion of an entrapment detense falls remedies the harm done to an\nentrapped defendant. Juries are likely to be skeptical of the defense and may\nconvict defendants who should be acquitted. Even if the defendant prevatis. his\npersonal and business dealines are likely to be shattered by the experience And.\nmost fundamentally, the social subric is inevitably strained by the spectacle of\nseemingly law abroing citizens induced to commit crimes. It is worth remembering\nthat the most righteous amount us is not immune from temptation and that any of\nus could fall victim to our our instincts in 11 WATS moment The covernment\nsimply has no business rand this and purpose/essiv stress-testing the morality of its\ncitizens. like many soldered with on an assembly line.\nIII.\nWhen one measures the Guadennes against the Due Process limitations on under\ncover operations. the results are even more unseftlind As I have already indicated.\nSupreme Court opinions provide attle guidance or to the precise dezree of zovern-\nment involvement in crime which violates Due Process, At a minimum. however,\none would think that the Constitution precludes the government from engazing in\notherwise unlawful activity which causes more carm than it prevents. Unfortunate-\nIv. the Guidelines contain no similar restriction Indeed: several provisions appear\nto authorize operations which clearly serve no legitimate law enforcement purpose.\nPerhaps the most disturbing aspect of the Guidelines is that they not only fail to\nprohibit, but actually authorize government agents to engage in deliberate and\nillegal acts of violence for the sole purpose or maintaining credibility with persons\nunder investigation. Paragraph 10 specifically permits the Director to approve\n\"otherwise illegal activity involving a significant risk of violence or physical injury\nto individuals While Paragraph prohibits undercover employees from encaging\nin illegal acts designed to obtain evidence. Paragraph 11+b permits such acts when\nnecessary Tto establish and maintain credibility or cover with persons associated\nwith the criminal activity under investigation.\nIn my judgement. these provisions are unacceptable. For example, SO long as the\napproval of proper officials is secured. they would appear to permit government\nagents to participate in armed robberies. assaults. or even murders when necessary\nto maintain their cover. Our memories of this sort of government abuse are too\nfresh to discount the possibility that this authority might someday be used It is\nhard to imagine a justification for government participation in criminal acts of this\nkind. especially since any prosecution resulting from such an undercover operation\nwould almost certainly face insurmountable Due Process obstacles. See Hampton V.\nUnited States. 423 U.S. 484. 433-495 (1976) Powell. J. concurring: United States V.\nArcher. 186 F. 2d 670 Cir. 1973 It is imperative that the Guidelines be amended\nto remove this authority and to expressly prombit government agents from commit-\nting, encouraging. or tolerating illegal acts of violence.\nA less serious but still significant defect in the Guidelines is their failure to\nprohibit agents from supplying a subject with an item or service necessary for a\ncriminal scheme but which would be unavailable but for the government participa-\ntion. Although Paragraph B di prohibits an exent from engaging in this conduct\nwithout approval of the Undercover Operations Review Committee and an Assistant\nDirector, the Guidelines appear to confer the power to grant such approval.\nThus far. the Supreme Court has scrupulously avoided upholding the constitution-\nality of this form of government action. In United States V. Russell the Court\nrejected a due process attack on a conviction secured after government agents\nsupplied a crucial ingredient for the manufacture of an illegal substance. However,\nthe majority carefully noted that the defendant had not claimed that the ingredient\nwould have been unavailable had the government not provided it. See 111 U.S. at\n431.\nThere is good reason to think that such government conduct runs afoul of the Due\nProcess limitations on undercover operations. Moreover. whether constitutional or\nnot. it is difficult to justify as a matter of public policy. It may well be that a\ndefendant caught by such a ploy is predisposed to commit the crime if given an\nopportunity and therefore. cannot claim entrapment. But such a defendant is, by\ndefinition. harmless since the unavailability of a crucial item makes it impossible\n15\nfor him to commit the crime. When the government supplies the item. it is creating\na crime which otherwise would not occur for the sole purpose of prosecuting the\nperpetrator. In these days of tight budgets and scarce resources, there are surely\nbetter ways for the FBI to spend its time and money.\nIV.\nIn summary. the Attorney General's Guidelines on FBI Undercover Operations\nrepresent an important first step in controlling the evils associated with this law\nenforcement device. It is clear. however. that Congress shares responsibility for\noutlawing techniques which risk entrapping inhecent subjects or are otherwise\nunacceptable. I believe that Congress should exercise that responsibility by codifying\nthe Guidelines and providing that their violation should he a defense to any result-\ning criminal prosecution. Moreover, it is imperative that the Guidelines be modified\nto prohibit the offering of inducements to subjects not reasonably suspected of\ncriminal activity, har government agents from committing, encouraging. or tolerat-\ning criminal acts of violence: and outlaw the practice of supplying a subject with an\nitem or service necessary for a crume but which would not otherwise be available.\nTESTIMONY OF PROF. LOUIS SEIDMAN, GEORGETOWN LAW\nCENTER\nMr. SEIDMAN. Thank you. Mr. Chairman.\nMr. Chairman, members of the subcommittee, I would like to\nstart by thanking you for having me here today and giving me an\nopportunity to express my views on the Attorney General's guide-\nlines. I think I should start by suggesting there are two limitations\non what I intend to say. First. since Professor Stone has spoken\nquite comprehensively on the issue of privacy raised by undercover\noperations, I do not intend to address that issue, but rather to\nrestrict my remarks to comments about the problem of entrap-\nment.\nSecond, I do not pretend to be an expert on any particular\nundercover operation. and I therefore do not intend to express an\nopinion as to the legality or propriety of any particular operation. I\nintend, rather. to address the problem more generically.\nIn general, I think that the Attorney General's guidelines repre-\nsent a constructive first effort toward controlling and regularizing\nthis obviously important. but nonetheless in some cases troubling,\nmode of law enforcement. In particular. I think that the efforts to\nregularize the decisionmaking process and to fix responsibility for\nthat decision, once made. are commendable.\nLet me say in that regard. I think I agree with Congressman\nHvde's remarks that allowing political officials to approve certain\nkinds of operations does. indeed, pose a significant risk. And. as I\nwill indicate later, I think that therefore. efforts have to be made\nto control the kinds of operations that they can approve.\nBut I think also, Congressman, in the long run we are better\nbeing able to fix the decision someplace. and being able to say that\nsomeone in the chain of command is taking responsibility for\nmaking the decisions. I also think the guidelines are important in\nthat they impose some significant limits on operations where the\nbenefits of the operation are outweighed by the risks, or where\nindeed there are very little in the way of benefits to be obtained at\nall.\nUnfortunately, however, the guidelines also appear to authorize\nsome conduct which is probably illegal, and other conduct, which\nin my judgment is surely unwise. The Supreme Court authority in\nthis area not only permits, but indeed positively invites congres-\n16\nsional activity in this area; and I believe that Congress should\naccept this invitation by codifying those portions of the guidelines\nwhich are wise, and by modifying those parts which are not.\nTo get to the proble n of entrapment. then. the entrapment de-\nfense really began with the serpent's sting operation in the Garden\nof Eden. It poses one of the fundamental dilemmas in the criminal\nlaw.\nOn the one hand. the Government has an obvious and important\ninterest in catching and isolating dangerous criminals before they\ninflict irreparable harm on society. And yet, on the other hand. if\ngovernme nt acts too precipitously. it is likely to ensnare innocent\nas well as guilty subjects.\nThe dilemma becomes particularly acute when the police at-\ntempt to trigger a crime by going undercover and offering induce-\nments. since the same inducement which is essential to eatch a\npotential criminal also bears the possibility of producing crimes\nwhich otherwise would not have occurred.\nNow. the Supreme Court has responded to that dilemma by\ndeveloping two interrelated doctrines. First. the court has read\ncriminal statutes implicitly to exculpate a defendant when. in the\nwords of the court. \"the Government plays on the weaknesses of an\ninnocent party and beguiles him into commiting crimes which he\notherwise would not have attempted.\nThat defense, which is somewhat confusingly called the entrap-\nment defense. depends entirely upon the subjective state of mind of\nthe defendant. The question is simply whether the defendant was\npredisposed to commit the crime.\nAlthough the entrapment defense is unavailable to a predisposed\ndefendant. there is a second doctrine which protects even a defend-\nant who is predisposed when the Government becomes overin-\nvolved in criminal activity, or engages in some form of outrageous\nmisconduct. That second doctrine. which is constitutionally based,\nfocuses not on the state of mind of the defendant, but on what the\nGovernment has done. It is premised on the notion that it violates\ndue process to convict even a guilty defendant by imp roper Govern-\nment conduct.\nAlthough a majority of the court has been insistent on preserv-\ning the second, constitutionally based claim, it has yet to actually\ndecide a case where a violation has been found: and we are, there-\nfore, left somewhat in the dark as to what precisely the scope of\nthat second doctrine is.\nWhen one examines the Attorney General's guidelines in light of\nthese doctrines, a number of disturbing problems emerge. First, it\nshould be obvious that no conduct authorized by the guidelines\nconflicts with the statutory construction aspect of the entrapment\ndoctrine. No conduct could conflict with that portion of the doc-\ntrine. since the doctrine's applicability turns on the defendant's\npredisposition, rather than the Government conduct\nHowever. the Supreme Court has emphasized that its narrow\narticulation of the entrapment defense has been dictated by a\nseparation of the powers concern and it seems to me that Congress\nhas a responsibility to face the entrapment problem and make an\nindependent judgment.\n17\nIn this case, congressional action is especially important because,\nalthough the guidelines themselves may not violate the Court en-\ntrapment doctrine, they surely authorize activity which violates\nthe policies behind that doctrine. In that regard, I am particularly\nconcerned that the guidelines appear to permit the FBI to dangle\nsubstantial inducements before wholly innocent citizens suspected\nof no wrongdoing and unlikely ever to be involved in a criminal\nactivity.\nUnder the guise of crime prevention. such operations are certain\nto entrap nonpredisposed citizens and create crime which otherwise\nsimply would not have occurred. Indeed. we have no need to specu-\nlate about this possibility. We know from newspaper accounts, for\nexample. that in the so-called Abscam operation. the Government\noffered substantial inducements to some Members of Congress who\nnot only were not predisposed to accept them, but who indignantly\nrejected them.\nFurthermore, one district court judge-as I am sure you know-\nhas already dismissed one of the Abscam prosecutions alleging that\nthe defendant was entrapped as a matter of law.\nI think that this risk of entrapment is created by the failure of\nthe guidelines to limit the offering of inducements to those who are\nreasonably suspected of criminal activity. Indeed. the guidelines\nspecifically provide that. with the Director's authorization. induce-\nments may be offered despite the absence of any reasonable indica-\ntion that the suspect is engaging, has engaged. or is likely to\nengage in lilegal activity of a similar type. Worse still. the guide-\nlines seem to permit the Director to authorize operations despite\nthe absence of reason for beliving that persons drawn to the illegal\nopportunity and brought to it. are predisposed to engage in the\ncontemplated illegal activity.\nThe risk of entrapment is reduced. but not eliminated, by the\nguidelines insistence that the corrupt nature of the activity be\nmade reasonably clear to the suspect. and that the nature of the\ninducement not be unjustifiable, in view of the nature of the illegal\ntransaction.\nInese are important and commendable safeguards, which are\ndefensible in their own right and which, in my judgment, Congress\nought to codify. They are not substitutes, however, for restricting\nthe scope of undercover operations. Tempting a subject with an\nexcessively attractive inducement really serves no public purpose,\nif it is unlikely the suspect would ever be forced to face such a\ntemptation but for the Government's intervention. Even if the\nGovernment limits the inducement to the so-called going rate. how-\never it may still ensnare harmless suspects. since it may be unlike-\nly that the suspect would ever be approached by a person proposing\ncriminal activity, but for the existence of the undercover operation.\nIn fact. there is an ironic inverse relationship between the poten-\ntial harmfulness of the suspect and the risk of entrapment. The\nmore innocent and naive a subject is, the less likely he is to know\nwhat the going rate is.\nMr. HYDE May I interrupt you there?\nMr. SEIDMAN. Certainly, Congressman.\nMr. HYDE. Because I will lose the thought if I don't. A fascinat-\ning poll might be taken of every Member of Congress as to whether\n18\nor not they have ever been offered $500 to get someone in from\nIndia, to introduce a private bill. I daresay, most have. And you\nmade the statement that this crime would have been committed\nbut for.\nIf you talking $500 or talking $25,000 or $200,000, I grant you\nit's a whole different circumstance. You don't get offered $200,000.\nBut I think it would be fascinating to find out from a goodly\nrepresentative number of Congressmen from all over the country-\nnot just New Jersey-how many have been offered. and not neces-\nsarily in an overtly criminal way, but you know-a campaign\ncontribution that is so close.y tied in with helping to get this\nperson in-might be very relevant in ins of whether this might\nhave happened. but for.\nMr. SEIDMAN. Yes: I think your point is very well taken, Con-\ngressman. and obviously that is an area in which you have much\nmore expertise than I do.\nMr. HYDE. Well, I can tell you that I have been made uncomfort-\nable by people wanting to make a contribution, very close to a\nrequest for-and it was quite obvious. and of course I rejected it\nout of hand. But 1 daresay it's happened with a lot of Members.\nProfessor SEIDMAN, I certainly would not want to quarrel with\nthat. That was indeed why I indicated, at the outset, that I wanted\nto avoid. to the extent that I could. commenting on the legality of a\nparticular operation.\nMy point is simply that if an inducement is a type which is\nunlikely to have been offered 16 an individual-\nMr. HYDE. Meaning the amount of money?\nProfessor SEIDMAN. Not just the amount. but also the possibility.\nIt strikes me as conceivable. for example, that there may be an\nindividual who has such a high reputation that no one would ever\nconceive of approaching that person to engage in illegal activity.\nAnd if that were true, and if there were no real possibility of its\never happening, then it seems to me to be pointless for the Govern-\nment to come in and approach that person.\nNow, it may be-what you saying, I suppose, is that this sort\nof thing is so common that there may be no such person. And if\nthat were true, that would certainly impact on the legality and\nwisdom of the operation.\nMr. HYDE. It would be interesting to find out. And. of course, in\nNew Jersey there was a former Congressman who was convicted\nfor taking money through these private bills. Private bills are\nreally the source of the problem.\nProfessor SEIDMAN. I'm sure you're right.\nMr. HYDE. Anyway, I'm sorry for the interruption. I just thought\nI would forget it, if I didn't. Thank you.\nProfessor SEIDMAN. In my judgment, really the only way to avoid\nthe risks that we're talking about is to try to carefully target the\nundercover operation. in much the way that Congressman Hyde\nsuggests--in areas and on subjects where there is some convincing\nevidence of a risk of the crime occurring, and a predisposition.\nAnd I don't think it's any response to say that if an operation\nsweeps too broadly, those caught up in it. who were not predis-\nposed, can assert an entrapment defense at the trial.\n19\nIn the first place, it is simply a waste of scarce law enforcement\nresources to mount broad-scale operations which ensnare those\nposing little societal risk. There is no point to it.\nBut, more fundamentally, I think it is a myth that the post hoc\nassertion of an entrapment defense fully remedies the harm done\nto an entrapped defendant.\nJuries are likely to be sceptical of the defense, and may convict\ndefendants who should be acquitted. Even if the defendant prevails,\nhis personal and business dealings are likely to be shattered by the\nexperience-for no purpose.\nAnd. most fundamentally, I think the social fabric is inevitably\nstrained by the spectacle of a seemingly law-abiding citizen induced\nto commit crimes.\nIt is worth remembering that the most righteous among us is not\nimmune from temptation, and that any of us could fall victim to\nour baser instincts, in a weak moment.\nThe fundamental point is that the Government simply has no\nbusiness randomly and purposelessly stress testing the morality of\nits citizens, like so many soldered joints on an assembly line.\nWhen one measures the guidelines against the second part of the\ntest-the due process limitations on undercover operations-I think\nthe results are even more unsettling.\nAs I have already indicated, the Supreme Court opinions provide\nlittle guidance as to the precise degree of Government involvement\nin crime which violates due process. But. at a minimum. one would\nthink that the Constitution precludes the Government from engag-\ning in otherwise unlawful activity, which causes more harm than it\nprevents.\nUnfortunately. the guidelines contain no similar restrictions.\nAnd. indeed, I think the guidelines are ambiguous and can be read\nin different ways.\nSeveral provisions appear to authorize operations which clearly\nserve no legitimate law enforcement purpose.\nPerhaps the most disturbing aspect of the guidelines is that they\nnot only fail to prohibit, but actually appear to authorize, Govern-\nment agents to participate in deliberate and illegal acts which run\na significant risk of violence. And that for the sole purpose of\nmaintaining the credibility of the agent who has the persons under\ninvestigation.\nIn my judgment, those provisions are simply and flatly unaccept-\nable.\nFor example, so long as the approval of the proper official is\nsecured, they would appear to permit Government agents to par-\nticipate in schemes involving risks of armed robberies. assaults,\nand murders-when necessary for the agents to maintain their\ncover.\nAnd, as Congressman Hyde suggested in his opening remarks, I\nthink that when this power is vested in political appointees, the\nrisk is particularly severe.\nOur memories of that sort of Government abuse are too fresh to\ndiscount the possibility that this authority might some day be used.\nIt is hard to imagine a justification for Government participation\nin criminal acts of that kind.\nMr. EDWARDS. May I interrupt, at this point, Professor Seidman?\n20\nJust because illegal conduct would be authorized at a higher\nlevel in the police action-whether it be the FBI or some other\npolice organization-you're not stating that it would be a defense\nin a criminal trial of the offending officer or informant?\nProfessor SEIDMAN. I don't have an opinion on that, because I\nhaven't studied it.\nI think there would be complex supremacy clause problems. at\nleast if there were Federal statutory authority. for the person to\nengage in the conduct.\nIn any event, it seems to me that it's simply indefensible to allow\nGovernment agents to engage in that conduct: and it becomes more\nindefensible still. if it were to turn out that the conduct that the\nFederal Government was authorizing was a violation of State\ncriminal statutes.\nI don't think that the Federal Government ought to be in the\nbusiness of authorizing its agents to go around violating State laws\nagainst things like armed robbery and murder. I just don't see the\njustification.\nMr. EDWARDS. That's an interesting question.\nIf the informant was authorized to institute a burglary, and was\narrested by the local police, what would happen when he was\nbrought before the local magistrate and had a trial by jury?\nProfessor SEIDMAN. It is interesting.\nMr. EDWARDS. I'm sure it would be offered as it defense. But\nwhether or not it would stand up is something else. We really don't\nknow? Do we?\nProfessor SEIDMAN. I'm simply not prepared to speak to that\npoint, Mr. Chairman.\nIt's an interesting constitutional question that I would not want\nto address without having done some more reading than I have\ndone to prepare for today.\nA less serious, but still significant, defect in the guidelines. I\nthink, is their failure to prohibit an agent from supplying a subject\nwith an item or a service which is necessary for a criminal scheme,\nbut which is unavailable but for the Government's participation.\nThere is good reason to think that such Government conduct\nruns afoul of the due process limitation on undercover operations.\nBut whether it is constitutionally prohibited or not. it's simply\ndifficult to justify, as a matter of public policy.\nIt may well be that the defendant caught by such a ploy is\npredisposed to commit the crime if given the opportunity: and,\ntherefore, cannot claim an entrapment defense. But such a defend-\nant is, by definition. harmless since the unavailability of a crucial\nitem makes it impossible for him to commit the crime, but for the\nGovernment supplying it to him.\nWhen the Government supplies the item, it is therefore creating\nthe crime which otherwise would not occur, for the sole purpose of\nprosecuting the perpetrator, which in these days of tight budgets\nand scarce resources, seems to me to be a rather foolish way for\nthe FBI to be spending its time and money.\nIn summary, then, the Attorney General's guidelines on FBI\nundercover operations, I think, represent an important first step in\nthis controversial and significant area.\n21\nIt's clear. however. that the Congress shares responsibility for\noutlawing techniques which risk attracting innocent subjects. or\nare otherwise unacceptable.\nI believe that Congress should exercise that responsibility. by\ncodifying the guidelines and providing that their violation should\nbe a defense in a resulting criminal prosecution.\nMoreover, it is imperative that the guidelines be modified: To\nprohibit the offering of inducements to subjects not reasonably\nsuspected of criminal activity: to bar Government agents from\ncommitting. encouraging, or tolerating criminal acts of violence:\nand to outlaw the practice of supplying a subject with an item or\nservice necessary for a crime, but which would not otherwise be\navailable.\nThank you, very much.\nMr. EDWARDS. Thank you very much. Professor Seidman.\nThe gentleman from Illinois, Mr. Hyde.\nMr. HADE Thank you.\nProfessor Seidman, you suggest that in order to avoid entrap-\nment, there should be evidence of predisposition before induce-\nments are offered.\nDo you suggest, then. that you favor the subjective approach to\nthe doctrine of entrapment. that the focus ought to be on the state\nof mind of the target. rather than the behavior of the police?\nProfessor SEIDMAN. Well, Congressman, i was speaking in the\ncontext of present Supreme Court doctrine. rather than suggesting\nhow I would change it. if 1 could.\nMy point was that presently the Court has adopted essentially a\nsubjective approach. although they have reserved the possibility of\nsome objective standard. if the conduct is really outrageous.\nAnd my point is that if the police fail to limit an undercover\noperation to people who they have reason is believe are predis-\nposed. they will inevitably, under present law. entrap some people\nwho are not predisposed, under a subjective approach.\nMr. HYDE. Precisposed to this particular crime? Or to criminality\nin general?\nProfessor SEIDMAN. Well, I think it would be to this particular\ncrime, sir.\nMr. HYDE. In a recent reversal of the usual procedure, the Dis-\ntrict of Columbia undercover police have begun selling illegal drugs\non the street, and arresting buyers.\nIn this situation. there may have been probable cause. But not\nany evidence, necessarily. of predisposition.\nIn your opinion, does this go over the edge of entrapment?\nProfessor SEIDMAN. I think a program like that-any program\nthat is broadly based, raises very serious problems.\nOne of the problems that it raises is that it makes crime pay\nmore, because when the Government goes into competition with\nreal criminals, the effect that has is to drive up the price that\ncriminals can command for their criminal activity; and, thereby, to\ninduce more people to commit crimes.\nMr. HYDE. On the other hand. if the buver never knows who he\nis buying from, that might have a very anticompetitive effect, very\ndiscouraging. \"Chilling,\" I believe the preferred phrase is.\nProfessor SEIDMAN. You're absolutely right about that.\n22\nAnd what I think is necessary to do is to strike some sort of\nbalance. There's no doubt that undercover operations serve a\nuseful deterrent effect, in that they make criminals think twice\nabout whether they' dealing with a Government agent.\nThe question is whether we are willing to buy. that effect at the\nprice of perhaps. increasing the total amount of crime and perhaps\nending up punishing some people who are completely innocent and\nwho would never have been involved in crime, but for the Govern-\nment activity.\nMr. HYDE. Well. selling drugs en the street corner doesn't really\npose that situation that you have just described. I mean, someone\ncoming up to buy drugs from you. you can say they wouldn't have\ncommitted a crime, I suppose. b for your being there.\nWell, each depends on the situa ion, 1 suppose.\nProfessor SEIDMAN. That's exactly right.\nIt really is fact specific. It depends on whether there were other\npeople around who would have sold the drugs, for example.\nMr. HYDE. OK.\nOne question for Professor Stone. What is your proposal for a\nlimited probable cause standard?\nWhere does this proposal place the decisionmaking? Is it a stand-\nard for judicial warrant? Or does it mean that the FBI headquar-\nters must make the decision as to whether probable cause is\npresent?\nIf the latter. why not the former?\nProfessor STONE. Well, I think the probable cause decision should\nalways be located somewhere other than in the hands of the per-\nsons who are intimately involved in the process of investigation.\nIt's a cliche by now that participants in the law enforcement\nprocess ideally should not themselves make such determinations.\nThey're simply not likely to be dispassionate, objective, unbiased\ndecisienmakers.\nOn the other hand, I would think it preferable to have a prob-\nable cause standard administered within the Bureau, rather than\nnot to have such a standard at all. That would certainly be better\nthan nothing.\nMr. HYDE. You could see a workable arrangement where, say,\nwe're talking about the FBI as distinguished from some local sher-\niff's office. But let's even assume the highest placed people within\nthe framework, the most responsible people, the ones who are\naccountable to maybe the highest political authority, could make\nthis decision as distinguished. from the cop on the beat or the--\nProfessor STONE Again, the question is clear. The further you\nmove-\nMr. HYDE [continuing]. Rather than somebody outside.\nProfessor STONE. The further you move from the person who is\npersonally involved in the investigation-who has a vested interest\nin \"catching\" the particular suspect-the more reliable the deter-\nmination is likely to be.\nMr. HYDE. But you don't think it's the greatest idea in the world\nto have the U.S. attorney make these decision. or do you?\nProfessor STONE. I think there are at least two possible difficul-\nties with that. First. the U.S. attorney is a participant with some\nvested interest in the investigative process. And second, I think\n%\nthere may also be concerns, as you suggest. about the neutrality of\nU.S. attorneys. It would thus be preferable for these decisions to be\ntaken out of the hands of either the Bureau or the U.S. attorney\nand put it in the hands of the judiciary. And I see no reason why\nthere should be any particular obstacle, assuming a probable cause\nstandard is otherwise thought to be desirable. to having the judici-\nary handle this. There is no obvious reason. for example, why the\ndifficulties would be any greater than those encountered in admin-\nistering the warrant requirement for ordinary searches, wiretaps.\nor electronic buggings.\nMr. HYDE I take it you in RIVOR of judges working harder and\nlonger hours. and i agree.\nProfessor STONE I'm all in favor of that\nMr. HYDE. Thank you.\nMr. EDWARDS. The gentleman from Wisconsin. Mr.\nSensenbrenner.\nMr. SENSENBRENNER. Coming down to specific cases. the most\nnotorious in the eyes of some is the FBEs Abseam operation. Can\nyou give us your opinion on what the guidelines will do, from what\nwe read about Abseam in the paper?\nProfessor STONE I would be reluctant to do that. My knowledge\nof Abscam is sketchy, based solely upon what I have read in the\nnewspapers. and I'm not sure that's an adequate basis for that kind\nof judgment. I would prefer not to attempt to answer that question\nwithout having a more definite set of facts stated-either actual\nfacts or hypothetical facts.\nMr. SENSENBRENNER. Well, assumir If for the sake of argument\nthat none of our departed colleagues committed a crime until he\nstarted working with the FBI's undercover agent, Mr. Weinburg. do\nyou think that these guidelines would have prohibited that activity\nso that the Abscam would have died aborning?\nProfessor STONE These guidelines I think probably would not\nhave prohibited Abscam. although again I must qualify that by\nsaying I'm not aware of all of the facts of all the different investi-\ngations.\nMr. SENSENBRENNER. There may have been a predilection to\ncommit some crime on the part of the Congressmen that got in-\nvolved, but there certainly was no probable cause to bélieve that a\ncrime might have been committed until they had been in contact\nwith either FBI agents or people who are out on the FBI payrolls.\nProfessor STONE That's right. These guidelines do not require\nprobable cause.\nProfessor SEIDMAN If I could comment briefly on that question.\nCongressman. I also don't want to get involved in the specifics of\nthe Abscam operation. but what the guidelines clearly permit is\nthe dangling of very substantial inducements before Members of\nCongress, who are unlikely to be involved in criminal activity, and\nthat's what I find to be troubling, because they run the risk of\nleading a Member of Congress into a crime where it would be very\nunlikely but for the Government operation that that person would\nhave been anything other than an effective and outstanding public\nservant.\nMr. SENSENBRENNER. I have no further questions.\n24\nMr. EDWARDS. A number of years ago, this subcommittee worked\nwith the FBI and the Department of Justice on the FBI's domestic\nsecurity program. and we had an interesting dialog that went on\nfor many, many months. Eventually Attorney General Levi pro-\nmulgated guidelines with respect to domestic security cases that\nreally estaolished a criminal standard and the same type of higher\nsupervision that these guidelines provide for. where you have to\nget permission after a certain number of days. and if not, you 20 to\na higher level and so forth. So there is a sort of a paper protection.\n100. in the domestic security guidelines. However. I'm not absolute-\nly sure either of the witnesses are acquainted with them.\nThose guidelines are very emphatic that for the investigation to\ncontinue. there must be the almost immediate danger that a crime\nis about to be committed or somebody is going to get hurt. some-\nthing like that. and then the guideline provides for the investiga-\ntion to be called off after a certain number of days if this is not\nestablished.\nNow, these guidelines are much more benevolent to the police\norganization: isn't that correct?\nProfessor SEIDMAN. That's correct. Congressman.\nMr. EDWARDS. In other words. it can gc on for 2 or 3 years\nwithout any evidence that criminal activity is about to take place.\nProfessor STONE They don't. however, modify the Levi guide-\nlines. Indeed. they specifically state that in the context of domestic\nsecurity cases, the Levi guidelines are to remain in effect. What\nthe new guidelines do is to preserve the Levi guidelines with re-\nspect to domestic security investigations and adopt somewhat dif-\nferent and less restrictive rules with respect to nondomestic, ordi-\nnary criminal investigations.\nThe Levi guidelines. by the way, do require something akin to\nprobable cause for the use of undercover investigations of political\norganizations. Basically they require a showing of specific and\narticulable facts giving reason to believe that the individual or\norganization is engaged in unlawful activity.\nMr. EDWARDS. And it does require a series of writings from the\nofficer to a superior and to others in the chain of authority. which\nI think is important.\nMr. Hyde?\nMr. HYDE. I think it's worth noting that Pulitzer Prizes have\nbeen won by newspaper people going undercover. setting up their\nown Abscam operations. I can think of a couple in Chicago that\nhave been very successful. lauded by everybody as a great contribu-\ntion to the commonwealth. So are we setting up one standard for\nmedia people-the people's right to know. which is an overarching\nright over and above everything? The Constitution really doesn' t\napply to a media person, but to a polic man who may be trying to\nroot out criminality, not for a Pulitzer Prize, but to do their duty?\nI have trouble, and it's in an inarticulate way about the special\nplace that we give media people for this very thing\nProfessor STONE The investigation you re referring to in Chicago.\nthe Mirage Bar investigation. is consistent with the proposal I\nsuggest. In that instance, reporters working in the bar offered\nbribes to government building inspectors. This type of investigation\n25\nfalls bevond the realm 0° what I suggested should be covered by the\nprobable cause requirement.\nTo the extent that the media engage in more intrusive types of\ninvestigation. they too might pose serious questions. But I think it\nmistake too easily to equate the dangers posed by intrusions into\nprivacy by government and superficially similar intrusions by\nother elements of society.\nFor one thing. the resources available 10 the Government are far\ngreater, and therefore the potential ability to intrude upon privncy\nis far more pervasive. Moreover, the incentive of the Government\nto gather information for \"law enforcement pu DOSCS is quite dif-\nferent from the incentives motivating the press. The Government is\nmore likely to be interested in wide-scale information gathering.\nMr. HYDE. There surely are differences. and they surely aren't\nfungible. But there is a double standard that troubles me.\nProfessor SEIDMAN. If I could just have a word on that point,\nCongressman. 1 think even the most fervent defender of the first\namendment would not claim that the media ought to have the\nright to engage in illegal conduct or acts of violence of the kind\nthat may be authorized by these guidelines, on one reading of them\non the part of government agents.\nMr. HYDE. Yes. I agree with you. It's an undercover- it spying,\nyou know. operation, but when you own a bar in Old Town and\nelectrical inspectors are coming through-I won't say any more.\nProbable cause certainly rings a bell.\nMr. EDWARDS. Gentlemen. I don't think that it's happened in our\ncountry-surely we all hope it doesn't-where, as you point out on\npage seven of your testimony, Professor Seidman, police, whether\nthey're Federal or State or local. randomly just go around all our\ncities and stop people on the street and offer people bribes or offer\nthem money or try to sell them drugs or anything.\nWouldn't you agree that it would produce serious damage to the\nfabrie of our society if we approved that sort of thing. even though\na lot of people would be arrested?\nProfessor SEIDMAN. I think that's right, \"Congressman. There's no\nlegitimate purpose served by conducting little tests of the morality\nof people. It's hard enough with the tests that people have to\ncontend with in the real world without government making it\nharder still for people to walk the straight and narrow.\nMr. EDWARDS. It would be especially hard on young people, high\nschool students.\nProfessor SEIDMAN. Yes.\nMr. EDWARDS Mr. Hyde. any more questions?\nMr. HYDE. No. 1 was just thinking. Public officials do not fall\nunder that protective umbrella. They are always to be tested for\nmoral defects. it seems to me.\nMr. EDWARDS. Well, I think you and I will agree we should be\nheld responsible to a very high standard.\nMr. HYDE Exactly. People expect more from us and do not\nalways get it.\nMr. EDWARDS. Counsel.\nMs. COOPER. Professor Seidman, I would like to turn to the\nquestion of what constitutes governmental overreaching and a vio-\nlation of the due process doctrine in this context. Would an under-\n26\ncover operation that is premised on a kind of a theory-\nwhere there is no evidence of predisposition-but a-target IS never-\ntheless offered an inducement, is that. in your opinion. in itself a\ngovernmental overreaching?\nProfessor SEIDMAN. Well. without directly answering your ques-\ntion as to what my opinion is, I think that the Supreme Court\nauthority is relatively clear that the mere offering of inducement\nwithout probable cause, does not violate due process: The Court\nhasn't told us precisely what does violate due process, but I think\nit's pretty clear that does not.\nMs. COOPER. Well, it seems that the case law is not clear as to\nthe parameters of what constitutes governmental overreaching. In\nyour opinion. can the guidelines fill that void?\nProfessor SEIDMAN I think it's particularly important that they\nfill the void. because of the unclearness of the case law. And I\nmight add. one of the reasons why the case law is unclear is\nbecause the Court has said repeatedly that it's not our job to decide\nquestions of policy about law enforcement. that's Congress job, and\nit would be wrong, therefore. for Congress now to turn around and\nsay \"We're not going to do anything about this. because the Court\nhas settled it.\" The buck has to stop someplace: and I think it's\nCongress responsibility to make the hard judgment about what\nkind of law enforcement techniques are permissible and what kind\nare not.\nMs. COOPER. In a sense, the guidelines do point out dangers that\nhigh-level people within the Bureau or the Justice Department\nmust consider before they approve undercover operations in certain\ncircumstance. The guidelines seem to be based on the premise that\nthe higher you go in the bureaucracy. the more responsible will be\nthe decisionmaking. Do you agree with that premise?\nProfessor SEIDMAN. Well, I think it's an important first step to\nfix responsibility someplace, and in some visible place, for author-\nizing these pregrams. The worst situation is where a questionable\nprogram is authorized. and then after the fact. when it comes out.\nyou're never quite sure where along the chain of, command it\nbegan, and you have a situation where some low-level subordinate\nis ultimately held responsible. I think the guidelines take a step in\nthe right direction by saving that there has to be. as the chairman\nsaid, a paper record. and there has to be approval someplace close\nto the top.\nOn the other hand. I don't think that anybody ought to have the\nauthority to authorize certain kinds of programs. When you re\ndealing with that kind of a program. there is a substantial risk\nthat giving the authorization power to someone in a political posi-\ntion will someday lead to authorization being given for unaccepta-\nble reasons.\nMs. COOPER. There's also a danger that the people at the top\nhave the least information, and by the time evidence filters up to\nthe top, it's primarily conclusory. The people at the top are not in a\nposition to test the credibility of the evidence they re getting about\nfacts of the case.\nShould the guidelines themselves mandate the kind and quality\nof factual basis that must be presented to the decisionmakers?\nProfessor SEIDMAN. I think that's a useful suggestion, counsel.\n27\nProfessor STONE. It seems to me important to understand the\nintent of the guidelines internal review process. As I understand\nthem. at the lowest level. there must be an approval and recom-\nmendation that the operation be undertaken. before further ap-\nproval is sought from a higher level. Approval from levels higher\nup in the Bureau is thus an added protection against the unjusti-\nfied use of an undercover operation. Without those higher levels of\nreview. presumably all the same operations would be conducted.\nand at least some additional ones as well.\nMs. COOPER. The question is. Are people at the higher levels in a\nposition to do anything other than rubberstamp the earlier deci-\nsions?\nProfessor Stone, you concluded that not all undercover oper-\nations should be predicated upon a finding of probable cause.\nWould you make the same exception for other kinds of techniques\nthat now do require probable cause. for example. wiretaps?\nProfessor STONE No.\nMs. COOPER. Why do you make the distinction?\nProfessor STONE The degree of intrusiveness of undercover oper-\nations varies with the nature of the circumstances. For example,\nsimply to offer a municipal building inspector $5 not to write up a\nviolation, does not seem to involve any appreciable intrusion upon\nprivacy.\nMs. COOPER. Well, what if a wiretan was designed solely to find\nout whether the person is going to accept the bribe?\nProfessor STONE It is much more difficult to do. because you\ndon't know what the people are going to say. The conventional\nwiretap issue does not involve the direct participation of a Govern-\nment official in the conversation. Ordinarily, the Government is\ntapping conversations between two private individuals. neither of\nwhom has approved the wiretap. Therefore, the information re-\nceived is wholly outside the Government's control. There's no\nreason to believe it will be limited to essentially unintrusive items\nof information. In the undercover situation, however, one of the\nparticipants is an agent of the Government. and therefore, to some\nextent at least. the Go ernment retains the ability to structure the\nsituation in such a way as to keep it reasonably unintrusive.\nThere's no guarantee it will always stav unintrusive. but at least\nthat potential is present.\nMs. COOPER. Would you agree, Professor Seidman. that some. but\nnot all. undercover operations ought 10 be subject to the probable\ncause requirement?\nProfessor SEIDMAN. I feund Professor Stone's exposition rather\nconvincing. I have to say, though I did not come here prepared to\ntalk about the privacy aspect of this. and I. therefore, would be\nreluctant to give my final opinion on the subject.\nMs. COOPER. What is the practical difference between having a\nstandard of not approaching anyone who has a predisposition\nversus not initiating an undercover operation unless there's prob-\nably cause?\nProfessor STONE. There's a definite overlap between the two. To\nthe extent Professor Seidman's view on predisposition is adopted. it\nwould. to some extent. require something akin to probable cause,\neven in those circumstances which would not require such a show-\ning for privacy reasons alone. That's largely because there are two\ndifferent types of interests at stake-the interest in privacy and\nthe interest in not being offered participation in a criminal trans-\naction without justification.\nMr. EDWARDS. We welcome the gentleman from Wisconsin, Mr.\nKastenmeier. Any questions?\nMr. KASTENMEIER. Thank you, Mr. Chairman. 1 think I have only\none. I compliment the chairman and the staff and these witnesses.\nWe are dealing with a very complex and difficult subject:\nMy question is a general one. in terms of the use of informants\nin undercover operations, How does the present state of affairs\nwith respect to the Federal Bureau of Investigation differ from or\nresemble undercover operations on the State and the local level? In\nterms of developing some rational and reasonable restrictions. are\nwe way ahead at the Federal level? Have other States proceeded\nwith models with which we might care to compare these proposed\nguidelines?\nProfessor STONE To the best of my knowledge the proposed\nguidelines are. I suspect. as progressive a response to the problem\nas one would find anywhere. Perhaps the only exception would be\nthe ordinance enacted in Seattle, which adopted important restrie-\ntions on several facets of undercover investigations.\nMr. KASTENMEIER. In terms of legal complications and in terms\nof the use of these particular practices, is this something which has\nmushroomed in the recent past and recently come to a head, or\nhave we always had substantial activities in the field, largely\nunregulated. except by an occasional case before some court, to test\nthe peace powers?\nProfessor STONE The use of undercover operations has expanded\ndramatically over the past several decades. Undercover operations\nare especially effective, as Director Webster and Mr. Heyman indi-\ncated last March, in the investigation of \"consensual\" crimes. In\nthe past few decades. Government has increasingly criminalized\nvarious types of behavior falling within that general category.\nLaws involving narcotics. racketeering, public corruption, and\ntaxes are only a few examples. As a consequence, the use of under-\ncover operations has mushroomed, This is true at the local as well\nas at the Federal level.\nThank you. Thank you. Mr. Chairman.\nMr. EDWARDS. Mr. Bovd?\nMr. BOYD. Professor Stone. how would you like to see the FBI\nrespond to the circumstance in which one of its paid informants\nreports that certain public officials are willing to introduce and.\nsupervise the passage of legislation in exchan for $50,000?\nProfessor STONE. Wisely. More specifically, they should take the\ninformation to a judicial officer and obtain a warrant to engage in\na full-scale undercover investigation.\nMr. BOYD. So you are suggesting that it's probable cause?\nProfessor STONE. I'm assuming that the informant's information\nis reliable.\nMr. BOYD. or course.\nProfessor STONE. Sure. Certainly.\nMr. Boyd. No further questions.\n29\nMr. EDWARDS. One of the problems, obviously, is the auditing\nand controlling of not only the informant but the undercover oper-\nation, whoever he or she may be. Great damage might be done to\ninnocent people by these people who sometimes are criminals\nthemselves being authorized and sent out into society by the police\norganization. How do you think that they should be audited or\ncontrolled. or should there be a careful auditing by the supervisors\nof the police organization or the FBI?\nProfessor SEIDMAN Well. I think SO. Mr. Edwards. In that\nregard. it seems to me one of the ironic aspects of Professor Hey-\nman's testimony before this committee last year was that he de-\nfended the Abscam operation. because the Government had not\nmade a selection of the people to approach, but rather that selee-\ntion had been made by the person who was himself criminally\ninvolved. That's doesn't seem to me to be much of a defense.\nSurely, in a matter as sensitive as that, there ought to be closer\nGovernment control over which individuals are approached and\nhow they re approached, and what sort of inducements are ottered\nto them.\nMr. EDWARDS. Well. my problem is-that surfaced as a result of\nMr. Kastenmeier's question-that WP really don't have very much\ninformation. because insofar as the FBI is concerned. underenver\noperations are a relatively new phenomena. When Mr. Hoover was\nthe director during the time that 1 was with the Bureau. we didn't\nhave any of these at all. and SO 1 think that we're going to have to\nget a lot more information about what is going on and what has\nbeen going on. Are they a bunch of lawsuits about these operations\nand the difficulties that have been encountered by people as a\nresult of these operations?\nWe really are in a rather new area, SO far as the Federal Bureau\nof Investigation is concerned.\nProfessor STONE. Under Director Hoover. the vast majority of\nundercover operations were in the domestic security area. and the\nnumber of agents or agent informants or confidential sources who\nwere actively investigating various Communist or supposedly Com-\nmunist-related groups, was substantial. There was a good deal of\nexperience with that sort of undercover operation. It was largely in\nresponse to those activities that the guidelines were framed.\nMr. EDWARDS. That's correct. Counsel?\nMs. COOPER. One more question. The sale or purchase of drugs.\nfor example. or stolen goods by undercover agents is now a rela-\ntively commen undercover operation. and the crimes involved there\nare, on their face, unambiguous. All the parties realize that they re\nengaging in something illegal.\nWhen you get into the more sophisticated crimes, such as corrup-\ntion or other white collar-crimes. the line between legitimate and\nillegitimate behavior gets a lot fuzzier. As Congressman Hyde was\nexplaining, there is legal ambiguity arising from the offer of a\nbribe or a political contribution in return for a political act when\nthe understandings are left unstated. but there is a meeting of the\nmind. Does that reality suggest that the guidelines themselves\nought to create special precautions. special requirements, when\nyou're dealing with a substantive crime which, by its nature, is\nfuzzy?\n83-556 81 3\n30\nProfessor SEIDMAN. Well. I think. counsel, one of the commend-\nable aspects of the guidelines is that they do provide that the\nundercover agent should make unambiguous and clear the illegal\nnature of the conduct to the participant. Fm a little uncertain how\none does that without blowing one's cover. It seems to me it would\nrequire some skill. But I think that is a commendable safeguard.\nMs. COOPER. Suppose that the guidelines were in effect and a\ndefendant claims that that was not done. It didn't happen. It was\nambiguous. The jury convicts anyway, for whatever reasons. The\nappearance of guilt is overwhelming, despite the ambiguity of the\ncriminality of the offer. Absent codification of these guidelines,\nwhat would be the defense's recourse?\nProfessor SEIDMAN. Well, that's one of the most unfortunate\naspects of the guidelines. I think They are very clear-the last\nsentence says \"They are not intended to, do not. and may not be\nrelied upon to create any rights. substantive or procedural. enforci-\nble at law. by any party in any manner. civil or criminal.\" And I\nthink that makes it as clear as it is possible to be. that they re\nintended to create no recourse. And one of the useful things that\nthis subcommittee and Congress as a whole can do. is to make\nthese guidelines worth something more than the paper they re\nwritten on. by providing that they would be a celense to a criminal\npresecution if they were violated.\nProfessor STONE May I add a related thought. Especially in the\nentrapment area. it is terribly important that Congress understand\nthat it's not in any way, shape. or form bound by the Courts\nformulation of entrapment. It's not a constitutional concept. It's\nsimply a matter of either common law or statutory interpretation.\nRather than attempting to unravel the entrapment doctrine as\nformulated by the Court. Congress should rethink the issue anew\nand devise its own formulation of entrapment. The Court's ap-\nproach should be viewed as merely one form of the defense which\nmight or might not be accepted by Congress.\nMr. EDWARDS. Thank you. That would be a most satisfactory\nsolution. but it's not at all likely to take place. That's the real\nworld. We have a kind of a definition of \"entrapment\" as enunci-\nated in various court decisions. there has to be, there should be a.\npredisposition. and when the Government goes too far. when the\nconduct is outrageous, then it's entrapment. Is that about what it\namounts to?\nProfessor SEIDMAN. That's about it. Congressman.\nMr. EDWARDS. Well. I think the witnesses also would agree that\nuntil the requirement for a warrant for undercover operations is\nput into law-and that's very unlikcly-the guidelines at least\nought to require that the higher officials in the FBI that are\napproving one extension after another, should have almost the\nsame kind of information a magistrate would have, the same kind\nof proof that a magistrate would require for approval of a warrant;\nis that correct?\nProfessor STONE I would agree with that.\nMr. EDWARDS. Are there any other questions?\n[No response.|\nMr. EDWARDS. The testimony of both Professor Seidman and\nProfessor Stone has been very helpful. We thank you very much\n31\nfor appearing here today, and We are looking forward to communi-\ncating in the future.\nThank you.\nThe next hearing will be held on the 25th of February.\n[Whereupon. at 19550 a.m. the hearing was adjourned.)\na\nand\n/\nThe and\nNW\nA\nFBI UNDERCOVER GUIDELINES\nWEDNESDAY, FEBRUARY 25. 1981\nHOUSE OF REPRESENTATIVES.\nSUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS.\nCOMMITTEE ON THE JUDICIARY,\nWashington. D.C.\nThe subcommittee met at 9:45 a m. in room 9226 of the Rayburn\nHouse Office Building. Hon. Don Edwards chairman of the sub-\ncommittee) presiding.\nPresent: Representatives Edwards. Kastenmeier. Schroeder,\nWashington, Hyde. Lungren, and Sensenbrenner.\nStaff present: Janice Cooper. assistant counsel. and Thermas M.\nBoyd, associate counsel.\nMr. EDWARDS. The subcommittee will come to order.\nToday we continue the subcommittee's examination of FBI un-\ndercover operations and the Attorney General's recent guidelines\non that subject. Our witnesses this morning bring a range of expe-\nrience and knowledge that will add immeasurably to our under-\nstanding of the nature of this topic. Prof. Paul Chevigny of New\nYork University Law School has not only studied the problem from\nan academic, legalistic point of view, but also is a practicing attor-\nney who has worked successfully with law enforcement personnel\nto devise ways to monitor and control the use of undercover opera-\ntives.\nProf. Gary Marx. of the Massachusetts Institute of Technology,\nhas approached the issues as befits his training as a sociologist. He\nhas examined numerous undercover operations, and analyzed the\nethical, practical. economic, and social implications of their spread-\ning use. Only this kind of aggregate review of the tactics can\nprovide the kind of information we need.\nWithout objection. both full statements will be made a part of\nthe record.\nAnd before I recognize Professor Marx. who will speak first, I\nyield to the distinguished gentleman from Illinois. Mr. Hyde.\nMr. HYDE. Thank you, Mr. Chairman. I have no opening re-\nmarks.\nMr. EDWARDS. Professor Marx, we welcome you and you may\nproceed at your own time.\nSTATEMENT OF GARY T. MARX. PROFESSOR OF SOCIOLOGY, MIT\nMr. Chairman and members of the subcommittee. I am pleased to be here today\nto discuss some of the issues raised by the new police undercover work and their\nimplications for the proposed FBI charter and guidelines. My concern will be with\nsome of the broader social and policy issues raised by police undercover work.\nQuestions of legality are of the utmost importance. but they should not be the only\nissues considered. The mere fact that a tactie is legal (and even this is in dispute for\nsome recent undercover actions). should not be sufficient grounds for its use. Its\nethical. practical, economic, and social implications must also be considered. Nor\n633\n34\nshould we be content with guidelines and formal oversight procedures however\nimportant as a first steps, in the absence of enforcement mechanisms and a means\nof assessing their effectiveness\nThe advantages and successes of recent undercover work have been well publi-\ncized. Director Webster and Asst. Aur General Hevman mentioned some of these\nin their testimony to this Committee last March Without denving these or arguing\nthat undercover work should be categorically prohibited. I would like to suggest\nsome possible disadvantages. andres. and casts which have received far less public\nattention. T will then suggest a way of categorying types of underciver operations\nand activity and SODE general publicy guidelines that flow from this will then other\ncomments on the cecently released cuidelines the undersever work and call atten-\nDon to some issues which are unressived. or in first of further work Finally i will\nspeculate on what revent underedver work may Unply about the chrosing nature of\nsocial control in America.\nAs PROBLEMS ASSISTATED WITH UNIVERSIVER POLICE ****\nThe problems that may be associated WILR undercover work can be usefully\napproached by consederation of the mator groups involved 11 Resets el the revests\n21 informers and unwitting middlemen. police. and third parties will\nthen consider SUITH questions which cut across these, dealing with overall offect\nriveness and costs and benefits\nSome of the problems to be insidered of course may was INSUR with more\nconventional police methods. But Mose problems seem more characteristic of under-\nSOMET work. because of its special properties and the WIV 11 was recently been\ncarried out. The discussion which MIDAS is tentative than / would Nae As in\nthe testimiony last March un the positive astents at undercover work, examples un\nthis case of negative asplets) will PP given Fee THE cannot Say with much certainty\nhow frequently, or under what conditions there are likeiv. to occur Given the\nsensitivity of the issues involved. and the russ to cherished liberties. our renorance\nin these matters is appalling There is a strong need for systematic research and\npublic discussion into the questions raised by the new police undercover work\nThe targets, OF subjects of an investigation: to richins of Government truckery\nor concern. rather than autoromous criminats-Most critical public attenion has\nfocused here. The lier legal questions usually are the Did the person violate the\ncriminal law and 2 was the person predisposed to do this? The fact that the crime\ncould would not have occured without the government involvement is usually not\nconsidered legally relevant if the person is predisposed. Yet for understanding\ncauses of behavior and developing guidelines for the use of scarce law enforcement\nresources, issues around the behavior of government agents is crucial Furthermore,\nwhere there is chercien, trickery, or a highly seductive temptation, the determina-\ntion of predisposition is very difficult. There are also abuses which are independent\nof legal guilt or innovence: such 18 invasions of privacy, the use of political criteria\nin choosing targets. the USE of leaks to damage a person reputation. and blackmail:\nThree common forms of trickery are offering the illegal action as a minor part of\na very attractive socially legitimate goal, hiding OF disguising the illegal nature of\nthe action. and weakening the capacity of the target to rationally distiniguish right\nand wrong. In the first Clise hereb are lured unto the activity on 3 pretext. The goal\nput forth is leiral and destrable and the illeginity is secondary Thus in the Philadel-\nphia Abseam case the defendants were told that their involvement could bring a\nconvention center and possibly other investments to the city They were led to\nbelieve that the project would not come to it by did not accept the\nmoney. Judge Fullam. in his ruling on the Philadelphia case of Schwartz and\nJannotte indicates that neither of the defendants asked for money and both indicat-\ned that no payment was necessary Rommie Louds. the first black executive with a\nprofessional sports team. organized the Orlando Florida. franchise in the World\nFootball League. With the failure of the WFL Loudd went woke A man whom he\ndid know called and offered him $1 million to reorganize his team. The caller\npromised to hring wealthy collegues into the deal However, Loadd initially was told\nto losen up the financiers with cocaine Loudd resisted the offer. but eventually\nintroduced the caller can undercover agent) to two people who sold him cocaine\nLoudd. with no previous criminal record. was sentenced to a long prison term. On\ntape the agent involved said to nis partner. Two tricked 'him worse than Exe\ntricked anybody ever\nIgnorance of the law is not an excuse for its violation. However, the situation\nseems different when one is led into illegal activities by government agents who\nclaim that no wrong doing is occurring Here the agent may be both exploiting\nignorance and generating a subterfure.\n35\nIn several Abscam cases defendants were apparently led to believe that they could\nmake money without having to deliver on any promises. The video-tape from the\nWilliams case reveals the main informant coaching the fantet in what to say and\nalmost literally putting words in his mouth You gotta tell num how important you\nare, and you gotta tell him in no uncertain terms Without nie. there is no deal. Em\nthe man whole conna open the doors. I'm the man who's genna do this and use my\ninfluence and I cuarantee this\nThe Senator is then assured that nothing wrong is happenang It gues no further.\nIt's all taik: 34 bullshit. It's a walk-through You gottal 24 play and blow your\nhorn.\nAbscam defendants were min that in decordance with the Arab mind and Arab\nway of doine business they must convince the investors that they had triends in\nhigh places. The criteria 10 doing this Was that money had No be paid: No commit-\nment to be actually influenced by the payment was required by the undercover\nsignts. The key element was applicances In several vases the situation was strue-\ntured SO that the acceptance of money would be Send the payment for private\nconsulting survices and not as taking a bribe\nA third proble matie area involves theme trickery against people with dimmished\nor weakened capacity, such as the mentaliv limited OF suxeriles, and person\nunder extreme pressure: or in a weakened state additions it state of withdraw\nall Such person may be more susceptible to persuasion and - able to distinguish\nright from woomk The undercover agent may attempt to yeste, or help alone such\nconditions in the target as part of the investigation: In a Any Jersey Abscam case\nthe target refused the first offer of cash. However, he eventually takes money after\nthe resource(s) covernment terents (who have concluded that he is an alcoholic give\nhim liquor\nParticipation Clay emerge out of lear of that participating rather than the choice.\nAn element of this seems inherent in certinn take crimmal stuations, or IN Using as\ninformants those accustomed to using threats of violence to 269 their WSW\nFor example: two federal airents and a chewicted armed trader became involved in\na gambling and prostitution front in Alaska as part of an interputory plan to eatch\norganized crime when it came with the pupelie project They selped finance a bar\nwhich was to 00 the center of the operation and actively with participants for the\nscheme. One of the agents posed as the organization's thears muscle -Fand appears\nto have played a heavy-handed role in intimidating and prodding some participants\nFormer Assistant United States Attorney Donald Robinson Was accused of taking\nmoney for information from what he thought were organized crame figures. but who\nwere actually police involved in a sting He eventually won his case on entrapment\ngrounds.\nRobinson, at first, ignored their approaches. He became involved only after\npersistent phone cails. a threatening call DO his wife. and a warning that he might\nend up missing When correion is mixed with temptation the incentive to partici-\npate can be very strong.\nRecent undercover actions have transformed the Biblical injunction to something\nlike \"lead us into temptation and deliver US from evil.\" Temptation raises different\nissues than correction OF mickery An act is no less legally criminal because it is in\nresponse to if viry attractive temptation. The concern rather is with the assump-\ntions on which the tache IS based. a sense of fairness and whether scarce resources\nought to be used in this W.Y.\nDefenders of these facties usually make the assumption that the world IN clearly\ndivided between the crimmal and non-er-minal. It is assumed that providing an\nopportunity will not tempt the latter and the former will commit the offense\nregardless. Yet this must be questioned. The number of arrests - possible from certain\nundercover actions IS simply astounding What happens when widespread, it not\nnear universal. destre is met with state-provided opper Lumits\nIn response to a reporter question Al Capone once said something like \"lady\nwhen you get down to cases nobody's on the legit.\" It IS certainly not true that\neveryone has their price or can be tempted While imagery of turning on a faucet.\nor providing fly paper for thies to stick to is overdrawn. there are certain categories\nwhere undercover tactics can turn up offenses a goodly proportion of the time. This\nis the case for sexual encounters. for certain forms of illegatity related to routine inb\nperformance чещ.. a building inspector taking a bisbe or issuing a permit that\nwould have been issue I anyways, and the general desire to purchase popular con-\nsumer goods inexpensively.\nEven if temptations are not offered. must complex artivities, whether of husi-\nnesspersons. legislators, or academics have legally areas wherein secret investi-\ngations could turn up viclations. Those who get ahead in organizations are often\nthose who make things happen b. breaking rules and cutting through red tape.\n36\nRules are often general, contradictory. and open to varied interpretations. As those\nin law enforcement bureaucracies know too well, organizations have a vast number\nof rules which are overlooked until a supervisor wants to nail someone. In many\nsuch cases morality and conformity are not the simple phenomena that a rule\nviolation may make them out to be The use of secret forms of information eather-\nins. even without providing temptations, can be problematic'\nSome of the new police undercover work has lost sight of the profound difference\nbetween currying out an Investigation to determine if a suspect is in fact breaking\nthe law and carrying it cut to determine it MILL individual can be induced to break\nthe law. As with God teating Job. the question The the corrupt?\" was replaced with\nthe question 748 he corruptible?\nQuestions of police discretion are involved here. With limited resources. how\nmuch attention should authorities devote to crimes which appear in response to the\nopportunity they themselves generate or which can the subtly ferreted out through\nsecret tactics, rather than focusing OR more \"dentine oltenses which appear with-\nout their inducement As Judge Frankfurter wrote in Sterman V. U.S. \"Human\nnature is weak enough and sufficiently beset by temptations without government\nadding to them and generations crime\nConventional investigations which appear in response to the complaint of a\nvictim. offer some control over police behavior not present in secret investigations\nundertaken at police initiative. Openness in NN investigation with respect to the\nfact that it is being carried out and the means used and the presence of a complain-\nant as a concerned outside party. reduce discretionary power Secret investigations\ncarried out at police initiative that involve intergrity tisting are a powerful means\nfor the discovery and or creation of discrediting information.\nThe creation of a tempting opportunity and the actions of the undereover person\ncan atlect conversation and behavior IN was that a borden non-hunian recording\ndevice never can. It is surprising that the former is not regulated by the courts.\nUndercoiver operations share with wiretapping the invasion of privacy. but with-\nout the restraint imposed on the latter be judicial warrant. The video-taping and\nbugging in recent undercover operations permits the development of secret informa-\ntion on conversations and behavior which may never appear in court. Discrediting\ninformation nav be developed which has nothing to do with the initial investiga-\ntion. Regardless of actual behavior. the appearance of involvement as a suspect in\nthe apparatus of covert government investigation cannot help but cast a shadow on\na person's reputation. To be secretly video-taped or taperecorded and then to have\nthis made public will convey a presumption of guilt to the uneritical. For the\nunprincipled it offers a tool for character assassmation.\nThird parties innocent of no wrong doing may be equally damaged by merely\nhaving their names mentioned on tapes which become public This is the case for at\nleast three Senators mentioned as possible targets for Abscam. The frequent reli-\nance of such investigations on con-artists with a proclivity to lie. boast and exagger-\nate makes matters worse That those SD named may later receive a letter from the\nJustice Department indicating that an intensive investigation \"disclosed no evidence\nof illegality that warranted our further investigation, seems small compensation.\nThe discovery and or creation of discrediting information can offer a powerful\nmeans of controlling a person through arrest the threat of exposure. or damaging\ntheir reputation through leaks. The potential for political and personal misuse is\nstrong. There are many examples from the last decade of radical activists who could\nnot be arrested for their political beliefs being targets for drug arrests instead. In\nLos Angeles a top Mayoral aide, unpopular with police because of his role in police\ndepartment changes. was arrested on a merals charge under questionable circum-\nstances. He lost his job. In the case of Abscunt, middlemen apparently suggested a\nnumber of other congressmen as potential targets. What criteria were used in\ndeciding who would be tempted? Even if the criteria are beyond reproach. as long as\npolice have such wide discretion they will be continually vulnerable to accusations\nof misuse. The breadth of some criminal laws such as conspiracy offer very wide law\nenforcement discretion and can mask the political motivation behind an investiga- III-\ntion.\nThe investigation may have been carried out with no intention of formal prosecu-\ntion. in cases where there is no prosecution because of insufficient evidence. or\nimproper official behavior. the subject may stili be damaged through leaks to the\nmedia. The unregulated power to carry out integrity tests at will offers a means of\nslander. regardless of the outcome of the test In the case of politicians for whom\nmatters of public reputation are central. the issue is particularly salient.\nThe situation offers opportunities for blackmail and coercion. Incriminating infor-\nmation can be filed away as long as those implicated continue to cooperate in legal\nways, such as by offering information or setting up others, or in illegal ways such as"
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