Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118567438
label
ABSCAM (2 of 4)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118567438
contentType
document
title
ABSCAM (2 of 4)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118567438
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
ec9c75e1f4570cc5
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: ABSCAM (2 of 4)
Box: 1
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
37
through pay-ofts. Blackinail following sexual enticement is a well-known example.
Getting information en the extent of this is very difficult since undercover police
and those blackmailed have a shared conspirational interest in keeping silent
In some jurisdictions where employees are required to report illegal activities.
they may face double testing. Thus a New York City buildings superintendent was
approached by an undercover investigator who offered him a bribe il he would
submit falsified architectural plans The bribe was rejected. However, the superin-
tendent was neverthers suspended from his jub for failing to report the bribe
attempt. While letti. this takes the traditional into rity test to it He'll extreme. A
person may become the tanget of an undercover apport mity scheme, not because of
suspected corruption. but merels (i) SWG it requirements that bribes For reported are
followed: The potested for misuse is clear. This can be a tool for getting rid of
employees seen as tro ablesome on other grounds
Exploitation of the system by informers an be a maior problem. The frequency
and seriousness of the problems informets can cause make them the weskest link in
undercover systems Most underceser Aperations must rely to smille dearee on infor-
mants in the crimmid mailed for information. technical advices "clients," contacts
and legitimation of their disreputability A heavy price may be paid Sir this Wille
informers face except and risks. they MISE face exceptional opportunities
Some recent cases appear to represent a significant delegation of law entorcement
investigative authority Informers can be offered 3 hunting Adense to give after
whomever they WITH as long as Chev assett that the target they choose is pre-
disposed to illegablictions: According to the new qualifities a person 09 be invired di
to engage: in an addition such as Absoum TAS a target 90 the basts of an inform.
or account that Be or she the enviloing has eneaged. or is likely do bridade 11)
illegal activity of 3 similar type:
Verification of such accounts is other difficult and the say nothing
about this These who know, for selventi-rested respons will obviensis otten not SW
Those who SMN: may well not know or nivea rested interest in tring This is bleedy
to be particularly true of criminal intermers where professional lives mutinely
require deceit, lying. and covering UP When the informer has a motive to he, in If
often the case. matters are even worse. Because or charges they are seeking to
avoid. the promise of drugs or money or .1 desire to runish competitors or enemies,
they may have strong meentives to that others break the law. This can mean
false claims about past mishehavior of thrigets and ignoring legal and departmental
restrictions. Whether out of self-interest or deeper psychological motives seme in
formers undergo a transformation and become realous super-cops creating crimit
nals, or sniffing them out using prohibited methods.
According to media accounts the convicted swindler in Abscam described by
Judge Fullam as an "archetypical, amoral tast-buck artist had a S-year prison
sentence waived and received $183.150 for his cooperation in the two-year investiga-
tion. Accounts in an internal Justice Department memorandum further indicate
that he "would be paid a lump sum at the end of Abscant. contingent upon the
success of the prosecution." In testimony the informer acknowledged that he expects
to make more than $200,000 from his undereover activities:
The bridge to the truth is further weakened when informers draw brokers or
middlemen into the operation. The latter do not even know they are part of a police
operation. For example a middleman in the Abseam case was apparently led to
believe that he could earn broker's lets of millions of dollars for helping an Arab
Sheik invest $60 million in real estate. It IS not surprising that he apparently east a
wide net in seeking to gain "cooperation" from public officials. Claims about past
misbehavior, or predisposition of potential targets become even more suspect when
this circuitous path is followed: This may help account for why, under the vers
tempting and facilitative conditions of Abseam. univ hall of those approached Look
the bait.
Informers and to an even greater extent middlemen. are formally much less
accountable than sworn law officers and are not as constrained by legal or depart-
mental restrictions Increased police respect for individual liberties and rights may
come partly at a cost of decreased respect of them by informers and other civilians
in law enforcement such as "professional witnesses and private detectives. What
police need to have done but curnet themselves do legally. may be delegated to
others. The greater the restrictions on police the greater the delegation This need
not involve police telling informers to act illegally, But the structure of the situa-
tion with its insulation from observability, skills at deception and strong incentives
on the part of the informant. make supervision very difficult. Videotape and record.
ings are a means of monitoring informer behavior. But the crucial and generally
unknowable issue is what takes place off the tape recording. To what extent are
38
events on the tape contrived? Informers and middlemen are well situated to engage
in entrapment and the fabrication of evidence
The structure of the situation may also tavor informers committing crimes of
their own. apart from their role as law enforcement agents.
The informer-controller relationship is usually seen to involve the latter exercis-
ind coercion OVer the former Through 11 kind of Institutionalized blackmail. the
threat of inil. or public denouncement as an FTRST is held incompoyance as long as
cooperation is torthcoming What IS less Importantly realized Se the doublised_ed
sword potential of such relationships When not able to hide crinsmal behavior the
skilled. or Firtunately situated informer may the able to manufacte or correr the
controller as well with 3 kind of stand-off resulting
The price of caining the comperation of mothers may Ven 10 iznore their review
breaking But besind this participled nonsentirvement, these structions baid them
solves well to exploitation the informers For Their OWN criminal unds. Major cases
may respire the government to desd: WHIT subster consultants intervating in their
natural habitat. They are DRAW to have accomplitive edge over being
An institution expert. planning an undersiver the in Copyrate (2) trint load Investe
gating organi ed crune in the construction was applicant's able to
Samphon in less and issued worthless insurance performance holder Is part of CI+
cover he was certified in an what of the New Hampshire Instructionce Group with be
power to issue bonds The Groblems in this expensive Cash which resulted in the
indictments Der the known through a stat agringt the government this many other
such cases are Miere that We not hear about because no 480 brings suit"
An informer ID the Abscant Cash With apparent(s) able to exploit his rule and
tidse Front the had bein ->> UP Abdil Insterprises Ltd 50 sundle West
businessment anzing they and here taken. the businessment complained to the
FBE However, the informer WILL altre traditory en nor a year and 0 salf The FRI think
no detion, essentially customs; up his notif after because pullic
Here we see a type of immainity that under NOT work mas other in this B
was only temporary to protect the speracy of 13 ongoing investmention. Once the
investigation was over the MY emer was indicted. through any Call speculate OR the
harm done and Hick of compensation In value Their Victurezation was indires th
aided by the government. first through helping provide the opportunity and tisen If:
failing to intervene or to warmenthers Even meme troubling afe-cases where inform
ers can essentially blackfaail potice into granting them permanent immunity This
happens when a trial and related publicity would reveal dirts tricks and
on the part of government agents, secret techniques of operation, projects
or classified information.
Undervorer HOTN grout risks and temptations to the pour involved the
with informants, the secreta of the situation. the protected areass to illegality. and
the usual absence of a complaimant can be conducive to corruption and above
Undercover operations can offer a way 111 make PASY cases or to retaliate. damage,
or gain leverage against. suspects not otherwise liable to prosecution: Issues of
entrapment. blackmail. and leaks were considered in the section on targets. Here
the focus IS on direct implications for poince
The character of police work with its isolution. secrecy. discretion. uncertainty,
temptations. and need for suspleisusness, is Irequently drawn upon to explains powr
police-community relations. the presence of a police subculture in conflict with
formal departmental policy. and police symptoms. The Number are even more
pronounced in the case of undercover Work
In addition it involves other Castors that may be further conducive to problems
Beyond the threat of physical danger from discovery there max be severe social and
psychological consequences but police who pays un foreover rules 1945 an extensted
period of time
Unde reaser situations and by be more fluid and unpredictable than with reutine
patrol or invistigative work There is creater automomy buid Dates and procedures
are less clear. De expenses in setting up an undercover operation are often signifi
cant. The financial cost of instakes or Luture IS much greater than with conventions
al investigations The need for accentuates problems of coordination and
concern over all that can 20 wrong Undercover police may unknowingly enforce the
law against each other or have it enforced against themselves, sometimes with
tragic-consequences.
Undercover signts are removed from the usual controls of I uniterm. a hade: :1
visible supervisor. a fixed place of work. radio or beeper calls and a delimeated
assignment. These have both a literal and symbolic significance in reminding the
officer who he or she is.
Unlike conventional police work. the undercover agent tends to deal only with
criminals and is always carrying out deception A criminal environment and rele
39
models replace the more usual environment The agent # encouraged to pose as 3
criminal. The ability X Nend in and no aked and accepted, is central to effective-
ness It also serves 15 :00 indication to the agent that ne OT she is doing a good job.
As positive personal relationships description the agent may experience zuilt and
ambivalence may over the the wal itcherent in the deceptive role being
played The work Intense Throught is always For suffer operatives The
work becomes allows State: The agent may come 01 the sense of power the
rele-otters and its operated contrict terminal activity
Isolution from and Contacts and the and to the and agreested can have
unintended conservições Playing max extracism And ambrya-
lease about the person and maker to have 1:1/0 the Stated and
united invatts: July agency mapt water In CAS boxe) Mather Night.
Kant the THat Was which we present to DE all We De careful
about whit we provide to Me WISL become OF purveyous of the
vice this sel all Frie as part to M. divestigation Chicago
policiman pased and and minità to A phosidable FINE He continued in the
pimp ride after the constitution ethled and Was midd A member of (1) elité
dear entorcement in the Bown with became as and withheld (11) as
disability Rentern The Francial :- ISSNE corruption. particularly in
gambling and nativative he del chances they and 0 rather
good Francatly, effect, and application unless for THEN attention Hand in
hand Police Superves "> are they Reserved difficulties in knowing
weat undersiter (% means - DE
Awarenting of the OSTATES $ inderented activity explain J
Edgan Hunvers 014 [1] having - NO agents in The reputal
from of the FBI für to parting (X) the that AS wonts under
Howver did NOT Pac Date STREET As and in requirely
involved in undersi well intivities
Pulice folklare that this MIN work VICE and underswer roles are
sometimes different negatively withheld by the experience Paid non aware of
any studies at the the and of long better ment
in undercover theoretical and the impressionistic evidence 1
would predict that undersover agents wind disproportenally show symptoms of
street
The possible duriner 14 third purties In one of the least explored aspects of
undergover work of the SUCTIVEN and second war ripple checks much of it
never comes to put-in attention and Nove who are hurt may not even be sware of it
to complain or SEN termites. Its devisibility makes 11 even HAVE problematic
One type of damage [4] third parties these already been considered. crames commit-
ted by informants under the protection Art their role. but unrelated to on investiga-
tian. A second type COM THE directly invoice the intended his enforcement rele. The
must obvides cases involve the victims of governmentrestired OF facilitated crimes
In Denver two vounz Dien learn that 1: local Tenat ANA reality a police sting. is
by stolen cars the then steal a on kill its owner in the process and then sell
the car to the Tener That repeat and are then arrested According to
one estimate only half of the property stolen in time hope of being sold to a
police-run fencing Operation is actived returned to 15 owners. People may not
report their less or 18+ property may with distinctive identification Even in cases
where people du wet they property back. should the trauma of their vistimization
entitle them to sure special compensation because of the government refel
For security reasons or to gain CHIZENS OF established businesses
approached about excepting with AC underenver operation may IN be given the
full and candid account necessary for truey informed worm. Such was apparently
the case with the KIN move in "operate : trent load In seeking his certification as
an insurance agent with the power to insue bonds. FBI currents described him to the
insurance company In cuestion as a furmer police officer and "a straight arrow" and
used a false name The insurance company was not toid of his criminal record. or of
the fact that he agreed to be an informer to avoid a nume-vear prison sentence and
fine. Because of the mishehavior of this informer, as of May 197M damage suits had
been filed in five states against the New Hampshire Insurance Group the certifying
insurance company Company officials claim that his actions in issuing take per-
formance bonds to construction companies vost them and insurance brokers more
than SGO million in numbers losses The head of : meago insurance firm states
"What the FBI dad Was a disgrace they ve mined US. He is suing for S40
million dollars
The web of human interdependence IS dense and deceptively triffing with one part
of it may send out reverberations that are no less damaging for being unseen, The
40
damage to third parties need not be only economic The latter may have negative
consequences for health and family relations
Have any small businesses been hurt by the competition from proprietary fronts
run by police? To appear legitimate. such fronts may actually become competitors
during the investigation. Government agents with their skills and no need to make
is profit, would seem to have an obvieus competitive edge over many small business-
frem. Their exemption from many of the kews requiating government financial
transactions can tie conducive 00 curstionable practices:
The most private and details 42 human stations and relationships may be
violated under the mantle of government develt Thus as part of an attempt to
infiltrate the Wasther understrund at Federal developed an onganiz relation-
ship with II worner. She become pressunt. Attut onsiderable indecision and at the
unting of the NEMBER who decided to have an aboution. The agent's work then took
him elsewhere und he ended the relationship with the wornan apparently never
knowing his secret identity 000 True motive- Other can imagine the publicity and
law suits if kept the child and the virculostances of the paternity became
known. OF X site had dird in or become centaily unstable
Indirect damage to third Ratties may be seen in the increase in non-uniformed
police impersumentors which approves 10 be necommunying the stirend of undercover
putier work. Profersonators are Chered rule invelting and their natial tales are made
Shart credible VAT the public's KG that underenver work in common Accord-
into 101 one extimate several varies 350 more titum :: Quarter of the complaints filed
adamst the New York City involve impersemations Chaste con games. such as that
where the Student is persuaded :: draw mones Priorty the bank in under to secretly
lest the honests of Bank employees, may be made more behevable by the actual
spread of VITIONS kinds of government secret interity tests Official statistics prob.
abiv greativ underestimate the extensiveness 40 this since Hear preved upon are
often prostitutes. come extras and persons serving to buy or sull narcoties. who are
less Trely to report their victimization
An additional problem are law 711 the he by buowledge about the intended
und performed costs of such operations -TH- wase for the newer Fand some of
the older) forms nots on a member of inadequately tested assuraptions, The public
relations efforts of advocates of these taetles and media intituation with them
glosses OVER this They are heralded as facties that finally work in the war against
crime. and as the only way to deal with conspirators, The dramatic impact of
suddenly making a large number of arrests and receivering substantial amounts of
property is stressed But fir less attention is even to questions such as: What
nappens to crime rates durihs and after the operation? Who is heing arrested? How
does the number of arrests made or property recovered compare to that which
would be expected over a comparable period of time using conventional methods?
What is the CUST per arrest or value of property récovered as compared to conven-
tional methods? Any assessment of costs must include undercover effort: that had
to be closed down because of leaks. Their high vulnerability to discovery an added
cost What side-effects might the tacties have?
Assessment of the consequences requires that and anti-crime decoys direct-
ed mainst a general "market" of suspects be separated from undercover work used
against subject whose identity is known in advance. as with the infiltration of
particular organizations, police posing as hit men. at the offering of opportunity for
corruption. The latter are judged be their success in the individual case in question.
Was a serious crime prevented? Were convictions obtained that would not have
been otherwise possible, or ass expensively that with the Use of conventional
methods? The forther CHSUS have general deterrence as it goal. The offences here
involve a victim who can report the incident. milher than being reported only as a
result of arrest actions. as IN the CBP with consinsual crimes Analyzing their
consequences 1> UNISHING The available research has dealt with anti-erime decoys and
fencing stinds Even in these cases the evidence is quite limited and not very
reassuring.
An analysis of New York City's much herated Street Crime Unit which special-
izes in décov operations) while laudatory of the group's arrest and conviction record
did not find that the unit was decreasing either robberies OF grand larcenies
from a person Abt Associates, 1974 New York City Anti-Crime Patrol Exemplary
Project. Washington, D.C. National Institute 454 Law Enforcement and Criminal
Justices Not did a sophisticated unalysis of Birmingham's experiment with an anti-
robbery unit. which relied heavily on decoys, find any impact on rates of lareeny or
rubbery M. Wyenth C Brown. and R. Peterson. 1980, Birmingham Anti-Robbery
Unit Evaluation Report. Washington, D.C... Police Foundation
A 1979 in-house Justice Department Study entitled "What Happened" makes
rather grandiese claims for the success of 10 antistencing sting operations carried
41
out since 1974 But a careful re-analysis of these data by tencing expert Carl
Klockars (1950, Jonathan Wild and the Modern Stink in C Tapet History and
Crime: Implications for Contemporary Criminal Justice. Saze Publications. Beverly
Hills, Cab: casts serious doubt on the quality of these data and their interpretation.
Klockars concludes that there is not sound statistical evidence to suggest that the
stinz operations produced a decline in the rate of property crime An malysis of the
use of Federal tunds for anti-feneine projects in Sun Diego file year period
concluded that notner the market for stolen procerty. not the includente of property
crimes had been reduced $ Provide Sept 1976 Eventing Minis and Prive
Strategy, The Police Chief Mary Walsh in Strategies :45 Constructir the Criminal
Receiver of Studen Gorids Washington. Dr. Law Assistance
Administration notes that poties changed in operations were positively
effected by the experience. but had questions as Remeat had really
been accomplished. If the evidence is trius fir MJ that - nichts
crime on an instruction busis, 15 11 presible that disture SIDE they Day
actually increase ( or through then uniterides starts THANK any enforcement
more difficult
Among Ways that undercoser instres DEIV critiv are Generation of a
market for the burchase or an Bleeni and services and the morrest
generation of for other NEW activities at 13 anz the underower
operation is in in STREET generation or the the INF 1 orders of a ministry
provision of a scarer skill or INSURANCE without While the crispers the not be earned
out or provision of IS seductive complation to With west the notikels the
encounter it were $1 net for polar actions: exemination. - offer
person otherwise not predisposed NA commit the dependent of a even
opportunity structure Lot actions on the of the drank were agent or
informant; some of these max be necessary to gain creditions in the role. while
others will represent exploitation ST the rate correction. belows. Lickmil friends,
Fraud. or the very the action is directed stationation of a wartern et
crimes on the Ruft of those not brain of the undersed operate IL impersonation
of a police officer: vigilantelike associts or crities committeed realnst undercover
officers by people WITH do not realize they are designe with person. and relatiatory
violence against informers.
Highly complex questions involving difficult measurement ISSUES are involved
here. Research will always be relatively weaker in this area. However there is a
need to ask hard questions about these operations If claims about the effectivoness
and benefits of these are to be accepted. the Justice Department must go much
further in permitting research by disinterested Hotside evaluators Such research
should be concurrent with the investigation. und not restricted 10 evaluations done
six months after the close of the investigation.
A number of problems with undercover Eaches have been considered. As the
longer paper I brought indicates." it IF relatively to document Xamples Given
effective use of the media by law enforcement in revent undercover operations and
the secrecy that surrounds such operations with Its conduciveness TAX not reging. or
covering up mistakes, abuses. and costs) public perceptions are probably skewed
toward over-estimating advantages and under-estimating the disadvantages of the
tache
Because of at lack of research we can not say much about how requently or when
the problems with undercover work occur. Not can we adeptifitive answer maier
questions such ast
di Under what conditions are the gains worth the visits?
(2) Can the gains be obtained in 1 costly alternative ways
CO What additional policies, quidelines. oversien: practices, sections. and train-
THE are needed to minimize problems. for those Cases of last resort where the tactle
may be deemed appropriate?
There are many types of undersover activity and these vary creatly in their
potential for problems As an aid to thinking abhut this and relating policies to
specific forms. the following section describes of the mare setient types of
undercover operation and activity.
B. TYPES OF UNDERCOVER ACTIVITY AND THE RECENT 61 IDELINES
The politically and emotionally charged climate around undersover police work
can lead to extreme positions. Some critics elicim that such tastes violate basic
rights and ought to be banned cutright. while supporters uncriticative advocate any
use of them in the struggle adainst crime. Taking an informed position requires
making distinctions between types of undercover operations.
G. T. Marx. "The New Police Undercover Work" Vitan Lite. rid * Junuary BEST 220-146
42
Table I lists dimensions by which they can be contrasted. Certain combinations
are much more fraught with difficulty than others. In general the more the factors.
on the right side of the table we present the more problematic the use of the tactic.
These dimensions do not occur together randomis, but tend to cluster: Recent
undercover activities tend to be set apart from eather efforts: aside from their scale
and complexity by a shift to factors on this right side For example the classic Cactic
of infiltration rends to involve police selection of Pargets, HOMAGON in response to
complaints and entimal intellizence in environment. intermers. an
active conspirational miles Aredim in invisted prove intentive, in Miller
cuses what seemed to be ministry in NO artitud environment and
the use of informets and unwitting informers smirting infeltration the
selection of sustects and an THE Direct
TABLE Pip Six
Source for institute the may actions In to with
complaints IN pattern
Criteria for transfers XxM D- person
the basis of experience
Responsibility No minuting the the by
provide offered an opportuner's
Desire of activity in underciser Passics
Name
Naturesof their Victim
CONSEPTIONS
Type of entire Natural submit
Who plays the my
stortners
Turnina to the differents, 5333 addit decides in currite as dister-
cover investigation" One et on Harry respirates of the Ancli-American
legal system to its historie tendialley for policies be involved in response 141
complaints. rather than ON their GWA initiative This 15 a of the
distrust of minent and concern over on the Contract R has protobly
meant lesser Unit of secret police practices than is the Case en Europe But even
where present in the United States. traditional police undervover activities have
rended to be mobilized in response to complaints and information from
informants Anticrime deem units UTY digs ID response to revent crime pat-
terms: When police pose as hast men or arsonists this is m response to an informant
tip about planned crimes In many cities vice enforcement is curried out primarily
in response to complaints of merchants, WIVES whose husbands have last money
gambling, parents concerned about temptations for minors. OF where other crumes
are present While this "reactive police henavior Call be exploited and has other
costs such as writing until If crime occurs before taking action. it introduces a
degree of citizen control and can direct the were police discretion: In contrast are
investigations undertaken enterely at police initiative in the absence of grounds for
suspecting that erime is occurrent The rationale for this may be to establish an
impressive arrest record. to gather intelligence, to damage a person reputation. to
harass those suspected of other crimes for which evidence to establish guilt is
lacking. to gain coercive leverage over the target. and to test levels of intecrity
After a decision to inituate an undercover investigation has been made. what
criteria are used in deciding whom to direct If against? At one extreme. and most
troubline. we have what amounts to rundom integrity tests. training): OF
for would be offenders. in the assence of THE information under the suspect prist
criminal behavior or melinations For example last wallets are left in various
places where police will find them: the them Delhi to see it they will be turned in
intaet: undercover police pose as thieves and INA to bars and appliance stores offering
bangains on stolen television sets and stereos: middlemen hoping to earn huge
commissions cast a wide not in bringing in elected officials as targets for bribes. At
the other extreme are targets or locations chosen on the busis of criminal intelli-
Lence Here authorities have information about a person's previous or current
criminal activities. or know that a INVOICE area is the scene of criminal activities The
intelligence directs and limits the investigation. The goal is cathering evidence and
apprehension of a person thought to be criminally predisposed. rather than seeing
at what point people will break the law if given a contrived chance
Many of the lesal questions turn on the nature of the role plaved by the under-
cover person: Was it passive or active? If the latter. just how active was it? What
was supplied by the agent-whe idea and plane for the crime, incentives, tempta-
tions. and persuasion? Were skins and resources ottered without which it could not
13
be carried out? Dezree of varies from szubed surveillance to intensive and
directed interaction with the that In a crimizial conspiracy When the goal is not
crime prevention or counter- Relitzence the more passive the law enforce-
ment role the lewer the problems
An important aspect of the underencer Foie :- whether it involves playing the
parential vieum or posing as 11 Examples of the termer His Rade the
decoy who invites attack by was 3 drunk with in exposed walled or Nee KBI
agent who presented to state casbage -1) owsiness in the hope of bederaing
the target of on exception nil in such Card assuming the termination offered No
the decov victim is with what modit Se expected in the caniral
ment the the of the metic Whitten scoblemato The initial) comes than the
suspect who is and No understand agent plays A provide rise with
respect to any Commity THE It in ventral DA chaying the the of the withing
curther who with the subject - ver investigation to breas the law
Examples of this assude the as a and
porhographic book setten DE man. et or cheut INF sure. Here DESCRIPTION
differ likely to the to max on access min
Sona underviser apportus and as that there 1+ residents :-
believe that the new who extr 00 explain them were premsposed Signature Unders No
or stutions that INVOICE with the Wart of new titesforms am
preferable to there where send 20 be and take
SEVE actions in to sure the taxes
Linderseven situations When cents or are likely to the 33
self-selection. For exprepte WIS you the Brut APR decos with
exposed wallet. Sittle will in and bising mas the promon who dries tax
money and FRA nos shown a DE M. these informs Similarity ID
of police-rin lenking treats $11 fixed Mout as Phone with South goods to
come to the tender withouth 912 exception to -M drawn MA JC a result of the
reging actions needed to Word Out the relicies 2% baseness In
CASES agents Get the bread tall pollumity 4th * the water. NT letter the streets. and
wait to State who taxes the
With respect tas the noture- the creation the state il 10 a part of DP
natural world the less production is Pat watner W.Y. the IVES the deveption the
better: This has birth and test wantages Thus information INTO an
enzome criminal enterprises subturing 10 24 This with a bribe outer. or tirmme a
genuine fencing operation service 1 publice ENTRA 4999 more appropriate than bights
iginative creations which may mave 10W IN unterporets in redidy or lead to
victimization
This contrasts with many prostitution, and homosexuality vases, and the
recent bribery cases where selects a carticular person Ha approach.
Of course it could be arrave that even in such GISUS that there is a degree of sell-
selection since the person UNITED always Say, THE Star Hall of the Congressinen was
were approached in Abscant did Yes the sujects in the cases first discussed
has a more assertive quality IN the taxe of an available. her relatively passive
opportunity.
In the first section the reflematic uspects of undercover work US they may
involve prilice. informers. and unwitting informers were considered. Here We can
simply note that The we move trom the use of SWORT agents. to cooperating informers
to those who do not even Know they are part with all undercover operation. control
and accountability become PM more difficult
THE Gt WELINES
Public guidelines for BOW enforcement services each as these issued DA
the Justice Department ON courtivers, senter warrants, Packetouring entergrises.
and most recently on undersiser operations, are in principle an admirable policy
device. As Coluntary restrumts on the use et poise power they can help protest
privacy and liberty They can increase accountability by offering outsiders enteria
by which to judge government performance. can create a moral climate within JR
agency. and can help limit the wide discretion in the law entorcement role. They
can be a useful tool along with Judicial review. Congressional oversight. internal
supervision training and evaluation:
Yet the impact of guidelines in practice depends on their implementation and on
their substance The general issue around implementation is whether the cuidennes
will be applied in a serious and recorous way, of, as if often the case in bureaueratic
organizations. will come to be applied largely ritualistically with acquiescence to
whatever is asked for. within broad extremes
A more specific issue involves the question of how apparent abuses. as in many of
the Abscam cases, came to happen. The recent guidelines are sand to make formal
44
existing procedures, If this is the case it appears that a number of guidelines were
violated involving informers: the need to make clear the corrupt nature of the
activity: reasonable indication that the subject is engaging. has engaged. or is likely
to engage in rilegal activity of the type in question: and entrapment.
To the extent that this is correct, how did it happen? is It the FBI's newness to
complex undercover operations, relative to the Drug Enforcement Administration or
the Alcohol. Tobacco and Finarms Bureau" Were the guidelines not fully under-
stoud or known Is there a weakness in supervision? Did the dioseness of the Justice
Department to the FBK relative to other law enforcement agencies, lead to a less
critical look we what was come 43. is it a wee of the possibility of catching regily
big fish overwhelming the custelines. as thereostly investigation developed its own
momentum." IN it a case where because of the secrecy une temptations even with
good faith. endelines can not DV carried out VETA well? Or same might conclude that
Abseam was carried out consistent with the currielines. as the testimony last March
sucgested Yet this conclusion is even troubling: If 2 18 correct. then the
substance of the guidelines is worfully inadequate. Let me consider the substance:
With respect to substance in the guidelines there are IND areas ni convern The
first concerns what they do SEX and the what they fall to say, or CA not say
clearly enough I approach the topic with Sugarity It IN difficult for an outsider to
comment un these matters There IS the of Monday morning quarter-bicking
from the safety of the university or press far removed trem responsibility or
First hand experience: However outsiders ANY in a good position to more
fundamental questions about deals, purposes. and bread trends
The edidemes can be seen RS 3 compremise between the needs of citizens in a
democratic security and the needs of law enforcement. NM Chere is a dircuded tilt
toward the latter The critic THEY see them as :1 way of maining legitimacy for the
prost cirregious or practices. at a minor und of listing possible dangers and restrict
THE the discretion of lodal cents initiation and carrying out certain Name of
undereover activity However these can always be carried out if approval $ the
tained This is .1 little like saving to a child that because porson can kill VISA it
should only the used when recessary and it your parents approve your using it
For examile it is all to the good that for 11 agents can that initiate undersover
operations ID B. under "sensitive circumstances HAS making untrue representa-
tions concerning innocent persons: engaging in most telonies: attending in an under-
cover capacity a meeting between a subject of investigation and his or her lawyer:
posing as an attorney. physician. clergyman. or journalist when there is a signifi-
cant risk that another person will be drawn into a professional or confidential
relationship with the undercover person as a result: and when there in a significant
risk of violence or physical injury or a significant risk of financial loss to an
innocent individual.
But when will higher authorities use their power to authorize such activities?
Apparently they can be approved when there is a "need" for them. Thus on p. 6 the
guidelines state that underciever operations are to be conducted with mini-
mal intrusion consistent with the need to collect the evidence 4F information in a
timely and effective manner situlies added? Crimes by agents can be approved when
there is a need to obtain information or evidence necessary for prosecution and
To establish and maintain credibility or cover with persons associated with the
criminal activity under investigation
If police are to be given the power to engage in felonies. make untrue representa-
tions about third parties, violate professional confidentiality and privilege, and take
actions where there is a signaticant risk of damage to innocent third parties we
need to know more specificates under what conditions this will be done Justifica-
tions via the need for information and evidence. or to establish and maintain 3
cover. are insufficient because they are so ameral. To be sure. there is need for
some flexibility and openness in any guidelines. Reality's richness can never be fully
anticipated by a listing of formal rules, First breaking developments, extenuating
circumstances and emergencies require that those in termal organizations have
room to maneuver. Yet 1 think the guidelines offer too much Entitude for approval
as currently written. Should any thetics be categorically prohibited. regardless of
the circumstance? The exceptional conditions which may. require using such tacties
should be enumerated.
Other areas in iteed of work or clarification are:
di The conditions governing the use of unwitting informers. middlemen or bro-
Kers who do not know they are part of a law enforcement operation. It their
accountability and respect for legal requirements can not be increased by "turning
them". should their use be prohibited?
121 A clearer statement of the temporal dimensions of the activity is needed. Is
there any limit to how many times a given target can be approached? If a person
45
refuses the illegal epportunity should they be tempted again and again? Where the
target is a diffuse group. as with thieves how long should a fencing front continue. to
operate? Where the activity involves progressively greater rule violations. at what
point should police intervene. There IS something of a conflict here between the law
enforcement goal of prevention and apprehension. There is no easy answer to such
questions. They illustrate how comblex the crime can be. They demon-
strate the inter-dependence between police and violators in the production of certain
types of crime.
3) On P. 11 the guidelines state that entrapment "should be scrupulously avoid-
ed" and then give a definition which does not reflect the varving jadicial perspec-
tives on this This should be becaused to indicate that due process may be denied
reven with predisposition and when the behavior of the government is suiti-
ciently ontrageous. As Justice Frandrurter anzared in a 1934 dissent in treine
Calif. "observation of due process has to de not with questions of ruilt or innocence,
but the mode by which guilt is ascertained
(4) The descree et certainty required by determine that a person is predisposed to
the illegality 10 question and the methods of validating this Extreme care hould be
taken to insure that the unscrutions have and sederated a pretext to make it
appear that the conditions for authorizing undersever operations and opportunities
exist. when in Part they do not to some blaces the concept of repping a dime on
someone (phoning in an anonyments commint CAD be 0 of making what is
essentially a productive police responsible appear to the resictive.
in Once general approval granted. unser what conditions must changes
in the original phin, or the USE the tactic new subjects his approved
Unless supervision IS close and it 18 HOST to magine how obtaining
general approval for an operation nught serve to lezitimate subsequent incremental
changes which violate the spirit of to letter of Har zadelines.
the A clearer statement of the kinds of claimate to third parties that may occur
and of the government's procedures. it any, for restressing these
5 A statement about records and retention. What happens 10 the video
types and buys of opportunities the activity created by government agents
when no wrong doing is discovered or no charges brought Are these destroyed
Who has access to them?
INJ The composition of the Undervoyer Operations Review Committee. How have
is it. what specific type of persons will be on it. how long will they serve?
de How broadly do the guidelines apply? Will the FBI refuse to participate in am
joint undereover operations where the behavior of state, local, or private police is
not consistent with the guidelines) Should there be broad standards across Federal
agencies or whenever Federal funds are used by state and local agencies?
(111) A new phenomenon has been private financing of public police ventures. At
the local level this has involved factories paying much of the cost of having under-
cover police pose as workers in an silurt to break up suspected drug activity. Some
police fencing tronts have been paid for by private sources including insurance
companies, businesses, and chambers of commerce. At the Federal level an FBI
investigation into the selling of pirated records and tapes received a substantial
contribution from the record industry There IS a need for public information on
how widespread this practice IS While private cooperation and support may be
welcomed in financially restrictive time. other issues are raised. Just what is being
bought with the private sector contribution? Will the highest bidders be able to
garner a disproportionate share of public supported law enforcement because of the
contribution they can offer?
H the money comes with no strings attached and is for an investigation consistent
with an agency's priorities taxe one that it would have been likely to carry out
anyway, there can be little problem. How wer to the extent that law enforcement
priorities, discretion. tactics. confidential information. or prosecutorial actions are
affected. then the factic must be closely looked at What limits should be placed on
what may appear to be the private sector's ability to hire public agencies to pursue
its own interests. even though the public interest may also be served? If private
financing is to continue. then there is a need tot guidelines in this area.
(11) Because the use of undercover tacties has expanded so rapidly: and because of
their problematic aspects relative to more conventional tacties. shouldn't there be a
periodic review. not only of the effectiveness of these particular guidelines. but of
the undercover tactic as a whole?
C. BROAD CHANGES IN SOCIAL CONTROL
Whatever their legal and ethical implications. or short term effects: actions such
as Abscam and police-run tencing operations may be portends of a subtle and
perhaps irreversible change in how social control in our society is carried out It was
83-566 81 -
roughly a half a century 020 that Secretary of War Henry Stimpson indiznantly
observed in response to proposed changes in national security practices) "gentlemen
do not read each other's mark" His observation seems touchingly quaint in light of
the invasions of privacy and routinization of surveilance that subsequent decades
have witnessed. How far we have come in such a short time
Fifty years from now with observers End our wondering about the propriety of
police agents trying to bribe Congressment distributing pornographic film. and
running feriving operations equally quantity FBI expenditures for undercover work
have more than quadrapied in the last three rears, smith from one million to a
requested as million dollars for BY Is recent yours millines of dollars in new
federal and has gone to New police for undersiner activities
Broad changes in the nature of American social control to be taking place
We are experiencing a extretal shift YORK trom some of the ideas central to the
Anglo-American police readition The = servi English reside system which Hubert
Peel established 111 2320 was to provent crime by & und emed visible Cl-bour
presence As societal conditions have you filend and WS the deterrent Whet at this
visible and predictable presence lass been questioned an alternative consept
tion has cradually emitized
Rather than only trying 10 decrease the emertunity for case through
a unitermed police or recent target approaches HARRY-
the more secure physical structures are securition for STING presention authorities
ROW seek 10 selectively increase the education of may structures THE weak-
entry operating under strailed windit: THE with Def: police Anticipal
tory pulice strategies have comme more of DISCOUNT
In trus respect police the paralleling the modern CARL rutton which not
only to anticipate demand through Matali research. DM :- develop and manager
that demand through Entern and the went types of interven-
from Secretiv gathering information and conditating NUME anner controlled Caridi-
tions effersca degree of control over the declared for program wrates hardly presible
with litional reactive practices,
Whenever a market is created rather than being 11 response to citizen demand.
there are turticular dancers of exploitation alid misuse This :- as True for consum-
er goods as for criminal Abtice processing In legal systems where authorities
respond to citizen complaints. rather 15 #: undependently generating cases, hberty is
likely more secure There #1 danger that ence undercover resources are provided,
and skills are developed. that the taches WILL be used From uindiscrimmatelv Given
pressures on police to produce. and the compt of such It is an easy move
forward from targeted to indiscriminate Une of integrity WNS and from investigation
to instigation.
The bureaucratie imperative for intellizence can easity lead to the seductions of
counterintelligence On this Inkage former FBI executive William Sullivan observes
"as far as I'm concerned. We might as well net engage in intellicence unless we also
engage in counterintellizen.ce One 15 the right arm. the other the left. They work
together.
The allure and the power of undercover tasties may make them irresistible Just
as any society that has discovered alcohol has seen its USP rapidly spread. once
undercover tacties become exitimate and resources are available for them. their use
is likely to spread to new areas and illegitimate uses. To some observers the use of
questionable or bad undererwer means $5 nevertheless justified because it is used for
good ends. Who after all cannot be indicnant over violations of the public trust on
the part of those sworn 11 uphold it or the hidden taxes we all pay because of
organized crime? One of Me problems with such arguments is of course that there IS
no guarantee that bad Healths will be notricted to good (Mide
One important party to the elaboration and diffusion et undercover theties is
likely to be police trained in government programs who may face mandatory retire-
ment at age 3.1. if they are not attracted to the more lucrative private sector long
before that Perhaps we will get to the point where some type of registration will be
needed for former Government agents trained and experienced in highly. sensitive
operations who continue such work in the private sector
From current practices we may not be far from activities such as the following
Rather than infiltrating service criminal enterprises. or starting up their own
pretend ones. police agents such the accounting specialists micht infiltrate legiti-
mate businesses to be sure they are obeving the law. or would obey it if given a
government engendered chance not to In the private sector husbands or wives or
those considering marriage might hire attractive members 01 the opposite SUX to test
their partner's fidelity Businesses might credito false fronts using undercover agents
to involve their competitors HI illegal actions for which they would then be arrested.
47
A rival's business could be subotaged by infiltrating disruptive workers, or its public
image damaged. by taking false front actions in its name.
One rationale for such techniques is a hope that they will have a general deter-
rence. The goal here according to an experienced undercover worker IS to create in
the minds of potential offenders an apprehension that any civilian could in fact be
a police officer." While the costs and risks of the illegality may be increased. the
effect on those committed to taking serious criminal actions may simply be to make
them more clever. rather than to deter them. There is likely to he a diminischen
returns effect. particularly with more sophisticated criminals. The tacties de Date 13
attack the basic motivation of those involved in consensual crimes. where are
breaking is a corporative activity. Were this their ents effect. R might be
as just another innovation in the never ending. and evolving. strudule between TOUNT
breakers and enforcers. But even if we grant that such tactics were effective as
deterrents. there are other issues to be considered
Law enforcement is very different from other terms of government service such DE
education. since we sulf-conscionsly hmit its effectiveness by balancing it with
and liberties Simply put we want law entercement to be optimatly. rather than
manimaliv, effective and efficient. In this recard we can note how the spread 34 esse
more sophisticated ruses and elaborate surveillance damages Trust in a signature
American society is fragmented enough without adding a raver of suspects,
ness and distrust The greater the public's knowledge of such Lictics the creater we
distrust or indevuduals for one another.
In recent decades undercover police activities such as COINTEL and the RUSS
local varieties. dearly damaged the protected treedoms of protical dissenters But
new, through a spill-over effect. they may be ininiting the speech of a SUN
broader segment of the society The and speech protected by the Boxes
Rights may be chilled for everyone, After Abecam. for example. people in
ment cannot help but wonder who it is they are dealing with Communication may
become more cuarded and the free and opent dialogue traditionaly seen as have
sarv in high levels of government inhibited. Similar effects Mark occur in numbers
and private life
A major demand in totalitarian countries that undergo Eberalization is treat
for the abolition of the secret police and secret police taeties. Fake documents.
subterfure. infiltration. secret and intrusive surveillance. and reality creation are
nut generally associated with United States law enforcement However WP Date De
taking small: but steady steps toward the paranota and suspiciousness that charae-
terize many totalitarian countries. Even if these are unfounded. once they are *** 211
motion and become part of the culture. they are not easily undone
Soothsayers of doom are likely to become increasingly apparent as we approach
1941 The cry of wolf is easy to utter and hence to disiniss. Liberty is complex and
multifaceted and in a context of democratic government there are forces and
counter-forces. Double-edged swords are ever-present. Tacties which threaten lib-
erties can also be used to protect them.
However. neither complexity, sophistry, nor the need for prudence in alarm-
sounding should blind us from seeing the implications of recent undercover work for
the redefinition and extension of government control The issues raised by recent
police undercover actions go for bevond whether a given Congressman was predis-
posed to take a bribe or the development of effective guidelines
Such police actions are part of a process of the rationalization of crime centrol
that began in the 19th century Social control has gradually become more special-
ized and technical. and in some ways-more penetrating and intrusive The State's
power to punish and to eather information has been extended deeper into the sendial
fabric. though not necessarily in a violent way, We are Sweing a shift in social
control from direct correion used after the fact. to anticipatory actions involving
deception. manipulation. and planning. New technocratic agents of social control
are replacing the rough and ready cowboys of an earlier era They are a part of
what French historian Michael Foucault refers to as the modern states subtle
calculated technology of subjection.
Here undercover practices must take their place alongside of New or improved
data gathering techniques such as lasers, parabolic mikes and other bugs, wire taps.
videotaping and still photography, remote camera systems. periscopie prisms. one
way mirrors. various intrared. sensor. and tracking devices. truth serum. poly-
graphs. voice print and stress analysis, pen registers. ultra violet radiation. dog
sniffing (dope dogst. and helicopter and satellite surveillance: new data processing
techniques based on silicene computer chips which make possible the inexpensive
storing, retrieval: and linkage of personal information that previously was not
collected. or if collected. not kept, or if kept. not capable of being inexpensively
brought together in seconds. To this must be added the increased prominence of
X
computers with their attendant records) in everyday affairs. whether involving
commerce. banking, telephone. medical. educational: employment. criminal justice,
pay television. or even hbrary transactions. The amount and variety of retrievable
data available on individuals is continually increasing the vast and continuing
expansion of the relatively uncontrolled privately security industry raccording to
some estimates new three times the size of the public pasice forcet This - IS staffed by
thousands of former military; national security and mestic police adents schooled
and experienced in the latest control recomques while working for government, but
now much less subject to its control: and evolving IN soldues or behavior modifica-
tion. manipulation and control including sperant conditioning. pharmacelogy. genet-
ie engineering, psychosurgery. and substanal communication.
Taken in isolation and with appropriate safe-buirds each of these may have
appropriate uses and justifications. However, they become more problematic when
seen is consurt and as part of an enterne trend. Observers will differ as to
whether they see in this an emerging totalitarian testress. or benigh tools for a
society ravaized by crime and disorder Rst regardless or how it is seen. it is clear
that seme of our traditional notions of social control are underscher protound
change. There is a need for careful amexes and public discussion en the complex
issues involved. Because undercover practices can & costly to other values. and
have such potential for andse and unintended consequences. they ought to be used
only under the most limited and careficity specified and evaluated circumstances.
and as tactics of last. rather than first
TESTIMONY OF GARY MARX. PROFESSOR OF SOCIOLOGY.
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
Mr. MARX. Thank you. Mr. Chairman. 1 am very pleased to be
here. 1 brought a lengthy statement which 1 will summarize.
In my statement I trv and develop three broad areas. The first
has to do with the problems that are associated with undercover
police work. The second deals with the need to make some distinc-
tions among types of undercover work: and related to that, some
comments on the recent guidelines. The final section deals with
some broad changes in social control.
Let me say a bit about each of these areas. I am talking about
the problems. because I think it is important to be aware of the
problems of undercover work. as well as the advantages. In testi-
mony last March, you heard about a number of the positive aspects
of undercover work. and in my remarks I have chosen to emphasize
some of the negative.
In the case of problems, I have found it useful to approach this
by looking at four groups that are involved. The first are the
targets of the investigation, the second are informers. the third are
police. and the fourth are third parties who may be damaged by
these activities. I will say a bit about each of these.
In the case of the targets, they may be victims of trickery,
coercion. or unrealistic temptations. In the case of trickery, for
example. people may be led to believe that they are participating
in an activity which is socially legitimate. The illegal aspects may
be minimized. The illegal aspects may be hidden or disguised, SO
they are not made aware of the fact that law violations are going
on. Or the weakened capacity of the target to judge right and
wrong may be drawn upon; for example, by getting someone drunk.
The issue of temptation is a fascinating one. The basic point is:
Are we dealing with people who are corrupt? Or: are we asking the
question: Is someone corruptible? And here there is a parallel to
Job, I think, where God was seeking to test Job without any prior
evidence that Job had done anything wrong.
Another Biblical parallel the message gets shifted to lead us into
temptation, and deliver us to evil.
49
There are other problems involving targets, such as the invasions
of privacy, damage to réputation, the potential for blackmail and
harassment.
In the case of exploitation by informers, they are clearly the
weakest link. What we see here is something relatively new in law
enforcement, where informers are being delegated significant au-
thority. Informers are put in a position to choose who it is that is
going to be investigated. This becomes doubly troublesome when
we deal with unwitting informers, with people who are not aware
of the fact that they are part of a law enforcement operation.
A third problem area has to do with the great risks and the
temptations to the police who are involved. There is a line from a
novel from Kurt Vonnegut. where he says: we have to be careful
about what we pretend to be, because we may become what we
pretend to be.
When police are in undercover roles for long periods of time.
removed from their normal occupational situation and from super-
vision, they may come to question the traditional restraints on
police behavior.
In the case of damage to third parties. the issues are very trou-
bling. There are ripple effects. Where there is any secret or covert
action. it is hard to know where it will eventually go or who it will
effect.
There was a case in Lakewood. Colo., that received some atten-
tion recently, where two young men learned of a police fencing
front, They stole several cars and sold these to the front: They also
at this time displayed a weapon that they had previously stolen.
They then went, I think the following day, and stole another car,
killing its owner. They again sold the car. They then committed
another murder while stealing a car and again sold it to police.
Another problem involves the issue of the fence providing a
market. People who tend to steal in neighborhoods near where
their fences are. And to the extend that you have marginally
effective thieves, the offer of a government-provided facility to
purchase goods. may stimulate these people in their crimes.
Another area where there are major problems, has to do with
our lack of knowledge in cost-benefit terms about the intended
effects of these operations. Here I'm not talking about things like
ABSCAM. but rather activities such as police fencing fronts or the
decov activities that are directed at a broader kind of audience or
market.
All sorts of grandiose claims have been made about how finally
we have something in law enforcement that works. I have reviewed
the evidence and it is rather meager. One can certainly not con-
clude that there is an abundance of evidence that these activities
decrease crime. In fact, under some conditions, one could even
argue the opposite, that they may stimulate or amplify crime.
I will mention some of the ways that this can happen. They can
generate a market for the purchase or sale of illegal goods and
services. While the undercover activity is going on they may gener-
ate capital that can be used for other illegal activities.
There may be generation of the :dea for 1 crime. There may be
generation of a motive. There may it a of a scarce skill
or resource without which the crime could not be carried out.
50
There may be coercion, intimidation or persuasion of a person not
otherwise predisposed to create a crime.
Covert opportunity structure for illegal actions can be created.
Some of these may be necessary to gain credibility in the role.
while others will represent exploitation of the role: Corruption.
bribes, blackmail, frames. fraud or the very crimes the action is
directed against may
Finally, there is the possibility of stimulating a variety of crimes
on the part of people who are not a target of the undercover
investigation; for example. imp rsonating a police officer for vigilan-
te-like assaults by people who don't know the undercover person is
a police officer. There is also the issue of retaliatory violence
against informers.
Questions regarding effectiveness are very complex. And unfortu-
nately. there's not been adequate cooperation from the Justice
Department in its sponsorship of research. Bevond a lack of fund-
ing. there are some restrictions that severely limit research. such
as requiring that it be done 6 months after an operation is closed
down.
The problems mentioned do not occur randomly. They tend to be
associated with particular types of undercover operation. One of
the problems with this whole area is that people take a polemical
response. They either say: This undercover stuff is teriffic; or they
sav: It's terrible and we should ban it. Clearly, there is a need for a
middle ground. To move toward that middle ground, it is important
to make some distinctions.
In my testimony on page 31, there is a table which contrasts
different types of undercover activity. To the extent that those
things on the right side of the table are present, I think the tactic
becomes more and more troubling.
The most troublesome situations are those undertaken at police
initiative that involve random integrity testing: those that involve
police playing or taking an active role where they initiate the
crime as coconspirators, rather than appearing as victims; and
those involving an artificial environment and the use of unwitting
informers.
Let me turn to the guidelines. Public guidelines for sensitive law
enforcement activities. such as those issued by the Justice Depart-
ment, are important for a number of reasons. Yet the impact of
guidelines depends very much on how they are implemented. and
on their substance.
The general issue around implementation is whether the guide-
lines will be applied in a rigorous and serious way, or as if often
the case in bureaucratic organizations. will come to be applied
largely ritualistically, with acquiescence to whatever is asked for,
within broad extremes.
A more specific issue involves the question of how apparent
abuses, as in many of the Abscam cases. came to happen. The
recent guidelines are said to make formal existing procedures. We
were told in the hearings last March that Abscam was carefully
supervised, that it was conducted in a way that was consistent with
Bureau policy. If that is the case, it would appear to me that a
number of the guidelines were violated: those involving informers,
those involving a need to make clear the corrupt nature of the
51
activity. reasonable indication that the subject is engaging or has
engaged in illegal activity of the type in question, and SO on.
Now, to the extent that this is correct. one can ask: How did it
happen? Is it that the FBI is relatively new to complex undercover
operations. relative to the Drug Enforcement Administration or the
Alcohol. Tobacco and Firearms Bureau? Were the guidelines not
fully understood or known? Was there a weakness in supervision?
Did the closeness of the Justice Department to the FBI. relative to
other law enforcement agencies. lead to a less critical look at what
was going on? Is it a case of the possibility of catching really big
fish overwhelming the guidelines. as the costly investigation devel-
oped its own momentum? Is it a case where. because of the secrecy
and temptations, even with good faith. guidelines could not be
carried out very well?
Or one might conclude that Abseam was carried out consistent
with the guidelines. as the testimony last March suggested. Yet
this conclusion is even more troubling. If it is correct. then the
substance of the guidelines is woefully inadequate.
One always needs a balance in a democratic society and the
needs of law enforcement and liberty, Yet there is a decided tilt
toward the latter here. The critic may see the infidelines as a way
of gaining legitimacy for the most egregious of practicies, at a
minor cost of listing possible dangers and restricting the discretion
of local agents initiating and carrying out certain forms of under-
cover activity. However, these can always be curried out if approv-
al is obtained.
This is a little like saving to a child that because poison can kill
you. it should only be used when necessary, and if your parents
approve your using it. Police are given the power to engage in
felonies, to make untrue representations about third parties, to
violate professional standards of confidentiality and privilege, to
take actions where there is a significant risk of damage to innocent
third parties. We need to know more specifically about under what
conditions can this happen?
In terms of specific comments on the guidelines. there are areas
where they should be strengthened and where additional informa-
tion is needed. The most serious lack is the failure to specify the
conditions governing the use of unwitting informers. middlemen
and brokers who don't know they are part of a law enforcement
operation.
Now. in many investigations. the accountability of such people is
increased by "turning them. Their cooperation is gained by hold-
ing off on prosecution or sentencing When that isn done. I think
their use is very problematic.
The Government may have incentive for using them because if
an informer entraps someone in a case, that is grounds for dismiss-
al. But if an unwitting informer entraps someone. then the govern-
ment is in business. So. I think much more attention has to be
given to the limits on the use of unwitting informers.
The second area has to do with the temporal dimensions of the
activity. Is there any limit to how many times a given target can
be approached or tempted? What if a person refuses the illegal
opportunity the first time. or a second time? Should they be tempt-
ed again and again and again? What about situations where the
52
target is a diffuse group. as with thieves? How long should a false
fencing operation continue to operate? Where the activity involves
progressively greater rule violations, at what point should police
intervene?
One strategy is to get the largest fish. This can operate to keep
the undercover operation going as long as possible, even though
damage at a lower level may. in fact, be done. There is an interest-
ing conflict between the police goal of prevention. and apprehen-
sien. This points out the need for more research and thought.
The guidelines state that entrapment should be scrupuously
avoided. Then. they give a definition of what entrapment is. which
doesn reflect the varying judicial perspectives on this. I think it
should be broadened to indicate that due process may 30 denied,
even if there is predisposition and guilt. when the behavior of the
Government is sufficiently outrageous.
Another area in need of work has to do with the degree of
certainty that is r( juired to determine that a person is predisposed
to the illegality in question and the means of validating this
Extreme care has to be taken the insure that the unscrupatous have
not generated a pretext to make it appear trat the conditions for
author zing undercover operations and opportunities exist. when in
fact, they do not
In some places. the concept or dropping a dime" on someone can
make a reactive publice response appear to be proactive response.
I think a clear statement is needed of the kinds of damage to
third parties that may occur, and of the government's procedures,
if any, for redressing those.
Something is needed about records access and retention. What
happens to the videotapes and bugs of opportunities for illegal
activity created by government agents when no wrongdoing IS dis-
covered or no charges brought? Are these "estroyed? Who has
access to them?
I think the composition of the Undercover Operations Review
Committee needs to be more clearly spelled out. How large is it?
What specific types of people will serve on this committee? For
how long? How broadly do the guidelines apply? Will the FBI
refuse to participate in any joint undercover operations where the
behavior of State, local or private police is not consistent with the
guidelines?
There is a new phenomenon which some Federal law enforce-
ment agencies prohibit. This involves the private financing of
public police ventures. At the local level. this has involved factories
paying much of the cost of having undercover police pose as work-
ers in an effort to break up suspected drug activity. Some police
fencing funds have been paid for by private sources. including
insurance companies, businesses. and chumbers of commerce. At
the Federal level: an FBI investigation into the selling of pirated
records and tapes received a substantial contribution from the
record industry.
There is a need for public information on now widespread this
practice is. One could, of course. welcome private cooperation. Yet
if support may be welcomed in financially trouble times. other
issues are raised. Just what is being bought with the private sec-
tor's contribution? Will the highest bidders be able to garner a
33
disproportionate share of public supported law enforcement be-
cause of the contribution they can offer.
If the money comes with no strings attached and is for an inves-
tigation consistent with on agency's priorities and one that it
would have been likely (i) carry out activity. there can be little
problem. But to the extent that law entercement priorities, discre-
tion. tacties. confidential information (P) prosecutorial actions are
affected. then the thetic must be closely leoked at.
Because the 1180 of undercover thereof aus expanded SO rapidly
and because of their problematic aspects relative to more conven-
tional tacties. shouldnd : there DO a performe review. not only of the
effectiveness of these particular guidelines. but of the undered. er
tactics as a whole?
In summary. M me SUN a bit about some broader implications of
undercover work. I think that whatever their legal and ethical
implications. whatever their short-term Shirts. things like Abscan
and police teneing operations may to cortenus of a subtle and
perhaps irreversible change in how social control in our society is
carried out.
It was roughly a half : century age this Secretary of Ware Henry
Stimpson. indignantly onserved in response to proposed changes in
national security practices. "Gentlemen do not read each other's
mail.
In light of the invasions of privacy. we TO conte a long way in a
short time. Drty years Trum now will observers find our wondering
about the propriety of police agents trying to bribe congressmen.
distributing pornographic trim. and running fencing operations
equally quaint?
FBI expenditures for undercover WORK have more than quadru-
pled in the last 3 years, going from 51 million to 3 requested SI
million for 1981. In recent years, millions of dollars of new Federal
aid has gone to local police for undercover activities.
This represents a broad change in the nature of American social
control. We are seeing a shift from some of the ideas that were
central to the Anglo-American police tradition.
There are parallels to the modern corporation. which seeks not
only to anticipate demand through market research. but to develop
and manage that demand through advertising. solicitation. and
more covert types of intervention. Secretly gathering information
and facilitating crime. under controlled conditions. offers a degree
of control over the demand for police services. hardly possible with
traditional reactive practices.
Whenever a market is created. rather than being a response to
citizen demands. there are particular dangers of exploitation and
misuse. The alure and the power of undercover tactics may make
them irresistible. Just as any society that has discovered alcohol
has seen its use rapidly spread. once undercover tactics become
legitimate and resources are available for them. their use is likely
to spread to new areas and illegitimate uses.
One justification for such means is that they are used to obtain
good ends. This is the classic means-end problem. The danger, of
course, is there no guarantee that the bad means won't be used
for bad ends.
54
From current practices. we may not be far from activities such as
the following: Rather than infiltrating ongoing criminal enter-
prises. or starting up their own pretend ones. pelice agents such as
accounting specialists might infihrate legitimate businesses. to be
sure they are obeying the law. or would obey it if given a govern-
ment-enzendered chance not to
In the private section. husbands 05 wives or those considering
marriage might hire attractive of the opposite SOX. TO test
their partner's fidelity,
Businesses might chrate falsé fronts. using undercover agents to
invoive their competiters in iflecti actions. for which they would
then be arrested Vrivils business could be subotaged by infiltrat-
ing disruptive workers: or its public image damaged by taking
false-front actions in MS name.
In recent decades. undercover police activities such as COINTEL
and the many local varieties cleariv damaged the protected tree-
doms of political dissenters I think there may be A spillover effect
These activities may the inhibiting the speech of a much broader
segment of society. After Abscam. for example. people in govern-
ment cannot hele but wonder who it is they are dealing with.
Communication may become more suarded, and the free and open
dialos traditionally seed as necessary in high levéls of government
inhibited. Similar effects may occur in business and in ivate life.
It's interesting to look at the demands that are made $ totalitar-
ian countries that undered liberalization. A frequent der and is for
the abolition of the secret nolice and secret police taeth Things
like take documents: lies. subterfuge. infiltration. secret and intru-
sive surveillance. and reality creation are not generally associated
with U.S. law enforcement.
It's possible we are taking small but steady steps toward the
paranoia and suspiciousness that characterize many totalitarian
countries. Even if these are unfounded. once they are set in motion
and become part of the culture. they are not easily undone.
Now, southsayers of doom are likely 10 become increasingly ap-
parent. as we approach the year MM. It's easy to cry wolt and.
because of that. it easy to dismiss the cry of wolf.
Liberty is complex. It's multifaceted and. in a context of demo-
cratic government. there are forces and counterforces. Double-
edged swords are ever present. Tacties which threaten liberties can
also be used to protect them.
However. neither complexity, sophistry, nor the need for pru-
dence in alarm-sounding should blind us from seeing the implica-
tions of recent undercover work for the redefinition and extension
of government centrol The issues raised by recent police undercov-
er actions go far bevond whether a given congressman was predis-
posed to take a bribe. or the development of effective guidelines.
These police actions can be seen as a part of a process of the
rationalization of crime control that began in the 19th century:
Social controls are becoming more specialized. technical. penetrat-
ing. and intrusive.
The power of the State to punish and gather information is
extended ever deeper into the social tabrie, but not, in a violent
way.
55
We are seeing a shift in social control away from directly coerc-
ing people. after the fact. to anticipatory actions involving decep-
tion, manipulation, and planning. New technocratic agents of social
control are replacing the rough and ready cowboys of an eartier
era. They are a part of what French historian Michael Foucault
refers to as the modern state's "subtle calculated technology of
subjection.
In conclusion. let me note that in this regard. recent undercover
police practices have to take their place miengside of ther develop-
ments in social control.
Things like new or improved data-gathering tochniques, such as
lasers. parabolic mikes. and other buss wire taps, videotoping and
still photography, remete camera systems. periscopie prisms, one
way mirrors, various infrared sensor and tracking devices. fruth
serum. polygraphs. voice print and stress analysis. pen registers,
ultraviolet radiation. sniffing as well as helicopter and sateliste
surveillance.
New duta processing techniques. based on silictine computer
chips. which make possible the inexpensive storing. retrieval. and
linkage of personal information that previously was But collected:
or if collected. not kepc: or if kept, not capable of being inexpen-
sively brought together in seconds.
To this must be added the increased prominence of computers in
everyday affairs. whether involving commerce. banking. telephone.
medical. educational. employment. criminal justice. pay television.
or even library transactions. The amount and variety of retrievable
data available on individuals is continually increasing. The vast
and continuing expansion of the relatively uncontrolled private
security industry. according to some estimates now three times the
size of the public police force. is also a factor. This is staffed by
thousands of former military, national security. and domestic
police agents schooled and experienced in the latest control tech-
niques while working for Government: but now much less subject
to its control.
Evolving techniques of behavior modification, manipulation. and
control. including operant conditioning. pharmacology. genetic en-
gineering, psychosurgery. and subliminal communication are fur-
ther examples.
Taken in isolation and with appropriate safeguards. each of these
may have appropriate uses and justifications. However, they
become more problematic when seen in consort. and as part of an
emerging trend.
Observers will differ as to whether they see in this an emerging
totalitarian fortress. or benign tools for a society ravaged by crime
and disorder. But regardless of how it is seen. it is clear that some
of our traditional notions of social control are undergoing profound
change.
There is a need for careful analysis and public discussion of the
complex issues involved. Because undercover practices can be $0
costly to other values. and have such potential for abuse and unin-
tended consequences. they ought to be used only under the most
limited and carefully specified and evaluated circumstances, and as
tactics of last, rather than first. resort.
Thank you.
that these things are SPECIMS but that will not change the situation. The guidelines
any 3001 will довии se ROA outsse seur insurance pausep 10 sisnotios
waye) you expens by 01 April are et your pur ou
US are your asneway mys St Tuned NW
Advis D Dug 100 pinos pue sour
-apina upns ME THAT availation Sjatanduno элом STATEM us NJOM our
'01 ayeds S.I 100154850 out ou peq sees asup DLI am
was last in the mail for time. these thirt two works I called the Now York office of
guidelines. The package or candelines for THE sent from the office of this Committee
MM purper assign que asuagadxa up PUTY I with 10g E 11]
Regulations have to have teeth. either from legislation or a court order
cosnsip 0111 114 saqi trues my -putur 814 011 usan seq apaps taun Legs ALPA
12 my yaom sampannos APOI saurpoping yours signsor acquires your your sounjamos
Kum saurpaping upng sunsu repuirs 41.8 "yrom apriod 20 SINLER 10410 satijapina
avey I an May 01 mapey In: 511.) 8PM they ap
sajuarism as WOR 100 PA SHN THE 7 any
to PU 91 DOA to empuse 45 of AU 9011
apput subjects usous an SI 101 SM Att your
pur 401 southprina, programs *** AND they on
2261 UI 494 01 paughs am our appoad PM IN ap 110 20%
-1100 01 proj samperport 30 eap 1001 application AM you II
any ised 441 3010 apareador passep unaq any to attles
разшеца as MAN satitping PM poou will syurp washing 991
an SIGNED pumpay are of mobins +1 18 asoud pu penosis surial 20 verging
am 1013 011 , sampana am sojujois MM aoupour Its 100.00 up ISUINED donce
Katundosip 10 assumed 341 11050 1151 agent consum am W communip
II" and 18111 an us 411 an 44 consumes ou Mannesqu St
aroup quantitant TO JOLLS SALES 12 эзрии programs 10 [1:00] (State) Ju
unituring amixon AJOA AUL 11 pay 19 MAISUPINA populition
09 use satirpring an un our summer and SV musup
on unperss specific opene am samaping THE pun порге (1) signature PML
sourporte 49 <1 Mg paperimo IPC pur op
toward tiverall problems miscrent in the Unit of any statidards entirely internal to
These principal in the internal structure of the Buidelines point
our JO
subtstanad an 01 4° appissed to ISCM #: ЭТАШ 05 00 THE
1' *** provider + any name James 37
your exisu 11% number agree VISION pur
upns 08 olderd 1431 PM payment and description
01 16801 !! MACHIP PG 01 set OR On PS we samppuna van
suppled XIS 10 potted THEY AIRO on 304 una es quest
and will samppens THE of SIGNATURE SUM
partner and BMH asciddre 01 N STAM PRESING THE was UNITED
17. 01 DRAWN +1 or annual to: use instead our
10j 301 sparracts THE 121 ** assess
anywn Aftion 14 an LOSS
even THE used
signature 40 as & 50
am SINGH VI god peason mq THE 10 SPACE *** 121 Manual
astay 450 8K CREWS ser SUBTOTAL V- and DRUG
- summ assign us R THE despinated employed ap
HURNO Insurance the seare 1941
amagas at completed you JUN appear X any
suggestisins Rout
NO or NO. NE pue No general
March STATES my 91 REDA 2018
111 SHOULD ARE payer are "X
differs you
M. and way pain Bid MT parpose I 500
ep pur MR STREET mini and on
WHEN every 19th 19 имин *** $ my ISSUS
you MEN X May you 93 are tan THE SW
ANDIAHO NAMHING
Before we have our questions. we will ask for the statement of
Mr. EDWARDS. Thank you very much. Professor Marx:
go
57
are still alterable at will and without bite. My conclusion is that legislative action is
essential. and I would like to pass to what action is appropriate
Before stating my recommendations. I would like to step back a moment from the
technicalities of guidelines. An undercover operation. with its attendant infiltration
into the associations of its targets, is potentially an enormous intrusion into provate
affairs: The guidelines themselves point this up. by specifying no less than reselve
"sensitive methods of infilitration And the Zuidelines Names allow there the six
months at a shot. without Birther intervention. Think of the number or Medical
the number of parties. the number of conversations that wobel community Der mont
tored in a period of SIX months It is in fact 00 intrusion service than any
that is possible either by of -warch or envestrepping both deview which are reded
round with protections für privacy.
The united to establish an underwover operation and sweet for reportation
into entimes puts thito the hands in 10% DEVERTMENT de puller to
décide who Shall be tempted If is a pawer which can Aven USED in Problems or
eliminate an enposition:
Finally the ability to Set 00 an entire and operation. meradina 4 of
contraband and even as apparates for sulv. partiplies the DIAKET shill in If
the government stands ON use supply side you it criminal fulled starts W :-
criminal numbers. in mans Cases : artses whether WA writinate -sate
interest is being served. Ant criminals Neina defected of created When 10
is brigaded with the power 10) select whosever Der tempted. the NATIONAL Not by
the ambitious and unprincipaed is clean
The most tamiliar device ter the control at discretion he 2017 where prevacy
is threatened is that of a warrant It in more that the carder
lines" which are SO elaborate that permans 1243 one will M. the to them It
replaces them with a neutral magistrate 400 may take ass DI (5) Include in the
guidelines MID account He Can call a halt to an ambitions pressure when 12 TO tact
serves TO lecitimate governmental function in detecting existing criminals. simply
by refusing to sign the warrant Such a warrant should be required for the use of
informers. for offering an exportunity for come. and for undersiver operations or
course. there will be emergencies, when Have is no time to supply for a warrant and
in those Cases the agents should be permitted to RU to the maintrate after the
explain the circumstances. and apply for in continued warrant Surth devices exist in
current law for search warrants and are provided for in these guidelines.
I know that the warrant proposal is anathema Itv the mustive Department or
course it is. because it is the only one that offects even a chance-ot real control over
police discretion.
I want to emphasize here what sort of a warrant requirement I am talking about:
It is not a very strong one I do not NO that the stringent standard We call
"probable cause: should be adhered to by the magistrate 111 Issuing the warrant I
know that agents may often have no more than an informed su-sicion as the basis
for their application. and I know that magistrates will usually Live them the benefit
of the doubt and grant the request I am not concerned SEX much what standard is
used by the magistrate. The important things. it seems to DMS are that the officers
should be obliged by law that "guidelines to state in writing to neutral persons
their reasons for suspicion. and then that they should return at trequent intervals.
no more than forty-live days, summarize what they have learned: and extrium why
they ought to be allowed to 120 UNI. These requirements have the extra benefit of
recording the work of agents and especially informers 11 2008 along. >>> that
testimony cannot be tailored in the light in hindsight. Yet these are less than what
we impose as requirements for wiretaps. a less intrusive device than underower
work. and they are the irreducible minimum to protect 12- from the dangers of
government infiltration and manipulation of our lives
In closing. I might mention that although I think a system of warrants, renewable
at short intervals. is essential, failing that I would not mind spette these new
guidelines. slightly amended to put them into legislative torm. enacted mto law.
That would at least make them mandatory for law-enforcement personnel and
would prevent them being changed overnight I assume that the Justice Depart-
ment's representatives would vigorously oppose any such enactment That taxt only
reinforces for me that they do not take their own guidelines THE seriously If they
did. they ought to be happy to see them be made the law of the land It they wish
the strictures on their agents to be left JM "guidelines" outside the eintrol of
Congress. that can only mean that they want to be free to incore or change the
guidelines.
TESTIMONY OF PAUL CHEVIGNY, PROFESSOR OF LAW. NEW
YORK UNIVERSITY
Mr. CHEVIGNY. Thank you very much:
1 have had a lot of experience with these problems. but because I
was coming here to speak to a legislative body. and I knew that
you had received a great deni of testimony concerning the empiri-
cal problem and you were experienced with it, I thought that I
would shorten my testimony, in respect to the nature of the prob-
lem. and talk about what 1 SPO as the simplest legislative solution.
1 did that primarily in my testimony. ! will come to that in a
mement.
I am glad I did. because Professor Marx has given us $0 much
information on the empirical aspects of the problem.
1 want to sav a couple of words about these guidelines. these
undercover guidelines--recent undercover guidelines-and about
the use of guidelines generally by law enforcen ent.
These guidelines are a reform in some respects. I think the chief
respect in which they are a reterm is that they require. in certain
cases. that the FBI reach outside the FBI to obtain approval for
certain types of surveillance. at least in sensitive areas. That's an
important concept.
Nevertheless. there are weaknesses, structural weaknesses in
them.
One principal weakness simply surrounds the area of deciding
when an issue is sensitive. and en it isn't I mean, that's for the
local person to decide-when it ought to 20 to Washington. and so
on. in general.
And that leads to another problem: that the guidelines are com-
plex. They are difficult to read. And. 1 venture to say, very difficult
to administer.
But another point about them that's interesting is that. in effect,
they summarize for you, as Congresspeople, all the problems. When
they say "sensitive," they re not kidding They emphasize for you
all the empirical problems that have come up in the last few years,
in the administration of law. by means of undercover operations.
That word "sensitive" is a very euphemistic term for the kinds of
practices they describe. They describe practices which have come
under serious question by the courts, by this body, and by other
congressional bodies in the last few years.
All they do is establish a group of internal guidelines for them.
And. furthermore. they permit an investigation conducted in
accordance with these guidelines. in those sensitive areas-which
you know to be sensitive areas-to be conducted for 6 months,
without any further oversight.
Now. that characteristic of the guidelines points to the empirical
problem that's a legislative problem. I want to say to you now why
it isn't a guidelines problem, why it's not a law enforcement prob-
lem.
It's very simple. These guidelines are not a law. And they say so
at the end. And it's no good saving: "Well. law enforcement need
flexibility." The courts are perfectly well able to give flexibility in
enforcement of law. That's one of the things the courts are for.
But the guidelines can be changed overnight. They have been
changed repeatedly. And, furthermore. they are not even enforce-
59
able. There's no sanctions for them. If not followed-the failure to
follow them doesn't give anybody any rights, at all.
So. that means if they re ignored. they re ignored. That's too bad.
Somebody made a mistake. Pity,
Because they are not a law. and because they have the character-
istics that I mentioned. law enforcement people tend not to follow
them. They tend to be ignored. If not in the short run, at least in
the long run.
There were guidelines in New York City for undercover work in
political cases, that were established in MER They were ignored.
There's a case that I cité for you in the testimony. I tell a story in
this testimony about my attempt to find a copy of these guidelines
in New York. The FBI office in New York doesn't have one. Two
U.S. attorneys-assistant U.S. attorneys-didn't know what I was
talking about. They never heard of them.
I find in that-I detect in that it contempt for law enforcement
guidelines. which I've always found in district attorneys. and U.S.
attorneys. and policemen with resuect to guidelines.
We need a law.
Now, let's talk a little bit about it.
The only kind of intrusion that we have experience, within our
legal system. with the control of-is search and seizure-invasions
of privacy under the fourth amendment.
We require-our law requires warrants for searches and war-
rants for wiretaps. Searches and wiretaps fall. if you like, on either
side of the kind of intrusion we're talking about here, which is an
infiltration by a person. Not an eavesdropper. not a person who
comes and kicks in your door: but somebody who infiltrates himself
into your life or your organization.
As to that. our law-our constitutional law and our legislation-
at present requires no warrant.
All I've come here to say to you is that a warrant is a relatively
simple device. We have hundreds of years of experience with it.
And a warrant-a legislative provision for a warrant for the use of
the offering of an opportunity for crime, and the conduct of an
undercover agent, would be a relatively simple legislative device.
The need for flexibility could be explained to the magistrate who
administers the warrant.
Furthermore. I want to give a couple of details about the -war-
rant.
It's been objected to on the grounds. for example, that the use of
warrants is too rigid. That they require probable cause, which is a.
high standard.
I'm not asking for a high standard. because an undercover oper-
ation is often something which is used in order to try to obtain the
kind of probable cause-that you would need to get a search was
rant. Obviously, you need a lower standard for undercover oper-
ations.
Let it be reasonable suspicion.
I'm not terribly concerned about the standard. Emi concerned
about the control that the judiciary should have. and that the
legislature should have. with respect to the actions of law enforce-
ment people.
60
It may be said. also, that emergency situations will arise in
which an opportunity will arise, on the street, or in which, sudden-
ly. a possibility of solving a criminal-the investigation of a crimi-
nal conspiracy will jump out of the situation. And it's an emergen-
ey:
Well. obviously. provisions can be made for emergencies.
Provisions are made for emergencies in current warrant law,
that. for example. searches can be made under emergency condi-
tions. And these guidelines provide for emergency conditions-
when the guidelines can't be complied with
There's nothing miraculous about legal provisions to cover emer-
gencies.
Now that Eve said that. I want to go back a step and talk about
why I think this is SO important.
1 think the Abscam situation emphasized. for most of us. the fact
that the problem isn't only one of Terml entrapment, in which the
law says, the detinition that the law has come up with in the last
50 years or SO-18 one of whether the person was predisposed to
commit the orime.
And it may be that all of those cases-when they go up on
appeal. it will be determined that some of the persons involved
were predisposed. by some definition and: therefore. there is no
entrapment.
That's not going to solve the problem of such opportunities for
crime. for this Congress. The reason is that persons were selected-
persons in political life were selected for temptation.
On what basis were they selected? Why did the law enforcement
people decide that they wanted these people?
1 don't know why.
Now. there may be an excellent reason: I venture to say there is
an excellent reason. But the fact that We don't know what the
reason is suggests that there may not be an excellent reason, and
that, in other cases. it would not be at all difficult. to construct a
case in which particular-
Mr. EDWARDS Professor Chevigny-
Mr. HYDE. May I ask you a question on that point?
I think your point is perfectly valid. But when you want a public
exposition of the reasons why there was a reasonable suspicion,
aren't you indicating somebody on hearsav. and other material
which might never be admissible in court? But the word is that
Congressman so-and-so is on the take. because somebody else's
brother-in-law-and you don 1 want that
The basis which would be-probably be inadmissible as evidence,
but still provide enough suspicion 10 says Let's take a look at this
guy.
Isn't that the problem?
Mr. CHEVIGNY. You mean the problem with the warrant system
is that information would become public?
Mr. HYDE. Yes:
Mr. CHEVIGNY. The application for a warrant. prior to the time
the warrant is executed. is ordinarily not public. It's usually sealed,
for very good reasons; the targets want to find out about it. if it's
public. So. if it isn't sealed. it doesn't work. There's no problem
with sealing it.
61
There's a problem that the law enforcement people raise. about
the confidence of the person who gives information. Are we going
to expose him to possibly being killed?
The Supreme Court says that. for search warrants, the name of
the informant doesn't have to be revealed necessarily, so lane as a
sworn affidavit can be supplied concerning the 3 per of information
he's given.
Now that. in itself. is something that is difficult to apply. and
defense attorneys unject to it. But let's take : on its face. The
name of the informant doesn't have to be Liven for that very
reason.
In other words. in search warrants. the Supreme Court and the
Congress thought of that problem. They said: OK. Let's not give
the name. Let's describe the nature of the intermation:
Mr. HYDE. But would you support. then, it contidentiality on the
basis of reasonable suspicion?
My point being that prejudices the defendant enormousiv to have
not only what actually happened. but the basis LOT the "reasonable
suspicion. on his back.
Mr. CHEVIGNY. I would support such contidentiality until the
time that an arrest 84 made. And if in fact. the problem does away
because the person resists the temptation. then I would not be
opposed to continuing the confidentinlity. with the possible proviso
that under a Freedom of Information Act request or something.
that the victim may someday find out whether on inquiry had been
made against him.
Mr. HYDE I'm thinking of public opinion that gets formed: Can-
gressman A was arrested today. and SO on. and 50 forth. The FBI
spokesman said that "we had reasonable suspicion. because other
people had told us he had demanded money to perform this Name:
tion.
I'm just saying, you're putting a lot of information in them
which is going to be a mostie of the credibility and the Interested
this person. that might never be admissible; and add to his the 100
Mr. CHEVIGNY. That happened in the Abscam case,
the sense that, at the time they were arrested. the public Wills
some intimation as to the reasons for it. I don't know 1500
entirely possible to control that.
Mr. HYDE. You want that public. though?
Mr. CHEVIGNY. If there's any way to keep it secret until Doe
of trial. I wouldn't necessarily be opposed to that
But I'm not sure there is any way to prevent persons Hom
talking about it, between the time of arrest and trial. M least. it
you want to protect persons of whom an inquiry is made through
investigative means. and who. in fact. do nothing wrong. this conti-
dentiality within the warrant system seems to me to be essential.
I'm all for that.
My point is, I don't think that is difficult to do. We have experi-
ence with protecting the confidentiality of the sources of warrants.
Mr. SENSENBRENNER. Would the gentleman vield?
Mr. HYDE. Just one more question. Do you set some value in the
periodic testing of a group of people whose vulnerability or suscep-
tibility or accessibility to such criminal acts is high? Let's say a
bank teller who handles a lot of cash particularly, or eashier at
83-555
62
racetracks or things. Do you see some therapeutic value to having
them know that they re being tested occasionally?
Mr. MARX. First, it makes a difference whether or not people are
told that such tests will be a part of the conditions of employment.
I think when they re not told. it is inappropriate to use the tactic.
Mr. HYDE I see great therapeutic consequences from Abscam,
however, but
Mr. MARX. I think it depends on your theory of crime causation.
Why do people break rules? And if people are motivated to break
rules, then the kind of test you proposing may simply make
them more clever. Maybe you'll deter some marginal people. I
think there's always that question with any innovation in law
enforcement. Does it simply up the ante a bit?
Mr. CHEVIGNY. I don necessarily disagree with you about the
therapeutic effect of Abscam, Congressman. But it would have had
the same deterrent effect If a warrant system had been used. If you
passed a law providing for an undercover warrant, 1 don't have any
reason to think that a judge would deny it.
Mr. SENSEN BRENNER. Would the gentieman from Illinois yield?
Mr. HYDE. Les.
Mr. SENSENBRENNER Building on that particular statement--
Mr. CHEVIGNY. Yes, sir:
Mr. SENSENBRENNER. 1 seem to recall that most of the details of
the Abscan operation were leaked to the press before actual arrests
took place. Don't you think that if there was a warrant system. the
individuals who were arrested would be tried in the press to an
even greater extent than they were before the case was even
presented to a grand jury for indictment and trial took place?
Mr. CHEVIGNY. I don't see why, I mean. the risks ought to be
about the same. The risks are always rather serious in our society.
I think judges. especially Federal judges. are among the least likely
people to do that. And if the record's been sealed. I never thought
of this before. but if the records could be sealed under a court
order, then the violation of that court order would be a contempt.
Whereas now, if it's just done by the law enforcement people, if
somebody violates the rules and lets the cat out of the bag. what's
going to happen? He's going to be disciplined, maybe, if the people
feel strongly about it.
Mr. SENSENBRENNER. But the same sources in the Justice Depart-
ment who seem to leak the gorey details of the Abscam scandal to
the press also would have known of the existence of a warrant. So.
the fact that the warrant was extant would have to be a part of
those processory reports at the time the Abscam scandle broke.
Would that not have further prejudiced is dissent by any Member
of Congress who was caught in this net?
Mr. CHEVIGNY. It would have prejudiced it the same way in the
sense they would have known there was an investigation going on.
My point is. if you had a warrant provision and the judge forbade
the persons involved in seeking the warrant to talk about it, then
it would be contempt of court to talk about it. and the court would
have some control over the leak of evidence. The présent way, they
don't have any control.
Mr. SENSENBRENNER. Except to cite someone för contempt. you've
got to know who did it. and the former Attorney General, Mr.
63
Civiletti, had a rather extensive in-house investigation involving
the U.S. attorney from Connecticut. to try and find out who did the
leaking to the press, and there, as I recall. there was no real
conclusive evidence linking a name or names with the leak.
So, who would the court cite for contempt under that circum-
stance?
Mr. CHEVIGNY Sure. if may become an insoluble problem, but it
seems to me it's the same problem in respect to the warrant. It's
the same problem with or without a warrant provision. if you
follow me. In other words. if somebody leaks the fact that an
investigation is going on. or that a warrant has been sought. and
you can't find out who it IS it seems to me that the damage to the
reputation of the person you investigated is the same. Don get me
wrong. that 1 don't think it's terrible. I do think it's terrible, but I
don't think that's a criticism of the warrant. of the idea of a
warrant, if you follow me.
Mr. EDWARDS. Well. also. if the centleman would yield. In a
wiretap case. where a warrant is required. I don't think that we
have been plagued with an epidemic of leaks SO that reputations
are damaged or the threeted person is advised or there are rumors
about the warrant being issued. are there? Tye never heard of any,
Mr. CHEVIGNY. There are a couple of cases where somebody was
paid a bribe to tell. and did. at the local level. it has happened.
Nothing works perfectly. I mean. there's no protection which is
absolutely immune to corruption. There's no protection in law
enforcement and there's no protection in-well. not only Congress,
but I hasten to say, there's none in the judiciary. We have to do
the things which seem as though they will give us the maximum
possible coverage. it seems to me.
Mr. EDWARDS. Thank you. The gentlemen from Illinois. Mr.
Hyde.
Mr. HYDE. Well. I want to compliment both viteesses. I think
they made a great contribution to our understanding of the myriad
of problems involved in undercover activities. T detect. from Profes-
sor Marx, a real distaste for undercover activities. And he men-
tioned psychosurgery as one of the tactics. I don't recall that the
police or FBI uses psychosurgery too often. But it certainly is a
possibility. We live in an enormously complex society. We are
changing our traditional approaches to law enforcement. But soci-
ety has changed rapidly. and it much more sophisticated. We deal
with the old. simple idea that. if we do away with poverty, well do
away with crime. That doesn't answer computer crime and white
collar crime and some of the very sophisticated examples of espio-
nage that we've had. Narcotics cases involve classic money. And
while undercover operations may be distasteful. I've talked to some
people who say. well never lick that crime because of the amounts
of money involved and the corruption of police officials. How many
people have had a hundred thousand, two hundred thousand. five
hundred thousand dollars put on the table in front of them and
said, touch it and feel it. So. the police have to be sophisticated. too,
if they are to maintain the balance that we all want. And 1 think
of the definition of Woodrow Wilson at the Paris Peach Conference
that someone portrayed that he was a virgin in a bawdy house
yelling for a glass of lemonade. We can't have our police in a
64
similar situation. Meaning the. FBI and the CIA and others in a
very sophisticated world where these crimes are not simple in
their effect on society. if they re big enough. They can be profound.
So. it's a problem. My own solution is get the best guildlines you
can. the fairest. But in the last analysis, you re going to need
people to administer them and to implement sensitivity, judgment
and perspective. That's true in just about everything in govern-
ment.
Political dissenters. some Communist may be just a Marxist theo-
retician who is a dissenter. Somebody else might have much more
activist motives in mind. And who's going to make that judgment?
Do we treat them alike? And what are reasonable suspicions? You
said police might intiltrate legitimate businesses It's my experi-
once that the police have such limited funds. that sometimes you
need to build if fire under them to look at something that really
ought to be looked at The FBI. in particular. has budget problems
of serious dimensions and there are areas I wish they'd get into.
And I haven been successful in getting any enthusiasm for legis-
lation.
So. there are two sides to that. Hid. Professor Marx. would you
say that undercover activities are just SO inherently dangerous.
they ought to be shelved by the FBI?
Mr. MARX No. 1 would not say that 1 think they have to ne
carefully supervised. I think distinctions have 10 he made between
types of undercover activities. 1 think they should De tacties, really.
of last resort. I think before using them. one should ask the ques-
tion: is there an alternative way of getting this information? Is
getting this information worth the risks that. in fact. are there?
And a very important question which has not been addressed is:
Does the tactic work? Is it. in fact, effective?
Even if you held apart all of the civil libertarian concerns, I
think there's a cost effective, pragmatic question. Is this a good
way to go about law enforcement? It would be hard to do a broad
cost analysis of it. Anti-fencing operations for example. may have a
stimulative effect. Where police pose as fences and they run these
operations for 6 months. an enormous amount of crime may be
generated its a result of that activity. Then, you have expenses of
renting the store or paying the salary of the undercover people
who do it. Then. you recover a lot of stolen property. You have to
balance out how much crime was stimulated by your being there.
offering that opportunity. and what effect would then have been if
the resources were used in some other way?
Mr. MARX. It's fairly hard to measure deterrence. You can look
at crime rates, in a similar situation and see what happens. But
measuring crimes that weren't committed because of a fear of
detection and prosecution is hard to measure. Using before and
after measures a deterrent effect has not been found.
Mr. HYDE What about Operation Lobster?
Mr. MARX. | think there's not been sufficient data on that to
reach any informed judgments. After the initial activity. it did go
down. But we don't know if it was displaced. It might have gone
down in the New England area. Did.it go up in the New York area
or in the Midwest? Displacement is a very, very big issue. If you
stop people-
65
Mr. HYDE You got catch 22 situation then. If the rate goes
down, you say it was displaced or it might have been displaced. The
former Assistant Attorney General said that the rate of hijacking
decreased two or three per day to only one in the 6 months follow-,
ing the arrest But you say there may have been displacement.
Mr. MARX. What happened during those 6 months: did bljacking
increase during the period when Operation Lobster was in effect
and people suddenly had a ready market? Congressman Elvdo, let
me respond to 11 couple of carker comments that you made. In
talking about psychosurgery, I wasn't suggesting that it was literal-
ly a police tactie Was trying to sar that how we control people in
our society is is general pnenomenon. At an abstruct level what the
FBI or police or private detectives del can be seen as equivalent to
what doctors and teachers are doims And control. generally in our
society. may De shifting in terms at becoming more intrusive, pre-
cise and scientific. As far as society changing, yes, it's changing
But it seems to me that we don-t have to simply sit back and which
it change. That we have a moral responsibility to try and guide
that change and to structure it as best we can.
Mr. HYDE Hel. you've been yery zenerous with time. did find
both of your presentations fascinating and well worth studying I
don't find an omnipresent police presence stuffitying crime in this
country. 1 think the Chief Justice had a few points the other day
which were perhaps in the other direction. but the dangers are
there. 1 thank the Chairman.
The subcommittee has direction and obligation to examine all of
the activities of the FBL That our job. Certainly, that includes the
guidelines. Like in years past. We examined with great care the
domestic security activities of the FBI and with them. in a yyry
friendly fashion. worked out where they developed guidelines in
cooperation with Attorney General Levi, S0 that they were able to
reduce their caseload from several hundred thousand down to
fewer than one hundred There is no complaint from the FBI or
partment of Justice that they re getting out of that type of
investigation. It wasn't one of the best things they'd ever done,
especially as Mr. Hyde points out. they have very few agents now
compared to what they really feel they need. They have fewer than
8,000 agents to cover the SU States: And that's a lot of responsibili-
IN.
But the guidelines are there and it's it our job to examine them.
It's our joh to see how well they TO working and to suggest improve-
ments. if they need improvements And certainly, Professor Che
vigny's point that 6 months is a long time without checking. that is
a long time. And internal security guidelines. they must be re-
viewed. I believe, by preliminary investigation. after 30 days. This
is all internal. But 6 months is a long time. Professor Chevigny.
you have first-hand experience because of your suit brought
against the New York City Police Department. special services
division.
Mr. CHEVIGNY. Yes, sir.
Mr. EDWARDS. You were able to get a settlement for your clients
which creates a control mechanism over the use of undercover
operations. The court imposed this mechanism on the New York
City Police Department. isn't that correct?
66
Mr. CHEVIONY. Yes, sir.
Mr. EDWARDS. Just like a court could impose a mechanism on the
FBI guidelines. if the court found that they were legally required.
is that correct?
Mr. CHEVIGNY Yes
Mr. EDWARDS How do the mechanism established in your case
deainst the New York policy differ from three provided in the FBI
guidelines?
Mr. CHEVICNE Well. in detail: as guidelines. they differ in the
sense that the New York City court order deals with undercover
operations in one of the sensitive areas. von might say: which is to
say political cases. That is. cases of persons who are exercising
their First Amendment rights. They may also be committing
crunes. of course. That presents the case in which the police think
there is a mixed bag of crime and political expressions. In that case
they're supposed to apply to this authority that's been established.
two policemen and a civilian for approval to continue such an
investigation. Now. as guidelines. these were merely guidelines
The difference it that there 18 a court order in New York. Here.
obviously, you don't have the power to napose a court order be-
cause you re not a court. You do have the power to impose a law.
Although it is not as good as a law. A court order is better than
guidelines because it has teeth. It can't be changed at with And a
violation is contempt of the court But there isn't such a case
pending against the FBI SO for as I know
Mr. HYDE In Chicago, There's one in Chicago where a settlement
was reached similar to yours. I don't know the details of it.
Mr. CHEVIGNY. That's a police case. though. I believe.
Mr. HYDE. I think it's the FBL The FBI was involved in it.
M.: CHEVIGNY. You may be right. FII leak into it and try to get-
maybe the FBI can help us on it. In any case, if history had been
different. there might have been such a court order. I feel some
teeth have to be given to these guidelines I just want to say, Em:
not opposed to all police undercover work: emotionally, for me.
that's really water under the bridge. We've passed that point in
history. But 1 do agree with Mr. Marx as strongly as I can, that we
cannot just let it go on at the discretion or even subject to guide-
lines of law enforcement people. I think essentially that society has
to have control over it. Traditionally. we have done that through
judges. I don't see as a result there should be any less undercover
work. I just think that the choices ought to be made bx people like
you. in a position like you. de to whether it would be done. That's
all.
Mr. HYDE I agree completely with you. You can't leave the
autonomy of that to-1 don't like one agency being the investiga-
tor. the prosecutor. the runge. the jury and the embalmer and all
that. Somebody from the outside should look over their shoulder
from a more objective perspective.
What's the matter with having an FBI informant join an organi-
zation that occasionally claims credit for planting bombs here and
there? The FALN or. you know. everytime a building 2005 up. you
get the phone calls from Puerto Rican nationalists who have said
what they re going to do. What's the matter with having somebody
join that?
67
I mean. a newspaperman could do it and win a Pulitzer Prize.
Why not have an FBI man just 10 go to the meetings and make a
report.'
Mr. CHEMIGNY Em all for that
Mr. HYDE That knit spving ON civilians.
Mr. CHEVIGNY. I'm not necessarily opposes to surveillance on
civilians in cases where it's justified: I just thank a neutral person
ought to decide whether it's justited. In the Euerto Rican cause.
one of the things that happened-I can't swear to This-but the
evidence that 1 have indicates that the police and join Puerto Rican
organizations. They didn't join the FLAN They couldn' find it for
a long time. So. they joined all the Puerto Rican organizations. If
that be necessary and is judge NIVS, OK. there no other way, then
in an isolated case. maybe you would have to do that But some-
body's got to make a neutral decision. I don't think that the police-
man should have the power to should say. OR my God. the papers
are on our backs. the VP ent to do something about it. Go down on
the lower east sitle and do something about it. words to that effect
All kinds of stun may get putled in and surveillance may 10 on
for a year.
Mr. HYDE. You would have the judge-OR Supposing if they
have a member who is Puerto Rican and of the FBI. and who
would be accepted in some of these organizations before they could
join a Puerto Rican political study group. that might lead them to
inform with the FALN. You'd have a judge OK that?
Mr. CHEVIGNY Yes. I think they ought to have a little something
to go on to indicate which ones are merely political and which ones
have some tradition of violence. Otherwise. it's the same thing as
joining all the political organizations in town But 1 don't think a
very high standard ought to be required. because if you raise it to
anything approaching possible cause. then you're making it too
hard.
Mr. HYDE. Thank you.
Mr. EDWARDS If the gentleman will yield. The warrant is pie in
the skv. especially under present circumstances, with the climate
that is in this country. So we are going to ask you, as expert
witnesses and other witnesses, what can be done to improve the
present situation without going as far as a warrant.
Mr. MARX. Well. 1 think with respect to the weaknesses in the
guidelines that I noted. if we are going to have guidelines as the
main supervisory principle, then the guidetines have to address
some of these other issues that I mentioned The question of the
unwitting informer. questions of the damage to third parties. ques-
tions of how long you let the thing go on. are central. And I think
by making distinctions between types of undercover activity, you
may have rather different standards.
For example, it seems to me you need a different standard where
you have a courageous FBI person pretending to open a garbage
collection business in the hopes of being the victim of extortion.
from what would be needed to infiltrate a respectable business in
search of wrongdoing.
Mr. EDWARDS. You suggest that at least the undercover operation
review committee that is established in the guidelines should be
is
beefed up. .SO that it would have more responsibility to look into
what the plans are and how things are going, is that correct?
Mr. MARX Yes and Tex more closely relate standards to the type
of operation.
Mr. EDWARDS. Mr. Longren. it's : pleasure to use you aboard.
Mr. LUNGREN. Thank you. Mr. Chairman. Untertunately, I had
another meetime that. as they saw precedent 3 and as a result.
I wash't still to heat in person the the intend to leak at
it and study it and unforminately don think Pine prepared at
this time to ask any questions,
Mr. Knwarns. Thank your
Mr. CHEVIONE Ed like 20 say with about the YOU R the sky, il 1
may, Corraresman pertify VOICE wrong. receive you HRIX be
right. but my experiencess lite the the hope that you me written
But if vou-re not WITH is menths way too AMC $ intrude on
people's uns. The other thing to there eacht to 12 some kind of
post oversent set epsay IN the Study I Know that which time
Tions were done by the FRE there WHEN ways It 401 that
there weren't intrusivos on privacy
For excepts files would Be serviced at middle. names could be
blanked out and those Does could he risad to détermine what hape
pened in those cases without intrudius INT the provides of the per-
sons: Three are pretty awkward ways on checking on whether the
guidelines are being complied with and they to expensive But
they been done in connection with the FBI off part of an investi-
gation. They could be done by this body. If you think that's teasi-
ble. that would be a lot botter than nothins But really think that
a warrant is 50 simple and we have NO much experience with it.
that it's essential:
Mr. EDWARDS. Em state that there would be no objection by any
member of the committee that we pursue our oversight in the
traditional way. through the General Accounting Office. which was
the agency that we used in the must of domestic security cases
Confidentiality of investigative files is insured. And I think that's
the way we will continue, because We have a rather large obliga-
tion in this particular area.
We have not been able to an even an estimate of the damage to
innocent people that might have been done in the country as a
result 01 the undercover operations to date. In your testimony,
Professor Marx. you mentioned many many billions of dollars in
lawsuits am a result 191 Operation cront-load where the civilian
agent of the FBI issued all of the performance bonds illegally and
got the insurance companies into the trouble. And in my home
town of San Jose. Calif. there's a guy that thought he was getting
a loan to huv the San José Earthquakes, a soccer team. from
someone involved in an undercover operation. It resulted in him
losing his wife. his house. and his into He had counted on a rich
heir to put up the money and of course, the heir didn exist. How
are you voing to keep control of these agents. these middlemen.
purveyors. who don't know they re working for the FBI or the
police organization?
Mr. MARX My sense is you can't keep control of them and they
probably should not be used. Where the cuidelines and the restric-
tions cannot be made clear to it person, then I think it's holding
69
matches to dynamite to use such people. They run a number on
everyone. They increase the possibility of all sorts of suits against
the Government They can do damage to third parties. It violates
some basic notions to set people-whose profession is deceit=leose
in the name of government and law when they, in fact. don know
that they are a part of 11 law enforcement operation. nwitting
informers present major problems. They should be used sparingly,
if at all. I think as you move from having patice play the undercov-
er role to civilian informers to unwitting informers. things become
evermore problematic.
The issue really is even in the case of whiting informers superve
sion. Informers may be in a position to dise Be police Doe reform
is to have more than one agent involved in supervision N inform-
ers. Whenever there a meeting with the informer or suspects, the
agent should take notes: This forms part of the record to determine
that the person was prodisposed and that Visa really are dealine
with people encased in serious criminal addition Such 3 process
does not appear to have Pern followed many at the Anscian
cases.
In one of the Abseam an unwitting informer WITS told that
he could earn XII million by helping Arab businessmen invest their
money and "make friends 10 high places. New with appearies to
Congressman Hvde. i like lemonade. but if somebody affered me XG
million to do something that was questionable. Ed like to think Fd
do the right things But. the temptation is certainly there
Mr. HYDE If I may, there are a couple of rejoinders to that You
quoted Vonnezut as saying we must be careful who We pretenc to
be because WP tend to become that person. Em told there was an
actor McGlvnn years age who played Lincolni He started to wear
Lincoin's clothes off the stage and it was said that he wouldn't be
satisfied until he Lot assassmated. Didn't you give the FBI a the-
mendous inprimatur to Abscam when you said God tested Job? If
God did it. why can't the FBI do if?
Mr. MARX Yes
Mr. HYDE. That all.
Mr. EDWARDS Mr. Kastenmeier?
Mr. KASTENMEIER have no questions.
Mr. EDWARDS Mr. Lungren?
Mr. LUNGREN. Nothing
Mr. EDWARDS Counsel?
Ms. COOPER Mr. Chevicny. I'd like 10 currify the difference be-
tween the role that the magistrate or a rudge can play in this
process versus the role that is assigned to the approving authorities
under the guidelines. specifically, the undercover operation review
committee. It seems to me that the magistrates role is primarily
one of deciding whether or not there is a sufficient amount of
evidence to proceed. It's a question of degree of suspicion, whereas
the committee is primarily performing adalancing act. a question
of balancing the various values. various risks, the various intru-
sions. It's not 50 much an evidentiary question. If that's the case.
then, if you create a warrant system, how does that deal with the
problem of balancing the values that are at stake and the question
of whether or not to authorize an undercover operation?
TO
Mr. CHEVIGNY. You mean. for example, that the review board
has a list of cases and issues that are called sensitive, and, accord-
ingly. they are treated in a slightly different way from issues that
are not called sensitive. Ordinarily. under a warrant system. the
magistrate just makes a decision about the evidence. To some
extent. the value judgment is made by the establishment of a
warrant system. In other words. we say that by establishing a
warrant system, all the undercover operations represent intrusions.
And to control the intrusion, we establish a neutral magistrate.
Now, history has resolved the value judgment by saving we think
it all an intrusion. That's why we asked for a judge. It's very rare
in legal practice that before something can be done: a trizzering
mechanism from the judiciary is required. That's an unusua, thing
and important. But at this time. there's no such law. so we really
are talking about pie in the sky. There's no reason that a statute
providing for undercover warrants could not provide for the mains-
trate to take "sensitive Rectors" into account. There's just no stat-
ute at present.
Mr. EDWARDS TM make it clear that I agree with your except
that it's just not feasible. That Was the point I made
Mr. CREVIGNY. Yes, It's the question she asked the The feasibil-
itv question is another question.
Ms. COOPER. Well, what I'm getting at can be illustrated in a
hypothetical. Assume the subject is a politician or a member of the
media or something like that. It's that kind of sensitive circum-
stance. Plus. you've got one or more of the risks that are enumer-
ated in the guidelines. But there's a lot of evidence that there's
some illegal activity going on or a predisposition to
Mr. CHEVIGNY. An informer who has previously taken a bribe,
that kind of thing. What's the question: then?
Ms. COOPER. Well. would the decisionmaking be any different?
Wouldn't the magistrate just be deciding on the question of the
weight of the evidence or whether or not he supports an undercov-
er operation and really not be considering the sensitive factors and
the risks that are present?
Mr. CHEVIONY. I think that ves, the decisionmaking process is
similar to what you describe. But 1 think that a judge. when he
sees a case involving a political person. whether that political
person be in or out of office. he savs, is there a first amendment
problem involved here? And in the case of a person in office. is
there an interference with office? That's one of the values that
underlies the protections which are contained in our fourth amend-
ment provisions and in a warrant requirement. And SO. the deci-
sionmaking process is similar, yes, But it's important that the
decisionmaking process be done by somebody who is not in the law
enforcement establishment. Because. as we.see from recent history,
very often the decisionmaking process doesn't get done by the law
enforcement people: They just don't follow the guideline. And if
they find the requirement onerous. they just change the guidelines.
And finally, there are plenty of other difficulties with acting as
both judge and jury, as Mr. Hyde said, that don't exist with a
neutral magistrate.
Ms. COOPER. As far as bringing outsidérs into the decisionmaking
process. do you see any value in trying to broaden the base of the
71
undercover operation review committee? As it's described now. it
includes only some unspecified number of criminal division lawyers
and FBI personnel. It does not include personnel from the other
divisions, nor does it include anybody from outside the Justice
Department system.
Mr. CHEVIGNY. I think it would be wonderful if it could include
somebody whos genuinely outside the Justice Department system.
Mr. HYDE. A consumer. a Hispanie, a blnek: a homemaker, you
know. the usual a Catholic and a handleapped person. rheat?
Mr. CHEVIGNY. All of the things would be terrine. But that
really is pie in the sky. Mr. Hyde:
Mr. LUNGREN. How about a Republicant
Mr. HYDE. Well. let's not 20 too far
Ms. COOPER. Professor Marx. it seems to The that the guidelines
are based on a view of undercover operations as beinz relatively
static. The guidelines require prior approval only before various
operations are bezun or before various inqueements are offered.
But from your analysis of the way operations actually operate, and
from what we know from reading the trides of recent cases. they
not that way. They re very organic. They te very changeable. The
agents are constantly improvising. Is that your view of the reality
of the typical undercover operation, and If SO. do the guidelines
make any sense?
Mr. MARX. I think it makes more sense to have them than not
to. I think some situations are probably. if not impossible, very,
very difficult to regulate. You're right. The situation is highly
fluid. And one of the problems. of course. is that the undercover
person, whether it's a sworn police agent or it $ an informer, has a
strong vested interest in seeing this thing 10 forward and seeing
prosecutions.
If a lot of Federal time and money are spent and no case
emerges, it doesn't help the agent. In the case of the informer who
may be facing charges. who may stand to earn vast amounts of
money from the operation. there's a strong incentive that crimes
occur. And I think we have. to some extent. been misled by hearing
about the virtues of video taping in such operations. This can give
a false sense of certainty. We don't know what goes on off the tape
or to what extent what is on the tape is deceptively stage managed.
When there's suddenly a break in the tape. was that because the
informer stopped it. or was it because of natural causes? Daily
monitoring of informers IS required. The supervision of the inform-
ers in the Abseam cases apparently left much to be desired.
Another factor conducive to accountability is having the inform-
er introduce a sworn agent into the situation rather rapidly. This
offers much more control than having to rely on the accounts of
informers. Doing this of course, can be difficult. too: One of the
problems with some of the high roller kinds of activities. going
after high status offenders is that it appears to be much more
difficult to introduce a Government agent into those situations.
than it is in street situations. In street situations. the operative
policy is often to introduce a sworn agent into the situation as soon
as possible.
Mr. EDWARDS. Should there not at least be. as there is required
in wiretapping. a public announcement made yearly about the
72
number of undercover operations that the FBI has in that particu-
lar fiscal year? Otherwise the public would not know what the
trend would be. Since this technique is so new to our country and
imposes such problems. that information is very important. Do you
agree?
Mr. MARX Yes. I think it's crucial to have that kind of documen-
tation and also, as you suggested earlier, to have some analysis of
it. What are the COSTS and what are the benefits coming out of this?
How do you weigh the prosecutions that emerge as against the
damage that may he done to third parties? And in weighing the
COST. a crucial thing to look at are the investisations that don't go
anywhere: 1 know of four or tive large and costly investigations
that were stopped because there Was a leak.
And one of the disadvantages of undercover work relative to
conventional police practices is they re more vulnerable to leaks.
The large investment in an investization CITY literally disappear
overnight once the operation likes its cover. That's a cust nictor
that is rarely considered. And one of the interesting things about a
number of the investigations where the covers been blown. is that
these tend to involve people of high status. It admirable to
go after offenders, regardless of who they are in in fact. they re
engaged in serious rule breaking. However, when the investigation
points 10 people in high places, and then the investigation is called
off because of a leak. that may be even worse, than no investiga-
tion at all.
Ms. COOPER. On the question of the need for evaluation. you
stated earlier that one of the problems was that the Justice Depart-
ment. among others. was not very cooperative about providing the
kinds of data you need to make these kinds of judgments.
What would you. as a social scientist, need?
Mr. MARX. When you do evaluations, they TV never perfect.
They obviously better than shooting from the lip When you do
one. it's best to have information about the state of things before
you begin your intervention, before you start your experiment. So,
you'd want to know about crime patterns. You'd want to know
about what criminal intelligence says about the problem. You'd
want to know about how law enforcement resources were being
used before you start your intervention. Then you start your inter-
vention: You do it in one area and not in another equivalent area.
You also look at the intervention while it's going on At the end of
it. you collect information about displacement. to other areas or
crimes. as well as about the crime in question. What we have now,
basically, is a measure after the fact. We don't really know what
went on beforehand. We don't know about the process involved
during the operation. And what happens now when you are forced
to do an evaluation 6 months after the operation is over is you've
taken the context away. All you have is what's on paper, what on
tape: With all due respect. things may get cleaned up. So, 1 think
it's important to have an ongoing evaluation. And if you would
take the logic of the current evaluation. which is to come in 6
months after things are over and apply it to any of the large
Federal programs that are evaluated in sophisticated ways, it
would be severely criticized. You don't evaluate things 6 months
73
after they're gone. People are transferred. Ther've forgotten what
happened.
Mr. EDWARDS Mr. Bovd!
Mr. Boyd. Thank you: Mr. Chairman,
Professor Chevigny, assuming that there's he must to the o
month period. and as the enairman 30 days under other
systems has been used: weat do you VISA as being an appropriate
period of time before an undersiver investigation should their
some sort of review?
Mr. CHEVIGNY. It's awainly bard If Blake those decisions. like 10
people on a jury: 00 GONS or days sectis to bir a good number.
That doesn't mean the surventance THIS to stop, it just means
somebody has to review wind come THE Another important thing
about that is an aspect mentioned be Mr. Marx in these hearings.
and that IS that a report vild be made Now: this could be drine
under these guidelines. It would be enormously helpful that a
written report should be made 1 am desuming that one or more of
these agents am going write daily reports on what goes WW
That's not unusual: I USS MW they that or that they cati in and
someone else takes it down Phose dails reports should be taken in
hand by the review committee and because there's always a
controversy in these Clises about what really happened. Unless
someone is wearing a but an the Have which is incredibly danger-
ous. then got to take the informers word as to what hati-
pened. And now, obviousis TIM informer can tailor his testimony on
a day-to-day basis. But its extremely difficult to see what going to
happen the next day, but whereas in retrospect. it's real easy to
tailor your testimony.
But if every 30 days you Wei all et these records and impound
them. and the review-I'd rather it Were a judge. BIK skip it. it
pie in the sky. If the review committee would keep it under lock
and key and make sure they've not that record. that would be
enormously helpful.
Td like to say it would be enormously helpful to law enforces
ment, too. because in the cases where there's a story about entrap-
ment or about the fact that they took me out and wined and duned
me and got me drunk. If that's a lie. then those reports would be
enormously credible evidence in establishing that it is a lie. Where-
as at a trial. there's an ene rmous risk that some informer WHOS
an informer and being crossexamined by some able defense attor-
nev will be blown to pieces
And there will be an acquittal in a case where. in fact. a person
is guilty. Em not in this to protect defendunts or prosecution's
rights. Because 1 would like to see the things done in a rational
way and the truth to come out So. Em for a Su-day limit for all
those reviews, but if it's 13. it woaldn't be the end of the world.
Mr. BOYD These guidelines: as I understand. have already been
used by some defense counsel for purposes of cross examination.
Mr. CHEVIGNY. Oh, sure.
Mr Boyn. You indicated also that you have problems with lack
of disciplinary action in the event these guidelines are violated.
Mr. CHEVIGNY. Lack of what?
Mr. BOYD. Disciplinary action in the event these guidelines are
violated. How would you prefer to see that disciplinary action
74
initiated, and what sort of procedure do you want to follow? How
do you perceive that action?
Mr. CHEVIGNY. It's very hard. You obviously can't put somebody
out of the Bureau for violating a new set of guidelines, particularly
if it's a minor violation. All I'm saying is that it's too heavy a
sanction.
Mr. BOYD. Should good faith be a defense?
Mr. CHEVIGNY. Not in a disciplinary proceeding. It seems to me
that what ought to be done is that the guidelines ought to be
announced. They ought to be periodically announced. We've done
this in cases involving the police. in which the courts have made
orders. The order has to be brought to the notice of everyone who's
liable to act in pursuance of it. Periodically, it's got to be rean-
nounced. That might be kid stuff as far as the FBI goes. but in any
case, it's got to be brought to their notice and if there's a factor of
people forgetting or it's becoming customary to do it a little differ-
ently, then it should be reannounced. Then. we're sure everybody
knows and every Bureau office ought to have a copy and post it
and announce it and make sure that the people know about it.
Then you can have a rational disciplinary proceeding and try some-
body. Why didn't you follow the darn things? A person may be
fined a few dav's pay for a minor violation.
I'm not asking for the world. But the point is that a psychologi-
cal set has got to be created in a burenucracy whereby people feel
that the agency takes it seriously and they re going to crack down
on people who don't follow it. I mean, I gather in the FBI. that in
the old days, the problem was that people said that the black bag
jobs had to stop. but eveybody sort of knew that they didn't have to
stop. And they went on. And there have been some disciplinary
proceedings about that.
There's a problem with that that I'll come to in a minute. But
the point is the FBI agents feel that that's not fair. That they had
these announcements and they didn't mean it and we all knew
they didn't mean it and now we get discipline for something they
didn't mean. That's another problem. You ve got to take it serious-
ly and consistently S0 the people can't say this ain't fair later on
and have the public feel that they are sincere: Another thing is
that I'm not saying that names ought to be named as to who is
disciplined. and 50 on. But I think the public ought to be made
aware that there are such disciplinary proceedings and that at
least some statistical report ought to be made of the fact that it
occurred. Otherwise people tend to feel-well. they say there's a
disciplinary proceeding going on. but We don't really know. Some
kind of public annoucement has to be made without naming neces-
sarily who it was. but a statistical report or a disciplinary report.
Mr. BOYD. After the fact?
Mr. CHEVIGNY. Yes, because after those disciplinary proceedings
with respect to the FBI agents from the old days, it was said that
New York-1 think it Was the New York director-announced the
disciplinary proceedings had been undertaken with respect to these
people. We never knew what had happened. We didn't know
whether they had been fined. whether they had been cashiered,
what the dickens happened. So. there was a feeling, I mean, there
73
was a public feeling that we don't know whether it was a serious
matter or it wasn't a serious matter.
So, to summarize, if you're going to make guidelines work at all.
vou've got to have a tight system of internal review. You've got to
have a consistent set of disciplinary rules. You've got to follow
them and enforce them. You've got to make sure that everybody
knows about it and that they continue to know about it on a
periodic basis. And you've got to make the public aware that you
are taking it seriously and that you are enforcing it and that
disciplinary proceedings are being carried out. i know law enforce-
ment officers hate this They say it - a terrible system of harass-
ment and it's constant gumshoeing around them. and SO on. Pm
tempted to say better them than us. but I don't really mean that
It's a characteristic of that kind of public work that there's going
to be a lot of oversight and I don't see any alternatives. There are
too many temptations.
And accordingly. it is a characteristic of law enforcement WOTK
that there's zoing to be a list of oversight from the higher-ups. I
don't see any real alternative to that
Mr. Boyn. Thank you. I have no further questions.
Mr. EDWARDS. Along-the same lines. don't you think that as this
approval is given up the line-and that's what we're assured ot by
the guidelines-the higher it goes for approval. the supporting
information should be furnished in writing SO as to leave a paper
trail? And the same kind of information ought to be furnished to
the higher official in the FBI to justify the next step in the under-
cover operation that a magistrate would be furnished when a war-
rent is asked for?
Mr. CHEVIGNY. Absolutely. We can at least get the protection of
the paper record through these guidelines. If we can't get a magis-
trate, we can at least get that protection that a record is made,
which is. in effect, if you like. sealed in amber. in the sense that it
cannot later be changed by the informer tailoring his testimony to
fit the case.
Mr. MARX. I think one of the problems currently is the guideline
says almost nothing about the conditions under which higher-level
authorities can and should approve undercover operations. The
guidelines basically affect and prohibit actions on the part of the
local agent. They don't really tell us when higher officials should.
in fact. use undercover work. I think it's crucial to spell out these
criteria, not in a rigid way, but to say; here are the kinds of factors
that would make it appear that this tactic is appropriate. That's a
big lack.
Mr. CHEVIGNY. In answer to counsel's question about the disci-
plinary actions, there's an interesting point about discipline. and
it's something that I observed in connection with discipline in the
New York police. which we quarreled about for the past 15 years.
We tried to have outside review and didn't succeed. and they now
have an internal review. which is pretty good. as internal reviews
go. It has the characteristics that I mentioned. An additional one is
that it has people who are-not independent in the political
sense-but are structurally independent. who do the investigation
in the sense that it has people assigned to that body, who do its
76
investigations and don't do anything else. unless they get trans-
ferred.
But a fatal mistake in the investigation is to send it. as it. were.
to the local commander. In other words. to send it to the superior
of the person invoived for an informal review. seems to me a Fatal
mistake. Because there is a systemic bureaucratic tendency on the
part of superiors to cover their people. It's natural. It's human.
Mr. Boyn. You're talking about internal affairs of public?
Mr. CHEVIGNY Yes.
Mr. KASTENMEIER. Mv question IS somewant tangential. but out
of cariosity, I was wondering why Professor Chevigny Stagested a
magistrate. I assume meaning the U.S. magistrate rather than a
U.S. judges Nuting that many jurisdictions. district furisdic-
Pons. they either do not have magistrates PP the mainstrate's role
is assigned by the U.S. judge And generatly, they are not categori-
cally used rather than assigned specific Pm INS various
Mr. CHEVIGNY, Fm surry, I washit USING MONTH M term at art. I
meant it as a generic term. That is as a officer
Mr. KASTENMEIER. Thank sure
Mr. LUNGRES. Mr. Chairman?
Mr. EDWARDS Mr. Langren:
Mr. LUNGEEN. I have just one othestion 2 kind of N reheral
question: But you were critical of the length of time which would
go on before there would be a review of these programs and sug-
gested a shorter period of time. Isn't there always the problem it
you have people reviewing them too often. they become so familiar
with what they re reviewing that they don have the distance you
want, so that they are not a part of the operation itself?
Mr. CHEVIGNY. Do you want to answer it?
Mr. LUNGREN. Aren't you talking about an independent judg-
ment?
Mr. MARX. Life is complicated. There are always tradeoffs. Su-
pervisors can be rotated and they should be subjected to review.
Mr. LUNGREN. That's not my point. My point is. they become SO
identified with it. they can't step back and see the whole picture. If
you've got them reviewing every couple of weeks or maybe-even
every month. I don't know. I haven't seen enough evidence to what
is reasonable. They become so identified with the ongoing investi-
gation, they don't come in as a supervisor with some distance to
look at different things than the people actually involved in the
process would.
Mr. MARX. Partly, it may depend on the quality of the people
doing the oversight. I think the key thing is not that you become
too familiar with it, but that your overall career rewards are not
tied into it. To the extent that supervisors are not going to be
promoted or demoted as a result of the success or failure of the
investigation, I think it's less of an issue.
Mr. LUNGREN. The other thing ra like 10 just throw out is that
we've been sort of analogizing this to the experience with the New
York Police Department and other police departments But it
seems to me the FBI is somewhat different than those.
Mr. CHEVIONY. Yes.
Mr. LUNGREN. The education level is certainly different. The
type of investigations that they have ongoing is certainly different.
77
They re not involved in day-to-day street crime. And perhaps the
analogy is not quite as valid as we might assume, just on the face
of it.
Mr. MARX I think because they re BSE as much involved in day-
to-day street crime, where police are really familiar with who the
bad actors are, these taeties become more problematic. Because FBI
agents are unlikely to be involved in high roller activities as a
matter of course they are at a disadvantage relative to who are
more likely to be clase to lecal police. street crime. However, the
broader constitutional principles and also the social aspects in
terms of unintented consequences, in terms of what happens when
you have secret operations, what happens with covert tactics. that
those things are the same regardless ist the level of government:
Mr. LUNGRES. understand. It strikes THE at times that our
concern often us legislators. IN with creating paper trails and creat-
ing many. many different boxes where you have braker
tion. which almost takes the idea of checks and balances to such an
extreme thit. in fact. inertia sets in. But when you get down to 11;
it's the quality of the individuals involved: no matter how much
you want to create various types of assistance. They may not bank
at this in types of assistance. But that's what you re basically
saying. You re protecting them as will as pretecting the operation
and protecting the public.
Mr. CHEVIGNY Ed like to SILV something about that if I may. I
think it is true that it depends on the individuals. But it seems to
me from the history of the FBL it seems to depend more on the
character of the individuals than the character of the agents. In
other words, the agents who are highly educated men were accused
of what seemed to he terrible abuses. I haven't 44y doubt that they
wouldn't have done those things on their own hook. But they did
them because Mr. Hoover and others approved them or they
thought they did. the atmosphere. That means something's got to
be done about that atmosphere. You've heard what I think is the
best thing. But obviously. guidelines can make a difference in the
atmosphere But there's got to be control over people at the top. If
you've got control over policy. policy with respect to are we going
to chase the left. which was one of Hoover's policies, I take it that's
not an option that open any more. Those kinds of policies have got
to be stopped.
Mr. Enwards: One last question. In the Abscam cases, there
were four. live or six-1 can remember how many conuressmen-
absolutely turned all of the inticements down and practically said
get out of my office. But they claimed they were damaged severely
and the FBI regrets it in his other to write letters. and 50 forth.
Now. how would the guidelines have been improved SO that this
very unfortunate situation. where these reputations were greatly
damaged by the actions of the unwitting purveyors in practically
all the cases?
Mr. MARX think that a crucial question. It gets to the point of
how good is the evidence that someone is predispased to this type
of activity. The guidelines now talk in very general terms about
this. They don't talk about degrees of predisposition, the relative
merit of different kinds of evidence. or to what extent you have to
cross check. So. I don't think they particularly speak to this prob-
78
lem. In fact, in the testimony here last March, it was claimed that
Abscam was done in a way that was very consistent with the
guidelines.
Now, either the guidelines are lacking, or the operation wasn't
done in a way that was consistent with them. Predisposition. is a
very, very slippery kind of concept. I think it could happen again
very easily, until it's made very clear how strong a predisposition
has to be. It gets back to the issue of, are we trying to apprehend
people who are corrupt? Or are we trying to see if someone is. in
fact, corruptable? And as long as the latter is an operational stand-
ard, I think there are going to be the kinds of problems that you
suggest.
Mr. EDWARDS. Well. especially when the person making the deci-
sion as to predisposition doesn't know that he or she is working for
the FBI and thinks that be or she actually is working for a billion-
aire shiek.
Mr. MARX. Yes,
Mr. LUNGREN. I just wanted to see what point we are going on
here. The fact that a number of people turned it down does not
necessarily mean that the guidelines were improper. Unless you
suggest that somehow you have to have 100 percent batting aver-
age. I mean that might even go to the justification for the manner
in which they operate. That they did not intice people who other-
wise would not have been inticed. That is, that these people turned
it down. I don't see how that proves the case that somehow the
guidelines weren't in operation or weren't being followed.
Mr. MARX. Yes: that's a good point. And people can differ about
what batting average you have to have to conclude in the fact that
someone was predisposed. it seems to me given the risks and the
damage to the people involved, that they really ought to err in a
much more conservative way. If half the people took it, I think
there was insufficient evidence of predisposition. If it was higher.
you might conclude predisposition was there. You also have to look
at the quality of the temptation. If the temptation is 50 enticing
and inviting, there may be no predisposition at all. You may
simply be overwhelmed DV the incredible opportunity you have to
help your constituents and/or yourself.
Mr. EDWARDS. Further questions? Well. the witnesses have given
us valuable in-depth information and we appreciate it very much.
Mr. HYDE Indeed.
Mr. LUNGREN. Fine:
Mr. EDWARDS. So. we thank you very much.
Mr. HYDE Excellent.
Mr. EDWARDS. Tomorrow. the committee meets with the Depart-
ment of Justice.
[Whereupon. at. 11:30 a.m., the hearing was adjourned.]
FBI UNDERCOVER GUIDELINES
THURSDAY. FEBRUARY 16, 1981
House OF REPRESENTATIVES.
SUBOOMMITTEEON CIVIL-AND CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARS.
Washington, D.C.
The subcommittee met at 950 mm. in room 2226, Ravburn House
Office Building: Hon. Don Edwards (chairman of the subcommittees
presiding.
Present: Representatives Edwards Kastenmeier, Lungren, and
Sensenbrenner.
Staff present: James Cooper, assistant counsel, and Thomas M.
Boyd, associate counsel
Mr. EDWARDS. The subcommittee will come to order. Today
witness is Mr. Paul Michel. Associate Deputy Attorney General of
the Department of Justice.
In that position. Mr. Michel has become very familiar with the
inner working of the FBI: that expertise proved invaluable to us
last year when we began considering a legislative charter for the
Bureau.
Equally complex and difficult will be the task of controlling
problems associated with undercover operations. the have been
studying undercover operations for many, many months and prob-
ably in the years ahead.
We have learned enough in the last few days of hearings to
sympathize with th Justice Department's difficulties in devising
guidelines. The nature of undercover work itself creates a tension
with a desire for control.
However, the guidelines are definitely a step in the right direc-
tion. And today. we hope to learn more about what they are
intended to mean. Before I introduce Mr. Michel, I recognize the
gentlernan from Wisconsin, Mr. Sensenbrenner.
Mr. SENSENPRENNER Mr. Chairman. I ask unanimous consent
from the Subcommittee on Civil and Constitutional Rights that the
House committee permit coverage of this hearing in whole or in
part by television broadcast. radio broadcast, and still photograph
or by any of such methods of coverage pursuant to committee rule
5.
Mr. EDWARDS. I thank the gentleman. I recognize the gentleman
for any remarks he may care to make.
Mr. SENSENBRENNER. No remarks. Mr. Chairman.
Mr. EDWARDS. Mr. Michel. again. we welcome you and please
read your statement in full. since we didn't receive it until late last
evening and haven't had a chance to review it ourselves.
17%
80
TESTIMONY OF PAUL R. MICHEL, ASSOCIATE DEPUTY ATTOR-
NEY GENERAL, OFFICE OF THE DEPUTY ATTORNEY
GENERAL
Mr. MICHEL. Thank you. Mr. ( hairman. Congressman Sensen-
brenner. Pm VATY pleased to bei before the committee today to Have
the opportunity to testify on undereover matters and particularly
about the recent developments in the Department of Justice paties
governing FBI undercover operations. And know that the pri-
mary interest of the committee is on the guidelines issued by
Attorney General Civilett: OR January 3. 19st
The reason that Eve been asked to appear before the committee
to testify SINGH these rundines is that handward participated: along with
many others. 100 theyr precuration and therefore. 1 hope to be able
to respond questions about their scope or intent or purpose.
Atterney General Smith and other senior department officials
the presently reverwing Pay condelines en undercover operations in
order to whether any revisions may be necessary
Last March the subcominittee received testimony From the
for of the FBI and the Assistant Attorney General in charge of the
criminal division concerning underedver operations There appears
ance followed completion and public disciosure of several nacor
undercover operations. including ABSC Mill
Mr. Chairman. if I may, I world like to ask the committee to
make part of the record of this proceeding, the statements and
testimony of Director Webster and Assistant Attorney General
Hevmann from that session. because ) think that they lav a
dation which is pertinent to the injury with receive to the states
lines.
Mr. EDWARDS. Is there objection"
Mr. SENSENBRENNER. No.
Mr. EDWARDS. Without objection. SUI ordered See appendixo
Mr. MICHEL Thank you. In the intervening time. there have
been three major developments in the area of undercover oper-
ations. First. juries have convicted all of the defendants brought to
trial on the basis of ABSCAM, alt with the controversy surround-
ing some aspects of that operation continues, both in the courts
and in public debate.
Second. the undercover review committee which studies proposed
undercover operations. was established and begin to timetion and
handle a great many of the cases:
Third. after 18 months of intensive collaborative effort: de DE
partment of Justice and the FBI commleted the custeines on 40-
dereover operations With Director Webstees concurrence there
guidelines were issued last month.
The guidelines do not change established practices and proce-
dures in ; By significant way. These practices and procedures have
been developed gradually and carefully over the past-several vears
The procedures have as their centerpiece. the reporation of that
undercover review committee. Theretore: the et
the guidelines should not, in my cause any confusion or
disruption in FBI operations.
I may SIIV that with regard to possible disruption that your
colleague. Congressman McClory recently sent a letter to Attorney
General Smith. The letter. which was dated January 24. asked
whether the guidelines would have an adverse impact on the uper-
ational effectiveness of the FBI. and particularly whether their
use-whether the enidelines would make the ise of undercover
operations by the Bureau difficulti il not proctically impossible.
That possibility, of crease. whs much in our mind from the outset
of efforts to develop the I know that in reviewing this
issue. and indecd: M preparing materials which will soon INSURE in
a responsive letter Congressivan Director Webster has
indicated that the currentines do from make the net of the Darisiti
more sitheulf.
I muslit ulso SHAL SIGNATURE usere Will seme contusion about the miths
mentation and at one WERE expressed difficulty or
tered intriculty in a that No are 1MST now
in the of better emplemented and nons are SWDE out
to all FIN Hold others stå this Matter
Mr. SDW TRIN Yes mean by their that the held nations have Down
operating without ati Hus time
Mr Micnik The Beld offices have been oberating for the entire
period EYE estensive undervoyer WANTS. which is :
and 3 vears without armatized sustelines
That IF that 1.1 say THAT their have been operating without careful-
ly structured procedures. Because the procedures have been tather
well structured and Shipwed closely What the andelines basecully
did was to build on MOSE procedures and to formanize them and if I
can misuse a word, codity them into guidelines.
I might MY with recard to questions of interpretation, since the
guidelines are fairly lengthw-and fairly specific and contain awver
like terminology, that EVe been advised by FRI officials that there
have been no significant questions of interpretation that have come
to the surface to date
Mr. Chairman, let ne briefly describe the processes by which
these guidelines were produced. It began in the early fall of
when the Attorney General asked the Assistant Atterney General
in charge of the criminal division to supervise the drafting of a
number of possible zuidelines on different topies, including under-
entier operations. The broad outlines for each of These guidelines
were taken from the proposed FBI charter. which had to on jointly
developed in the preceding year by FBI and department extends:
Under the charter. the department would be required N with
guidelines ON all maior areas of investigative activity Attorney
General Civileni determined. however. that the benefit of under
lines to the effectiveness of FBI operations had been sufficiently
established by i years experience with the three guidelines pro-
mulcated by Attorney General Levi. that additional guidelines
ought not to await Contressional action on the proposed charter.
Although Congress didn't take action on the charter proposal.
various committees. including this one: did hold hearings on many
parts of the charter. These hearings sharpened the issues and
tested the reasoning underlying each of the provisions in the pro-
posed charter. The hearings also underscored the need for assuring
that in estigative activities are not only conducted vigorously and
effectively, but also lawfully and reasonably.
The zuidelines on undercover operations were put through innu-
merable drafts. The dratts were written on the basis of extensive
consultation with FBI officials actually administering and supervis-
R2
ing the organized crime, white collar crime and other investizative
programs. The initial drafting was done by two departmental attor-
neys who were members of the Undercover Operations Review
Committee. The draits were reviewed by FBI employees at every
level in both headquarters and in the field: This included the
special agent investigator, the proverbial "brick agent. The
ten comments were prepared and became
SSD
3
extensive
discussion among members of the review committee.
That committee was chaired by the Assistant Attorney General
in charge of the criminal division and it included among others.
the FBCs Assistant Director of the Criminal Investigative Division,
his deputy, the chiefs of the organized crime and selective oper-
ations units. the special assistant to the director. several career
Justice Department prosecutors and myself While the text did
change somewhat during the long process. there was agreement
from the start between FBI and department Officials on all its basic
provisions.
As the project proceeded. only relatively cuner issues arose and
all of them were resolved rather readily in : mutually satisfactory
manner.
In fact. by the end. there was such complete agreement by every-
one on the guideline committee. that not a single issue had to be
submitted to Director Webster or the Attorney General for resolu-
tion. Both. of course, did personally review the final draft before
the Attorney General promulgated the guidelines.
Now, the process followed in preparation of these guidelines was
nothing new. We simply followed the basic model established in
1976. when a similar committee Was commissioned by Attorney
General Edward Levi. That committee developed various guide-
lines. including those ultimately promulgated. which were three.
and as you know. they concern No. 1, Informants: No. 2. domestic
security investigations; and No. 3. civil disturbance investigations.
Indeed. some of the members of the earlier guideline committee
also participated in the current project.
The guidelines on undercover operations like those on other
topics. were drafted on the basis of certain underlying principles.
Three of the most important of these are as follows. First: guide-
lines should not be a catalog of "do's' and "don'ts." Rather, they
should focus on establishing or formalizing sound procedures to
assure that critical judgments are made at appropriate levels of
authority and are recorded and therefore. susceptible to subsequent
review within the Bureau, by the department. and by the Congress.
Second, the guidelines must be clear enough to be readily under-
stood and followed by all agents and must contain standards which
are realistic enough 30 as not to interfere with effective and appro-
priate investigative activities.
Third. the guidelines should not merely meet the minimum re-
quirements of constitutional and statutory law. but should also
reflect sound law enforcement policy. I might say that these three
principles, in my view. were precisely the same principles that
formed the basis, a th poretical basis, for example, for the guidelines
on domestic security investigations, which were issued in 1976.
And I would submit to the committee that if you lay-the domes-
tic security guidelines side-by-side with the undercover operations
3
guidelines. that while on the surface the language is different.
because the subject is different. there are very striking similarities
in the basic approach.
Now no one could
perfect Line issues they deal with are controversial and not every-
one is going to arrive at precisely the same sense as to now to
balance competing interests.
But I would submit that the guidelines are based on idens that
have been proven in practice. that their central design. of course.
was to assure that investigations are conducted effectively, but
also, appropriately and sensible.
The latter considerations in the lang run are as important as the
former. because successful crime fighting ultimately requires ac-
ceptance of our work by the courts. including the appellate courts.
which review convictions we obtain. and in the Congress which
annually appropriates the funds We need and affords us authority
for our activities
Now. 1 would stress, Mr. Chairman. that the guidelines do not
unduly hamper actual operations. And they do contain realistic but
meaningful standards,
But I would readily admit thist the guidelines are not Immune
from criticism.
There is, for example. one sense in which the guidelines micht be
viewed as far less than ideal And that is that these guidelines-
and, I would submit. any other version that could he written-cant
absolutely guarantee that no undesirable incident will ever occur
during the course of an undercover operation I think the guide-
lines substantially reduce the risk. but they cannot eliminate it
altogether.
Let me give just a brief example, It involves the circumstance in
which a suspect is offered an opportunity to commit a criminal act.
And the issue is, what scrt of test ought to be met before that
opportunity can be offered?
As you know. Mr. Chairman. the guidelines essentially provide
that we can make such an offer only under these circumstances.
One, a middleman. who may be a witting person cooperating with
us, or may be unwitting, implicates and produces the suspect at our
location. Or two. the suspect. having heard of our operation. brings
himself in. In addition. once the suspect is there. any offer made to
him must be clearly criminal in nature. must be one that is mod-
eled on real-life situations, and must be one in which the incen-
tive-for example. the size of a bribe-is not disproportionate to
the service sought or the normal expectations for that type of
criminality.
Now. some outside observers have suggested that the Govern-
ment should be required to have probable cause of similar past
crimes by a particular individual before it offers him an opportuni-
ty for crime. Our view is that this suggestion is impractical.
For one thing. we often do not even know the identity of the
suspect until he appears at the location where the offer will be
made. More fundamentally. such a suggestion. in my opinion, mis-
understands the extent to which investigations are inherently and
unavoidably evolutionary in nature.
/
They often begin with rélatively uncorribreated suspicions. They
progress to some corroboration or additional kinds of allecations of
suspicions. And ultimately. the progress 10 the point of probable
cause to arrest and indict.
To regitire provide cause DV If We eree nike the investigative
the 019 waking an is to DEED the FM in it enten II We
already had the the the past entue, we and simply
make at arrest and prosecure in thirt past create in lock Nr. very
need for making the offer is to convert reisonable Indication
of criminality into strong and evidence DO that would amount to
probable couse or indeed: more
Mr. hairman. We looked If surrer 01 receive undercover
operations-and of 1 cash discuss sectifies of Abscan that
are under but in general If We ONE at past operations,
would Say that NHE kind DI review would to this
conclusion: The matority ist sustivets WAS were offered A cleariv
criminal opportunity and 13. acceptivit. brand or whetever it
WITHS were not people 11> to which we had crobable at the
time en the offer And theret if the with required the invest
Cigations would have Stopped the spot
Now. the Artiback argument is, in will, it THE probable
cause What an at a somewhat Statement! Perhars reasonable
suspicion.
One problem with reasonable suspicion N that it IS canalog to
probable cause in this sense Both under elaborately developed
case law. require. really. two things. The limit is sufficient indica-
tion or criminality But the second-and this is an indispensable
test as much as the listeds that the information establishes to the
same degree of certitude that the particular individual it the one
involved
Now. as I pointed out earlier. frequentiv the identity of the
prospective brince sn't even known. And therefore it would be
impossible in those circumstances to meet even the test of reason-
able suspicion. at least as defined in classic search-warrant law.
That's not to SQV that undereover operations ought to offer op-
portunities for criminality in the complete absence of reasons to
suspect that the activity is going on and that the people who will
present themselves or were presented and produced at the location
in fact are involved in that kind if criminal business. We used in a
charter. as you will recall. Mr. Chairman. the concept and the
phrase reasonable indication.
And that same nation is adopted in the cuidelines and is men's
tioned. As I indicated carlier. WP either have to have it reasonable
basis for suspecting. 3 reasonable indication that the individual in
question is corrupt as a labor fax keteer. or whatever the operation
involves. or he has to identity himself by comming in. with no active
role on our part.
Now. 1 would like to next lust briefly touch on another aspect of
the eateh 22, and I have to be cireful here apout terminations Keep
in mind that sometimes the players wear more than une not We
all talk perhaps too facilely. about. well. yea have suspects, and
you have targets. and you have defendants. and you DATE intor-
mants. and SO on: But in undercover operations particulary some
times they mix.
We often have a man who starts out IS a suspect Let's say an
informant has come and told VIS that Mr. X. who E a police captain
in some metropolitan city, IS collecting birthe from cambling
operators. Suppose then that the word ARE or that 3 new gam-
bling operation is being established And NO nosi thing that hap-
pens is. this police ceptain COPIES He Stat his superior
officer. Inspector P. and shares M the hrstis
WALL at that the capital has sharted nom bester metrols a
subject. hocause NE the Information: a MR interme-
diary But he IN to bring the night signature AND or
course, we no even interested in DO In successfully Drus-
ecute that individual than the NAME
So has becomes exidements And Me of
Obviously, He has the have that this before 35 NEGDA
and IN a sotup in to detret belier consultant
There are of wourse, middles en who are written This RT IN
ferred to in FBI terminatory :- dermine This press
ent special problems in WHICH M VII total conthil
by the Government. But it = investment be the think. Mmt in
most stantions the maldeman in not os the
Government. The mediciman HOWE with kniw that it's
an undercover operation.
Now in the case where the Resteman >- substerations mehvidu-
al. is fully knowle there :- a risk Mark THE will misrepresent
the statements OF activities of 13 suspect. THEM NY will produce at
our warehouse. or whatever the steation micht be individuals who
in fact are innocent There IS. therefore, there's that an innocent
individual may be ottered the criminal opportunity There are two
reasons why this risk. even asute from guidelines protection, is not
very great. The first is. if a cooperating individual, a middleman.
brings in an innocent person. quickly discover that here either
exaggerating or he doesn't know what he's taking about. THE We no
longer put SO much with in white he says k corrects itself rather
fast.
It is quite true. in the meantime. one OF two mdividuals who are
completely innocent might be drawn into the operation to the
extent of having the after made, But as. I think it Was the second
circuit. recently observed. that is not necessarily disastrous. be
cause the honest man simply receives the inter and departs
It is a risk: if is undestrable. It is nix * DIE risk. and the
guidelines minimize it by: for example. stressing that the underls-
ing criminal nature of the offer has to be made very clear and
communicated directly to the suspect. No offers are made through
third parties They're face TO face: and thew re in clear terms.
And I might say that with resard to the clienty of the criminal
nature. We frequently have had circumstances in actual operations
where extensive script writing. in effect. Was done by teams of
lawvers from both the department and the FBI So that the unders
cover agent who actually makes the offer--we don't let the middle-
man make the offer: the undercover agent makes the offer-does so
in terms that are unmistakably clear that this IS at crune that's
being offered.
OK Let me just make a cotitie general observations, if 1 may
First, the guidelines emphasize procedures. But the emphasis on
procedures is not to minimize the importance - the judgment calls
that have to be made in these operations. It really is judgment
that's the key here.
And in this regard. the Fact that the FBI now has been conduct-
ing maior undercover operations in all of its investigative
jurisdiction for several years means that we save a lot of experi-
ence. We can benefit from this experience and we are benefiting
from the experience.
It is important. I think. to avoid the aftision that may have
plagued one or more of your eather withheses There are ni effect.
three time zones. Incre was the first year DE 4) of mayor undercov-
er activities. That's the first time period.
The second time deriod is the First year or 1425 pre-suidetine. but
we had the committee. the review committee. He had the strue-
tures in place. They just hadn been formatized
And then, of course. the third time period is the future
Some of the celebrated undereover operations in which obvious-
ly. problems have come up fall in the first period, where there were
neither the informal procedures nor the committee. and. obviously.
not the guidelines. Operation runt-Load is an example of that It
happened because the review committee wishit in place.
Now. the important thing. as I tried to make clear earlier is that
while there's a huge difference between the first time period,
where there was way little structure or not enough structure. at
least. and the second time period is a vast difference. But the
difference between the second time period-the last year or two-
and the immediate future is very little. It is mostly a question of
formalizing structure and policies and practices already in place.
Now. with regard to how that all works. i would like to make
this observation. The guidelines emphasize the approval process,
because that is what we thought deserved the most emphasis. That
is what is going to bring the judgment of supervisors and outsiders
to the field office involved to bear on this.
And as you know. the guidelines provide for the operation to be
recertified by the committee and the appropriate senior FBI offi-
cials under any one of three tests: No. 1. at a minimum. every 6
months. no matter what else No. 2, anytime the nature of the
operation changes. Il it changes (yery month. then there a whole
new review every month. And % 3. any une the operation spends
more than a triever sum. which is $20,000,
The practical effect in those three triggers of renewed scrutiny
by the committee is that in the largest and most sensitive oper-
ations. the reviews aren t every 6 months: they re much more
frequent than that In addition to formal reviews by the committee.
however. there are reviews which sometimes are week-to-week. or
even day-to-day In the most sensitive cases
There are innumerable examples, for instance, where the Direc-
for of the FBI hintself, personally reviewed whether a particular
circumstance. as to a particular suspect. warranted the making of
an offer of a criminal opportunity
So. the control of these operations, and minimizing the risks of
untoward events occurring. rest as much on this ongoing supervi-
1,
sion at all levels of the chain of command in the FBI, as they do on
the committee proposal certification process.
Now. I'd also ask the subcommittee. in reviewing the undercovér
operations guidelines. to keep in mind that these guidelines do not
form the entire system for controlling undercover operations.
The guidelines perhaps could be analogized to the keystone of an
arch. But there are other stones in the arch and they re important
stones: There are court decisions. statutes enacted by Congress.
Your familiar. for example, with limitat ons in our appropri-
ations on using money in certain undercover operations contexts.
Because these other provisions were already well established. for-
malized. written down, being fellowed: we didn repeat them all in
the guideline.
For example, the courts have elaborately developed and closely
defined the law of entrapment In the guidel we don. repeat all
that or try to even summarize it. We just SIX of course. stay far
away from entrapment.
Now. another point that I think bears keeping in mind in reviews
ing the guidelines is that they, of necessity. have to apply TO an
extraordinary variety of different kinds of operations, One of the
troubles with the terminology. undercover operations, is that it
might lead some to think that they re largely similar or that there
may be two or three major categories. In my opinion, if you break
it down into categories, you get into dozens or hundreds. and some
of them are extremely different from others. The guidelines have
to be designed to cover all of them.
It is also important to keep in mind which operations are essen-
tially typical. and which are atypical.
The fencing sting-type operations are typical And operations like
Abscam are typical. I do not think that this is the best viewpoint to
look at the guidelines, only or primarily trum the standpoint of
how they would effect one particular operation. The real question
is: How do they effect the whole range of operations?
Now. in conclusion. I would urge members of the committee and
the Congress to reserve judgment on the guidelines.
I'd suggest that the issues about whether these guidelines should
be changed. whether they should be codified. if SO, whether they
should be codified in this form or some other form-all should. be
reserved.
For one thing. we need substantial experience actually operating
under the guidelines before well all have a sound basis for making
final conclusions on these kinds of matters. For another thing.
Attorney General Smith certainly should be given the opportunity
to reach his own conclusions concerning these guidelines. I would
suggest that what matters is how they actually work in practice.
That's how they should be judged. Experience is really the best
test.
I know that you had eminent lawyers. and law professors. and
scholars testifying about the guidelines, and I've carefully reviewed
their prepared statements. And I think that observations of all
interested and knowledgeable parties can be helpful. But I would
suggest to the committee that law professors and lawvers-so I'm
including myself-have an inherent tendency to microscopically
3
examine language and to think that that's the most important
thing.
I would suggest with regard to these coldelines. that's not the
most important think The most important thing is How do they
actually work in practice?
After an appropriate period it trial and error, le-king back in
actual cases where they mere applied. SPI the results to be
satisfactory, or not?
think that the process followed with regird to the New cridel
lites maybe serves > a word model. List were BUT 200 That
That were followed the an extensive persent. And then
tien activity Regan to really come 10 hear 1 would UWA the
approach adopted By Congress regarding the Levi 2010> HDT might
also be the best approach rearding These undercover operations
guidelines.
MR Chairman. that concludes HW statements And 1 want to
apologize about the hist that We not it to the committee me But
We am in still : transitional of DE debartment. and
there were a number it reasons who if WAS difficult univide the
statement explier
PM like to step now, because Exe talked SD loths perhaps
too long, I world ask it it meets with proval. Mr Chairman.
if at some pout after responding E mestrits by He menters. I
might have Hert a few mintias to quickly respond to: bex selected
points made by Professors Seidman: Chevicals, and Marx
Thank you.
ME Enwards Thank you very nuch. MY Michel it X NIWNINS a
pleasure to have Voll here.
Mr. Michel's prepared statement follows
PREPARED Smit **** or ISSU It DUES
GRANDAY 04101 TX 1984 Here ys GENERAL
CIDEOXES SERVICE OPERATIONS
Charman Kdwards And Subtotal Fixe Statemental
Rights Lada please INC units 591 Tentaly before
tree ON developments Department est Justice pritter FM
underenver operativities HA Tele HAS for the issued % Gross
Creditors when Total Guafefines
at this the Teavises been spouse birthers provide and CARD
qui street above the and PARK the Invent address General
Smith along with provide the
in ender to
2018 March the Subje N The INCLUDE the FBI
and the Assistant Attorney charge 10 Primite However Davit
followed maletion public is sever understand
uperations, including Alber W 16 the meantar THE have N the
defendants brought to what 145 the 19th of W altholigh the
surbanifing of 133f Specialist with the to
debate Jim. the Department and the FBC affir withs 1.5 states
Med. completed Gestelmes 46 Under HVV United The Date:
currenters these WITH Redid to General maym
1947
The Guidelines de THE atter from shell provided and prov
need These practices and prosiders with crademic and DATE 144 me
the part 2 years Tax- implementación of the Gass this should (1) 90 Very
confusion or distute/airs belent have heres We vivi you FW et
150 Assistant Direct of at the FBG Craim at have Division: the the FBI this
IN subsidicant questions of interpretation and na FOR profilents This Date
89
came as no surprise of the unreful and experiative process which produced
the Guidelines
In the early Fall int CUTY the Affiliation General asked the Assistment Attorney
General in charge the Cruminal Division DV WATRING the drattions of provider
Guidelines on variod- investions Informants Sectional Unitainal Invoice
and Undercever United Yes The while et trank Condulinas Water Maken term
the propered FBF which AND developed to the provident your DN
and Department withher VALUE harten the Department
was do - answer investments comes The
Attenties General Shit Non be THE ==
tiveres set FRI had been sure institle
lines should that the Yes Charter
Although Constries $1.1 fact today, and proposed MI Not
Summer of 1100. with in committee took section hwit service
parts AF the The Partherned For - and NY THE
underiving with at the Name purposed 429
surred the mark the that
and AND Fut were and this
The the Charter, wash part
were Critk and with otherwist Inc. araits wide other of extel
spe within FBI 1000
Crime Where and Other service DATE MNN
years The to who of NEWER Upon
memor Review which ast MM which Depositive
dests Were then have his PMI of 21) bien
una W The bill the Special Acent on service less
agent Written were presented and his the to informative denta
Shin attend the Review The Pay the ASSE
Attorney Generation Childre of the Division, dan
Assistant Directorio the Criminal Investigative the the Chies
the Organized Crate Section and the Selective OFFICE With the Special Assist
ant to the Director. reseral career Department presentations and MARCH
While the text charlest somewh.k during this HAVE the Mats full NAME
ment from the start Setween the HII and Departmento WISH fither
plus A. the proper reserved. uran immor disagreements spose and of them with
resolved rather HI a mutically satisfactory middler In laok is the and the
Wils rull agreement DX everyone in the Committee Nat 3 single had to E
submitted to Interter Withster or the Attorney sur resolution Both persons
altv reviewed the fin draft which the Attorney General promunzated
The process following was not invented for this particular provide We sumply
followed the basic mixted established m 1976 when II Committee From missumed by
Attorney General Resard Levi develatied Guadelines Informants.
rity Investigations and Card Disturbance Investigations Indeed. - of the
hers of the earlier Committee HSD participated as Bile project example is
Inspector John Huts- at the FBI who in additions otherwise with Departy Avenue
ant Attorney General Mary Lawton ist THIS Office of USE United WIS at principal
drattsman of the proposed FBL harter
The Guidelines accepted Operations, the an other Date:- to Be district
on the basis of certifies orderlving principles The Baton print of
First the sustences stemil New and diection Not M.D. the
should focus jub estationshing exy fornalizing Extrem to TOTAL
judgments are made at appropriate MAINS of anthorits and are provided and
tible to subsequent review Second the Guideimes must be to M
readily understood and sollowed by all signts and contain standards which
realistic enough NO 05 to no. intertere with effective and appropriate invistigative
activity Third the Children's should not only the the requirement- of Constitute
tional and statution law her also should reflect sound Crw enforcement policies
The Guidelines Committee sought to follow thrse the basic propriples Name
would Craim that the Gusteh - THE perfect But they are Sexed *** stone which have
been proven ID prictice The lesten of the Guidelines is in misure that invistigations
are conducted both effectively and Listuily The latter consideration 177 important
to the continuing clivitis of the Government to combit the as The termier because
crimefichting ultimatels requires neceptance of will work DV the includes:
the appellate courts which reserved the convictions We Phin and the congress which
annually appropriates the funds We need and attents the authorities that our activi-
tres.
There is. however OR sense in which these Guadelines or any ther possible
versions could be Lound unsatistactory: the Guidelines current Marantee that Del
90
undesirable incident win ever occur. They vastly reduce the risk. but they do not
and cannot prevent it from ever happening.
Two examples will illustrate the point. The first involves the provisions establish-
ing the tests which must be met beture a suspect may be affered in opportunity to
commit a crimmal act While the Guidelines cannot guarantee that an himest
person will never receive such of offer. they 40 make it unlikely Some cutside
observers have sucrested that the wernment must have probable cause of similar
past crimes by an individual before it effers him on opportunity for crime such as a
bribe. This is impractical. The effect world De to immunize from investigation
probably the majority at those an past reservations actually accepted such others
There are other problems 10.) BUR your things wereiten do not know the identify of
the subject until he appears at the location When the other will be made
fundamentally, the suggestion resumberstants the evolutionary nature of INVESTING
tiens. They ordinarily bezin WILD suspicion and and with protectly cause to
and indict To require prohable entire We 0.00 make an must is to trap the FIN
in a If we alreads Hard prohable CROW of a part crime. we could Address
arrest and prosecute for the 10:45 THE season for massing the Mar 24 the
convert a reasonable indication VI expirimatory the evidence recenting to prograble
cause.
The second example involves the servisions diverning the natifing of interme
diaries Often. 39 We have to WAVE we first toods on as institual is The word
of at middleman that be has here iniminally reserved with the and visital IN the 1
to that individual indicated an H. such revervement that his creditizes *****
rarely be bevond question. Whit AS new entre melti the do?
Often the only with to correber IDE mildienan insertion is to make
If the middleman brinis in inform. admidists who return will other, We will
quickly realize we cannot trust fatty There is risk in the meantime that
more innocent individuals will be stated a opportunity Under the
lines. we can cenerally make the only under these dircumstances ID it mades
man implicates and produces the suspect. or 2. the suspect. hearing of our
ation: comes in on his own. Madeover, ones the suspect is there the offer made to
him must be clearly criminal. one that is modeled on real bite situations and eme 111
which the incentive. such as the -17P if a briter. IN tin: disproportionate to the sure ce
sought. The honest man. of simply reluses and departs
We cannot entirely prevent this anvimore than yy can previo any inmocent
person from ever being investizated with conventional techniques such us interred
tion of witnesses and examination of documents. Indeed. even searches with was
rants. which are far more intrusive of privacy and which do require probable
sometimes are directed at persons who turn out to be innocent Nor can We Funder
using middlemen. relying only D Special Agents with undercover identities 4
is the real life con men who KNOW and are known by the criminals while or
undercover agent. a stranger. would rarely be admitted to the contidences et the
criminal suspect.
The Guidelines intend to minimure the risk that middlen n will inisstate or
exaggerate what a suspect has said or done There is simply TO practical way to
eliminate such possibilities aitorether
There is. however. an impractical way-that IS to require that exery such pretimi-
sary conversation between a suspect and a middleman he recorded If such require
ment were imposed. a wary criminal could then insist on have to use neetings and
search the intermediary, knowing that If the suspected middleman is couper. Neg
with the Government he will be wearing recording equipment and if he 15 not. BY
cannot possibly be cooperating with the FBL Cussider too. the risk to the cooperate
ing individual. How many persons will cooperate and ant as an intermediary if
required to always wear recording equipment. which if detected may result in his
being killed?
Finally. I should like to point out that the Guidelines attempt to provide a
rational structure for the careful exercise of judgment by requiring increasitiely
sensitive matters to be reviewed by increasingly higher levels of authority The
emphasis on procedures, however, does not numimize the importance of the judge
ments themselves, Now that the FBI nas been conducting maior undercover uper-
ations in all areas of criminal activity within its investigative jurisdiction for a
number of years. this exercise of judgment will benefit fr. m these experiences
Therefore. we are confident that a new unfortunate events which may have occurred
in a few of the past operations are unlikely to be repeated. In fact. we systematical-
is analyze all major operations upon completion precisely for the purpose of refin-
ing our undercover techniques The lessons which can be learned from the past are
being learned and applied in present cases:
91
In the Subcommittee's review of the Undercover Operations Guidelines. it should
keep in mind that the Guidelines are not the entire system for controlling such
operations. In addition to the Guidelines there are statutes and court decisions
applicable to various aspects and there are also internal working payers of the FBI
and the Department. Accordingly, the Guidelines build on but da POI rebeit provi-
sions alreads established eisewhere. For example, the Guidelines do the contain
lengthy or detailed provisions on entrapment. The reason is that thensaw is well
settled by the courts and this subject. therefore did not fürther dévelopment and
exposition in the Guidelines
It is also important to KIND iN mind that the Gold THE were to apply to
all kinds to undercover operations--fencine operations drug purentives Susanercial
entities such as bars and waste disposal companies and all the 1 Break are the
typical operations; ABSCAM AND atypical Thus, the Guidelines attend be viewed
from the standpoint of whether they adepately control but not unitude encomber.
the entire range of undersiver operations
In conclusion. I widld united Members to reserve underent on the Guidelines 10
their present form or shme maddlied form and whether to codity them until we have
had more experience under them. In addition, Attorney General Smith should be
given the opportunity W reach his own conclusions concerning these I
submit that now they actually work in practice is what should the Export
ence is the tablet test. Rather than compating them. as Hw professors of lawvers
might be inclined 19 di MV chosely anawaying the precise language IN the text. 1
suggest instead that 15:81 was and has they WORK in real CASH Foot will> the
approach adopted by the becausive Branch resard KK Condulines Servicesly pro-
mulizated by Attornes Octional Levi and I would IN who OF improvich
regarding these Guidelines
Thank you.
Mr. EDWARDS. Mr. Sensenbrenner.
Mr. SENSENBRENNEE. Mr. Michel. how long do you think it will
be before the Attorney General is able to review these guidelines
and to respond to Congressman McClory's letter of January 232
Mr. MICHEL Congressman. there are really two questions there.
and i can only answer one. and that is the second one: That is 1
know with regard to responding to Congressman McClory's letter.
Director Webster has sent material to the Attorney General and 1
believe that the Attorney General will have that material today.
Therefore, I'm sure that Congressman McClory will promptly
receive a substantive response from Attorney General Smith on the
points raised in his letter.
Your first question about when will the Attorney General com-
plete his evaluation or review of the guidelines, I really just have
no basis of making a guess on that I wouldn't think too long
because I know it is a matter of importance to him. But I really
can't give a time frame. because I have no way of predicting.
Mr. SENSENBRENNER Mr. Chairman, in order to make the record
complete. I would ask unanimous consent that the Attorney Gener-
al's response to Congressman McClory be included in the record of
these proceedings.
Mr. EDWARDS. Without objection. 50 ordered.
Information follows:)
92
Congress of the United States
Committee CII the Judiciary
House of Representations
Mashington, D.C. 20515
Congress
William Check Cover
the Non
0.3. of Payments
0.1.
The RNN Code:
Birth the PK,
on FEE return Visa
before? Name 1V
IPUB may NAME with
the the IR proposing DI THE years with
(pel with to trugs sing the
No offect the most NB 09 My eite 0908
beautically, noticement too expert 10 which Residents
FSS Dues recover fresh special avont X 1200 and the the
fit H 100 also Armed attent the also distribution with
undersover operations priorials within the In hert
receipt ASSCAM investigation, and the leaks 10 cooloress attendant
I believe it is braise to involve the many respite 15 the approval stocess.
Nether, will i an sensitive to the risks which the Undercover
Operations Period Committee streets EXITION relative $5 the effect of the
undersityer operation prosecal 00 3 shold bute to she
become 80 citticult is through Main VATE in the difficult
if not practically incossible.
have been informed that the Descriptions ON CANER and
Constitutional Rights intends to told Federal 03 or what February 16. and
: willd None that My that the you will bene New the to reach your OWN
epectudions on the validity et MY
Tack forward to seeing and nation with *** #1 that time.
Regist McClary
EMeCitch
health Micority Menter
cer Director William Astister,
Federal Bureau of Investigation
93
Office if the Attorney General
Mashington, D.C. 1. V. 20530
STATE
FEB 9 30
THE
THE
may
Loss which UNA
and & Page
IT
attes NY Information 1.3 your a
TOTAL and and property
too 477 Stat the
and UNITED After the need
to in effective : you
that this 143 must by partners attenties.
: upreciate your ORGANIZATION of interest
10 AND information nation. and NOT Tetch in
with 2013 the with
M Mark sincerely,
Bill
William Thench FIREST
Attorney
83-356 01-61-7 -
94
Mr. SENSENBRENNER. second, Mr. Mie' el. it is my understanding
that there is sôme litigation going on in New York, which address-
es some of the points this committee has received in testimony
from earlier witnesses.
Is that the case, and could the Department make available. at
least. those parts of the transcript h are relevant to the earlier
testimony, for inclusion in the record.
Mr. MICHEL Congressman Sensenbrenner. } think that the test:-
mony, which was extensive-as visu know: there were several
weeks of hearmes-isn presentis available In I assume it will
become available before Les long and certainive we can make SUTY
that the committee and its staff BUS INVOICE to #: and that a is
made at part of the record of the committee don't know from
tast we can do it. but we II certainly Resit
Mr. SENSENPRENNER 1 have INI further questions
Mr. Bowards Mr.
Mr. Lt NORKS, No questions,
Mr. EDWARDS WAIL Mi Michael Em m VITA new Nint this
subcommittee is supportive of the Endelines I would pants out,
though. that when you menti med the guidelines on domestic secu-
ritv. that Attorney General Levi worked closoly with this
subcommittee in the dratting of the guidelines In contrast we SHW
these guide ages only after they alreads had been promulgated. and
presumably sent to all the field offices earl this year ()) yourse,
we are reserving judgment. but We have our responsibilities, 100,
I might also point out tha at a hearing just about 1 year ago,
March MISO, the Director of the FBI Wobstor and the Assistant
Attorney General Heyman testified that them was total control of
the undercover operations at that ti GO: that all the decisions made
in connection with the undercover operations chat this subcommit-
tee was inquiring into had been supervised by the Bureau and
Department of Justice on a daily basis.
Yet your testimony today points city and rightly so, that that
was no quite the fact. You have state E stage 2. stage 3. You were
in stage 1 at that time. is that correct? And some problems did
arise?
Mr. MICHEL No. Mr. Chairman. The testimony of Director Web-
ster and Mr. Heymann on March ; of 1980, was describing circum-
stances in the immediately preceding months. And those months
are in the period I categorized as period m mher 2
The procedures were it E place The Undercover Operations
Review Committee was functioning 50 that in terms of what the
current situation was in late 1099 and early 1980, all the controls
were in place of that time.
They had net been in place back in the period 1977. 1978 and
perhaps into parts of 1979.
Mr. EDWARDS. In then words, Operation Front-Load was in stage
17
Mr. MICHEL That's correct.
Mr. EDWARDS What yours saving is Abscam was in state 22
Mr. LICHEL Most of Abscam was in stage 2. 1 believe the very
beginnin, J: it were in stag:
My EDWARDS. You mentioned one of the key elements in those
unde reover operations. the risk of middlemen, often -urwitting
95
agents of the Federal Government. approaching innocent persons
and sometimes doing damage to innocent persons.
Often, these middlemen are conmen or people with long criminal
records, and sometimes they are in the pay of the Bureau or of the
Department of Justice. Is that correct, also?
Mr. MICHEL. That's correct. There are both types. The first type
is the far more common.
Mr. EDWALDS. is there no auditing done? How do you control
these people. these people floating around? One of them got as far
as San Jose, Calif., and did great damage to an innocent business-
man.
How do you stop them from approaching one person after an-
other and then approaching the same person again. and enticing
the same innocent person again and again and again? And going to
the neighbors of an innocent person and saying. do you know
anything about this guy, and SO on?
Mr. MICHEL Let me take it separately. With regard to the unwit-
ting conman. there is no way we can stop them. And we didn't
start them. He was already out there doing that.
Mr. EDWALDS. No but you re paying him money to continue.
Mr. MICHEL. No. no, not the unwitting conman. He thinks that
he's working, with criminals and at both ends. and so. he's just
operating in his normal fashion.
And we cidn't put him into that business, and we're not in a
position to put him out of that business. so that it just isn't a
question of how can the Government let him do that? The Govern-
ment ordinarily has little capacity to step him from doing that.
Now. in the case of the witting interme diary. who is being paid.
in some instan es, by the FBI. certainly B receiving direction from
the FBI, that's quite a different circumstance. In that case, there's
a lot that we can do and do do to minimize as much as possible, the
risk of innocent people being drawn into this web, if you will.
One of the things we do is that we require. to the extent possible,
that his contacts with people that he says are corrupt. or are
racketeers, or whatever the nature of the enterprise is. we require
him to develop the best possible evidence.
For example, if there are telephone conversations between the
witting conman and the suspect, those conversations may be re-
corded with consent of the cooperating individual. So that we
aren't dependent on his word that the suspect showed an interest
in committing a crime. The words of the suspect himself or herself
are available to us. So that eliminates the risk that the middieman
is lying in that kind of circumstance. Now. it is not always practi-
cal to have tape recordings done But that's done where it can be
done.
Another device we use is that the witting middleman is ques-
tioned closely after each material meeting or contact with a sus-
pect. And he reports or produces information, detailing precisely
what was allegedly said.
Sometimes, the specifics in these reports can be corroborated
through independent investigations, SO that would serve on a check
that the conman is conning us and lying about someone being
interested in committing a crime.
96
So those are the principal protections that prevent an innocent
person from ever getting to the stage of being at one of our loca-
tions.
And then, as I mentioned earlier, the second line of defense, the
second safety net, is our strong emphasis on making it absolutely
clear that we're talking about crimes and make sure that the
contact is directly between the agent and the suspect, and no one is
speaking for the suspect. He's speaking for himself.
And in that way, if there was anything that slipped through and
an innocent person gets in there, then when he's face to face across
the table with the undercover agent. who makes it clear that
they're talking about outright criminality. well, then he leaves.
It's not perfect. It's not risk-free. But neither is any other investi-
gative technique.
You talked about businessmen or public figures who were inno-
cent, being embarrassed or injured in their public or business life.
No. 1, I have to point out that the injury comes almost always not
from the fact of the investigation, but from the leak. The problem
is teaks.
Second. those same kinds of injuries occur even in the most
limited sort of investigations, investigations that depend only on
questioning witnesses. The same thing happens.
He comes in and tells us Congressman SO and so is corrupt. He
takes bribes. And it may not be true. We do an investigation. So
there's nothing-there's no danger that's of the sort that you focus
on, that's increased by the fact that we do undercover operations.
The danger is already there and it is real danger. We do every-
thing we can to minimize it. But in no context IS criminal investi-
gation an entirely safe and fool-proof enterprise.
Mr. EDWARDS. Well, we do not agree. Mr. Michel, on the question
of whether the danger is increased when there's a thug, a con man
and he or she is being utilized as a middleman by the Bureau by
another undercover agent of the Bureau. Based upon discussions
with the undercover FBI agent, who the middleman thinks a big
businessman or something, the middleman is egged on or promised
good things by the FBI undercover agent.
As a result, the middleman continues in business and perhaps
increases the amount of his business.
Isn't that correct?
Mr. MICHEL. I think the answer-I hate to give this kind of
answer. I think the answer is no in a way and yes in a way.
When you say he's in business because the FBI is egging him on,
I don't think that's quite right. He was in business before the FBI
came on the scene. And likely-I can't prove it in every case-but
likely, he would have remained in whatever that business is,
whether or not he became involved with the FBI.
There is a danger that if excessive inducements are offered to
this unwitting con man, that that may increase the risk of inno-
cent people being brought in. But as I said before, there's a certain
self-correcting mechanism. If the con man keeps bringing in people
who are-who don't go through with the deal, then he loses face,
loses credibility with the FBI guy who he thinks is a criminal
associate.
97
So there's a disincentive for him to be wrong very often. But
there are risks there and they just can't be eliminated.
Mr. EDWARDS. I don't want to take all the time. Do you have
some questions, Mr. Lungren?
Mr. LUNGREN. No.
Mr. EDWARDS. Counsel?
Ms. COOPER. I'd like to ask a few questions about the Undercover
Review Committee. The description in the guidelines of the com-
mittee's makeup is somewhat vague. It talks about appropriate
employees of the FBI designated by the Director and attorneys
designated by the Assistant Attorney General for the Criminal
Division. What does this mean in terms of numbers. first of all?
Mr. MICHEL The committee is basically six or seven individuals,
two departmental attorneys. career attorneys. long experience. ex-
tensive prior involvement in undercover operations. One is a sec-
tion chief and the other is slightly below that level. The FBI
members, including the Deputy Assistant Director of the Criminal
Investigation Division, and I believe the head of the Selective Oper-
ations Unit: that is. in effect. the undercover unit and senior offi-
cials of the program involved. If it's a property crime matter. then
they sit on it. If it's an organized crime matter. then people from
that section sit on it. and SO on.
Ms. COOPER. So when it sits, it might have anywhere from six or
seven to three or four people, making a decision?
Mr. MICHEL. I think ordinarily. the range is about 5 to 10 mem-
bers on a given proposal.
Ms. COOPER. Well then. is it an established membership? Are
people definitely on the committee or definitely sometimes on the
committee?
Mr. MICHEL. Some of each. The committee is chaired by the
Deputy Assistant Director of Criminal investigati Division. He is
always on it. The two departmental attorneys are always on it.
Some of the FBI membership changes. depending on which investi-
gative program a particular proposal falls in. But most of the
members of the committee are, in fact. permanent members.
Ms. COOPER. It is just the permanent members, then. that would
function in the way of receiving the annual reports, for example; is
that right?
Mr. MICHEL. Well. they would be the formal receivers. They may
share all kinds of studies and reports with other people. But I
think the answer to your question is yes.
Ms. COOPER. OK. The guidelines provide for a decision being
made by a consensus of the members. What does that mean if
there's a substantially changing or at least possibly changing
number and makeup on the committee?
Mr. MICHEL. Well. let me highlight what really the most impor-
tant function of the committee is. It's not a rejection commit PP.
And it's not a rubber-stamp committee. It is a double check on the
judgment of officials down the chain of command. It is a check that
brings to bear some expertise.
When you're talking about the committee including the Chief of
Selective Operations Unit. permanent member, here's the individu-
al who probably more than anybody else in the whole FBI, all day