up soon) gets underway, there could be still another set of proposals.

Each blueprint for reform will start with different assumptions about the nature of the problems and the risks that are involved. The administration's bill, for example, will almost certainly try to end leaking, while H.R. 6051 encourages blowing the whistle on improper operations.

As with all legislation, the different proposals must be looked at not only for what they ostensibly set out to accomplish, but for their hidden content the loopholes. A legislative program constructed of well-intentioned half-measures and compromised by loopholes would set up a "reformed" intelligence community that could readily breed the same abuses of clandestine power once the current furor dies down.

And would the Vietnam War have ended years earlier if the intelligence agencies had not fought the anti-war movement?

Even without final answers to such questions, we know now that the intelligence agencies have been involved in these problems to an ominous degree. It is clear that the system that engendered these programs is threatening enough to warrant a major overhaul. Merely exhorting individuals who staff such a system that they should not abuse the broad powers that go along with a clandestine apparatus will change nothing.

The ACLU-backed Intelligence Agency Control Act would be such an overhaul of the intelligence system. As the outline of its provisions on this page shows, it would dramatically change the FBI, CIA, and the secrecy system; control investigations; end the "plausible denial"; encourage whistleblowing; put criminal penalties on officials who violate the law; and back up the evenhanded application of the law with a special prosecutor. The changes would reverse the Cold War assumptions that fueled the intelligence bureaucracy's program against open and democratic political activity in the first place. In its statement of purpose, the bill reads

national security and the enforcement of law are
essential to any society; but the need to achieve these
goals cannot justify departure from constitutional re-
straints or democratic principles.

This is the basic turnaround H.R. 6051 would enact a reassertion of constitutional principles, a government of checks and balances and guaranteed rights where there has been a vacuum before.

It has not been understood until recently that the intelligence bureaucracy was put together on an almost ad hoc basis, largely by executive fiat. The secrecy system is a similar creature, without legislated limits. Until now there has been no serious effort to determine how this apparatus, which amounts to a clandestine branch of government, fits into a constitutional framework. Instead, it was assumed that constitutional items such as checks and balances, public accounting of expenditures, the Bill of Rights, and the foreign policy responsibilities of Congress could be set aside on behalf of the "national security." In this one area, it was simply assumed that American officials (unlike any others in history) could be trusted not to abuse secret powers.

Yet we find that in exchange for a system which expected us to give up constitutional principles we have gotten a dismal record that underscores what the constitutional values are supposed to prevent.

The Act makes major changes in the ways that these things have been handled for decades. These changes go in one direction in the support of constitutional values.

CONTROLLING DOMESTIC INVESTIGATIONS

Title I of H.R. 6051 prohibits domestic political intelligence outright by all Federal agencies- CIA, FBI, IRS, NSA, Military Intelligence. In a series of provisions aimed particularly at the FBI, the legislation ensures that the Bureau would be authorized to conduct only criminal investigations.

The executive branch has maintained in the past that since political intelligence investigations were not criminal investigations, and since the dossiers were (theoretically) not supposed to be used in criminal prosecutions, it was not unconstitutional to collect millions of files on the legal political activities of Americans. The upshot of this logic was that a suspected criminal had protection under the Fourth Amendment, but that the politically active citizen did not.

But this did not end with "simple" political surveillance. It flowered into something euphemistically labelled "preventive action," which could, at the discretion of the bureaucrats, be used against people exercising First Amendment political rights. The FBI's COINTELPRO used agents provocateur, forgery, character assassination, anonymous threats, pressure on employers, and other tactics in order to "prevent" any possibility of some criminal conspiracy developing at some unspecified future time; organizations were infiltrated and destroyed because they might one day acquire "subversive" members.

Limiting law enforcement agencies to enforcing the criminal laws would be a major change over the current authority. While former-Attorney General Levi did technically abolish the FBI's Internal Security Branch, what actually happened was that its political intelligence functions were transferred to the Bureau's General Investigations Division. H.R. 6051 would clear up any alleged ambiguity about the limitations of the Bureau's proper mission by renaming it the Federal Bureau of Criminal Investigation (FBCI). Both political surveillance and preventive action are specifically banned.

Since espionage, sabotage, terrorism, and treason are crimes, the FBCI would be able to put its resources into investigating such bona fide law breaking. It could turn its resources to the agents of foreign powers that operate within the United States - the Chilean DINA and the Korean CIA come to mind as readily as the Soviet Union's KGB.

Another critical change which the Intelligence Control Act provides for is the repeal of the "speech crimes" 18 U.S.C.§2101 (the Riot Act), § 2385 (the Smith Act against advocating violent overthrow of the government), § 2386 (the Voorhis Anti-Propaganda Act), and §§ 2387 and 2391 (the Military Sedition Acts). The Supreme Court long ago gave these statutes such a narrow interpretation that the conviction under them could be won only if the speech crime accompanied other crimes which are punishable under other, more concrete statutes. And although the FBI and Justice Department have understood that they could not win convictions under these laws, they have been able to use them as a pretext for investigating political activities where there was no suspicion of any actual criminal activity. Most recently, under the Guidelines which then-Attorney General Levi issued to correct FBI abuses, the speech crimes can still be used as a pretext for a "criminal" investigation of legitimate political activity. Unless these laws are repealed, the Bureau would still have its loophole for investigating political speech.

Title I of H.R. 6051 also outlaws the selective investigation and selective prosecution of crimes, i.e., threatening people who are exercising their First Amendment rights with special vigilence for wrongdoing. The IRS's tax audits of Nixon's political adversaries are of course the classic example of this.

MAY 1977

The FBI's authority to conduct security clearance investigations would, under the Intelligence Control Act, be transferred to the Civil Service Commission. This noncriminal investigative function has in effect given the FBI the chance to see that the choice of public servants reflects the Bureau's values. H.R. 6051 also requires that Civil Service protect the privacy of these files and that these investigations may be carried out only with the authorization of the prospective employee. This would close one of the intelligence bureaucracy's current loopholes; they can presently investigate anyone by claiming that they are considering whether to offer him or her a job whether or not that subject has any plausible interest in such a job.

These are changes in the FBI's mission; there are also necessary changes in the Bureau's structure.

First and foremost, under H.R. 6051 the term in office of the Director is limited to six years. It must never be possible to repeat J.Edgar Hoover's running the Bureau with an iron whim for nearly half a century. And as an additional counterbalance to the possible peculiarities of its future Directors, the Act would upgrade oversight responsibilities of both the Attorney General and the newly established Inspector General for the Bureau. The AG would have to authorize in writing (and therefore be accountable for) any criminal investigation which might also involve First Amendment rights. Along with the Inspector General, the Special Prosecutor, congressional oversight committees, and the General Accounting Office (GAO), the AG would be able to review FBCI working files; never again would it be possible for a Director to consolidate his or her hold on office by squirreling away decades worth of personal information on influential Americans, or to conceal a program the size of COINTELPRO from a succession of Attorneys General. The Intelligence Agency Control Act also controls what may be put into investigatory files and makes sure that privacy interests are taken care of: no irrelevant, false, defamatory, or First Amendment-protected information may be included. Investigatory files which have been closed will be available only (1) to the Inspector General and oversight committees; (2) if the files are sought with a valid subpoena or search warrant; or (3) if the subject of the investigation requests access to his or her file. Since the Act requires that, six months after an investigative file is closed and sealed, subjects must be notified in writing of the existence of their files and of their right to see them, this makes certain that citizens will be able to oversee their own rights and hold the government accountable for the information that is collected on them. All closed files must be destroyed within ten years.

Money -the power of the purse is another means of oversight and control of any government agency. The Act would require a detailed FBI budget be published and that yearly audits by the AG's office and by the General Accounting Office be conducted. This means that there will be established structures for judging the FBI's actual effectiveness in carrying out its authorized mission.

And finally, in this and other Titles of the Act, there are clear criminal and civil penalties which will be brought into play if the new intelligence and official deceit laws are broken. Not only would officials be liable in criminal court to prison sentences and stiff fines, but the Act spells out explicit authority for the

victims to sue in civil court for damages against the officials and the government itself.

CONTROLLING INVESTIGATIVE PROCEDURES

Title II of the Intelligence Agency Control Act would put stringent controls on the investigative techniques which the government can use against people who are not the agents of a foreign power. Basically, H.R. 6051 provides that there are no exceptions to the Fourth Amendment, which requires that "searches and seizures" can be conducted only if they are "reasonable" and a judicial warrant has been obtained by convincing an impartial judge that there is probable cause to believe that a crime has been or is about to be committed. Under H.R. 6051 certain investigative techniques are prohibited because they are inherently unreasonable. Other techniques which are allowed only with warrants, and while warrants have never been a panacea, they at least ensure that citizens are entitled to a paper trial.

Electronic surveillance. The bill would outlaw electronic surveillance such as wiretaps and bugs, and it makes clear that, contrary to the claims of recent administrations, there is no "inherent presidential authority" to use them. At the same time, the Act would lay to rest the National Security Agency's claim that it has authority to use its computers to eavesdrop on literally all the international electronic communications of Americans.

There are constitutional and practical reasons for ending electronic surveillance. The Fourth Amendment forbids "unreasonable" searches, and searches by electronic instruments are inherently unreasonable because they are indiscriminate. They pick up information on everyone who is overheard, whether or not they are subjects of the investigation. And even when picking up the conversations of the actual subject of the investigation, microphones again must pick up everything that is heard, and not merely wait for possible evidence of a crime. Electronic surveillance can not pass the test of reasonableness; it is analogous to taking a warrant into a house to look for specific evidence of a crime but moving everything in it down to the police station.

And although the government makes many assertions about the usefulness of such surveillance, it has not been able to demonstrate that enough relevant criminal information rather than titillating data on people's personal and political lives - is picked up that the technique would survive a cost-benefit analysis. In addition, much information is available through other means. Informers. Under section 202 of H.R. 6051, informers ("Misrepresentation of Membership in Political Groups") are prohibited. This is a dramatic turnaround from the current legal situation, which provides only a flimsy pretense of control on the use of paid informers or undercover agents in either criminal or non-criminal investigations. The Intelligence Control Act would, for the first time, provide protection to First Amendment groups. As long as the government is free to infiltrate legitimate political organizations, they can exercise control over the decisions that are made, even without compiling dossiers. For as an investigative technique, the informer is far more intrusive than a bug or wiretap. An informer can

vote, win people's confidence, entice or provoke criminal activity, sow dissension, and fabricate information. Tax, Bank, Credit, and Phone Records, and Mail Covers. In today's complex society, there are innumerable kinds of records which did not exist when the Bill of Rights was drafted, and current law has not really taken this situation into account. The Act makes it clear that searching and seizing tax, bank, credit, and phone records, or installing mail covers, must be handled with the same restrictions as searching someone's home. The Intelligence Agency Control Act makes it clear that the government's authority to investigate people is controlled by the Fourth Amendment.

The bill also provides that in situations where the same records could be obtained by a subpoena - which would give the subject the chance to contest the government's justifications the government would be required to ask for a subpoena instead of a warrant.

CONTROLLING FOREIGN INTELLIGENCE ACTIVITIES

The most dramatic change which the Intelligence Control Act puts forward is in Title III, which (1) amends the National Security Act of 1947 (50 U.S.C. $403), (2) renames the CIA the Foreign Information Service (FIS), and (3) entirely eliminates the covert action mission of U.S. foreign intelligence. This would mean that, except in a declared war, there would be no more covert activities abroad - whether overthrowing governments, conducting paramilitary adventures, bribing or blackmailing foreign officials, or espionage. Its new mission would be limited to collecting data from open sources and from technical means such as spy satellites, and, most importantly, analyzing it.

In the wake of recent revelations, the time has come to subject the covert operations mythology to some reevaluation. Too much has been claimed without proof for the usefulness of such operations, and too little has been acknowledged about their hidden costs. Looked at afresh, it becomes clear that they are not only obsolete in today's world, but counterproductive.

The U.S. got along without a spy apparatus until the CIA was created to respond to Cold War threats, yet the Agency has been unsuccessful at operating in closed and powerful societies such as the Soviet Union and China. And the public record now shows such curious lapses in its ability to analyse its data as when it misplaced the Red Army for two weeks while the invasion of Czechoslovakia was underway. It is true that we need reliable intelligence on the USSR and China, but it is equally true that reliable information is obtained by techniques such as satellite photography and using open sources, rather than obsolete (and/or non-existent) cloak and dagger operations.

The CIA's "successes" have instead all been in countries which are not a threat to the U.S., but which have been trying to be politically autonomous. These have ended up damaging the U.S.'s standing internationally the established record of overthrowing democratic governments and replacing them with brutal dictatorships has not been lost on the responsible citizens of other countries. It has been claimed that such covert actions